2014 (8) TMI 1241 - HC - Indian Laws

Right to statutory bail - Interpretation of statute - proviso to sub-Section 2 of Section 43D of the Unlawful Activities (Prevention) Act, 1967 - interplay of sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973 with sub-Section 8 thereof - HELD THAT - The undisputed legal position on which neither side was at variance is that for offences under the Unlawful Activities (Prevention) Act, 1967 investigation can be conducted by the National Investigating Agency and the provisions of the Code of Criminal Procedure, 1973 would apply concerning investigation as also cognizance of offences by Courts, but as modified by the applicable provisions of the Unlawful Activities (Prevention) Act, 1967. The cognizance of reports had to be by the Designated Courts constituted as per law under the NIA Act. The centre of gravity of the first argument concerns the first proviso to sub-Section 2 of Section 43D of the Unlawful Activities (Prevention) Act, 1967. It reads 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 - Now, as a matter of fact, when the 90 days period of detention was about to expire, pleading that the investigation was still in progress, an application was filed contents whereof have been reproduced in paragraph 3 by us for detention to be extended up to 180 days and along with the application a report of the learned Public Prosecutor was filed. The report of the Public Prosecutor makes a reference to the application prepared by the Investigating Officer. It also records that the learned Public Prosecutor has perused the case diary. The report highlights that a large number of call details and e-mails as also IDs of suspects have to be collected. It records that the investigation is voluminous and lengthy. The contention that the report was prepared first and the application later on for the reason in the application it was written that the report of the Public Prosecutor was separately attached and therefore it has to be inferred that the report of the Public Prosecutor could not be based on the contents of the application, would presume that reference of one document in the other would make the existence of one antithetical to the existence of the other. The argument is fallacious. It is trite that every investigation needs to be completed without unnecessary delay as per the mandate of sub-Section 1 of Section 173. Under sub-Section 2 as soon as the investigation is completed the report has to be forwarded to the Magistrate empowered to take cognizance of the offence. The contents of the report have to be as per sub-clauses (a) to (h) of sub-Section 2 - Now, an investigation would be complete if the Investigating Officer is able to gather all the facts, information and evidence as also is able to identify the accused and the requirements of sub-clause (a) to (d) are complied with in respect to the contents of the report. But sub-Section 8 of Section 173, which begins with a non-obstinate clause with a deeming provision interwoven, permits further investigation in respect of an offence after a report under sub-Section 2 has been furnished to the Magistrate. To put it pithily the mandate of the law would be that if within the statutory period prescribed by law within which a charge sheet has to be filed, if the same is not filed the accused would be entitled to statutory bail; and the charge sheet being the report of the investigation forwarded as per sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973. The right to statutory bail would terminate with the filing of the charge sheet. The charge sheet filed has to be treated as the report of investigation. The further investigation under sub-Section 8 of Section 173 of the Code of Criminal Procedure supplements the charge sheet already filed and is not to be confused with the report of the investigation contemplated by sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973. Appeal dismissed.

Summary

Issues Involved:
1. Interpretation of the proviso to sub-Section 2 of Section 43D of the Unlawful Activities (Prevention) Act, 1967.
2. Interplay of sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973 with sub-Section 8 thereof.

Detailed Analysis:

Issue 1: Interpretation of the Proviso to sub-Section 2 of Section 43D of the Unlawful Activities (Prevention) Act, 1967

Background:
The appellants were arrested under various sections of the Indian Penal Code and Unlawful Activities (Prevention) Act, 1967. The National Investigating Agency (NIA) sought to extend their judicial custody from 90 days to 180 days, citing ongoing investigations.

Legal Requirements:
Section 43D(2) of the Unlawful Activities (Prevention) Act allows for the extension of detention beyond 90 days if:
1. The Court is satisfied with the report of the Public Prosecutor.
2. The report indicates the progress of the investigation and specific reasons for further detention.

Court's Findings:
- The Public Prosecutor's report and the Investigating Officer's application indicated the investigation's progress and specific reasons for extending detention.
- The Special Judge perused the case diary and call details, satisfying legal requirements for extending detention.
- The argument that the report was prepared before the application was deemed fallacious. The court held that it is possible for documents to be authored sequentially and filed simultaneously.

Conclusion:
The court found that the requirements of Section 43D(2) were met in letter and spirit. The Special Judge's satisfaction based on the case diary and call details was deemed sufficient compliance with the law. The appeals (Crl.A. No. 781/2013 and Crl.A. No. 782/2013) were dismissed.

Issue 2: Interplay of sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973 with sub-Section 8 thereof

Background:
The appellants argued for statutory bail, claiming that the investigation was incomplete when the charge sheet was filed, as evidenced by the application for further investigation under Section 173(8) of the Code of Criminal Procedure.

Legal Requirements:
Section 173(2) of the Code of Criminal Procedure mandates that a report be forwarded to the Magistrate upon completion of the investigation. Section 173(8) allows for further investigation even after the initial report is filed.

Court's Findings:
- The court recognized the difference between "investigation," "further investigation," and "re-investigation." Further investigation under Section 173(8) supplements the initial charge sheet and is not indicative of an incomplete investigation.
- The Supreme Court's decision in Vinod Tyagi Vs. Irshad Ali & Ors. was cited, emphasizing that further investigation is permissible and does not invalidate the initial charge sheet.

Conclusion:
The court held that the filing of the charge sheet within the statutory period terminates the right to statutory bail. The further investigation under Section 173(8) does not imply that the initial investigation was incomplete. The appeals (Crl.A. No. 1554/2013, 1557/2013, and 1559/2013) were dismissed.

Summary:
The High Court of Delhi addressed two primary legal issues concerning the extension of detention under the Unlawful Activities (Prevention) Act, 1967, and the interplay of Section 173(2) and Section 173(8) of the Code of Criminal Procedure, 1973. The court found that the requirements for extending detention were met and that further investigation does not imply an incomplete initial investigation. All appeals were dismissed.