THE STATE OF MAHARASHTRA versus SURENDRA PUNDLIK GADLING & ORS. on 13 February 2019

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SUPREME COURT REPORTS[2019] 3 S.C.R. 310

[2019] 3 S.C.R.

ATHE STATE OF MAHARASHTRA

v.

SURENDRA PUNDLIK GADLING & ORS.

(Criminal Appeal No. 264 of 2019)

BFEBRUARY 13, 2019

[RANJAN GOGOI, CJI, L. NAGESWARA RAO ANDSANJAY KISHAN KAUL, JJ.]

Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b),proviso – Claim of respondents/detenues for default bail based onCthe plea of non-fulfilment of requirement of proviso to s.43D(2)(b)– In the instant case, application for extension of period forinvestigation was filed by IO – On the same day itself, anotherapplication was filed under s.43D of the Act, for extension ofperiod for further investigation and filing of charge-sheet in theDsaid crime enumerating grounds in detail and signed by the PublicProsecutor – Request made in the application was granted –Aggrieved, respondents challenged the said order before High Court– High Court held that the Public Prosecutor did not apply his mindand thus mandatory requirement of the proviso to s.43D(2)(b) wasnot fulfilled – On appeal, held: The first document, purporting toEbe the application of the IO, contained the reasons for extendedperiod of investigation but the second document detailed out thegrounds in extenso and cannot be said to be a mere reproduction ofwhat was stated in the first document – The second document talkedabout the development and progress in the investigation –FA perusal of the grounds showed that the allegation was that all therespondents were active members of the banned organisation andin the course of investigation, the seized electronic records weresent to FSL, Mumbai, for its report, which was still awaited – Thedata was stated to be voluminous and further investigation wasalso required into the funding of the accused persons – TheGcriminal conspiracy was stated to be spread over a number ofcities, which needed further investigation – Further, the telephonicinterconnection between the respondents and other ‘abscondingand underground accused persons’ was also set out as grounds forseeking the extension – The material set out in this document met H

with the requirements of the proviso, insofar as the reasons forseeking extension for the period of investigation were concerned –It cannot, thus, be said that there was complete absence ofapplication of mind by the Public Prosecutor – Since there was, asper the comparison of the two documents, an application of mindby the Public Prosecutor as well as an endorsement by him, theinfirmities in the form would not entitle the respondents to benefitof a default bail when in substance there was an application ofmind – Order of High Court is set aside.

Allowing the appeal, the Court

HELD:1.Whether the necessary ingredients of theproviso to Section 43D(2)(b) of the said Act were set out in theapplication submitted:

Conclusion

A perusal of the proviso to Section 43D(2)(b) of the saidAct shows that there are certain requirements that need to befulfilled, for its proper application. These are as under: It has notbeen possible to complete the investigation within the period of90 days. A report to be submitted by the Public Prosecutor. Saidreport indicating the progress of investigation and the specificreasons for detention of the accused beyond the period of 90days. Satisfaction of the Court in respect of the report of thePublic Prosecutor. The document which purports to be thereport of the Public Prosecutor is, in the case in the form of anapplication under Section 43D of the said Act. A perusal of thecontents of the document shows that the development andprogress in the investigation have been set out. Thedevelopments leading to the incident have also been so set forth.A perusal of the grounds shows that the allegation is that all therespondents are active members of the banned organisation, CPI(Maoist). In the course of investigation, documents, pen drives,CD, DVD, etc. were seized and the electronic records were sentto FSL, Mumbai, for its report, which was still awaited. The datawas stated to be voluminous and further investigation was alsorequired in to the funding of the accused persons. The criminalconspiracy was stated to be spread over a number of cities, whichneeded further investigation, and financial details of therespondents were still being ascertained. Further, investigation AB

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Ainto the telephonic interconnection between the respondents andother ‘absconding and underground accused persons’ and alsointo the attempt to train young students were also set out asgrounds for seeking the extension. It was also set out that, uponcompletion of the investigation, permission under Section 45 ofthe said Act is sought for sanction of prosecution for filing theBcharge-sheet. [Paras 15-16] [318-G-H; 319-A-E]2. Analysis of the document purporting to be the report ofthe Public Prosecutor:

Initially, on 30.8.2018, an application was submitted by theCIO through the Public Prosecutor, setting out the reasons forseeking extension of ninety (90) days, to complete theinvestigation under the said Act. The submission for the appellantis that on the issue being visited in greater depth on the sameday, by the Public Prosecutor, a second document was filed, whichis, in fact, the report of the Public Prosecutor, in terms of theDprovisions of Section 43D of the said Act. A closer look at thisdocument does indicate that the State of Maharashtra isrepresented through the Assistant Commissioner of Police butaccording to the learned senior counsel it is only a description ofthere presentation. The document also purports to be anE“application” under Section 43D of the said Act for extension ofa period of ninety (90) days for further investigation and the word“application” is again repeated before the recital of facts. Thefact that the Public Prosecutor had duly appended her signaturesat the end of the application, and the very fact that there werechanges in the second application, from the earlier applicationFwould show, as contended, that there has been application of mindof the Public Prosecutor, which is the real sine qua non of thereport to be made by the Public Prosecutor. [Paras 19, 22][320-A-D; 322-F-G]

Hitendra Vishnu Thakur & Ors. v. State of MaharashtraG& Ors.(1994) 4 SCC 602 :[1994] 1 Suppl. SCR360 ;Sanjay Kumar Kedia alias Sanjay Kedia v.Intelligence Officer, Narcotics Control Bureau& Anr. (2009) 17 SCC 631 : [2010] 1 SCR 555– relied on.

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3. The first document, purporting to be the application ofthe IO, contained the reasons for such extended period ofinvestigation but the second document details out the groundsin extenso and cannot be said to be only a mere reproduction ofwhat is stated in the first document. It cannot, thus, be said thatthere has been complete absence of application of mind by thepublic prosecutor. There is merit in the contention for theappellant/State that the question is more of substance than form.The second document in the form of an application has been filedon the same day. It is not as if the first document, which is anapplication of the IO was withdrawn to file the second document,which purports to be the report of the public prosecutor. It is onthe analysis of the first document that the second document hasbeen filed, albeit both containing the endorsement of the publicprosecutor. There are averments in the second applicationreferring to the progress of the investigation and the rejoinderelucidates that the public prosecutor had the benefit of scrutinisingthese papers. There are additional and expanded grounds setout in the second document. The public prosecutor has the optionto agree or disagree with the reasons given by the IO for seekingextension of time but in the facts of this case, the seconddocument in the form of an application shows scrutiny of the firstdocument and thereafter details grounds and expanded reasonsfor the requirement of further time to complete the investigation.[Para 36, 37, 39] [327-B-E; 328-A-B]

Case Law Reference

[1994] 1 Suppl. SCR 360

relied on

Para 24

[2010] 1 SCR 555

relied onPara 30

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 264 of 2019.

From the Judgment and Order dated 24.10.2018 of the High Courtof Judicature at Bombay in Criminal Writ Petition No. 4148 of 2018.

Vikramjit Banerjee, ASG, Mukul Rohatgi, Dr. Abhishek ManuSinghvi, Kapil Sibal, Anand Grover, Raju Ramachandran, Ms. IndiraJaising, Sr. Advs., Nishant Ramakantrao Katneshwarkar, Anoop Kandari, A

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314SUPREME COURT REPORTS

AMs. Deepa Kulkarni, Nihalsing Rathod, Jagdish Meshram, Amit Bhandari,Anil Adelkar, Aakarsh Kamra, Ms. Aishwarya Bhati, Ms. Uttara Babbar,Damodar Solanki, B. V. Balaram Das, Barun Kumar, K. V. MuthuKumar, Ms. A. Mahajan, Ms. Tripti Tandon, Anirudh A., Aakarsh Kamra,S. Gowthaman, Paras Nath Singh, Ms. Nehmat Kaur, Ms. Nupur Kumar,Sunil Fernandes, Ms. Priyansh, Shadan Farasat, Advs. for the appearingBparties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.1. Leave granted.

2. The respondents/detenues claimed default bail in view of theCfailure of the appellant/State to file a charge-sheet within ninety (90)days, under the provisions of Section 43D of The Unlawful Activities(Prevention) Act, 1967 (hereinafter referred to as the ‘said Act’)andalso for seeking extension for completion of investigation, for a period ofninety (90) further days, in a manner that did not meet with theDrequirements of the proviso to sub-section (2)(b) of Section 43D of thesaid Act. The latter has become an issue of contention inasmuch as ithas been argued that the endeavour of the State Government cannot besaid to indicate the submission of a ‘report of the Public Prosecutor’,specifying reasons for detention beyond the period of ninety (90) days.

E3. An F.I.R. was lodged by one Tushar Ramesh Damgude on8.1.2018 at Vishrambaug Police Station, Pune under Sections153-A,505(1)(b), 117, & 34 of the Indian Penal Code, 1860,seeking to report anincident that occurred at Shaniwarwada, Pune on31.12.2017. It hasbeen alleged that between 2:00 p.m. and 10:00 p.m., on 31.12.2017, atShaniwarwada, Pune, members of the ‘Kabir Kala Manch’, under theFhead ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting ofthe Elgar Parishad, where active members of CPI (Maoist) supposedlyraised inflammatory slogans and engaged in certain other allied activities,with the intention to conspire, incite and abet the commission of terroristacts and other unlawful activities by using violent means, thus, promotingGenmity between different groups, which ultimately culminated in thebreak-out of violent riots on 1.1.2018, at a place popularly known asBhima Koregaon, where a large population of people was said to havegathered to celebrate the 200[th] anniversary of the battle at BhimaKoregaon. In the process of investigation, the police alleged that theaccused persons, along with other accused are active members of theH

banned organisation, CPI (Maoist), and that it was under the connivance,guidance and directions of this banned organisation that the event of thenature, as occurred on 31.12.2017, was organised through a frontalorganisation going by the name of ‘Kabir Kala Manch’. In the searchand seizure operations conducted, respondents were found to be inpossession of Naxalite literature, pamphlets, letters, correspondence,audio-video electronic devices and other material, which were allegedto be used for inciting people, to create violence and cause public disorder.Some of the respondents were also stated to be financiers of the illegalactivity and it was also alleged that students from an eminent educationalinstitution were taken to the forest area, occupied by Maoist Guerrilla, tomeet underground Naxalites and indoctrinate and train them. The entireendeavour was alleged to be an attempt to create an atmosphere thatwould motivate minority groups against the Union of India and the Stateof Maharashtra and create public disorder, aimed at vilifying thesovereignty, security and integrity of the nation and striking terror in theheart of peaceful citizens. It is in pursuance of such investigation andmaterial found that offences under Section 120B of the IPC along withSections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the said Act came to beadded to the charges.

4. After the initial police custody, judicial custody of the respondentswas sought, for a period of 90 days, for completion of investigation,which period came to an end on 3.9.2018. The proviso to Section43D(2)(b) of the said Act was pressed into service for seeking anextension of custody by another 90 days. The relevant provision readsas under:

“43D. Modified application of certain provisions of theCode.—

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(2) Section 167 of the Code shall apply in relation to a case involvingan offence punishable under this Act subject to the modificationGthat in sub-section (2),—

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

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

5. An application was purportedly preferred by the InvestigatingOfficer (herein referred to as the‘IO’),Dr. Shivaji Panditrao Pawar, onC30.8.2018, which was submitted through the District Government Pleader,Shivajinagar. Reasons for extension of time were set out, i.e., non-receipt of some mirror images from the FSL in respect of electronicdevices, large-scale data collected requiring more time for analysis, bankdetails of the accused and some other details not being received, furtherinquiry required about objectionable contents of documents andDcorrespondence seized, further time required for investigation about funds,further time also required to investigate whether there were some otheraccused, etc. It appears that there was a realisation that the applicationmay not meet the legal requirements for seeking an extension of timefor investigation and thus, on the same day itself, another applicationEwas submitted. The title of the application suggests that it was submittedby the State of Maharashtra (through the Assistant Commissioner ofPolice, Swargate Division, Pune City). A perusal of the documentsuggests that it is an application under Section 43D of the said Act, foran extension of a period of 90 days, for further investigation and filing ofcharge-sheet in the said crime. The grounds have been set out in detailFfrom sub-para (a) to (l). At the end of the application, it has been statedthat it is filed by the applicant, and on the left side it is written “Smt.Ujwala S. Pawar, District Govt. Pleader &Public Prosecutor, Pune”,who has appended her signature thereto.

6. An order regarding this application was passed by the SpecialGJudge and the Additional Sessions Judge on 2.9.2018, acceding to therequest made in the application. The order records that all the accusedpersons and their counsel, the IO and the DGP were present in theCourt and that arguments were submitted on behalf of the prosecution.

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STATE OF MAHARASHTRA v. SURENDRA PUNDLIKGADLING & ORS. [SANJAY KISHAN KAUL, J.]

The following was recorded with respect to the accused, “However, theaccused persons and their counsels submitted that they are not willing tosubmit anything.” The case diary was perused and prima facie it isstated to have revealed a collection of voluminous data in electronicform, some of which showed the involvement of the respondents in thealleged commission of the offence. Such record, it was observed, hadbeen sent to the FSL and reports were awaited. Some of the paperscollected by the IO also showed that students from Tata Institute ofSocial Science were taken by accused Mahesh Rao to a forest area ofMaoist Guerilla, to meet underground Naxalite and to train them. Sincethe investigation was in progress and at a crucial stage, and there hadbeen certain progress in the investigation, the period for investigationwas extended beyond 90 days, upto 180 days.

7. The aforesaid order was challenged in the writ petition, beforethe Bombay High Court. Vide impugned order dated 24.10.2018, thepleas of the respondents found favour with the learned single Judge ofthe Bombay High Court inasmuch as on the basis of the records, afinding was reached that the Public Prosecutor could not be said to haveapplied his mind and, thus, the mandatory requirement of the proviso ofclause (b) of sub-section (2) of Section 43D of the said Act was notmet.

8. Aggrieved by the said order, the State of Maharashtra preferredtwo SLPs before this Court, in which notice was issued and operation ofthe order was stayed on 29.10.2018.

9. In the conspectus of the aforesaid facts, the sole question whicharises for consideration is whether the application presented on 30.8.2018,under the proviso to Section 43D(2)(b) of the said Act, conforms to thenorms laid down by that provision, as enunciated in the judgments of thisCourt.

10. Mr. Mukul Rohatgi, learned Senior Counsel advancedsubmission on behalf of the State Government/appellant while Dr. A.M.Singhvi, Ms. Indira Jaising and Mr. Anand Grover, Senior Advocatesadvanced the case of the respondents.

11. We are setting forth the scope of the controversy under differentheads:

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ARespondents had never argued their case before the trial court:

12. Learned senior counsel for the State of Maharashtra soughtto contend that the order sheet of the trial court itself shows that thecounsel for the respondents and the respondents present refused to makesubmissions before the trial court. It was submitted that in such a scenario,Ba writ petition filed by these respondents ought not to have beenentertained.

13. On the other hand, learned senior counsel for the respondentscontended that the matter was not as simple as was sought to be madeout by learned senior counsel for the appellant. In a nutshell, it wasCpleaded that there was no sufficient opportunity given to present thecase, as the case of the respondents was called for on the very next dayafter the application was submitted before the Special Court, on31.8.2018. The respondents were produced on 1.9.2018, when theywere given copies of the application. The lawyers were stated to nothave been initially available on 1.9.2018, since it was a Saturday. ADrequest was made for adjournment till 3.9.2018 (Monday), whichundisputedly was the last day, but that request was declined and thematter was listed on 2.9.2018. Certain other allegations have also beenmade.

14. We are of the view that nothing much turns on the aforesaidEplea as the High Court, in its wisdom, decided to consider the merits ofthe controversy. The appellant/State having approached the SpecialCourt at the last minute did create a scenario before the Court where anendeavour was made to complete the proceedings, in respect of thematter in issue, within the next two days. At this stage, the respondentsFcannot be denied the benefit of advancing their case, the High Courthaving considered their case on merits.

Whether the necessary ingredients of the proviso to Section 43D(2)(b)of the said Act were set out in the application submitted:

15. A perusal of the proviso to Section 43D(2)(b) of the said ActGshows that there are certain requirements that need to be fulfilled, for itsproper application. These are as under:

a. It has not been possible to complete the investigation within theperiod of 90 days.

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STATE OF MAHARASHTRA v. SURENDRA PUNDLIK

GADLING & ORS. [SANJAY KISHAN KAUL, J.]

b. A report to be submitted by the Public Prosecutor.

c. Said report indicating the progress of investigation and the specificreasons for detention of the accused beyond the period of 90days.

d. Satisfaction of the Court in respect of the report of the PublicProsecutor.

16. The document which purports to be the report of the PublicProsecutor is, in the case before us, in the form of an application underSection 43D of the said Act. A perusal of the contents of the documentshows that the development and progress in the investigation have beenset out. The developments leading to the incident have also been so setforth. A perusal of the grounds shows that the allegation is that all therespondents are active members of the banned organisation, CPI(Maoist). In the course of investigation, documents, pen drives, CD,DVD, etc. Were seized and the electronic records were sent to FSL,Mumbai, for its report, which was still awaited. The data was stated tobe voluminous and further investigation was also required into the fundingof the accused persons. The criminal conspiracy was stated to be spreadover a number of cities, which needed further investigation, and financialdetails of the respondents were still being ascertained. Further,investigation into the telephonic interconnection between the respondentsand other ‘absconding and underground accused persons’ and also intothe attempt to train young students were also set out as grounds forseeking the extension. It was also set out that, upon completion of theinvestigation, permission under Section 45 of the said Act is sought forsanction of prosecution for filing the charge-sheet.

17. We are unable to accept the plea advanced on behalf of therespondents that the material set out in the document does not meet withthe requirements of the proviso, insofar as the reasons for seekingextension for the period of investigation are concerned.

18. The troublesome aspect, however, in the present case, to bedealt with by us, is the issue whether the document submitted, itself, canbe said to be one which is really a report of the Public Prosecutor, meetingthe requirements of what the Public Prosecutor is required to do as perthe proviso to Section 43D(2)(b) of the said Act.

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AAnalysis of the document purporting to be the report of the PublicProsecutor:

19. The facts in respect of the controversy are broadly not indispute. It has been mentioned earlier that initially, on 30.8.2018, anapplication was submitted by the IO through the Public Prosecutor, settingBout the reasons for seeking extension of ninety (90) days, to completethe investigation under the said Act. The submission of Mr. MukulRohatgi, learned Senior Counsel for the appellant is that on the issuebeing visited in greater depth on the same day, by the Public Prosecutor,a second document was filed, which is, in fact, the report of the PublicProsecutor, in terms of the provisions of Section 43D of the said Act. ACcloser look at this document does indicate that the State of Maharashtrais represented through the Assistant Commissioner of Police, SwargateDivision, Pune City, but according to the learned senior counsel it is onlya description of the representation. The document also purports to bean “application” under Section 43D of the said Act for extension of aDperiod of ninety (90) days for further investigation and the word“application” is again repeated before the recital of facts. The thirdfactual aspect is mentioned in para 10 of the application, which reads asunder:

“10. That according to the provisions of Section 43(D) (sic) ofEUAPA Act, 1967, if the investigation pertaining to the said Act isnot completed within the period of 90 days, then, after filing theapplication/report by the investigation officer, the said periodof 90 days can be extended up to the period of 180 days. It issubmitted that the investigation of the said crime is in progress.That the investigation has not yet completed and, therefore, theFinvestigation authority approached this Hon’ble Court forextension of further period of 90 days on the followinggrounds:

GROUNDS

a. That all the accused are the active members of bannedGorganisation, i.e., C.P.I. (Maoist) and are having direct nexusof unlawful activities of the said organisation, viz., CPI (Maoist).

b. That, during the investigation, seized devised, document, pendrives, CD, DVD, hard disk, sim cards and other electronicrecords were sent to FSL Mumbai for its report and for mirrorH

STATE OF MAHARASHTRA v. SURENDRA PUNDLIKGADLING & ORS. [SANJAY KISHAN KAUL, J.]

image of the data contained in the said electronic devices. Thatthe report from FSL is awaiting (sic).

c. That there is a voluminous data in the said electronic recordwhich requires to investigate in order to ascertain theimplementation of these unlawful activities not only in the Stateof Maharashtra, but in other States also and all over India.

d. That it is also necessary to investigate from where the fundsare available to the accused persons which is utilised by thesaid accused for promoting the unlawful activities of the bannedorganisation.

e. That during the investigation, it is also revealed that the accusedin pursuance of their criminal conspiracy engaged in theunlawful activities of banned organisation at Delhi, Mumbai,Nagpur, Gadchiroli and Chhattisgarh. That further investigationin this context has yet to complete.

f. That it is necessary to ascertain the details of Bank Account ofall the accused persons as well as their transactions in theirrespective accounts.

g. That it is revealed during the investigation through seized CDRreports of mobile phones of the accused persons that they arein communication with each other as well as with the abscondedand underground accused persons. That investigate(sic)pertaining to the said communication is yet to be completed.

h. That during the investigation, it is revealed and (sic.) the studentsfrom Tata Institute of Social Science Mumbai were taken byaccused Mahesh Rao safely and secretly to forest areas ofMaoist Guerilla to meet absconding underground Naxalite andto train them. The investigation in this respect is in progress.

i. That the accused persons are having their own Facebookaccounts and e-mails. That investigation regarding the saidFacebook account as well as e-mail communications are inprogress.

j. That after the arrest of accused P. VaraVara Rao, VernonGonsalves & Arum Thomas Parera as well as Sudha Bhardwaj& Gautam Naulakha on 28.8.2018 the Naxalite material in the A

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Aform of electronic record seized from these accused personsand investigation is pertaining to the said seizure of the documentsand electronic records is going on at FSL.

k. That all the accused persons are the masterminds of bannedorganisation of CPI (Maoist) and were found involved inBcommission of illegal act with the intention to commit oradvocate, abate (sic.) and incite people to take violence andcreate public disorder with intent to threaten the unity, integrity,security and sovereignty of India. That investigation in respectof the same is yet to be completed.

Cl. After completion of the investigating (sic.) permission u/s 45 ofUnlawful Activities (Prevention) Act, 1967 sanction forprosecution is required to be obtained for filing the charge sheetagainst all the accused persons.”

(emphasis supplied by us)

D20. The averment in the aforesaid paragraph, thus, is that theapplication/report was filed by the IO that the IO had approached theCourt for an extension of a period of further ninety (90) days to completethe investigation.

21. Once again, in para 13 of the aforementioned document, aEsimilar averment is made about the IO approaching the Court.

22. Learned senior counsel for the appellant, however, contendedthat this was more a question of format, rather than of substance. Hiscontention was that in view of the limited period of time left, theapplication was moved on an urgent basis and considering the seriousnessFof the matter, it should not be looked at technically but as a matter ofsubstance. The fact that the Public Prosecutor had duly appended hersignatures at the end of the application, and the very fact that therewere changes in the second application, from the earlier application wouldshow, as contended, that there has been application of mind of the PublicProsecutor, which is the real sine qua non of the report to be made byGthe Public Prosecutor.

23. It could not, however, be seriously disputed that the report ofthe Public Prosecutor could have been worded better or that if theappellant had approached the Court some time earlier, it would have H

been more appropriate. The alleged infirmities are, however, sought tobe explained away by learned senior counsel for the appellant by referringto certain other facts, i.e., the mention of the progress of the investigationin the report/application and the fact that investigation papers were indeedsubmitted to the Public Prosecutor, the factum of filing of two separatedocuments referred to aforesaid, indicating application of mind by thePublic Prosecutor, the mention of additional grounds in the subsequentdocument submitted by the Public Prosecutor, etc. It is the case of theappellant that it was only after scrutinising the earlier application of theeven date that the Public Prosecutor filed the report, albeit in the form ofan application.

24. The crucial judgment relied upon, by both the sets of counselfor the parties, is Hitendra Vishnu Thakur & Ors. v. State ofMaharashtra & Ors.[1]. The accused had been detained under theTerrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafterreferred to as the ‘TADA’). The TADA was amended by the AmendmentAct No.43 of 1993, which inter alia reduced the time for filing of achargesheet from one year to 180 days and also introduced a new clause(bb) in Section 20(4), providing for grant of extension of time forcompletion of investigation and filing of challan on a report of the PublicProsecutor, indicating the progress of the investigation and the specificreasons for detention by the designated court, subject, however, tomaximum compulsory detention of one year. Thus, the differencebetween this case and the case before us is only in the periods insofar asin this case and the said Act, the corresponding period for judicial custodyfor the purpose of completion of investigation is 90 + 90 days. In thecase of Hitendra Vishnu Thakur[2],this Court had faulted the reportsubmitted by the Public Prosecutor, to hold that the parameterscontemplated by clause (bb) had not been met.

25. Mr. Mukul Rohatgi, learned senior counsel contended that thefacts relating to what was the report of the Public Prosecutor in thatcase and the present case are different. In this behalf, he invited ourattention to para 73 of the judgment, where the application had beenreproduced. The application was in the form of an affidavit of the IO.At the bottom of the application, it showed the same being signed by theIO, but with an endorsement by the Public Prosecutor that it wasidentified before him. It was found that the designated court had erred 1(1994) 4 SCC 602

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Ain treating the application of the IO as a report of the Public Prosecutor,where the Public Prosecutor had merely identified the deponent of theaffidavit (the IO) and such identification, alone could not justify theapplication to be treated as a report of the Public Prosecutor. It wassought to be contended by Mr. Rohatgi that on the other hand, in thecase before us, there had been an actual application of mind of theBPublic Prosecutor, as witnessed by the submission of two differentapplications before the Special Court, and other reasons asaforementioned.

26. On the other hand, Dr. A.M. Singhvi, sought to rely upon thesame facts as mentioned above, that the mere appending of the signaturesCby the Public Prosecutor would not suffice and in fact the earlierdocument, which was submitted by the IO was also signed by the PublicProsecutor. The submission, thus, was that the Public Prosecutor wasmerely endorsing what the IO had set forth in the application, withoutany independent application of mind. Not only that, learned senior counselDdrew our attention to the order passed by the trial court to contend thatthe designated court also appears to have treated the document in questionas an application for extension of period of investigation that had beensubmitted by the IO. Moreover, it was also argued that reasons providedby the IO for an extension in the period of investigation did not appears to be genuine.E

27. Learned senior counsel sought to emphasise that the appellantcannot get away from the requirements stipulated in the judgement ofHitendra Vishnu Thakur,[3] for a document to be treated as a report ofthe Public Prosecutor and the mandatory requirements stipulated in thiscontext, in Section 20(4)(bb) of TADA. In this behalf he referred toFpara 23of the aforementioned judgement.

28. A perusal of the aforesaid paragraph shows that the emphasislaid by this Court was on the legislature, in its wisdom, not leaving it tothe IO to make an application for seeking an extension of time from theCourt and, thus, requiring the investigating agency to submit itself to theGscrutiny of the Public Prosecutor, in the first instance, and satisfying himabout the progress of the investigation and furnishing reasons for seekingfurther custody of an accused. Otherwise, an accused could be kept incontinued detention, during unnecessarily prolonged investigation, at thewhims of the police. This Court also emphasised that the Public H3(supra)

Prosecutor is not a part of the investigating agency, but is an independentstatutory authority and, thus, is expected to independently apply his mindto the request of the investigating agency, before submitting a report tothe Court for extension of time with a view to enable the investigatingagency to complete its investigation. Thus, “He is not merely a postoffice or a forwarding agency. A Public Prosecutor may or may notagree with the reasons given by the investigating officer for seekingextension of time and may find that the investigation had not progressedin the proper manner or that there has been unnecessary, deliberate oravoidable delay in completing the investigation. In that event, he maynot submit any report to the Court under clause (bb) to seek extension oftime.”

29. The observations in para 23 also then go on to state that thePublic Prosecutor may attach the request of the IO along with his requestor application or report, but his report must disclose, on the face of it,that he has applied his mind and has been satisfied with the progress ofthe investigation and considered a grant of further time, to complete theinvestigation, as necessary. This report is not merely a formality, but isa very vital report as it affects the liberty of an accused. The request ofan IO for extension of time is no substitute for the report of the PublicProsecutor. We may notice that it has been very clearly set out that it isnot merely a question of the form in which the request for extension is tobe made, but one of substance, as it is to assist the designated court toindependently decide whether or not to grant such extension. It cannotbe a mere presentation and forwarding of the request of the IO to theCourt. The mere labelling of the document as a report or an applicationwas stated to be not of much consequence, but what was held to be ofconsequence was that there could not be a mere reproduction of theapplication or request of the IO by the Public Prosecutor in his report,without demonstration of the application of his mind and a recording ofhis own satisfaction.

30. The aforesaid line of argument was supported by Mr. AnandGrover and Ms. Indira Jaising, learned senior counsels. A referencewas also made to the judgment in Sanjay Kumar Kedia alias SanjayKedia v. Intelligence Officer, Narcotics Control Bureau &Anr.[4]

31. Insofar as the facts are concerned, the accused was arrestedunder the Narcotic Drugs and Psychotropic Substances Act, 1985 and4(2009) 17 SCC 631

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Awas kept in detention for the initial period of 180 days. The complaintwas filed just before the expiry of the statutorily stipulated one yearperiod. The endeavour of the accused to seek bail post filing of thecomplaint did not succeed and it is thereafter that an endeavour wasmade to assail the initial extension of detention on the ground that thereport of the Public Prosecutor did not meet the relevant test. At thatBstage also, ultimately the Supreme Court held in favour of the accusedby opining that he would be entitled to “default bail” relying on thejudgment in Hitendra Vishnu Thakur[5].

32. A further plea sought to be advanced, on reliance upon theSanjay Kedia[6 ] judgment, was that “compelling reasons” are requiredCto be disclosed for extension of time beyond 180 days and that no suchcompelling reasons have been disclosed in the present case.

33. In order to complete the recital of facts, we may note at thisstage that the chargesheet in the present case was filed on15.11.2018,within the extended period of 90 days and, thus, it is open toDthe respondents to seek bail from the competent court; but then thecontention of the counsel for the respondents was based on the factsthat if the respondents are entitled to default bail, they should not becompelled to go through the rigours of applying for a regular bail, postfiling of the chargesheet.E

34. We have given our deep thought to the controversy in question.

34. We have given our deep thought to the controversy in question.

35. There is no doubt that the report/application of the publicprosecutor, setting out the reasons for extension of ninety (90) days ofcustody to complete investigation leaves something to be desired. Thefirst document placed before the trial court was an application/reportFfiled by the IO, though that is also stated to contain the signature of thepublic prosecutor. The second document, which purports to be the reportof the public prosecutor, has also been filed in the form of an application.There is repetition of averments that the IO is approaching the court.Para 10 of the second document again mentions that the investigatingGauthority had approached the court for an extension of a further periodof ninety (90) days on the grounds set out therein and the trial court alsoappears to have treated the document in question as an application filedby the IO. A clarity in the form of a proper endorsement by the public H

5(supra)

6(supra)

prosecutor that he had perused the grounds in the earlier documentsubmitted by the IO and, thus, was satisfied that a case had been madeout for extension of time to complete the investigation would have obviatedsuch a controversy. But that is not to be.

36. We may, however, notice that insofar as the existence ofreasons for such extension, we have found that the same exist in thedetailed grounds extracted aforesaid. The first document, purporting tobe the application of the IO, contains the reasons for such extendedperiod of investigation but the second document details out the groundsin extenso and cannot be said to be only a mere reproduction of what isstated in the first document. It cannot, thus, be said that there has beencomplete absence of application of mind by the public prosecutor.

37. There is merit in the contention of the learned senior counselfor the appellant/State that the question is more of substance than form,an aspect even emphasised in Hitendra Vishnu Thakur[7] case, whichhas been relied upon by learned counsel for both the parties. The seconddocument in the form of an application has been filed on the same day.It is not as if the first document, which is an application of the IO waswithdrawn to file the second document, which purports to be the reportof the public prosecutor. It is on the analysis of the first document thatthe second document has been filed, albeit both containing theendorsement of the public prosecutor. There are averments in the secondapplication referring to the progress of the investigation and the rejoinderbefore us elucidates that the public prosecutor had the benefit ofscrutinising these papers. There are additional and expanded groundsset out in the second document.

38. Mr. Mukul Rohatgi, learned senior counsel appearing for theappellant/State has rightly contended that there is a material differencein the facts of the present case and those of Hitendra Vishnu Thakur[8]case, inasmuch as the application in that case was in the form of anaffidavit of the IO, whose signatures were identified by an endorsementof the public prosecutor. It is in those circumstances it was held thatmere identification by the public prosecutor, of the deponent of the affidavitcould not justify the application to be treated as a report of the publicprosecutor. In the present case, the second document contains a clearendorsement of the public prosecutor in support of the averments madetherein.

7(supra)

8 (supra)

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7(supra)

8 (supra)

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A39. No doubt, in para 23 of Hitendra Vishnu Thakur[9]case, thisCourt laid emphasis on the importance of the scrutiny by a publicprosecutor so as to not leave the detenu in the hands of the IO alone,being the police authority. The public prosecutor, thus, has the option toagree or disagree with the reasons given by the IO for seeking extensionof time but in the facts of the present case, the second document in theBform of an application shows scrutiny of the first document and thereafterdetails grounds and expanded reasons for the requirement of furthertime to complete the investigation.

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40. Undoubtedly the request of an IO for extension of time is nota substitute for the report of the public prosecutor but since we find thatCthere has been, as per the comparison of the two documents, anapplication of mind by the public prosecutor as well as an endorsementby him, the infirmities in the form should not entitle the respondents tothe benefit of a default bail when in substance there has been anapplication of mind. The detailed grounds certainly fall within the categoryDof “compelling reasons” as enunciated in Sanjay Kedia[10] case.

41. We are, thus, not able to persuade ourselves to agree with theconclusions of the learned single Judge of the Bombay High Court in theimpugned order and hold that the respondents would not be entitled tothe benefit of default bail and consequently the impugned order is setEaside.

42. We may, however, clarify that since the charge-sheet hasbeen filed, any observations made by us herein, would not, in any manner,affect the right of the respondents to seek regular bail from the trialcourt, if so advised, which would be decided on its own merits by thetrial court.F

43. The appeal is allowed leaving the parties to bear their owncosts.

Devika GujralG

Appeal allowed.

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