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Bombay HC: Prosecutor not a forwarding agency, Default Bail granted to accused in absence of reason for extension of time for tendering charge-sheet


Sep 24, The Aurangabad Bench of the Bombay High Court comprising of Justices RV Ghuge and BU Debadwar observed that,the reason for seeking extension of time for tendering the charge-sheet should be included in the public prosecutor report.

In the matter, an FIR was lodged in the beginning of June, 20202 at the Ramtirth Police Station, Biloli, Dist. Nanded for the offences punishable under Sections 394 and 397 of the Indian Penal Code and Section 3/25 of the Arms Act, 1959. Police arrested the appellant soon after the FIR lodged. Then in the end of July, 2020 the provisions under Section (3)(1)(ii) of the Maharashtra Control of Organized Crimes Act, 1999, (hereinafter referred to as “MCOC Act”) was added in the FIR on the approval of the Special Inspector General of Police, Nanded Range.

Then after 90 days, the Investigating Officer made an application under Section 21(2)(b) of MCOC Act to the Special Court seeking extension of time for tendering the charge-sheet. The trial court allowed extension of 30 days for filing the charge-sheet. The appellant filed an application for default bail which was rejected by the Special Court. The bench concluded that the same advocate was representing accused no 3 & 4, that is the reason, separate notice was not issued to accused no. 3 (appellant).

Learned advocate for the appellant, raised the issue that the report by Public Prosecutor (PP) has not tendered in compliance of Section 21(2)(b). He also referred judgements according to which, the Special Court is not to consider the request for extension of time until the PP submits a report.

Learned advocate for the appellant also submitted that, detention of the arrested accused has to end after the expiry of the period of 90 days for filing a charge-sheet.

“the moment the period of 90 days for filing a charge-sheet expires, an indefeasible right is created in favour of the arrested accused and his detention in Jail has to end instantaneously in the light of Section 167(2) of the Cr.P.C.”, Learned advocate for the appellant also submitted

The learned APP opposed the appeal and said that hyper technical approach cannot be taken with the appellant.

“that a hyper technical approach cannot be taken in such matters, especially when the appellant has a history of commission of offences of serious nature.”

The Bench said that, they have to assess the application submitted by the PP could be termed as report. The bench relying on the judgement in Nirala Yadav case on the expiry of 90 days of filing charge-sheet.

“The Hon’ble Apex Court concluded that the moment the 90 days have expired, a right is created in favour of the accused and a court cannot act to extinguish such right which the law so confers upon him. The law has to prevail and the prosecution cannot avail of such subterfuges to frustrate or destroy the legal right of the accused.”

The bench also said that, the time frame for the completion of investigation were imposed to protect the personal liberty of an accused.

“the intent and the object of the legislature in all these enactments was aimed at protecting the personal liberty of an accused and fetters were imposed on the investigation agency with regard to completion of investigation within the time frame. Extension of the time frame was permissible under stringent conditions.”

The bench also said that, the role of PP has defined, he has to apply mind independently to the request of the Investigation Agency, before submitting his report.

“He is not a mere postman or a forwarding agency. If he agrees with the reasons cited by the Investigation Agency, he would prepare his own independent report to assist the Special Court to decide whether the time period needs to be extended beyond 90 days and to a maximum of 180 days.”

The bench said that, public prosecutor has to play significant role in the backdrop. The application tendered “through the APP can be hardly said to be a report of the prosecutor “. The bench further said said that few elements should be part of the report,

“(a) reasons evidencing the personal satisfaction of the public prosecutor as regards the progress in investigation made, (b) the reasons for which the investigation could not be completed and (c) the object to be achieved through investigation for which an extended period of time”

The learned APP also raised the practical difficulties due to the lock-down, inter-district and across border movement. On this the bench referred S.Kasi Vs State judgement, which essentially talks about “the State has got no power to deprive a person of his life or liberty without the authority of law.

The bench granted the default bail to the accused with the certain condition.

The bench also directed to the Registrar (Judicial) to circulate the order before the Chief Secretary and the Director General of Police of the State. Also directed to circulate the the order with Director of Prosecution for persual.

“we direct the learned Registrar (Judicial) to place a copy of this order before the Chief Secretary, State of Maharashtra, the Director General of Police, State of Maharashtra and the Director of Prosecution for perusal, so as to issue directions for enlightening the prosecutors for meticulously following the crystallized position in law of submitting their report with reasons for seeking extension of time for investigation.”

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