Criminal Appeal No.53 of 2013

8th July, 2013

Petitioner Counsel: Mrs. REVATI MOHITE DERE, P.P. With Ms. A.T. JHAVERI
Respondent Counsel: Mr. SUDEEP PABOL, Ms. TAHERA QURESHI

Cases Cited:
Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra, (1994) 4 SCC 602 [Para 12,13]
Raj Kishore Jha Vs. State of Bihar & Ors., 2003 ALL MR (Cri) 2339 (S.C.)=(2003) Suppl. 2 SCC 354 [Para 16]
State of Maharashtra Vs. Vishwanath Maranna Shetty, 2012 ALL MR (Cri) 4095 (S.C.)=2013 Cri.L.J.205 [Para 18]

JUDGMENT

JUDGMENT :- By this Appeal, the State of Maharashtra has assailed the order dated 30.10.2012 passed by the Special Judge (MCOC Act), Thane, dismissing the application filed by the State dated 22.10.2012 in C.R. No.131/2012 seeking extension of time to file the charge-sheet against the respondents.

2. Such of the facts, which are necessary for the decision of this Appeal, are as follows :-

(a) On 4.8.2012, a report was lodged by Advocate Shri Manoj Ratilal Raicha alleging therein that he has been an active worker of Vishwa Hindu Parishad. In the year 2002, an Advocate Shri Lalit Jain had met with a homicidal death as he was also an active worker of Vishwa Hindu Parishad. By way of abundant caution, the informant was also given police security. In September 2011, when Manoj Raicha had attended the Court of Sessions at Bhiwandi for the trial of the murder of Lalit Jain, respondent No.1 herein and his associates had threatened the informant of dire consequences. He had reported the matter to the Police Department and hence he was given earlier security by the police department. On 3.8.2012, at about 10.45 p.m. he had left his office and was accompanied by the security guard. He was returning home. On the way, near the hospital of Dr. Varsha Pingle, a bullet was shot at the right side of the vehicle. The informant was driving the car. Three rounds were fired at him and some unknown person had attempted to kill him. Hence, he lodged a report at Nizampur Police Station on the basis of which Crime No.131/2012 was registered against Sakib Nachan and others since the informant had expressed his suspicion against him. The respondent No.2 was arrested on 24.8.2012. Respondent No.3 was arrested on 29.8.2012. Respondent No.4 was arrested on 29.8.2012 and the respondent No.5 was arrested on 30.8.2012. The investigation was set in motion. It was transpired in the course of investigation that the crime committed in the present case was an organised crime committed by an organised crime syndicate headed by a gang leader Sadik Abdul Hamid Nachan as defined under Section 2(1) of the Maharashtra Control of Organised Crime Act 1999 (hereinafter referred to as the "MCOC Act"). Hence, on 20.9.2012, the Assistant Commissioner of Police had accorded sanction for the prosecution of the present respondents for offences punishable under the provisions of the MCOC Act. Pursuant to the order dated 20.9.2012, the respondents were taken into custody on 11.10.2012 under the provisions of the MCOC Act. On 12.10.2012, they were presented before the Special Court. They were granted police custody upto 18.10.2012. The respondents were thereafter remanded to the judicial custody. On 22.10.2012, the Special Public Prosecutor, on the basis of the report of the Investigating Officer, filed an application before the Special Court, seeking extension of time for filing of charge-sheet as the 90 days limitation for filing of the charge-sheet was to come to an end on 1.12.2012. On 22.10.2012, the Special Court issued notice to the respondents calling upon them to answer as to why the time should not be extended more than 90 days.

(b) By an order dated 30.10.2012, the Special Judge, MCOC Act, rejected the application filed by the Special Public Prosecutor. The Special Public Prosecutor had approached the Hon'ble High Court challenging the said order. The order was stayed by the High Court on 31.10.2012. The respondent No.1 herein had approached the Hon'ble Apex Court challenging the order passed by the High Court in Criminal Revision Application No.439 of 2012. The Hon'ble Apex Court by an order dated 9.11.2012 was pleased to dismiss the Special Leave Petition. Thereafter Criminal Revision Application was registered as Criminal Appeal No.53 of 2013 with the permission of the Court.

3. The appeal is taken up for final hearing. The application filed by the Special Public Prosecutor had set out the grounds for seeking extension of time as follows :-

(i) That the Investigating Officer was searching for accused Abubakar Rashid Shaikh Mulla, who was absconding from the date of the incident. The Investigating Officer had set out the progress of investigation in his case diary.

(ii) It was transpired in the investigation that the arrested accused had collectively, for the benefit for the community, committed the said offences. Respondent No.1 by his illegal acts had not only disturbed the peace and harmony of the society, but had created an atmosphere of fear in the minds of the common people.

(iii) The Investigating Officer had filed applications to the concerned Gram Sevak/Talathi calling upon them to explain and inform about the movable and immovable properties of the accused persons. The Talathi of Saja Padgha by a letter dated 6.10.2012 had given information in respect of accused Nos. 1,3 and 4. On the same day, i.e. 5.10.2012, a communication was made to the Divisional Officer of Bhiwandi Municipal Corporation seeking information in respect of the property of respondent No.5. No information was received till 22.10.2012.

(iv) The Investigating Officer by a letter dated 4.10.2012, had sought information in respect of the various Bank accounts of all the accused. On 8.10.2012, they received information from Gopinath Patil Parsik Janata Sahakari Bank Ltd.

(v) On 6.10.2012, they received information from Abhyudaya co-operative Bank Ltd.

(vi) On 12.10.2012, they received information from Syndicate Bank, Bhiwandi.

(vii) On 12.10.2012 information received from Bank of India, Bhiwandi, Branch.

(viii) On 16.10.2012 from Nagarik Sahakari Bank Ltd. Bhiwandi.

(ix) On the date of filing of the application i.e. 22.10.2012, they received information from SBI Bank, Bhiwandi. On 25.12.2012, the I.O. was waiting for the information from Bank of Maharashtra and Thane District Co-op. Bank.

It is therefore, clear that they were awaiting information from three Banks till 22.10.2012.

4. The wanted accused Abubakar and Rashid Shaikh had allegedly fired at the complainant and they were not traced out.

5. The I.O. had recorded statement of Guddu Mohammed Hafiz Khan and according to him, two fire arms were used for firing the complainant. However, the I.O. had seized only one fire arm. In the statement of Guddu, it was stated that one fire arm was given to accused Abubakar and the same could not be recovered.

6. The Deputy Commissioner of Police had sought information from Nodal Officer, Airtel Cellular Limited seeking the certified copies of print outs of incoming and outgoing calls, CDR, Cell-phone of accused No.1. The certified copies were necessary in order to establish the element of conspiracy as it had transpired in the investigation that they were constantly in touch with each other and had hatched a conspiracy. The information was received on 21.11.2012. The application for extension of time was filed on 22.10.2012. It was further contended by the prosecutor that the Investigating Agency wanted to record the statements of the witnesses under Sec. 164 of Cr.P.C. and therefore, an application was filed before the JMFC Court at Bhiwandi on 22.10.2012 and 23.10.2012. The statements were recorded on 1.11.2012 and 7.11.2012 at Bhiwandi.

7. In the house raid of the respondent No.1, the Investigating Officer had seized certain incriminating material like the Muslim Charge sheet against Government and one C.D. The contents of the C.D. were provocative, thereby instigating Muslim community. There were provocative speeches by the religious leaders which would flame the sentiments of the Muslim community. It was necessary for the Investigating Officer to record the statements of the publishers and distributors of the said material. Accordingly, the statements were recorded after 22.10.2012 till 29.10.2012. A pen-drive was seized from the witness Aniket Badlapurkar containing further details.

8. On 22.9.2012, the ACP had submitted a report through DCP, Crime Branch along with papers of investigation to the Addl. Commissioner of Police seeking permission to prosecute the accused persons i.e. the present respondents for contravention of the provisions of Sections 3 and 25 of the Arms Act, 1959. The sanction was accorded on 31.10.2002. The Investigating Agency had to seek sanction for prosecuting the accused under Section 153A of the Indian Penal Code.

9. The seized arms were sent for examination to the Ballistic Expert on 22.9.2012. A report was received on 30.10.2012. Unless the Ballistic Expert report was received, the Investigating Agency could not have sought permission for prosecution of the accused under the provisions of the Arms Act. It was only after 22.10.2012, that the CD and CPU were sent for Forensic Laboratory for verification of the contents.

10. It is pertinent to note that the ballistic expert report was not received upto 22.10.2012. The attack was by a fire arm and therefore it was necessary to seek sanction for prosecuting the accused under the Arms Act. The learned Special Judge, while deciding the application seeking extension of time, had issued a notice to the accused persons. The accused had submitted written submissions. The accused had contended that there was no progress in the investigation and the grounds mentioned in the application for extension of time for filing charge sheet are not sufficient by themselves. The accused had further submitted that they would not object for further investigation under Section 173(8) of the Cr.P.C. The learned Special Court seems to have been impressed by the third contention raised by the accused persons. In para 5 of the order of the learned Special Judge, it is apparent that the Special Judge had not scrutinized the grounds seeking extension of time and there was non-application of mind, the Court has observed that the report for extension of judicial custody shows that despite interrogation "no incriminating material could be elicited from the accused persons". This observation of the Special Judge by itself reflects non-application of mind. The remand report seeking judicial custody cannot be considered while appreciating grounds seeking extension of time for filing charge sheet. It was quite natural that the accused would not submit themselves to the interrogation. It was incumbent on the Investigating agency to collect incriminating material from the various sources since they were investigating into an offence scheduled under the MCOC Act.

11. The Special Judge has further observed that the Investigating Officer had not placed on record any material to show that the alleged deed and the CDs were in fact published by accused No.1. At this stage, it is important to note that the alleged offence and CDs were seized from the house of the accused No.1 and it was the responsibility of the Investigating Officer to investigate the identity of the publisher, distributor, etc. as this information was not revealed by the accused. The report and the case diary would show that the statements were recorded, published and distributed on 22.10.2012, 23.10.2012, 26.10.2012 and 29.10.2012. In the course of recording the statements of those persons (the identity could not have been disclosed at that stage), it was revealed that the said witnesses had published 525 books at the behest of the accused persons. Only 3 books could be seized. The reason assigned by the Special Judge does not reflect application of mind.

12. The Hon'ble Apex Court in the case of Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra reported in (1994) 4 SCC 602, has held that "we have already dealt with the importance of the report of the Public Prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty". The Hon'ble Apex Court has further held that "A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable." It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the Public Prosecutor after proper application of his mind are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case." It therefore, appears that the Special Court has not considered the grounds for extension of time in its proper perspective as the order does not reflect any observation that the grounds set out by the Public Prosecutor are not justified. It is not even reflected that the Special Court was satisfied with the manner of investigation or not. There is nothing to indicate that the Special Court has considered each and every ground set out by the Public Prosecutor for seeking extension of time. There is no finding recorded to show that further investigation is not a necessary pre-requisite for filing of the charge-sheet.

13. The learned Counsel for the respondents has filed an affidavit in reply setting out the grounds justifying the order of the Special Court in rejecting the application. It is submitted that in fact, the investigation was almost completed by 22.10.2012 and that the Prosecutor had not set out justifying grounds for seeking extension of time. The Counsel appearing for the respondents has also placed reliance upon Hitendra Thakur (supra). It is pertinent to note that in the case of Hirendra Thakur (supra), the Designated Court had accepted the application of the Investigating Officer. Supported by the Public Prosecutor, the request of the Investigating agency could be treated as the report of the Public Prosecutor when read with the objections filed by the Public Prosecutor to the bail applications. It was observed therein as follows :-

"The observation of the Designated Court show that the said Court lost sight of the importance of the report and treated the whole thing in a rather casual manner." It was further held that "a bare perusal of the application of the Investigating Officer would show that the Public Prosecutor did not even endorse the application with any comments to indicate as to whether or not he was agreeing with the statements contained in the application. The Public Prosecutor obviously did not apply his mind to the request of the Investigating agency and merely acted as its 'post office'. The Designated Court was deprived of the opportunity of scrutinizing the report of the Public Prosecutor before granting extension."

14. In the present case, the application was filed by the Special Public Prosecutor setting out various grounds demonstrating therein the progress of the investigation and the need for extension of time to complete investigation. There was proper application of mind which was not appreciated by the Special Judge in its proper perspective. The submissions of the Public Prosecutor are not reflected in the order.

15. The learned P.P. has submitted that the accused were taken into custody on 11.10.2012 after invocation of the MCOC Act. The accused persons were in police custody from 12.10.2012 to 18.10.2012. The time was insufficient for collecting the investigation and filing the charge sheet after making a comprehensive report of the investigation carried out so far. After the application of MCOC Act, the course of investigation would naturally take a turn in a direction that would require investigation of the offences as contemplated under the Act. The learned P.P. submits that it is not the case that an application for extension of time was made just before expiry of the mandatory period of 90 days. By way of abundant caution, the application was filed on 22.10.2012. The Special Court therefore issued notice to the accused persons and they had sufficient time to oppose the grant of extension of time. This itself would show the proper application of mind by the Public Prosecutor. The Investigating Officer had shown his bonafides by making a communication to the Talathi and the Municipal Corporation on 5.10.2012. The information in respect of accused No.5 was awaited. The information from SBI and two other bankers were also awaited on 22.10.2012. It was necessary for the investigating officers to obtain the certified copies of the print outs of the incoming and outgoing calls of the accused No.1 in respect of call details report as that was the only means to substantiate the charge under Sec. 120B of the IPC. After 18.10.2012 i.e. after expiry of the police custody remand of the accused, the investigating officer had to make efforts to trace the publisher and distributors of the books seized from the residence of accused No.1 as no information could be elicited from the accused while he was in police custody.

16. The learned Counsel for the respondents has further submitted that the Special Public Prosecutor had filed an application seeking extension of time only to frustrate the indefeasible right of the accused under Sec. 167(2). The Counsel submits that there are three pre-requisites for authorizing the detention of the accused in custody beyond the period of 90 days. :-

(a) existence of adequate grounds;

(b) in case of progress in the report of Public Prosecutor;

(c) Specific reasons for detention.

According to the Counsel, all the three ingredients were not set out in the application field by the Public Prosecutor. The said submission is incorrect for the reason that the report of the Special Public Prosecutor has specifically stated the details of the investigation. The investigation carried out upto 22.10.2012 is also set out and the reasons for further detention have been specifically stated. However, the Special Court has not considered both the aspects in the said order and therefore, the order has been passed without application of mind and without perusal of the report. Upon reading the order passed by the Special Court, it is apparent that no justifiable reason is set out for rejecting the application filed by the Public Prosecutor. The Hon'ble Apex Court in the case of Raj Kishore Jha vs. State of Bihar & Ors. Judgment Today (2003) Suppl. 2 SCC 354 : [2003 ALL MR (Cri) 2339 (S.C.)] has held that the "reason is heartbeat of every conclusion and without the same it becomes lifeless". It is for this reason that the order passed by the Special Court needs to be quashed and set aside.

17. The learned Counsel for the respondent submits that the Investigating Agency had sought extension of time to file charge-sheet only to defeat the indefeasible right of the accused under Section 167(2) of Cr.P.C. The Court cannot be oblivious of the fact that the respondent No.1 herein was previously convicted under the provisions of TADA Act and had served his sentence.

18. In the case of State of Maharashtra v. Vishwanath Maranna Shetty, 2013 Cri.L.J.205 : [2012 ALL MR (Cri) 4095 (S.C.)], the Hon'le Apex Court has held :-

"A bare reading of the non obstante clause in sub-section (4) of Section 21 of MCOCA makes it clear that the power to grant bail to a person accused of having committed offence under the Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 but also subject to the restrictions placed by clauses 9a) and (b) of subsection (4) of Section 21. Apart from giving an opportunity to the prosecutor to oppose the application for such release, the other twin conditions, viz. (I) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty, has to be based on "reasonable grounds". The expression "reasonable grounds" connotes something more than prima facie grounds. Recording of satisfaction on both the aspects mentioned in clauses (a), (b) of sub-section (4) of section 21 is sine qua non for granting bail under MCOCA. Further, a reasonable belief provided in S. 21 points to existence of such facts and circumstances as are sufficient to justify the satisfaction that the accused is not guilty of the alleged offence."

There is nothing on record to indicate that the investigation was being protracted only to defeat the right of the accused under Section 167(2) of the Cr.P.C.

19. For the reasons stated above, the order passed by the Special Judge dated 30.10.2012 is quashed and set aside. The Appeal is allowed.

Appeal allowed.