TMI Blog2012 (10) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecutor filed an application for extension of the period of custody and investigation and on 20th July, 2012 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 [ 1994 (9) TMI 351 - SUPREME COURT] and the other cases cited by the ld 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 charge-sheet is filed and can, thereafter, only apply for regular bail. The circumstances, in this case, however, are different in that the Appellant had exercised his right to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 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 gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 Additional Sessions Judge in CR No.86 of 2012 and on the same day, the Appellant s application under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport 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 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable, 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 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 Terror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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