AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. T. Pradyumna Kumar Reddy, learned Senior Counsel representing Mr. C. Sharan Reddy and Mr. Gulam Rabbani, learned counsel for the appellants Mr. P. Vishnuvardhana Reddy, learned Special Public Prosecutor appearing on behalf of the respondent - National Investigation Agency (NIA).
Lis involved in both the appeals and the parties are one and the same. Therefore, both the appeals were heard together and are disposed of by way of this common judgment.
The respondent herein - Investigating Agency had filed Crl.M.P.No.240 of 2023 in (RC-01/2023/NIA/HYD.) in Crime No.204 of 2022 of PS SIT, Hyderabad, seeking extension of another 90 days time for completion of investigation and laying charge sheet in terms of the Unlawful Activities (Prevention) Act, 1967 (for short ‘UAPA’). Vide impugned order dated 27.02.2023, learned IV Additional Metropolitan Sessions Judge - cum - Special Court for NIA Cases, Nampally, Hyderabad (for short ‘Special Court’), allowed the said application extending the judicial remand of accused Nos.1 to 3 including the appellant herein up to 180 days, and the Investigating Agency was directed to take all appropriate steps to complete the investigation within the said period.
i) Feeling aggrieved by the order 27.02.2023 in Crl.M.P. No.240 of 2023, the appellant - accused No.3 preferred Criminal Appeal No.250 of 2023.
Like-wise, feeling aggrieved by the order dated 27.02.2023 passed by the Special Court in Crl.M.P. No.252 of 2023 in Crl.M.P. No.166 of 2023 in (RC-01/2023/NIA/HYD.) in Crime No.204 of 2022 of PS SIT, Hyderabad, dismissing the petition to grant default bail to accused Nos.1 to 3, the appellant - accused No.1 filed Criminal Appeal No.278 of 2023.
FACTS:
On the complaint lodged by Inspector of Police, CCS, DD, SIT, Hyderabad, CCS PS, DD, Hyderabad registered a case in Crime No.204 of 2022 on 01.10.2022 against the appellants herein - accused Nos.1 & 3 and others for the offences punishable under Sections - 18, 18B and 20 of the UAPA.
i) On 01.10.2022, the complainant received credible information that one Zahed @ Mohd. Abdul Wajid, resident of Malakpet, Hyderabad (Accused No.1), who was released from Jail in 2017 in connection with the Suicide Bombing Attack Case on Begumpet Task Force Office, Hyderabad in 2005 and also involved in several other terror related cases, was in contact with Pakistan based handlers who belong to Let-ISI (Lashkar-e-Taiba - Inter-Services Intelligence). He had received hand-grenades from his Pakistan based handlers and he was planning to hurl the same on public gatherings/processions in order to create communal tension. As per the instructions of his Pakistan based handlers, accused No.1 has recruited several youth in Hyderabad for carrying out the terrorist attacks.
ii) On receipt of the said complaint, CCS PS has registered the aforesaid crime against Zahed @ Mohd. Abdul Zahed @ Md. Abdul Wajid (appellant - accused No.1); Maaz Hasan Farooq @ Maaz (appellant - accused No.3); Samiuddin @ Sami (accused No.2) and others for the aforesaid offences, and investigation was handed over to Assistant Commissioner of Police, SIT, CCS, DD, Hyderabad.
iii) On 02.10.2022, the State Police have conducted a search at the house of accused No.1 which resulted in recovery of two hand-grenades and Rs.3.91 lakhs cash as part of terror funding money. During the search, the disclosure made by accused No.1 under Section- 27 of the Indian Evidence Act, 1872, led to the discovery of fact of accused Nos.2 and 3 possessing hand-grenades and terror funding money which were handed over to them by accused No.1. Accordingly, house searches of accused Nos.2 and 3 resulted in recovery of one hand-grenade each from their house apart from recovery of Rs.1.5 lakh (part of terror funding money) from the house of accused No.2. All the three accused including appellants herein were arrested on 02.10.2022 and were remanded to judicial custody.
iv) During the course of investigation, it was revealed that the seized hand-grenades were supposed to be hurled on the public gatherings during on-going Dusshera festival in October, 2022 with an intention to cause loss of life and property and strike terror in the minds of common public of a section of people. Accused No.1 received approximately Rs.41.71 lakhs from his Pakistan based handlers which were used/to be used in the expenditure towards committing the terror act and maintaining/recruiting the members for the proscribed organization LeT in Hyderabad.
Since the investigation was not completed within the period of ninety (90) days, the Investigating Officer has filed an application on 29.12.2022 before learned XII Additional Chief Metropolitan Magistrate, Hyderabad, seeking extension of judicial remand of the arrested accused from 90 days to 180 days. He has also filed Public Prosecutor’s report along with the said application. The said period of 90 days of judicial remand was completed on 31.12.2022.
It is apt to note that during pendency of the said application seeking extension of judicial remand filed by the prosecution, the appellants - accused Nos.1 and 3 and accused No.2 filed an application vide Crl.M.P. No.166 of 2023 under Section - 167 (2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) before learned XII Additional Chief Metropolitan Magistrate (XII ACMM), Hyderabad, on 02.01.2023 to grant default bail.
Contentions of Parties:
The aforesaid facts would reveal that the appellants - accused Nos.1 and 3 and accused No.2 were arrested on 02.10.2022 and they were sent to judicial custody on 03.10.2022. As per Section -167 (2) of the Cr.P.C., the Investigating Officer has to complete the investigation and lay charge sheet within 90 days. They have not completed the investigation within the said period of 90 days and, therefore, they have filed an application on 29.12.2022 before the XII ACMM seeking extension of time to complete the investigation and file charge sheet and also to extend the period of judicial remand up to 180 days. According to the appellants, since there is no extension of period of judicial remand and to complete investigation, they are entitled for mandatory bail under Section - 167 (2) of the Cr.P.C. Therefore, they have filed an application vide Crl.M.P. No.166 of 2023 under Section - 167 (2) of the Cr.P.C. on 02.01.2023 seeking default bail before learned XII ACMM, Hyderabad.
It is the contention of the Investigating Officer that it has filed the aforesaid application on 29.12.2022 itself seeking extension of time to complete investigation and judicial remand period of arrested accused Nos.1 to 3 well within 90 days, the same was pending with XII ACMM, Hyderabad. Therefore, the appellants cannot take advantage of the same and seek benefit under Section - 167 (2) of the Cr.P.C.
Analysis and finding:
In the light of the aforesaid submissions, this Court called for the record from the Special Court.
Perusal of record would reveal that the Investigating Officer (ACP, SIT, CCS, DD, Hyderabad) has filed a petition on 29.12.2022 before the XII ACMM seeking extension of remand period of accused and another 90 days period for completion of investigation in terms of the provisions of UAPA. Along with the said application, the Investigating Officer in Crime No.204 of 2022 has also filed a report of the Assistant Public Prosecutor dated 29.12.2022. Though the said application was filed on 29.12.2022, learned XII ACMM did not dispose of the same in accordance with law. It is relevant to note that learned XII ACMM did not even assign number to the said application.
While the matter stood thus, the appellants herein and accused No.2 have filed an application under Section - 167 (2) of the Cr.P.C. on 02.01.2023 before XII ACMM seeking default bail by duly serving a copy on learned Assistant Public Prosecutor. The same was numbered as Crl.M.P. No.166 of 2023
Considering the gravity of the offence and its Inter-state and International ramifications, the Ministry of Home Affairs, Government of India, in exercise of the powers conferred under Section – 6 (5) read with 8 of the NIA Act, 2008, vide order No.11011/18/2023/NIA, dated 25.01.2023, entrusted the investigation to NIA, and directed it to take up the investigation. In compliance with the said order, NIA took up the investigation of the aforesaid Crime No.204 of 2022 pending on the file of CCS PS, DD, Hyderabad and was re-registered at NIA, Hyderabad as Rc-01/2023/NIA/HYD on 25.01.2023 for the offences under Sections - 18, 18B and 20 of the UAPA. The said fact was brought to the notice of learned XII ACMM by the public prosecutor by filing a memo. Then, the learned XII ACMM realized that the offences are punishable under UAPA and that investigation was entrusted to NIA passed docket orders on 10.02.2023, holding that it has no jurisdiction to entertain the said petition. Accordingly, learned XII ACMM directed the office to transmitting the entire file to the Special Court and further directed its office to make the said application as part and parcel of the record while transmitted the case record for proper adjudication.
Pursuant to the said orders, dated 10.02.2023 of learned XII ACMM, both the applications i.e., application filed by the Investigating Officer seeking extension of judicial remand and time to complete investigation and grant of default bail by the accused were transferred to the Special Court. Perusal of the record would reveal that the Special Court assigned Criminal M.P. No.240 of 2023 to the application filed by the Investigating Agency seeking extension of judicial remand and Criminal M.P. No.252 of 2023 to the application filed by the accused under Section - 167 (2) of the Cr.P.C. seeking default bail.
Perusal of record would also reveal that learned XII ACMM assigned Crl.M.P. No.166 of 2023 to the application filed by the accused under Section - 167 (2) of Cr.P.C. seeking default bail on 04.01.2023 and adjourned to 06.01.2023. On 06.01.2023, Assistant Public Prosecutor filed counter and for hearing it was adjourned to 10.01.2023 and from that date again it was adjourned to 17.01.2023 on which date, the application was heard in part and for further hearing, it was adjourned to 24.01.2023. On 24.01.2023, at request of both sides, again the matter was adjourned to 30.01.2023. On 30.01.2023, learned Assistant Public Prosecutor filed a memo stating that learned XII ACMM is not having power to entertain any kind of application since the offences are under UAPA, and a Special Court has been established in terms of Section - 2 (i) D of UAPA, whereas, learned counsel for the accused relied upon the principle laid down by the Hon’ble Supreme Court in Bikramjit Singh v. State of Punjab (2020) 10 SCC 616.
On receipt of notices, learned counsel for the accused sought time to submit arguments in respect of clarification regarding as to whether learned XII ACMM is having jurisdiction or not and accordingly it was adjourned to 03.02.2023. Learned Magistrate heard the arguments partly and it was adjourned to 07.02.2023 for further hearing on which date upon hearing arguments of both sides, it was posted to 10.02.2023 for orders. On 10.02.2023, learned Magistrate has passed orders on the memo holding that learned XII ACMM is not having jurisdiction to entertain the said application and therefore directed its office to transfer both the applications to the Special Court. It also directed its office to make the said application i.e., Crl.M.P. No.166 of 2022 as part and parcel of the record while transmitting the case record for proper adjudication.
Perusal of record would reveal that on transfer, learned Special Court took up the petitions on 16.02.2023 and adjourned and finally vide orders dated 27.02.2023, learned Special Court dismissed the application filed by the accused under Section - 167 (2) of the Cr.P.C. seeking default bail and allowed the application filed by the Investigating Officer seeking extension of judicial remand and period for completion of investigation. It is relevant to note that in both the applications notices were given to either side and they have filed counters and arguments were also heard and thereafter learned Special Court passed the aforesaid impugned orders on 27.02.2023 in both the petitions.
The aforesaid facts would reveal that the appellants - accused Nos.1 and 3 were arrested on 02.10.2022 and sent them for judicial remand on 03.10.2022. 90 days judicial remand period was expired on 31.12.2022. As per Section - 167 (2) of the Cr.P.C., the Investigating Officer has to complete investigation within 90 days from the date of judicial remand or seek extension of judicial remand of the arrested accused and they have to seek extension of time to complete investigation. Accordingly, the Investigating Officer in Crime No.204 of 2022 had filed an application seeking extension on 29.12.2022 itself before learned XII ACMM. The said application was pending and it was not taken up for hearing. During pendency of the said application, the appellants - accused Nos.1 and 3 and accused No.3 have filed an application vide Crl.M.P. No.166 of 2022 seeking default bail. Learned Magistrate assigned number to the said application as Crl.M.P. No.166 of 2022. The same was not disposed of. It was posted for counter and hearing at the request of both sides.
During pendency of the aforesaid applications before learned XII ACMM, investigation was entrusted to NIA vide orders dated 25.01.2023. On 30.01.2023, learned APP has filed a memo before learned XII ACMM stating that the offences are under UAPA and, therefore, learned Magistrate has no jurisdiction to decide the same. However, without deciding the said applications on merits, learned Magistrate has passed orders on 10.02.2023 transmitting both the applications and record to the Special Court.
It is relevant to note that there is no challenge to the said order dated 10.02.2023 passed by learned XII ACMM. On transfer, the learned Special Court dismissed the application filed by the appellants seeking default bail and allowed the application filed by the Investigating Officer seeking extension of judicial remand and to extend the time for completion of investigation. In both the said applications, counters were filed and arguments were advanced.
As discussed above, according to the Investigating Agency, the allegations levelled against the appellants - accused are that a search was conducted on 02.10.2022 at the house of accused No.1, two hand-grenades and Rs.3.91 lakhs cash were recovered from accused No.1 as part of terror funding money. One hand-grenade each from accused Nos.2 and 3 and Rs.1.50 lakh from the house of accused No.2 were recovered on the disclosure made by accused No.1. Thus, the seized hand-grenades were supposed to be hurled on the public gatherings during on-going Dussehra festival in October, 2022 with an intention to cause loss of life and property and strike terror in the minds of common public of a section of people. Accused No.1 has received an amount of Rs.41.71 lakhs from his Pakistan based handlers. Thus, there are serious allegations against both the accused. Considering the gravity of the offences and seriousness of allegations and its ramifications, the investigation was entrusted to NIA vide order dated 25.01.2023. The NIA re-registered the aforesaid case and on completion of investigation laid charge sheet against the appellants and accused No.2. The same is pending now.
The aforesaid facts would reveal that the Investigating Agency has filed applications seeking extension of judicial remand and time to complete investigation. The said 90 days period was expired by 31.12.2022 itself. Having received and acknowledged the said application, learned Magistrate neither assigned any number to it, nor disposed it of in accordance with law. The same was kept pending. The Investigating Officer did not peruse the said application and learned Magistrate kept the petition pending. In the meanwhile, the appellants have filed an application under Section - 167 (2) of the Cr.P.C. seeking default bail on 02.01.2023. They were also silent. In the meanwhile, the investigation was entrusted to NIA and learned Assistant Public Prosecutor filed a memo on 10.01.2023. Pursuant to the same, entire record including the aforesaid applications were transferred to the Special Court which in turn dismissed the same. Therefore, for the mistake committed by learned XII ACMM in not disposing of the application filed by the Investigating Officer seeking extension of judicial remand and time to complete investigation, the accused cannot take advantage of the same and claim benefit. It is the duty of Investigating Agency to file application well within time and it is also the duty of the Court to dispose of the same. For the fault of the Court, accused cannot claim benefit. Thus, on consideration of the said aspects only, learned Special Court dismissed the application filed by the accused under Section - 167 (2) of the Cr.P.C. vide Crl.M.P. No.252 of 2023.
As discussed above, the allegations leveled against the appellants are serious. It is relevant to note that for Section - 43D (5) of the UAPA, the following two conditions are mandatory:
(i) Notice to Public Prosecutor; and
(ii) If Court is of the opinion that there are reasonable grounds for believing that the accusation against accused is prima facie true.
The Special Court on consideration of the allegations leveled against the appellants - accused Nos.1 and 3 and on consideration of the Public Prosecutor’s report and other material, allowed the said application filed by the Investigating Agency vide Crl.M.P. No.240 of 2023 and extended the judicial remand of accused Nos.1 to 3 up to 180 days and directed the Investigating Agency to take all appropriate steps to complete the investigation within the said period.
The Apex Court in Judgebir Singh @ Jasbir Singh Samra @ Jasbir v. National Investigation Agency 2023 SCC ONLINE SC 543 had an occasion to examine the scope of Section - 43D (5) of the UAPA and Section - 167 of the Cr.P.C. and held that the aforesaid twin conditions are mandatory. The Apex Court also held that NIA being a Premier Investigating Agency, should be very diligent and careful in seeking extension of time to conduct investigation and judicial remand of arrested accused. In the present case, the Investigating Agency i.e., SIT, CCS, DD, Hyderabad filed the aforesaid application seeking extension of time at the last moment i.e., 29.12.2022. They should have been more vigilant. However, they have filed such application on 29.12.2022 and later learned XII ACMM instead of deciding the said application kept pending till 10.02.2023 on which date it transmitted the file/record to the Special Court.
In Bikramjit Singh (2020) 10 SCC 616, the Apex Court examined the scope of Section - 43D of the UAPA and Section - 167(2) of the Cr.P.C. and held that extension of time for completion of investigation cannot be granted by Magistrate and it has to be granted by the Special Court /Designated Court under NIA Act, regardless of whether NIA was carrying out the investigation or State Police. The Apex Court also considered extension of investigation and laid down certain necessary requirements. The Apex Court in paragraph No.36 held as under:
“36. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”
It is also relevant to extract Section – 43D of UAPA and the same is as under:
“43D. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:—
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody,
he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.
(3) xxxxx
(4) xxxxx
(5) xxxxx
(6) xxxxx
(7) xxxxx”
In Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat AIR 2022 SC 4641, the Apex Court considered the scope of Section - 167 (2) of the Cr.P.C. and Article - 21 of the Constitution of India and held that right guaranteed to a citizen under Article - 21 of the Constitution of India is an indefeasible right to default bail and it is an integral part of fundamental right of personal liberty.
There is no dispute with regard to the said legal proposition. But, the facts of the present case are slightly different. The Investigating Agency has filed an application seeking extension of time to complete investigation and extension of judicial remand of the arrested accused well within 90 days i.e., 29.12.2022 itself. The same was kept pending by the learned Magistrate. Instead of transferring the same to the Special Court considering that the offences are under UAPA. Thus, as discussed above, the appellants - accused Nos.1 and 3 cannot take advantage of the same and claim benefit under Section - 167 (2) of the Cr.P.C.
In the light of the aforesaid discussion, there is no error in the impugned orders, both dated 27.02.2023, passed by the Special Court. The appellants failed to make out any case to interfere with both the orders. Thus, both the appeals fail and the same are liable to be dismissed.
Both the appeals are accordingly dismissed.
As a sequel, the miscellaneous applications, if any, pending in the appeals shall stand closed.