2012 (10) TMI 1217 - SC - Indian Laws

Prayer for grant of statutory bail - Offences committed under Sections 307, 427 and 120-B of the Indian Penal Code - Explosion involving an Israeli Embassy vehicle carrying the wife of an Israeli Diplomat - later amended to cover Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 - Whether the Court of the Chief Metropolitan Magistrate was competent to remand the accused beyond 15 days for offences under the provisions of the Unlawful Activities (Prevention) Act, 1967? - HELD THAT - There is no denying the fact that on 17th July, 2012, when CR No.86 of 2012 was allowed by the Additional Sessions Judge and the custody of the Appellant was held to be illegal and an application u/s 167 (2) Cr.P.C. was made on behalf of the Appellant for grant of statutory bail which was listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and investigation and on 20th July, 2012 extended the time of investigation and the custody of the Appellant for a further period of 90 days with retrospective effect from 2nd June, 2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the Appellant on the expiry of 90 days from the date when the Appellant was taken into custody. Such right, as has been commented upon by this Court in the case of Sanjay Dutt 1994 (9) TMI 351 - SUPREME COURT and the other cases cited by the ld Additional Solicitor General, could only be distinguished once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well-established that if an accused does not exercise his right to grant of statutory bail before charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail. The circumstances, in this case, however, are different in that the Appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that the Appellant acquired the right for grant of statutory bail on 17th July, 2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. In our view, the right of the Appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise. We therefore, allow the appeal, set aside the order dated 20th July, 2012, passed by the Chief Metropolitan Magistrate extending the time of investigation and custody of the accused for 90 days, with retrospective effect from 2nd June, 2012, and the orders of the High Court dated 2nd July, 2012, 6th July, 2012 and 6th August, 2012, impugned in the appeal and direct that the Appellant be released on bail to the satisfaction of the Chief Metropolitan Magistrate, upon such conditions as may be deemed fit and proper, including surrender of passport, reporting to the local police station, and not leaving the city limits where the Appellant would be residing without the leave of the Court, so as to ensure the presence of the accused-Appellant at the time of the trial.

Summary

Issues Involved:
1. Competence of the Chief Metropolitan Magistrate to remand the accused beyond 15 days for offences under the Unlawful Activities (Prevention) Act, 1967.
2. Right to statutory bail under Section 167(2) Cr.P.C. upon expiry of the initial custody period.
3. Legality of the retrospective extension of custody and investigation period by the Chief Metropolitan Magistrate.

Issue-wise Detailed Analysis:

1. Competence of the Chief Metropolitan Magistrate:
The Delhi High Court initially questioned whether the Chief Metropolitan Magistrate had the competence to remand the accused beyond 15 days for offences under the Unlawful Activities (Prevention) Act, 1967. The High Court issued notice to the learned Additional Solicitor General for interpretation of the National Investigation Agency Act, 2008, the Code of Criminal Procedure, 1973, and the Unlawful Activities (Prevention) Act, 1967. The proceedings before the Additional Sessions Judge were stayed until further notice.

2. Right to Statutory Bail under Section 167(2) Cr.P.C.:
The appellant argued that the right to statutory bail commenced once the 90-day period stipulated under Section 167(2) Cr.P.C. ended without the filing of a charge-sheet. The appellant's custody was declared illegal by the Additional Sessions Judge on 17th July 2012, and an application for statutory bail was pending. The Chief Metropolitan Magistrate, however, did not hear the application on the same day and instead renotified it for the next day. The Supreme Court emphasized that the right to statutory bail becomes operative once the stipulated period ends and cannot be extinguished by a subsequent application for extension of custody.

3. Legality of Retrospective Extension of Custody:
The Chief Metropolitan Magistrate extended the custody and investigation period by 90 days with retrospective effect from 2nd June 2012. The Supreme Court found this retrospective extension untenable and stated that it could not defeat the statutory right accrued to the appellant upon the expiry of the initial 90-day period. The Court held that the appellant's right to statutory bail remained unaffected by the subsequent extension application filed by the prosecution.

Conclusion:
The Supreme Court allowed the appeal, setting aside the orders of the Chief Metropolitan Magistrate and the High Court. The Court directed the appellant to be released on bail with conditions to ensure his presence during the trial. The judgment reinforced the principle that an accused's right to statutory bail under Section 167(2) Cr.P.C. is indefeasible once the stipulated period expires without the filing of a charge-sheet, and such right cannot be nullified by subsequent procedural actions.