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TMI Blog2014 (8) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal issues have been raised by the appellants in the five captioned appeals. The first issue concerns the interpretation of the proviso to sub-Section 2 of Section 43D of the Unlawful Activities (Prevention) Act, 1967. The second concerns the interplay of sub-Section 2 of Section 173 of the Code of Criminal Procedure, 1973 with sub-Section 8 thereof. 2. Pursuant to FIRs registered by the National Investigating Agency for offences punishable under Section 121A and 123 of the Indian Penal Code, 1860 and Sections 17, 18, 18B, 19, 20, 38(2) and 39(2) of the Unlawful Activities (Prevention) Act, 1967 as amended by Act No. 35 of 2008, the three appellants were arrested. Denied bail and sent to judicial custody the detention continued. Since investigation related to alleged offences committed under the Unlawful Activities (Prevention) Act, 1967 continued, Section 43D of the said Act permitted the designated Court to extend the period of detention to 180 days, and before 90 days period of detention lapsed, on May 23, 2013 an application was filed by the Investigating Officer supported by a report of the learned Public Prosecutor praying that period of detention of Syed Maqbool and Imran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gya Nagar, Nanded, Maharashtra and accused (2) Syed Maqbool @ Zuber s/o Syed Haji r/o Santan Nagar near Madina Masjid Dharmabad, Nanded, Maharashtra were produced before the Ld. Court from Tihar Jail, on the strength of production warrant issued by this Hon'ble Court. They were shown arrested by NIA on 28.02.2013 and are presently in the Judicial custody. The Ld. Court was pleased to extend judicial custody remand of the said accused person upto 24.05.2013. Further, the 90 days period of remand would be expiring on 29.05.2013 in respect of the said accused persons . 5. That during the investigation of this case, huge numbers of Call details records (CDRs) have been collected and the analysis of the same is being done. Further CDRs/E-mail IDs of some other suspicious contact numbers are yet to be collected from the service providers for their examination and analysis, result of which are yet to come. Some items (mobile phone, retrieved e-mails etc.) have been forwarded to CFSL for forensic analysis and their examination reports are still awaited. The examination/ analysis of the call details/e-mails being time consuming process are likely to take further considerable time . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Nagar, Nanded, Maharashtra 2. Syed Maqbool @ Zuber s/o Syed Haji r/o Santan Nagar near Madina Masjid Dharmabad, Nanded, Maharashtra And for this act of kindness your petitioner as is duty bound shall every pray . Sd/- (Aseem Srivastava) Add.SP NIA, New Delhi Place : New Delhi Dated :23.05.2013 " Emphasis supplied 4. The accompanying report dated May 23, 2013 submitted under the signatures of the learned Public Prosecutor reads as under:- In The Court of Special Judge, Nia, Patiala House Court Complex, Delhi NIA Case number RC-06/2012/NIA/DLI, u/s 121A and 123 IPC, r/w section 17, 18, 18B and 20 of UA(P) Act, 1967 STATE (NIA) V/S Yasin Bhatkal and others Sub:- Report of Sr. Public Prosecutor with regard to prayer for extension of Judicial remand beyond the period of 90 days to 180 days in r/o accused persons namely: 1. Imran Khan @ Zakaria @ Saleem @ Fazal @ Tabrez @ Raj, S/O Wajid Khan R/o Peer Burhan Nagar, Near Masjid Saleheen, Bhagya Nagar, Nanded, Maharashtra (DOA 28.02.2013) 2. Syed Maqbool @ Zuber s/o Syed Haji r/o Santan Nagar near Madina Masjid Dharmabad, Nanded, Maharashtra (DOA 28.2.2013) MAY IT PLEASE YOUR HONOUR I have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application filed by the Investigating Officer it was recorded that the report from the Senior Public Prosecutor with respect to the progress of the investigation and the reasons for detention beyond the period of 90 days was separately attached, meaning thereby, that the report of the Senior Public Prosecutor had already been prepared. Learned counsel urged that this meant that the learned Public Prosecutor had not read the reasons stated in the application filed by the Investigating Officer; for the reason if in the application it was indicated that the report of the Senior Public Prosecutor was being separately attached it meant that the report was prepared first. The Investigating Officer had the report with him. That is the reason why in the application the Investigating Officer wrote that the report of the Senior Public Prosecutor was separately attached. 8. Thus, on facts it was pleaded that the learned Judge presiding over the Special Court erred in granting the extension of the period of detention to up to 180 days. 9. The cause leading to the filing of the other three appeals Nos.1554/2013, 1557/2013 and 1559/2013 is that whereas against Wasim Akram Malik a charge she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Monu son of Wasim Akhtar resident of Maniarpur, PS Kalyanpur, District-Samastipur, Bihar, (7) Dr. Shahnawaz Alam son of Shadab Ahmed, resident of Village/PO Sanjarpur, PS Saraimeer, Tehsil- Nizamabad, District-Azamgarh, Uttar Pradesh, (8) Asadullah Akhtar @ Haddi, son of Dr. Javed Akhtar, resident of Near Ghulami ka Pura, Behind Tedia Masjid, District- Azamgarh, Uttar Pradesh, (9) Ariz Khan @ Junaid, son of Zafre Alam, resident of Kot Area, District- Azamgarh, Uttar Pradesh, (10) Md.Sajid @ Bada Sajid, son of Late Quraishan, resident of village/PO Sanjarpur, PS Saraimeer, Tehsil-Nizamabad, District- Azamgarh, Uttar Pradesh, (11) Md.Khalid, son of Late Sageer Ahmed, resident of Village/PO Sanjarpur, PS Saraimeer, Tehsil- Nizamabad, District- Azamgarh, Uttar Pradesh, (12) Mirza Shadab Beg, son of Mirza Ahtesham Beg, resident of Raja ka Kila, District- Azamgarh, Uttar Pradesh and others, who are presently absconding in the instant case, under provisions of section 173(8) Cr.P.C. 3. That the investigation of the case is scattered in various parts of the country viz. Delhi, Bihar, West Bengal, Maharashtra, Karnataka etc. Prayers/requisitions for obtaining documents vital for the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 43D of the Unlawful Activities (Prevention) Act, 1967 if the investigation was not complete the Designated Court could extend the period for detention up to 180 days and not beyond. The filing of the supplementary charge sheet and the admission contained in the application making a prayer for further investigation when the charge sheet was filed, was proof that when the charge sheet was filed the investigation was not complete. Thus, the three appellants would be entitled to statutory bail. The applications seeking statutory bail were rejected. The order dated September 18, 2013 has been challenged in the three criminal appeals No. 1554/2013, 1557/2013 and 1559/2013. 12. 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 constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reference to "the Central Government or the State Government, as the case may be". (4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act. (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication brings out that the investigation concerned terrorist activities by causing bomb blast with the aid of associates based in Pakistan. The application brings out that a large data pertaining to call details have been seized and the same were to be analyzed. Some items such as mobile phones and retrieved e-mails were sent to the CFSL for forensic analysis. The application brings out that the investigation was scattered in at least six states. 18. The application and the report of the Public Prosecutor have indicated the progress of the investigation and the specific reasons for the detention of the accused up to 180 days. 19. 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 possible to author a document and based on the appraisal thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigating agency. 25. As long as the learned Special Judge has recorded that he has perused the case diaries, which as per law have not to be shared with the accused, and has opined in the order that the learned Special Judge was satisfied that the completion of investigation warranted period of detention to be extended, it would be sufficient compliance with law. 26. Learned counsel for the appellants have vehemently relied upon the decision of the Supreme Court reported as (1994) 4 SCC 602 Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors. to urge that in view of said decision where a similarly worded proviso was added to sub-Section 4 of Section 20 of TADA, the impugned order had to be set aside. 27. The proviso considered by the Supreme Court reads as under:- "Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on 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 one hundred and eighty days; and&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 and Crl.A. No. 782/2013. 31. Concerning the other three appeals, the argument proceeds on the reasoning that the Code of Criminal Procedure, 1973 contemplates investigation of cognizable offences to be completed and a report filed in the Court of competent jurisdiction. The argument is premised on the reason that sub-Section 2 of Section 173 of the Code of Criminal Procedure envisages the filing of the report before a Magistrate empowered to take cognizance of the offence and that the report must be on the completion of the investigation. The forward limb of the argument would be that an incomplete report is no report in the eyes of law. If a complete report is not filed within 180 days, the appellants would be entitled to statutory bail. 32. Section 173 of the Code of Criminal Procedure reads as under:- 173. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)." 33. 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. 34. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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