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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOS.1695-1697      OF     2012   (@ S.L.P.(CRL) NOS.6965-6967 OF 2012)

SAYED MOHD. AHMED KAZMI … APPELLANT    Vs.

STATE, GNCTD & ORS.  … RESPONDENTS

O     R     D     E     R   

ALTAMAS     KABIR,     CJI.   

1. Leave granted.

2. These appeals arise out the judgment and orders  

dated 2nd July, 2012, 6th July, 2012 and 6th August,

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2012, passed by the Delhi High Court in Crl. M.C.  

No.2180 of 2012.    

3. By virtue of the first order dated 2nd July,  

2012, the High Court issued notice on the question  

whether the Court of the Chief Metropolitan  

Magistrate was competent to remand the accused  

beyond 15 days for offences under the provisions of  

the Unlawful Activities (Prevention) Act, 1967.  

Notice was also issued to the learned Additional  

Solicitor General since the case involved  

interpretation of the provisions of the National  

Investigation Agency Act, 2008, the Code of  

Criminal Procedure, 1973 and the abovementioned  

Unlawful Activities (Prevention) Act, 1967.  

Proceedings pending before the learned Additional  

Sessions Judge, Central-II, Delhi, in CR No.86 of  

2012, were also stayed till the next date of  

hearing and the matter was directed to be listed on  

9th October, 2012. By a subsequent order dated 6th  

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July, 2012, the High Court modified its earlier  

order and directed the Chief Metropolitan  

Magistrate to extend the remand of the accused and  

to take cognizance of offences under the Unlawful  

Activities (Prevention) Act, 1967.  By yet another  

order dated 6th August, 2012, the High Court  

rejected the Appellant’s prayer for early hearing  

of the matter indicating that in view of the heavy  

board of the Court it was not possible to  

accommodate the Appellant’s request for early  

hearing.   

4. Although, the Special Leave Petition was  

directed against the said three orders, during the  

hearing thereof, another question of substantial  

importance surfaced when on behalf of the Appellant  

an application, being Crl. M.A. No.19883-85 of 2012  

for grant of statutory bail under Section 167(2)  

Cr.P.C. was filed, and was taken up for hearing  

along with the appeal.  

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5. Appearing in support of the Appeals, Mr.  

Mehmood Pracha, learned Advocate, urged that on 13th  

February, 2012, the police registered FIR No.4 of  

2012 in respect of offences alleged to have been  

committed under Sections 307, 427 and 120-B of the  

Indian Penal Code in connection with an explosion  

involving an Israeli Embassy vehicle carrying the  

wife of an Israeli Diplomat which had occurred at  

about 3.15 p.m. at the Aurangzeb Road/Safdarjung  

Road crossing.  The alleged offences were later  

amended to cover Sections 16 and 18 of the Unlawful  

Activities (Prevention) Act, 1967.   

6. On 6th March, 2012, the Appellant, Sayed Mohd.  

Ahmed Kazmi, was apprehended by some unidentified  

men in plain clothes from outside the Indian  

Islamic Culture Centre at Lodhi Road at about 11.30  

p.m.  He was produced before the learned Chief  

Metropolitan Magistrate on 7th March, 2012, who  

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remanded him to 20 day police custody, subject to  

certain conditions.  On 25th March, 2012, the  

Investigating Agency completed its investigation,  

two days prior to the expiry of the 20 day remand  

period, and the learned Magistrate was informed  

that no further custodial interrogation of the  

Appellant was required. Consequently, the Appellant  

was sent to judicial custody for a further period  

of 14 days.  

7. On 28th March, 2012, a prayer for bail was made  

on behalf of the Appellant under Section 437  

Cr.P.C.  The said application was heard, but the  

Appellant’s prayer for bail was rejected on 3rd  

April, 2012.  In between various other proceedings  

were taken with regard to the inspection of the  

damaged car.

8. On 2nd June, 2012, the Appellant was produced  

before the Chief Metropolitan Magistrate, since his  

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90 days’  period of custody was to expire on 3rd  

June, 2012, and further custody of 90 days’  was  

sought for by the prosecution.  The learned  

Magistrate by his order dated 2nd June, 2012,  

extended the period of investigation and the  

custody of the Appellant by another 90 days.   The  

said order dated 2nd June, 2012, was challenged by  

the Appellant by way of CR No.86 of 2012 which came  

up for consideration before the learned Additional  

Sessions Judge on 8th June, 2012. The learned  

Additional Sessions Judge, inter alia, held that it  

was only the Sessions Court and not the Chief  

Metropolitan Magistrate which had the competence to  

even extend the judicial custody of the accused and  

to entertain cases of such nature.  

9. On 22nd June, 2012, the Appellant was produced  

before the learned Chief Judicial Magistrate for  

extension of his custody. However, on behalf of the  

Appellant, an application had been made under  

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Section 167(2) Cr.P.C. on 17th July, 2012, seeking  

default bail as no charge-sheet had been filed  

within the 90 day period of the Appellant’s  

custody.  The said application was dismissed by the  

learned Magistrate despite the observations made by  

the Additional Sessions Judge in his order of 8th  

June, 2012.  

10. The matter was, thereafter, referred by the  

learned Chief Metropolitan Magistrate to the  

District and Sessions Judge who directed that the  

judicial custody of the Appellant be extended till  

3rd July, 2012.  On 30th June, 2012, without serving  

any notice to the Appellant, the State filed Crl.  

M.C. No.2180 of 2012 under Section 482 Cr.P.C.  

before the High Court questioning the validity of  

the order passed by the learned Additional Sessions  

Judge on 8th June, 2012. By its order dated 2nd July,  

2012, the High Court stayed the observations of the  

Additional Sessions Judge, Central II, Delhi, in CR  

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No.86 of 2012.  The Appellant’s application for  

grant of statutory bail could not, therefore, be  

taken up by the Additional Sessions Judge till the  

High Court on 13th July, 2012, vacated the stay in  

respect of the proceedings in CR No.86 of 2012,  

subject to an undertaking to be given that the  

question of law involved would not be agitated and  

the revision would be restricted only to the  

factual aspects of the case.  In that context, on  

the same date, the counsel for the Appellant moved  

another application before the learned Chief  

Metropolitan Magistrate under Section 167(4)  

Cr.P.C. and the same was listed for consideration  

on 17th July, 2012.  In the meantime, on 16th July,  

2012, CR No.86 of 2012 which had been filed by the  

Appellant came up for final arguments and on 17th  

July, 2012, the Additional Sessions Judge allowed  

the application and held that the custody of the  

Appellant was illegal.

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11. In view of the order passed by the Additional  

Sessions Judge declaring the Appellant’s custody to  

be illegal, on the same day, counsel for the  

Appellant appeared before the Chief Metropolitan  

Magistrate and the application under Section 167(2)  

Cr.P.C. was listed for hearing, but, instead of  

hearing the application on the said date, the Chief  

Metropolitan Magistrate renotified the hearing for  

18th July, 2012.

12. On 18th July, 2012, the State filed a fresh  

application before the Chief Metropolitan  

Magistrate seeking further extension of the  

Appellant’s custody and the investigation period.  

On receiving the said application, the learned  

Chief Metropolitan Magistrate directed a copy of  

the said application to be served on the counsel  

for the Appellant and renotified the matter for  

hearing on 20th July, 2012.  

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13. On 20th July, 2012, the Chief Metropolitan  

Magistrate took up the application for extension of  

custody filed on behalf of the prosecution instead  

of considering the Appellant’s application under  

Section 167(2) Cr.P.C. and by his order of even  

date, the learned Chief Metropolitan Magistrate  

extended the time of interrogation and custody of  

the Appellant for 90 days with retrospective effect  

from 2nd June, 2012.

14. The aforesaid order of the learned Chief  

Metropolitan Magistrate was challenged by the  

Appellant by way of CR No.86 of 2012 in the  

Sessions Court.  The Additional Sessions Judge in  

his order of 30th July, 2012, observed that the said  

revisional application involved mixed questions of  

law and fact and adjourned the matter till 12th  

October, 2012.  In the meantime, on 31st July, 2012,  

the prosecution filed charge-sheet.  This was  

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followed by the Appellant’s application before the  

High Court in Crl. M.A. No.13484 of 2012 for early  

hearing, on which the High Court made the  

observation that on account of the heavy board of  

the Court it was not possible to accommodate the  

request for early hearing and the matter was  

renotified to 9th October, 2012, which is the  

impugned order in these appeals.  

15. Appearing for the Appellant, Mr. Mehmood  

Pracha, learned Advocate, contended that once the  

period of 90 days, as stipulated under clause (a)

(i) of the proviso to Subsection (2) of Section 167  

Cr.P.C., came to an end, the right of a person  

arrested in connection with the commission of an  

offence to be released on statutory bail commenced  

and could not be extinguished by a subsequent  

application for extension of the period of custody.  

Mr. Pracha submitted that on 17th July, 2012, the  

Appellant’s custody was held to be illegal by the  

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Additional Sessions Judge in CR No.86 of 2012 and  

on the same day, the Appellant’s application under  

Section 167(2) Cr.P.C. was pending hearing before  

the learned Chief Metropolitan Magistrate, who,  

however, did not hear the application and  

renotified the hearing for 18th July, 2012.  The  

fact that the application stood renotified for the  

next day, did not take away the fact that the  

application was pending on 17th July, 2012, when the  

period of custody of the Appellant had not only  

ended, but had been declared to be illegal.  Mr.  

Pracha submitted that the application of 18th July,  

2012, filed on behalf of the prosecution for  

extension of the period of custody, which was  

allowed by the learned Chief Metropolitan  

Magistrate on 20th July, 2012, without considering  

the Appellant’s application under Section 167(2)  

Cr.P.C. and the subsequent extension of time of  

investigation and custody of the Appellant with  

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retrospective effect from 2nd June, 2012, did not  

improve the matter to any extent, as far as the  

prosecution is concerned, since on the expiry of  

the first period of custody beyond 90 days, there  

was no application pending for extension of the  

period of custody, as contemplated under the  

amended provisions of  Section 167(2) Cr.P.C.  

16. At this juncture, it may be useful to indicate  

that the provisions of Section 167(2) of the Code  

were modified by virtue of Section 43D of the  

Unlawful Activities (Prevention) Act, 1967.  The  

modification of the provisions of Section 167(2)  

Cr.P.C. by virtue of Section 43D of the aforesaid  

Act is extracted hereinbelow :-

“43D. Modified application of certain  provisions of the Code. - (1)  Notwithstanding anything contained in  the Code or any other law, every  offence punishable under this Act  shall be deemed to be a cognizable  offence within the meaning of clause  (c) of section 2 of the Code, and  

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"cognizable case" as defined in that  clause shall be construed accordingly.  

(2) Section 167 of the Code shall  apply in relation to a case involving  an offence punishable under this Act  subject to the modification that in  sub-section (2),-  

(a) the references to "fifteen days",  "ninety days" and "sixty days",  wherever they occur, shall be  construed as references to "thirty  days", "ninety days" and "ninety days"  respectively; and  

(b) after the proviso, the following  provisos shall be inserted, namely:-  

Provided further that if it is not  possible to complete the investigation  within the said period of ninety days,  the Court may if it is satisfied with  the report of the Public Prosecutor  indicating the progress of the  investigation and the specific reasons  for the detention of the accused  beyond the said period of ninety days,  extend the said period up to one  hundred and eighty days:  

Provided also that if the police  officer making the investigation under  this Act, requests, for the purposes  of investigation, for police custody  from judicial custody of any person in  judicial custody, he shall file an  affidavit stating the reasons for  

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doing so and shall also explain the  delay, if any, for requesting such  police custody.".  

17. By virtue of the aforesaid modification to the  

provisions of Section 167(2) Cr.P.C., the period of  

90 days stipulated for completion of investigation  

and filing of charge-sheet, was modified by virtue  

of the amended proviso, which indicated that if the  

investigation could not be completed within 90 days  

and if the Court was satisfied with the report of  

the Public Prosecutor indicating the progress of  

the investigation and the specific reasons for  

detention of the accused beyond the period of 90  

days, extend the said period upto 180 days.  In  

other words, the custody of an accused could be  

directed initially for a period of 90 days and,  

thereafter, for a further period of 90 days, in all  

a total of 180 days, for the purpose of filing  

charge-sheet. In the event the charge-sheet was not  

filed even within the extended period of 180 days,  

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the conditions directing that the accused persons  

shall be released on bail if he is prepared to do  and does furnish bail, would become operative.  

18. Mr. Pracha submitted that in the instant case  

on 17th July, 2012, when the Appellant’s initial  

custody was held to be illegal, the right of the  

Appellant to grant of statutory bail under clause  

(a)(ii) of Sub-section (2) of Section 167 became  

operative and the Appellant became entitled to  

grant of statutory bail and the mere fact that on a  

subsequent application for extension of the period  

of custody, such custody was extended, was  

immaterial and was of no consequence, as had been  

contended in the High Court on behalf of the  

prosecution.   

19. In support of his submissions, Mr. Pracha  

referred to and relied upon a Three-Judge Bench  

decision of this Court in Uday     Mohanlal     Acharya   Vs.  

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State     of     Maharashtra   [(2001) 5 SCC 453], wherein  

while referring to the earlier decision of this  

Court in the case of Sanjay     Dutt   Vs. State     through    

CBI [(1994) 5 SCC 410], this Court interpreted the  

expression “if not already availed of” to mean that  

the Magistrate has to dispose of an application  

under Section 167(2) forthwith and on being  

satisfied that the accused had been in custody for  

the specified period, that no charge-sheet had been  

filed and that the accused was prepared to furnish  

bail, the Magistrate is obliged to grant bail, even  

if after the filing of the application by the  

accused a charge-sheet had been filed.  Mr. Pracha  

submitted that so long as an application was  

pending before a charge-sheet had been filed after  

the expiry of the stipulated period for filing of  

charge-sheet, the accused had an indefeasible right  

to be released on statutory bail, as contemplated  

under the proviso to Section 167(2) Cr.P.C. Mr.  

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Pracha submitted that the aforesaid decision was ad  

idem with the facts of the instant case, wherein  

the Appellant’s application for grant of statutory  

bail was pending on the day when the Appellant’s  

custody was declared to be illegal by the  

Additional Sessions Judge.   

20.  Mr. Pracha submitted that the order passed by  

the learned Chief Metropolitan Magistrate as also  

the High Court, were not sustainable, having been  

made in contravention of the provisions of Section  

167(2) Cr.P.C. and were, therefore, liable to be  

set aside and the Appellant was entitled to be  

released on statutory bail.  

 21. On the other hand, learned Additional Solicitor  

General, Mr. Harin P. Raval, contended that there  

had been no breach of the provisions of Section  

167(2) Cr.P.C. as the right of the Appellant for  

grant of statutory bail stood extinguished once the  

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application for extension of the time for  

completing investigation had been filed by the  

prosecution on 18th July, 2012.  Mr. Raval contended  

that it was settled law that if an accused did not  

avail of the remedy contemplated under Section  

167(2) Cr.P.C. before the charge-sheet was filed,  

such right was no longer indefeasible and was  

rendered nugatory upon filing of the charge-sheet.  

22. In support of his submissions, the learned  

Additional Solicitor General referred to the  

Constitution Bench decision of this Court in the  

case of Sanjay Dutt (supra), wherein the aforesaid  

proposition of law was considered. The learned  

Additional Solicitor General submitted that it had  

been held by the Constitution Bench that in matters  

relating to the Terrorist and Disruptive Activities  

(Prevention) Act, 1987, default in completion of  

investigation within 180 days gave the accused an  

indefeasible right to bail, but the time of default  

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continues till the filing of the challan, but does  

not survive thereafter.  It was held that after  

filing of the challan, grant of bail would have to  

be decided on merit.  Reference was also made to  

the decision of this Court in Dr.     Bipin     Shantilal    

Panchal v. State     of     Gujarat   [(1996)1 SCC 718], in  

which the same legal position was reiterated.

23. The learned Additional Solicitor General  

submitted that once the period for completing  

investigation was extended on 18.7.2012 and the  

Appellant’s application, if any, for statutory bail  

remained undecided, by virtue of the ratio of the  

decisions in the case of Sanjay Dutt (supra) and  

the subsequent case of Dr. Bipin Shantilal Panchal  

(supra), the right, if any, of the Appellant for  

grant of statutory bail was rendered null and void.  

The learned Additional Solicitor General,  

therefore, submitted that no interference was  

called for in the order passed by the learned  

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Additional Sessions Judge and also of the High  

Court and the appeal was liable to be dismissed.

24. Having carefully considered the submissions  

made on behalf of the respective parties, the  

relevant provisions of law and the decision cited,  

we are unable to accept the submissions advanced on  

behalf of the State by the learned Additional  

Solicitor General, Mr. Raval.  There is no denying  

the fact that on 17th July, 2012, when CR No.86 of  

2012 was allowed by the Additional Sessions Judge  

and the custody of the Appellant was held to be  

illegal and an application under Section 167 (2)  

Cr.P.C. was made on behalf of the Appellant for  

grant of statutory bail which was listed for  

hearing.  Instead of hearing the application, the  

Chief Metropolitan Magistrate adjourned the same  

till the next day when the Public Prosecutor filed  

an application for extension of the period of  

custody and investigation and on 20th July, 2012  

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extended the time of investigation and the custody  

of the Appellant for a further period of 90 days  

with retrospective effect from 2nd June, 2012.  Not  

only is the retrospectivity of the order of the  

Chief Metropolitan Magistrate untenable, it could  

not also defeat the statutory right which had  

accrued to the Appellant on the expiry of 90 days  

from the date when the Appellant was taken into  

custody.  Such right, as has been commented upon by  

this Court in the case of Sanjay Dutt (supra) and  

the other cases cited by the learned Additional  

Solicitor General, could only be distinguished  

once the charge-sheet had been filed in the case  

and no application has been made prior thereto for  

grant of statutory bail. It is well-established  

that if an accused does not exercise his right to  

grant of statutory bail before charge-sheet is  

filed, he loses his right to such benefit once such  

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charge-sheet is filed and can, thereafter, only  

apply for regular bail.

25. The circumstances, in this case, however, are  

different in that the Appellant had exercised his  

right to statutory bail on the very same day on  

which his custody was held to be illegal and such  

an application was left undecided by the Chief  

Metropolitan Magistrate till after the application  

filed by the prosecution for extension of time to  

complete investigation was taken up and orders were  

passed thereupon.

26. We are unable to appreciate the procedure  

adopted by the Chief Metropolitan Magistrate, which  

has been endorsed by the High Court and we are of  

the view that the Appellant acquired the right for  

grant of statutory bail on 17th July, 2012, when his  

custody was held to be illegal by the Additional  

Sessions Judge since his application for statutory  

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bail was pending at the time when the application  

for extension of time for continuing the  

investigation was filed by the prosecution.  In our  

view, the right of the Appellant to grant of  

statutory bail remained unaffected by the  

subsequent application and both the Chief  

Metropolitan Magistrate and the High Court erred in  

holding otherwise.

27.   We therefore, allow the appeal, set aside the  

order dated 20th July, 2012, passed by the Chief  

Metropolitan Magistrate extending the time of  

investigation and custody of the accused for 90  

days, with retrospective effect from 2nd June, 2012,  

and the orders of the High Court dated 2nd July,  

2012, 6th July, 2012 and 6th August, 2012, impugned  

in the appeal and direct that the Appellant be  

released on bail to the satisfaction of the Chief  

Metropolitan Magistrate, upon such conditions as  

may be deemed fit and proper, including surrender  

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of passport, reporting to the local police station,  

and not leaving the city limits where the Appellant  

would be residing without the leave of the Court,  

so as to ensure the presence of the accused-

Appellant at the time of the trial.

…………………………………………………CJI.                      (ALTAMAS KABIR)

…………………………………………………………J.                              (SURINDER SINGH NIJJAR)

      …………………………………………………………J.                    (J.CHELAMESWAR)  

New Delhi, Dated: 19.10.2012.              

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