2014 (6) TMI 1080 - HC - Indian Laws

Grant of bail - bail is being sought on the ground that charge-sheet was not filed by the police within the stipulated period - HELD THAT - Undoubtedly, the fact that the application for bail was filed and the Public Prosecutor had moved for extension prior to that, is distinguishable from the reported case, yet Hon'ble the Supreme Court having categorically held that the order of extension could not be passed retrospectively, the respondents could not derive any benefit from the impugned order. The learned Special Judge could not have granted extension from back date and it was for the Public Prosecutor to have moved the application well within time. The petition is allowed and the petitioner is held entitled to bail under Section 167(2) Cr.P.C. It goes without saying that this order is not to be taken as any expression of opinion on the merits of the case. Bail to the satisfaction of the trial Court/Vacation Judge.

Summary

Issues:
Grant of bail under Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 167(2) of the Code of Criminal Procedure (Cr.P.C) due to delay in filing charge-sheet within stipulated period.

Analysis:
The petitioner sought bail under Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 167(2) of the Cr.P.C, citing the non-filing of the charge-sheet within the prescribed period. The prosecution applied for an extension of time for investigation on the grounds of non-receipt of the Chemical Examiner's report, leading to the delay. The Special Judge extended the investigation period by two and a half months but denied bail to the petitioner.

The petitioner relied on the Supreme Court's decision in Sayed Mohd. Ahmed Kazmi v. State, GNCTD, emphasizing that an order for extension of time cannot be passed retrospectively. The petitioner argued that since the extension order was granted after the expiry of the prescribed period, it was not sustainable. The State contended that the situation in the present case was different from the cited case as the application for extension was filed before the expiry of the statutory period.

The Court noted that while the timing of the applications in the present case differed from the cited case, the principle established by the Supreme Court regarding retrospective extension orders remained applicable. The Court emphasized that the extension granted with retrospective effect was impermissible, irrespective of when the applications were filed. It was highlighted that the prosecution should have been proactive in seeking an extension before the expiry of the stipulated period.

In light of the legal principles and the Supreme Court's ruling, the Court allowed the petition and granted bail to the petitioner under Section 167(2) of the Cr.P.C. The Court clarified that the decision should not be construed as an opinion on the case's merits and directed the bail to be subject to the satisfaction of the trial Court or Vacation Judge. The matter was disposed of accordingly.