RAMBEER SHOKEEN versus STATE OF NCT OF DELHI on 31 January 2018

[2018] 1 S.C.R. 373

RAMBEER SHOKEEN

v.

STATE OF NCT OF DELHI

(Criminal Appeal Nos. 2181-2182 of 2017)

JANUARY 31, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Code of Criminal Procedure, 1973 – s. 167(2) – MaharashtraControl of Organized Crime Act, 1999 – ss.3 and 4 – Arrest ofappellant-accused on 01.12.2016 – Before the expiry of 90 daysperiod, application filed by the Additional Public Prosecutor on28.02.2017 for extension of time to file charge-sheet upto15.03.2017 – Special judge by order dated 28.02.2017 extendedjudicial custody of the appellant until 01.03.2017 – On the sameday accused filed application for grant of statutory bail but thesame was not pursued – On the next day 02.03.2017, after the expiryof 90 days period, appellant filed another application for grant ofstatutory bail – Judicial custody kept on extending from time to timeuntil 08.03.2017 on which date charge sheet was filed and theSpecial court disposed of the Public Prosecutor’s application asinfructuous – Thereafter, on 14.03.2017 Special Judge rejected thebail application dated 02.03.2017 – Challenge to, before the HighCourt – High Court rejected the prayer of the appellant to bereleased on bail by default – On appeal, held: No right can be saidto have accrued to the appellant for grant of bail on the ground ofdefault – Right to grant of statutory bail would have enured to theappellant only after rejection of the request for extension of timeprayed by the Additional Public Prosecutor – Mere fact that 90days period from the date of initial arrest of the appellant had lapsedon 02.03.2017, could not ineluctably entail in grant of statutorybail to the appellant – Moreso, when no decision was taken by theCourt on the application submitted by the Additional PublicProsecutor until 08.03.2017, on which date the supplementarycharge-sheet against the appellant was filed in Court – Consideringthe effect of filing of the supplementary charge-sheet against theappellant, coupled with the fact that his judicial custody wasextended until the pendency of consideration of the application for

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374SUPREME COURT REPORTS

Aextension of time to file the charge-sheet, in law, it is unfathomableas to how the appellant could claim to have any accrued right to bereleased on bail on the ground of default or for that matter, such aright having become indefeasible – No right had accrued to theappellant before filing of the charge-sheet; at best, it was an inchoateright until 8.03.2017 – Granting statutory bail after filing of charge-Bsheet against the appellant and more so during the pendency of theapplication for extension of time to file charge-sheet wasimpermissible – Thus, the High Court rightly rejected the prayerfor grant of statutory bail by the appellant.

Dismissing the appeals, the CourtC

Conclusion

Dismissing the appeals, the CourtC

HELD: 1.1 On 28.02.2017, the Additional Public Prosecutorhad filed report for extension of time to file charge-sheet againstthe appellant until 15.03.2017. The same was filed within time,before the expiry of 90 days from the date of initial arrest of theappellant in connection with the subject FIR. Realising thisDposition, the appellant did not pursue his first application forstatutory bail dated 28.02.2017. Instead, he was advised to file afresh statutory bail application on 02.03.2017. On 02.03.2017 thereport submitted by the Additional Public Prosecutor was stillundecided. Therefore, no right can be said to have accrued toEthe appellant for grant of bail on the ground of default. In law,only upon rejection of the prayer for extension of time sought bythe Additional Public Prosecutor, right in favour of the appellantfor grant of statutory bail could have ignited. The mere fact that90 days period from the date of initial arrest of the appellant inconnection with the subject FIR had lapsed on 02.03.2017, couldFnot ineluctably entail in grant of statutory bail to the appellant.Moreso, when no decision was taken by the Court on the report/application submitted by the Additional Public Prosecutor until08.03.2017, on which date the supplementary charge-sheet againstthe appellant was filed in Court. Considering the effect of filing of Gthe supplementary charge-sheet against the appellant, coupledwith the fact that his judicial custody was extended by the Courtof competent jurisdiction until the pendency of consideration ofthe application for extension of time to file the charge-sheet, inlaw, it is unfathomable as to how the appellant could claim to haveany accrued right to be released on bail on the ground of defaultH

or, such a right having become indefeasible. [Para 21][395-E-H;396-A-B]

1.2 No right had accrued to the appellant before filing ofthe charge-sheet; at best, it was an inchoate right until 08.03.2017.Resultantly, the question of granting statutory bail after filing ofcharge-sheet against the appellant and moreso during thependency of report/application for extension of time to file charge-sheet was impermissible. In other words, the application for grantof statutory bail filed by the appellant on 02.03.2017, even ifpending, could have been taken forward only if the prayer forextension of period was to be formally and expressly rejected bythe Court. [Para 23][398-G-H; 399-A-B]

1.3 The consideration of application for grant of statutorybail in a situation, was dependent on rejection of prayer of theAdditional Public Prosecutor for extension of time. When suchprayer is made, it is the duty of the Court to consider the report/application for extension of period for filing of the charge-sheetin the first instance; only if it was to be rejected could the prayerfor grant of statutory bail be taken forward. In no case, the hearingon statutory bail application precede the consideration of prayerfor extension of the period for filing of the charge-sheet made bythe Additional Public Prosecutor. [Para 24][399-B-C]

1.4 In the instant case, the judicial custody of the appellantwas extended by the Court of competent jurisdiction from timeto time pending consideration of request to extend time to filecharge-sheet, initially from 28.02.2017, till 01.03.2017 and socontinued from 01.03.2017, until 07.03.2017, and again from07.03.2017, till 08.03.2017 on which date the charge-sheet wasfiled against the appellant in the Court. The order passed by theSpecial Court on 08.03.2017, has been so construed by the HighCourt and additionally by explicitly extending the period for filingof the charge-sheet against the appellant until 08.03.2017. Thereis no error in that approach of the High Court. [Para 25][399-E-G]

1.5 In the instant case, before the appellant instituted thesubject application for grant of statutory bail on 02.03.2017, theAdditional Public Prosecutor had already filed his report/application for extending the period for filing of charge-sheet ABC

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Aagainst the appellant until 15.03.2017, but decision thereon wasdeferred. As held by the Constitution Bench in the case of SanjayDutt case, unless the report/application filed by the AdditionalPublic Prosecutor for extension of time was rejected, no rightwould accrue in favour of the accused much less to consider hisapplication for grant of statutory bail. Further, in such cases it isBthe duty of the concerned Court to first deal with the prayer forextension of period to file charge-sheet made by the AdditionalPublic Prosecutor. The High Court, thus answered the issueagainst the appellant and additionally considered the justness ofthe prayer made by the Additional Public Prosecutor for extensionCof period for filing charge-sheet. It recorded an express findingthat the said request was genuine and appropriate and thusextended the time for that purpose till 08.03.2017. [Para 26][400-D-G]

1.6 In the instant case, the prayer for extension of periodDfor filing charge-sheet was moved by the Additional PublicProsecutor before the statutory period had lapsed, but the sameremained pending until 08.03.2017, when charge-sheet was filedin Court. Until the said request was formally and expresslyrejected by the competent Court, in view of the exposition in thecase of Sanjay Dutt case, the concerned Court could not haveEassumed jurisdiction to consider the prayer for grant of statutorybail of the appellant. The request made by the Additional PublicProsecutor was formally disposed of as infructuous on 08.03.2017,after filing of the charge-sheet against the appellant. That wasnot an order of rejection of the request of the Additional PublicFProsecutor as such. The High Court examined this aspect and,rightly answered the issue against the appellant for the reasonsrecorded in the impugned judgment, including by explicitlyextending the time to file charge-sheet till 08.03.2017. The saidview of the High Court is affirmed. [Para 27][401-B-E]

G1.7 Taking overall view of the matter, it is noticed that thereport was submitted, before expiry of the initial statutory periodof 90 days for filing of the charge-sheet against the appellant.That request was disposed of by the Special Court on 08.03.2017as infructuous, after the charge-sheet against the appellant wassubmitted in Court. Until 08.03.2017, the appellant was sent toH

judicial custody by the competent Court pending considerationof request of the Additional Public Prosecutor for extension oftime to file the charge-sheet. The Court, in law, could not haveconsidered the prayer for grant of statutory bail of the appellantuntil 08.03.2017, on which date the charge-sheet was already filedagainst the appellant in the concerned Court. Further, the HighCourt considered the circumstances in which the order came tobe passed by the Special Court on 08.03.2017. It rightly held thatthe said request could not have been closed as having becomeinfructuous. Rather, it was the duty of the Court to decide therequest on its merits and only upon its rejection, proceed toconsider the prayer for grant of statutory bail. The High Court,therefore, noticed that it had two options: first, to remit the matterback to the Special Court for a proper decision on the said reportof the Additional Public Prosecutor dated 28.02.2017 or second,to consider the same itself and pass appropriate orders thereupon.It chose to adopt the second option, which was thought desirableand not objected to by the appellant as can be discerned from thenoting in of the impugned judgment. The High Court, thenproceeded to consider the prayer for extension of time made inthe report submitted by the Additional Public Prosecutor on28.02.2017, and, for tangible reasons, found the same to begenuine and appropriate. Having thus held, it allowed the saidrequest by extending the time to file charge-sheet till 08.03.2017.There is no infirmity in the said approach of the High Court.Having extended the time till 08.03.2017 and as the charge-sheetwas already filed on that date, the question of considering theprayer for grant of statutory bail of the appellant vide applicationdated 02.03.2017, on the ground of default, did not survive forfurther consideration. Right to grant of statutory bail would haveenured to the accused only after rejection of the request forextension of time prayed by the Additional Public Prosecutor. Asa result, the High Court rightly rejected the prayer for grant ofstatutory bail pursued by the appellant vide application dated02.03.2017. The conclusion reached by the High Court isconcurred with. The rejection of the prayer for grant of statutorybail would not come in the way of the appellant in pursuing hisremedy for grant of regular bail on merit. [Paras 28-29][401-F-H; 402-A-F]

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AHitendra Vishnu Thakur v. State of Maharashtra (1994)4 SCC 602 : [1994] 1 Suppl. SCR 360; Union of Indiav. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148;Uday Mohanlal Acharya v. State of Maharashtra (2001)5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. Statethrough CBI (1994) 5 SCC 410 : [1994] 3 Suppl. SCRB263 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 2181-2182 of 2017.

From the Judgment and Order dated 22.05.2017 of the High CourtDof Delhi at New Delhi, in Criminal Appeal No. 311 of 2017 & Criminal M.(Bail) No. 525 of 2017.

Mehmood Pracha, R. H. A. Sikander, Prateek Gupta, Mohd.Danish, Mansoor Ali, Mrs. Sudha Gupta, Advs. for the Appellant.

Ms. Pinky Anand, ASG, Aman Sinha, Sr. Adv., Ms. Binu Tamta,ESumit Teterwal, B. V. Balaram Das, Advs. for the Respondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. These appeals, by special leave,question the legality and tenability of the judgment and order passed bythe learned Single Judge of the High Court of Delhi at New Delhi datedF22[nd] May, 2017 in Criminal Appeal No.311/2017 and Criminal M. (Bail)No.525/2017.

2. Briefly stated, the appellant has been named as an accused inFIR No.10 of 2015 registered at the Police Station (Special Cell), Delhi,for offence punishable under Sections 3 & 4 of the Maharashtra ControlGof Organized Crime Act, 1999 (hereinafter referred to as the “MCOCA”).He has also been named as an accused in FIR No.65/2016 for offencepunishable under Sections 26 & 27 of the Arms Act, registered at thesame police station. He was declared as a proclaimed offender inconnection with the said case and was later arrested on 27[th] November,2016.H

3. The appellant came to be arrested in connection with the presentFIR on 1[st] December, 2016. Before the expiry of 90 days period, theAdditional Public Prosecutor on 28[th] February, 2017 moved an applicationfor extension of time to file charge-sheet up to 15[th] March, 2017. Thesaid application reads thus:

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“ANNEXURE P-3

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IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA #25, PATIALA HOUSE COURTS, NEW DELHI.

FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PSSpecial Cell, Lodhi Colony, Delhi.

CSl. No.Name, Parentage & addressDate of arrest01RAMBEER SHOKEEN aged – 37 years, 01.12.2016S/0 Shri Naval Singh r/o H.No.151, Extension-IV, Nangloi, Delhi-41 & S/Vpermanent address – H.No.70, village DKamruddin Nagar, P.S. Nihal Vihar, Delhi.

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Subject : Regarding extension of limitation period upto15.03.2017

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Hon’ble Sir,

It is submitted that I have perused the report of theInvestigating Officer of this case. The allegations againstabove Accused Rambeer Shokeen in present case are that healong with other syndicate members was running an organizedcrime syndicate in Delhi & other states by committing a seriesof sensational crimes including gruesome and inimical murder,extortion by putting by some businessmen in fear with criminalintimidation, obstruction of Govt. servants to deter them fromdischarge of official duties and offences under the arms actetc.

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The above accused Rambeer Shokeen was continuouslyevading his arrest and didn’t join investigation. On20.04.2015, non-bailable warrant against him was issued butcouldn’t be executed, as not available at his possible hideoutsand later on after further proceedings, he was declared P.O.

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on 26.08.2015 by this Hon’ble Court. On 27.11.2016, he wasarrested in case FIR No.65/2016 U/s 25/27 Arms Act of P.S.Special Cell, Delhi and later on 01.12.2016, arrested in thiscase.

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During investigation, several evidences including followingsBhave been collected against above accused Rambeer Shokeen:

01. Income Tax Return report (ITR) dated 10.02.2017 fromyear 2006-2016, which reflects that he has not filed ITRduring this period, while he has incurred huge expensesduring Delhi Legislative Elections of year 2013 & 2015Capart from other expenses.

02. Reports regarding property details from the offence ofSub-Registrar West, SDM-Nangloi etc.

03. FORM 26 submitted by him before Election Officershowing details of moveable & immovable properties etc.DTHE INVESTIGATION OF THE CASE IS TO BE CONDUCTEDON FOLLOWING GROUNDS

01. As per FORM 26 submitted by the Accused before ElectionCommission to contest Delhi Legislative Assembly Electionfor Assembly Constituency-08 in year 2013, he has shownEimmoveable and moveable assets of himself & his wife worthRs. 1.85 (approx.), while he and his wife Mrs. ReetaShokeen are not found filing income tax returns duringyear 2006-2016, so the investigation on this point isnecessarily required.

F02. To make further interrogation from accused to verify thesource of huge amount of money in respect of the assets asmentioned above vis-à-vis the ITR for a period 2006-2016(NIL returns), the details of which were obtained on10.02.2017.

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In view of above pending investigation points, it is, humblyrequested that the limitation period for filing charge sheetagainst above accused Rambeer Shokeen may be extendedupto 15.03.2017, so that charge sheet against him may befiled before the Hon’ble Court as per the time limit fixed by H

Hon’ble Court.

Submitted please, Sd./- 28.02.17

(RAVINDRA KUMAR)

Addl. Public ProsecutorPatiala House Court, New Delhi Dated: 28.02.2017"

4. On the same day i.e. 28[th] February, 2017, the accused movedan application for grant of statutory bail under Section 167(2) of theCode of Criminal Procedure read with Section 21(2)(b) of MCOCA.The Special Judge, by an order dated 28[th] February, 2017, extended thejudicial custody of the appellant until 1[st] March, 2017. The said orderreads thus:

“An application for further extension of JC moved on behalfof IO. Copy given.

Report is also submitted by Ld. APP for State for the purposesof extension of JC beyond 90 days and for seeking furtherextension of time for investigation beyond period of 90 days.

JC is extended till 01.03.2017.

Put up with main file for arguments on this application on01.03.2017.

Copy of Order be given dasti.”

5. On 1[st] March, 2017, the appellant filed his reply to oppose theapplication filed by the Additional Public Prosecutor seeking extensionof limitation period for filing of charge-sheet against the appellant, upto15[th] March, 2017. Besides, the appellant was produced before the District& Sessions Judge and as the Presiding Officer of the Special Court wason leave, the District & Sessions Judge passed the following order:

“01.03.2017

File is put up before me Shri Rakesh Pandit, Ld. Spl. Judge,NIA/POCSO/MCOCA, ASJ-01, PHC, New Delhi is on leavetoday on account of un-wellness.

Present : Shri Devender Kumar, Ld. Chief PP for the State A

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Aalong with Shri Ravindra Kumar, Ld. Addl. PP and ACPHridaya Bhushan Accused produced from JC.

Shri Mehmood Pracha and Shri R.H.A. Sikander, Ld. Counselsfor the accused Rambeer Shokeen.

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Reply has been filed on behalf of accused Rambeer Shokeento the application moved on behalf of the State seekingextension of time for filing the charge sheet. Copy supplied.An application has been moved on behalf of State seekingextension of JC of the accused above named.

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As Ld. Presiding Officer is on leave. Judicial custody of theaccused Rambeer Shokeen is extended till 07.03.2017. Meritsof the application dated 28.02.2017 shall be decided by theconcerned court.

Ld. Chief PP for the State submits that he has not been suppliedwith the copy of the application moved on behalf of the accusedRambeer Shokeen under Section 167(2) of Cr.P.C. seekinggrant of statutory bail. Ld. Counsel for the accused is directedto supply the copy of the same during the course of the dayagainst proper receipt.

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Put up on 07.03.2017 for further proceedings.”

6. On the next day i.e. 2[nd] March, 2017, the appellant movedanother application for grant of statutory bail under Section 167(2) ofCr.P.C. read with Section 21(2)(b) of MCOCA.

7. On 4[th] March, 2017, the ACP/Special Cell/NDR, Lodhi Colony,New Delhi, moved an application before the Special Court for permissionto interrogate the appellant in Central Jail No.3, Tihar, Delhi. The saidapplication reads thus:

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“ANNEXURE P-8

GIN THE COURT OF SHRI RAKESH PANDIT, LD. ASJ, MCOCA#

25, PATIALA HOUSE COURTS, NEW DELHI.

FIR No.10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PSSpecial Cell, Lodhi Colony, Delhi.

ASl. Name, Parentage & Date of arrestNo.address01RAM BEER SHOK EEN aged – 01.12.201637 years, S/0 Shri Naval Singh r/ o H.No.151, Extension-IV, S/VNangloi, Delhi-41 & Bpermanent address – H.N o.70, village Kamruddin N agar, P.S. Nihal Vihar, Delhi.

Subject : Regarding permission for interrogation in CentralJail, Tihar, Delhi.

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Hon’ble Sir,

It is submitted that the present case is pending investigationagainst accused Rambeer Shokeen and other syndicatemembers for running an organized crime syndicate in Delhi& other states by committing a series of sensational crimesincluding gruesome and inimical murder, extortion by puttingby some businessmen in fear with criminal intimidation,obstruction of Govt. servants to deter them from discharge ofofficial duties and offences under the arms act etc.

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On 01.12.2016, accused Rambeer Shokeen was arrested inthis case. During investigation it is revealed that in November2013, he had filed an affidavit before Election Commissionto contest Delhi Legislative Assembly Election. In this affidavit,he has shown immoveable and moveable assets of himself &his wife worth Rs.1.85 crores (approx.). As per report dated10.02.2017 of Income Tax Department, neither he nor hiswife Mrs. Reeta Shokeen has filed income tax returns duringyear 2006-2016.

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In view of above, it is humbly requested that the necessarypermission to interrogate accused Rambeer Shokeen may begranted in Central Jail No.3, Tihar, Delhi. The accusedRambeer Shokeen is running in judicial custody till07.03.2017.

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Submitted please,

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SUPREME COURT REPORTS

Sd./-

(HRIDAYA BHUSHAN)ACP/Special Cell/NDRLodhi Colony, New DelhiDated: 04.03.2017"

The Special Judge considered the said application on 4[th] March,2017 and allowed the prayer for permission to interrogate the appellantin judicial custody before 7[th] March, 2017. The order passed by theSpecial Court reads thus:

“04.03.2017

File is put up before me as Shri Rakesh Pandit, Ld. Spl. Judge,NIA/POCSO/MCOCA, ASJ-01, PHC has gone to Odisha forNational Seminar, Judicial Academy, Cuttack.

Present : Shri Ravindra Kumar Ld. Addl. PP for the StateACP Hridaya Bhushan along with Inspector Ravinder KumarTyagi.

Accused Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dabasand Rahul Dabas produced from JC.

An application has been moved on behalf of Special Cellseeking permission to interrogate the accused RambeerShokeen in Central Jail No.3, Tihar Delhi submitting that theaccused Rambeer Shokeen was arrested in this case on01.12.2016 and he is running in JC which is extended till07.03.2017. During investigation it is revealed that inNovember, 2013, he has filed an affidavit before ElectionCommission to contest Delhi Legislative Assembly Electionand in the said affidavit, he has shown his immovable andmoveable assets as well as of his wife which is worth Rs.1.85crores (approx.). It is stated that as per the report dated10.02.2017 of Income Tax Department, neither he nor hiswife Smt. Reeta Shokeen has filed income tax return duringthe year 2006-2016.

Heard. Keeping in view the fact and circumstances, theapplication stands allowed by permitting Special Cell to interrogate the accused Rambeer Shokeen in judicial custodybefore 07.03.2017.

Application stands disposed of accordingly. Copy of this Orderbe sent to Superintendent, Tihar Jail, Delhi for compliance.

Copy of this Order be also given to the Special Cell, as prayedfor.

Put up on 18.03.2017 for further proceedings.”

8. On 7[th] March, 2017, the application for extension of time forfiling charge-sheet dated 28[th] February, 2017 and the application filed bythe appellant for grant of statutory bail dated 2[nd] March, 2017, weretaken up by the Special Court. The Court after considering the argumentsof the parties passed the following order:

“07.03.2017

Shri Mehmood Pracha and Sh. R.H.A. Sikander counsel foraccused.

Accused Rambeer Shokeen from JC.

IO ACP Hirdey Bhushan in person.

Arguments heard on application for extension of time forinvestigation dated 28.02.2017 and on application u/sec.167(2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.)

Put up for order on these applications on 08.03.2017.

JC is extended till 08.03.2017.

Copy of order be given dasti.”

9. As directed, the matter was taken up by the Special Court on8[th] March, 2017 when the prosecution filed supplementary charge-sheetagainst the appellant. The Court passed the following order:

“08.03.2017

Shri Mehmood Pracha and Sh. R.H.A. Sikander and PrateekGupta counsel for accused Rambeer Shokeen.

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[2018] 1 S.C.R.

AIO ACP Hirdey Bhushan in person.

Accused Rambeer Shokeen from JC.

Supplementary charge sheet filed with respect to AccusedRambeer Shokeen.

BCharge sheet perused I take cognizance of the offencesinvolved.

Copies of documents supplied with respect to the charge sheetagainst Rambeer Shokeen. Time sought by IO to supply copyof earlier charge sheet against other accused persons. SameCbe supplied within 7 working days.

Put up for scrutiny of documents on 18.03.2017.

Considering the fact that supplementary charge sheet hasalready been filed against accused Rambeer Shokeen, so theapplication regarding extension of time dated 28.02.2017Dbecome infructuous and thus dismissed as infructuous.

Put up for arguments/order on application u/sec. 167 (2)Cr.P.C. on 09.03.2017.”

10. Again, the matter was taken up on 9[th] March, 2017 when thehearing on statutory bail application remained inconclusive. The CourtEpassed the following order:

“09.03.2017

Shri Mehmood Pracha and Prateek Gupta counsel forFaccused Rambeer Shokeen.

Part arguments on application u/sec.167 (2) Cr.P.C.

Heard.

Put up for further arguments on this application onG14.03.2017.”

11. Finally, on 14[th] March, 2017 the Special Court rejected thestatutory bail application dated 2[nd] March, 2017 filed by the appellant.The relevant extract of the observations/reasons recorded by the SpecialCourt reads:

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“xxx xxxxxx xxxxxx

So, in these circumstances, the application dated 28.02.2017i.e. seeking extension of period to file charge sheet/investigation was not decided on merits (as sought vide orderdated 01.03.2017). Moreover, on 08.03.2017, cannot bedecided on merits as the charge-sheet was already filed beforeorder on this application.

So, in these circumstances, the issue before the court in thisapplication is that whether vide order dated 01.03.2017, thesaid court of Ld. District & Session Judge, NDD was withinits power to extend the judicial custody of the accused or notand for that purpose whether there should be a specific orderof extension of period of investigation.

As far as this issue is concerned, the law says that it is theprerogative of the investigating agency to file charge sheet/complete investigation, as per their wishes. The Court cannotinterfere in the period/duration of investigation. However, inSec.21(2)(b) MCOCA, the rider is that in case if theinvestigation is not completed within 90 days and theprosecution/IO wanted that the accused shall remain in judicialcustody, then only he has to move in terms of Sec.21(2)(b) ofMCOCA.

In this case, the prosecution had moved such application on28.02.2017 (analogous to the movement of application u/sec.167(2) Cr.P.C. by accused, before charge-sheet). Theorder could not be passed as the court under Sec.5(5) MCOCAhad stated that the same is to be heard by the concerned court.So, there was no lapse on the part of IO. He had alreadymoved the application on time. As far as the JC is concerned,the same has been extended by the concerned court after theapplication u/sec.28(2)(b) MCOCA is already moved by theIO. So, in these circumstances, the court had acted in legalway in extending the period of judicial custody since theapplication for seeking extension of time was already pendingbefore the court.

So, in these circumstances, no ground exists which suggestthat there was illegal custody of accused beyond the period A

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Aof 90 days from the day of his first judicial remand and he isentitled for statutory bail u/sec.21(2)(b) of MCOCA.

So, the application u/sec. 167(2) Cr.P.C. alternatively readas application u/sec.21(2)(b) of MCOCA is dismissed.

Copy of order be given dasti.BPut up for purpose fixed on date already fixed i.e.18.03.2017.”

12. Aggrieved, the appellant filed Criminal Appeal No.311/2017before the High Court of Delhi at New Delhi and challenged the legalityCof orders dated 1[st] March, 2017, 4[th] March, 2017, 7[th] March, 2017 and14[th] March, 2017. Besides, the appellant moved an application for grantof interim bail. By the impugned judgment, the High Court has rejectedCriminal Appeal No.311/2017 and Criminal M. (Bail) No.525/2017 on22[nd] May, 2017.D13. The principal argument of the appellant before the High Courtas noted in paragraph 20 of the impugned judgment is that the report/application submitted by the Additional Public Prosecutor for extensionof time to file charge-sheet till 15[th] March, 2017, was not in conformitywith the requirement of proviso to Section 167(2) of Cr.P.C. The appellantplaced reliance on the decision of this Court in Hitendra Vishnu ThakurEv. State of Maharashtra,[1] to buttress his submission. After adverting tothe legal position expounded in the said decision, the High Court inparagraph 24 considered the factual matrix relevant for answering theissue. The contention specifically raised by the appellant has been dealtwith from paragraph 25 of the impugned judgment and noted thus:F“25. The request submitted by the public prosecutor on28.2.2017 seeking extension of the period for filing charge-sheet against him in this case till 15.3.2017, briefly referredto the report of the investigating officer that had beensubmitted before him (the public prosecutor) and upon itsperusal the brief background facts were mentioned indicatingGcertain steps that had been taken to collect evidence withregard to the income and assets of the appellant. The publicprosecutor informed the special court by the said request inwriting that investigation of the case was to be conducted,inter alia, by his ¯’further interrogation’ as to the source of H 1 (1994) 4 SCC 602

H 1 (1994) 4 SCC 602

money for acquiring the assets worth Rs. 1.85 crores as hadbeen declared to be held by him and his wife to the ElectionCommission at the time of contesting the election to DelhiLegislative Assembly in 2013, income-tax returns not havingbeen filed by him or his wife during 2006-2016.

26. Pertinent to mention here that the request for interrogationof the appellant in custody made by the investigating officeron 4.3.2017, granted on the same date by the District andSessions Judge, was for the same reasons and on the samegrounds as were set out by the public prosecutor in his requestsubmitted on 28.2.2017.

27. It is true that the request of the public prosecutor submittedon 28.2.2017 is not captioned as ‘report’ nor does itspecifically refer to the provision contained in the secondproviso to Section 167 (2) Cr.P.C. But, this cannot be construedas a deficiency. It has to be borne in mind that it is not amatter of form but one of substance. The request in writingdated 28.2.2017 of the additional public prosecutor satisfiesthe twin criteria of the second proviso to Section 167 (2)Cr.P.C. It indicates that the public prosecutor had subjectedthe investigating officer’s report as made to him to scrutinyand also informed the court the progress of the investigationand setting out the reasons why the continued detention ofthe appellant in custody was necessary. Therefore, it has tobe accepted as a ‘report’ of the public prosecutor satisfyingthe requirements of second proviso to Section 167 (2) Cr.P.C.Whether or not, in the facts and circumstances of the case, asprevailing on the date such report was submitted to the specialcourt will have to be considered separately.

28. As noted above, the appellant had moved an applicationunder Section 167(2) Cr.P.C. for release on bail by defaultunder Section 167(2) Cr.P.C. on 28.2.2017. It is fairlyconceded by the learned counsel for the appellant that suchapplication moved on 28.2.2017 was premature as ninety dayswould expire only on 1.3.2017.

29. On 28.2.2017, besides the application of the investigatingofficer seeking extension of the custody period of the A

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Aappellant, the report of the public prosecutor for extensionof the period of investigation had come be submitted to thespecial court. Without doubt, the report could be consideredbefore expiry of the period of ninety days or on the last dayof such period ordinarily available which would be 1.3.2017.The special court, within its judicial discretion, decided toBpostpone the consideration to the following date i.e. 1.3.2017.It is reflected in the order passed on 1.3.2017 by the Districtand Sessions Judge, as extracted earlier, that the additionalsessions judge presiding over the special court was indisposedand, therefore, on leave of absence on 1.3.2017. The DistrictCand Sessions Judge, before whom the file was placed forconsideration of the report of the public prosecutor and theapplication of the investigating officer, decided to defer theformer to 7.3.2017 for it to be ‘decided by the concernedcourt’ while extending the judicial custody for such period.Questions have been raised as to the competence of theDDistrict and Sessions Judge to deal with this case underMCOCA on the plea that the judicial officer presiding overthe court of District and Sessions Judge was not designatedas a special court in terms of Section 5 MCOCA.”

14. While dealing with the argument regarding the competence ofEthe District & Sessions Judge, the High Court referred to the Notificationdated 15[th] September, 2010 and opined that it was regarding conferral ofpowers of Presiding Officer of the Special Court under MCOCAascribable to Section 5 of the special enactment. Further, the LieutenantGovernor of National Capital Territory of Delhi was pleased to conferFon each member of the Delhi Higher Judicial Service, inter alia, thepowers of Presiding Officer of the Special Court under MCOCA asextended to NCT of Delhi, with conferral of powers to be exercised“with effect from the date of assumption of the charge” of such post inpursuance of “transfer or posting orders by the Chief Justice of theDelhi High Court”.G

15. The High Court then considered the grounds urged by theappellant and after adverting to Section 5 of MCOCA and Section 15 ofthe General Clauses Act and the reported precedents pressed into serviceby both the sides, answered the issue against the appellant. The HighCourt concluded that the validity of Notification dated 15[th] September, H

2010, issued by the Lieutenant Governor of NCT of Delhi, inter alia,conferring powers to be exercised by the members of Delhi HigherJudicial Service, in terms of MCOCA, such empowerment being “ex-officio”, cannot be questioned.

16. As regards the merits of the application for grant of statutorybail, the High Court adverted to the decisions relied upon by the parties.In paragraph 69 the Court then observed:

“69. As has been held above, the District and Sessions Judge,while dealing with the matter arising out of, inter alia, thereport of the public prosecutor on 01.03.2017, and theadditional sessions judge presiding over the special courtalso dealing, amongst others, with the said report of the publicprosecutor on 07.03.2017 and 08.03.2017, failed to dischargethe judicial responsibility properly. The consideration of thereport of the public prosecutor, submitted (on 28.02.2017)well in time before expiry of the period of ninety days ordinaryavailable, was deferred unnecessarily on 01.03.2017 andbeyond till it was treated, wrongly so, as ¯infructuous on08.03.2017. It is against this backdrop that the appellantargues that there being no order in terms of second provisoto Section 167(2) Cr.P.C. enlarging the period of investigation,a right to bail by default has accrued in his favour whichcannot be defeated by submission of the charge sheet on07.03.2017. The crucial question, however, is as to whethersuch benefit can be extended to the appellant in a fact-situation where the investigating police officer, and the publicprosecutor, had done their part of the duty under the law,well within time, and the default in consideration of, anddecision on, the report of the public prosecutor was whollyfor the reasons (or, shall we say, fault) attributable to theDistrict & Sessions Judge and the special court.”

17. Again in paragraphs 74 to 77, the Court observed thus:

“74. It is clear that the report submitted on 28.02.2017 by thepublic prosecutor in terms of second proviso to Section 167(2)Cr. PC seeking enlargement of time for completion ofinvestigation did not receive due consideration of the court.If the grounds on which the public prosecutor was A

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recommending extension of time were sufficient, there wouldbe no justification for its denial and, resultantly absolutelyno justification for the appellant to be released on bail bydefault.

If, on the other hand, the request was unfounded, it shouldhave been rejected and an appropriate order extending releaseon bail by default should have been passed.

75. Since the report did not receive due consideration andwas improperly treated as ‘infructuous’, there are two optionsavailable before this court : one, to remit the matter back tothe special court for a proper decision on the report or, two,to consider the report and pass appropriate order thereupon.The former course would only entail further delay. In a caseinvolving questions of personal liberty, such course is notdesirable. In this view, the learned counsel on both sides werealso heard on the merits of the report of the public prosecutor,bearing in mind that this court is duty bound to secure theends of justice and to prevent abuse of the process of court.

76. The background facts and circumstances of the caseagainst the appellant have already been noted. Certain assetsof the appellant and members of his immediate family hadcome to light for which, prima facie, there was no account,particularly in view of the declaration made on the subject in2013, when he was a candidate in the election to DelhiLegislative Assembly. Noticeably, the investigating officer wasseeking opportunity to interrogate the appellant against thesefacts to seek his explanation, if any. Under the provisions ofthe special enactment (MCOCA), the investigating policeofficer is entitled to interrogate the accused in judicial custody.As mentioned earlier, a formal request to this effect made bythe investigating officer was allowed by order dated04.03.2017. The report submitted on 28.02.2017 by the publicprosecutor, thus, is found to pass the necessary muster of thesecond proviso to Section 167(2) as inserted in the Code ofCriminal Procedure by Section 21(2) of MCOCA. The factthat the charge-sheet was filed on 08.03.2017, only re-assuresthat the request for enlargement of time for completion ofinvestigation made on 28.02.2017 was not with ulterior motive.

77. In above view, in the considered view of this court, therequest made by the public prosecutor should not only havereceived due consideration of the special court on 28.02.2017,or the District & Sessions Judge on 01.03.2017, but alsodeserved to be allowed. The trashing of the said report as“infructuous”, by order dated 08.03.2017, was thus not onlyincorrect but improper. In these circumstances, in exercise ofthe jurisdiction vested in this court to satisfy itself as to thecorrectness, legality or propriety of the order passed or as tothe regularity of proceedings of the inferior criminal court(under Section 397 Cr. PC), as indeed invoking the ‘inherentpowers’ of this court to secure the ends of justice and preventabuse of the judicial process (under Section 482 Cr. PC), theorder dated 08.03.2017 disposing of the report of the publicprosecutor under second proviso to Section 167(2) Cr. PC isset aside and, instead the said report is accepted and theperiod for completion of investigation of the case at handagainst the appellant is extended till 08.03.2017 when thereport under Section 173 Cr. PC (supplementary charge-sheet)against him was actually filed. In this view, the prayer of theappellant for release on bail by default under Section 167(2)is rendered impermissible and is accordingly declined.”

18. Being aggrieved, the appellant has approached this Court byway of these appeals. In the course of hearing, the only argumentcanvassed by the counsel for the appellant was about the entitlement ofthe appellant for grant of statutory bail as, admittedly, the Special Courtdid not pass any specific order on the report/application for extension oftime for filing of charge-sheet against the appellant preferred by theAdditional Public Prosecutor. In absence of such an order, contends theappellant, the appellant acquired an indefeasible right. Thus, he ought tohave been granted statutory bail as prayed vide application dated 2[nd]March, 2017, under Section 167(2) of Cr.P.C. read with Section 21(2)(b)of MCOCA. As the statutory period of 90 days had already expired andthere was no extension of time granted to the prosecution by the SpecialCourt to file the charge-sheet, filing of the charge-sheet against theappellant on 8[th] March, 2017 could not denude the appellant of statutorybail. In support of his submission, reliance is placed on the decisions inthe case of Union of India v. Nirala Yadav,[2]Uday Mohanlal Acharya 2 (2014) 9 SCC 457

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Av. State of Maharashtra,[3] and Sanjay Dutt v. State through CBI[4].No other argument has been canvassed by the learned counsel for theappellant in these appeals.

19. The respondent on the other hand would support the reasonsrecorded by the Special Court and by the High Court to oppose theseBappeals. According to the respondent, the Special Court and the HighCourt have not committed any error in rejecting the prayer for grant ofstatutory bail, in view of indisputable facts of the present case. Theappellant was well advised not to pursue his application for grant ofstatutory bail application dated 28[th] February, 2017. For, by that date, 90days period for filing charge-sheet had not expired. Resultantly, theCquestion of entertaining prayer for grant of statutory bail did not arise.As regards the statutory bail application filed on 2[nd] March, 2017, thesame was also misconceived as the Additional Public Prosecutor hadalready filed report/application for extension of time on 28[th] February,2017 itself and the Court had extended the judicial custody of the appellantDpursuant to the said application until 1[st] March, 2017. Again on 1[st] March,2017, the hearing on report/application for extension of time preferredby the Additional Public Prosecutor was deferred and judicial custodywas finally extended until 8[th] March, 2017. Further, merely because noexpress order was passed on the said report/application of the AdditionalPublic Prosecutor on 2[nd] March, 2017 or for that matter, till 8[th] March,E2017 when the charge-sheet was filed against the appellant, ipso factodid not create any right in favour of the appellant. For, judicial custody ofthe appellant was consciously extended by the competent Court fromtime to time (from 28[th] February, 2017 till the filing of charge-sheet). Inany case, the Special Court, in law, was obliged to first decide the saidFreport/application for extension of time preferred by the Additional PublicProsecutor, and only if the same was to be rejected before filing of thecharge-sheet or expiry of the period of judicial custody of the appellant,could the appellant claim that an indefeasible right had accrued in hisfavour. In other words, application for grant of statutory bail preferredby the appellant on 2[nd] March, 2017 was also premature and in anyGcase, the same could not have been taken up for consideration until thereport/application for extension of time to file charge-sheet submitted bythe Additional Public Prosecutor dated 28[th] February, 2017, was finallydecided. In support of this submission, reliance has been placed on the 3 (2001) 5 SCC 453H 4 (1994) 5 SCC 410

dictum in paragraph 48 of the decision of the Constitution Bench in SanjayDutt’s case (supra). It is contended that the decisions in Uday MohanlalAcharya (supra), Nirala Yadav (supra) and Sanjay Dutt will be of noavail to the appellant as the exposition in those cases was in light of thefacts of those cases. It is contended that the High Court justly consideredthe merits of the report of the Additional Public Prosecutor dated 28[th]February, 2017 for extension of time, and after analysing the relevantaspects, concluded that the request made by the Additional PublicProsecutor was genuine and appropriate. The High Court, after hearingboth sides, concluded that the time to file charge-sheet against the appellantstood extended till 8[th] March, 2017 when the same was, in fact, filed.Resultantly, the application for grant of statutory bail filed by the appellantalbeit on 2[nd] March, 2017, was bound to be dismissed. According to therespondents, these appeals are devoid of merit and ought to be dismissed.

20. We have heard Mr. Mehmood Pracha, learned counselappearing for the appellant and Ms. Pinky Anand, learned AdditionalSolicitor General assisted by Mr. Aman Sinha, learned senior counseland Mr. B.V. Balaram Das, learned counsel for the respondent.

21. After having analysed the facts and events as unfolded from28[th] February, 2017 until 8[th] March, 2017, it is indisputable that on 28[th]February, 2017, the Additional Public Prosecutor had filed report forextension of time to file charge-sheet against the appellant until 15[th]March, 2017. The same was filed within time, before the expiry of 90days from the date of initial arrest of the appellant in connection with thesubject FIR. Realising this position, the appellant did not pursue his firstapplication for statutory bail dated 28[th] February, 2017. Instead, he wasadvised to file a fresh statutory bail application on 2[nd] March, 2017.Admittedly, on 2[nd] March, 2017 the report submitted by the AdditionalPublic Prosecutor dated 28[th] February, 2017 was still undecided.Therefore, no right can be said to have accrued to the appellant forgrant of bail on the ground of default. In law, only upon rejection of theprayer for extension of time sought by the Additional Public Prosecutor,right in favour of the appellant for grant of statutory bail could haveignited. The mere fact that 90 days period from the date of initial arrestof the appellant in connection with the subject FIR had lapsed on 2[nd]March, 2017, could not ineluctably entail in grant of statutory bail to theappellant. Moreso, when no decision was taken by the Court on thereport/application submitted by the Additional Public Prosecutor until 8[th]

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AMarch, 2017, on which date the supplementary charge-sheet against theappellant was filed in Court. Considering the effect of filing of thesupplementary charge-sheet against the appellant, coupled with the factthat his judicial custody was extended by the Court of competentjurisdiction until the pendency of consideration of the report/applicationfor extension of time to file the charge-sheet, in law, it is unfathomableBas to how the appellant could claim to have any accrued right to bereleased on bail on the ground of default or for that matter, such a righthaving become indefeasible.

22. The legal position has been expounded by the ConstitutionBench of the Supreme Court in the case of Sanjay Dutt (supra), inCparticular, in paragraph 48 as under:

“48. We have no doubt that the common stance before us ofthe nature of indefeasible right of the accused to be releasedon bail by virtue of Section 20(4)(bb) is based on a correctreading of the principle indicated in that decision. TheDindefeasible right accruing to the accused in such a situationis enforceable only prior to the filing of the challan and itdoes not survive or remain enforceable on the challan beingfiled, if already not availed of. Once the challan has beenfiled, the question of grant of bail has to be considered andEdecided only with reference to the merits of the case underthe provisions relating to grant of bail to an accused after thefiling of the challan. The custody of the accused after thechallan has been filed is not governed by Section 167 butdifferent provisions of the Code of Criminal Procedure. Ifthat right had accrued to the accused but it remainedFunenforced till the filing of the challan, then there is noquestion of its enforcement thereafter since it is extinguishedthe moment challan is filed because Section 167 CrPC ceasesto apply. The Division Bench also indicated that if there besuch an application of the accused for release on bail andGalso a prayer for extension of time to complete the investigationaccording to the proviso in Section 20(4)(bb), both of themshould be considered together. It is obvious that no bail canbe given even in such a case unless the prayer for extensionof the period is rejected. In short, the grant of bail in such asituation is also subject to refusal of the prayer for extension H

of time, if such a prayer is made. If the accused applies forbail under this provision on expiry of the period of 180 daysor the extended period, as the case may be, then he has to bereleased on bail forthwith. The accused, so released on bailmay be arrested and committed to custody according to theprovisions of the Code of Criminal Procedure. It is settled byConstitution Bench decisions that a petition seeking the writof habeas corpus on the ground of absence of a valid order ofremand or detention of the accused, has to be dismissed, if onthe date of return of the rule, the custody or detention is onthe basis of a valid order. (See Naranjan SinghNathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State ofDelhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113]and A.K. Gopalan v. Government of India [(1966) 2 SCR 427: AIR 1966 SC 816 : 1966 Cri LJ 602].)”

(emphasis supplied)

Further, the conclusion articulated in paragraph 53, makes it clearthat the decision in Hitendra Vishnu Thakur (supra) must be understoodaccordingly. It observed thus:

“53. As a result of the above discussion, our answers to thethree questions of law referred for our decision are as under:

(1) xxxxxxxxxxxx

(2) (a) Section 20(4) (bb) of the TADA Act only requiresproduction of the accused before the court in accordancewith Section 167(1) of the Code of Criminal Procedure andthis is how the requirement of notice to the accused beforegranting extension beyond the prescribed period of 180 daysin accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understoodin the judgment of the Division Bench of this Court in HitendraVishnu Thakur. The requirement of such notice to the accusedbefore granting the extension for completing the investigationis not a written notice to the accused giving reasons therein.Production of the accused at that time in the court informinghim that the question of extension of the period for completing AB

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Ainvestigation is being considered, is alone sufficient for thepurpose.

(2) (b) The ‘indefeasible right’ of the accused to be releasedon bail in accordance with Section 20(4)(bb) of the TADAAct read with Section 167(2) of the Code of Criminal ProcedureBin default of completion of the investigation and filing of thechallan within the time allowed, as held in Hitendra VishnuThakur is a right which enures to, and is enforceable by theaccused only from the time of default till the filing of thechallan and it does not survive or remain enforceable on thechallan being filed. If the accused applies for bail under thisCprovision on expiry of the period of 180 days or the extendedperiod, as the case may be, then he has to be released on bailforthwith. The accused, so released on bail may be arrestedand committed to custody according to the provisions of theCode of Criminal Procedure. The right of the accused to beDreleased on bail after filing of the challan, notwithstandingthe default in filing it within the time allowed, is governedfrom the time of filing of the challan only by the provisionsrelating to the grant of bail applicable at that stage.”

The aforementioned opinion has been expressed by the ConstitutionEBench in the context of question No.2 formulated in paragraph 2 of thejudgment as under:

“2. The questions of law indicated in the said order ofreference, to be decided by us, are three, namely:

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23. It is thus clear that no right had accrued to the appellant beforefiling of the charge-sheet; at best, it was an inchoate right until 8[th] March,2017. Resultantly, the question of granting statutory bail after filing ofcharge-sheet against the appellant and moreso during the pendency of H

report/application for extension of time to file charge-sheet wasimpermissible. In other words, the application for grant of statutory bailfiled by the appellant on 2[nd] March, 2017, even if pending, could havebeen taken forward only if the prayer for extension of period was to beformally and expressly rejected by the Court.

24. As held by the Constitution Bench of this Court, theconsideration of application for grant of statutory bail in a situation, as inthe present case, was dependent on rejection of prayer of the AdditionalPublic Prosecutor for extension of time. When such prayer is made, it isthe duty of the Court to consider the report/application for extension ofperiod for filing of the charge-sheet in the first instance; only if it was tobe rejected could the prayer for grant of statutory bail be taken forward.In no case, the hearing on statutory bail application precede theconsideration of prayer for extension of the period for filing of the charge-sheet made by the Additional Public Prosecutor.

25. The Constitution Bench decision in Sanjay Dutt’s case (supra)also answers the next issue raised by the appellant about the absence ofa valid remand/detention. In that, in the concluding part of the afore-quoted paragraph 48, the Court has opined that a petition seeking a writof habeas corpus on the ground of absence of a valid order of remand ordetention has to be dismissed if, on the date of return of the rule, thecustody or detention is on the basis of a valid order. Admittedly, in thepresent case, the judicial custody of the appellant was extended by theCourt of competent jurisdiction from time to time pending considerationof request to extend time to file charge-sheet, initially from 28[th] February,2017, till 1[st] March 2017 and so continued from 1[st] March, 2017, until 7[th]March, 2017, and again from 7[th] March, 2017, till 8[th] March, 2017 - onwhich date the charge-sheet was filed against the appellant in the Court.The order passed by the Special Court on 8[th] March, 2017, has been soconstrued by the High Court and additionally by explicitly extending theperiod for filing of the charge-sheet against the appellant until 8[th] March,2017. We find no error in that approach of the High Court. Nointerference is warranted in that regard.

26. The appellant, however, relies on the observations in UdayMohanlal Acharya (supra) rendered by a three-Judge Bench of thisCourt. In the said case, the accused had himself surrendered in Courtand was remanded to judicial custody. The period for filing of charge-sheet (60 days in that case) expired on 16[th] August, 2000. The accused A

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Amoved an application on 17[th] August, 2000, for grant of statutory bail onthe ground of default in filing of charge-sheet within the statutory periodof 60 days. That bail application was rejected by the Magistrate on thesame day, holding that the provisions of Section 167(2) of Cr.P.C. had noapplication to the cases pertaining to the special enactment i.e.Maharashtra Protection of Interest of Depositors (in FinancialBEstablishments) Act, 1999. The accused then approached the High Court.When the matter was pending before the High Court, charge-sheet wasfiled before the Trial Judge on 30[th] August, 2000. The High Court refusedto grant relief on the ground that by the time the High Court could considerthe correctness of the order on the statutory bail application passed byCthe competent Court, a charge-sheet was filed against the accused beforethe Magistrate and, therefore, the so called enforceable right did notsurvive or remained enforceable. In this backdrop, this Court consideredthe matter and answered the issue in favour of the accused on the findingthat before the charge-sheet was filed, the accused had invoked theremedy of statutory bail. Thus, the factum of filing of charge-sheetDsubsequently cannot defeat the right accrued to him. In the present case,before the appellant instituted the subject application for grant of statutorybail on 2[nd] March, 2017, the Additional Public Prosecutor had alreadyfiled his report/application for extending the period for filing of charge-sheet against the appellant until 15[th] March, 2017, but decision thereonEwas deferred. As held by the Constitution Bench in the case of SanjayDutt (supra), unless the report/application filed by the Additional PublicProsecutor for extension of time was rejected, no right would accrue infavour of the accused much less to consider his application for grant ofstatutory bail. Further, in such cases it is the duty of the concerned Courtto first deal with the prayer for extension of period to file charge-sheetFmade by the Additional Public Prosecutor. The High Court, in theimpugned judgement, thus answered the issue against the appellant andadditionally considered the justness of the prayer made by the AdditionalPublic Prosecutor for extension of period for filing charge-sheet. Itrecorded an express finding that the said request was genuine andGappropriate and thus extended the time for that purpose till 8[th] March,2017.

27. Reverting to the decision in the case of Nirala Yadav (supra)rendered by two-Judge Bench, the accused in that case was arrestedand sent to judicial custody on 5[th] December, 2006. After lapse of the H

statutory period of 90 days on 14[th] March, 2007, the accused filedapplication for grant of statutory bail on the ground of default. Theprosecution (CBI), however, on 15[th] March, 2007, moved an applicationfor extension of time for a period of 30 days. Since the application forgrant of statutory bail filed by the accused preceded the filing of applicationfor extension of time, the issue was answered in favour of the accused.In the present case, however, the prayer for extension of period forfiling charge-sheet was moved by the Additional Public Prosecutor beforethe statutory period had lapsed, but the same remained pending until 8[th]March, 2017, when charge-sheet was filed in Court. Until the said requestwas formally and expressly rejected by the competent Court, in view ofthe exposition in the case of Sanjay Dutt (supra), the concerned Courtcould not have assumed jurisdiction to consider the prayer for grant ofstatutory bail of the appellant. The request made by the Additional PublicProsecutor was formally disposed of as infructuous on 8[th] March, 2017,after filing of the charge-sheet against the appellant. That was not anorder of rejection of the request of the Additional Public Prosecutor assuch. The High Court has examined this aspect and, in our opinion, rightlyanswered the issue against the appellant for the reasons recorded inparagraphs 75 to 77 of the impugned judgment, including by explicitlyextending the time to file charge-sheet till 8[th] March, 2017.We affirmthe said view of the High Court. Therefore, even this decision reliedupon by the appellant will be of no avail in the fact situation of the presentcase.

28. Taking overall view of the matter, therefore, it is noticed thatthe Additional Public Prosecutor had submitted his report to the concernedCourt for extending time until 15[th] March, 2017, to file the charge-sheet.That report was submitted on 28[th] February, 2017, before expiry of theinitial statutory period of 90 days for filing of the charge-sheet againstthe appellant. That request was disposed of by the Special Court on 8[th]March, 2017 as infructuous, after the charge-sheet against the appellantwas submitted in Court. Until 8[th] March, 2017, the appellant was sent tojudicial custody by the competent Court pending consideration of requestof the Additional Public Prosecutor for extension of time to file thecharge-sheet. The Court, in law, could not have considered the prayerfor grant of statutory bail of the appellant until 8[th] March, 2017, on whichdate the charge-sheet was already filed against the appellant in theconcerned Court. Further, the High Court considered the circumstances AB

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Ain which the order came to be passed by the Special Court on 8[th] March,2017. In our opinion, it rightly held that the said request could not havebeen closed as having become infructuous. Rather, it was the duty ofthe Court to decide the request on its merits and only upon its rejection,proceed to consider the prayer for grant of statutory bail. The HighCourt, therefore, noticed that it had two options: first, to remit the matterBback to the Special Court for a proper decision on the said report of theAdditional Public Prosecutor dated 28[th] February, 2017 or second, toconsider the same itself and pass appropriate orders thereupon. It choseto adopt the second option, which was thought desirable and not objectedto by the appellant as can be discerned from the noting in paragraph 75Cof the impugned judgment. The High Court, in paragraph 76 of theimpugned judgment, then proceeded to consider the prayer for extensionof time made in the report submitted by the Additional Public Prosecutoron 28[th] February, 2017, and, for tangible reasons, found the same to begenuine and appropriate. Having thus held, it allowed the said request byextending the time to file charge-sheet till 8[th] March, 2017. We find noDinfirmity in the said approach of the High Court. Having extended thetime till 8[th] March, 2017 and as the charge-sheet was already filed onthat date, the question of considering the prayer for grant of statutorybail of the appellant vide application dated 2[nd] March, 2017, on the groundof default, did not survive for further consideration. Right to grant ofEstatutory bail would have enured to the accused only after rejection ofthe request for extension of time prayed by the Additional PublicProsecutor. As a result, the High Court rightly rejected the prayer forgrant of statutory bail pursued by the appellant vide application dated 2[nd]March, 2017. We are in full agreement with the said conclusion reachedby the High Court.F

29. A priori, these appeals must fail. Indeed, rejection of theprayer for grant of statutory bail will not come in the way of the appellantin pursuing his remedy for grant of regular bail on merit. The appellantis free to pursue that remedy which may be considered on its own meritsin accordance with law.G

30. Accordingly, these appeals are dismissed being devoid ofmerits.

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Appeals dismissed.