Supreme Court of India
RAMBEER SHOKEENversusSTATE OF NCT OF DELHI
- Citation
- 2018 INSC 76
- Decided
- 31 January 2018
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
No right to statutory bail accrues to an accused until the court expressly rejects the prosecution’s application for extension of time, so the High Court’s dismissal of the bail application was correct.
Summary
Rambeer Shokeen was arrested on 1 December 2016 in connection with offences under the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) and the Arms Act. The prosecution filed an application on 28 February 2017 for an extension of time to file the charge‑sheet, which was pending when the appellant filed a statutory bail application on 2 March 2017 after the 90‑day period had elapsed. The Special Court extended judicial custody repeatedly and only on 8 March 2017 filed a supplementary charge‑sheet, treating the extension request as infructuous. The High Court rejected the bail application, holding that no right to bail accrues until the court expressly rejects the prosecution’s extension request. The Supreme Court affirmed this view, stating that the appellant’s right to statutory bail could not arise before a formal rejection of the extension application, and therefore dismissed the appeals.
Issues considered
- The appellant’s claim to an indefeasible right of statutory bail on default after the 90‑day period had elapsed.
- Whether a bail application can be considered before the court rejects the prosecution’s application for extension of time to file the charge‑sheet.
- The validity of treating the prosecution’s extension request as infructuous after the charge‑sheet was filed.
- The correctness of the High Court’s rejection of the statutory bail application.
Legislation cited
- Code of Criminal Procedure, 1973s. 167(2), s. 173, s. 397, s. 482
- General Clauses Acts. 15
- Maharashtra Control of Organized Crime Act, 1999s. 21(2)(b), s. 3, s. 4, s. 5
Subjects
statutory baildefaultextension of timecharge‑sheetMCOCACriminal Procedurejudicial custodyindefeasible right
Judgment
[2018] 1 S.C.R. 373 373
RAMBEER SHOKEEN A
v.
STATE OF NCT OF DELHI
(Criminal Appeal Nos. 2181-2182 of 2017)
JANUARY 31, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Code of Criminal Procedure, 1973 – s. 167(2) – Maharashtra
Control of Organized Crime Act, 1999 – ss.3 and 4 – Arrest of
appellant-accused on 01.12.2016 – Before the expiry of 90 days C
period, application filed by the Additional Public Prosecutor on
28.02.2017 for extension of time to file charge-sheet upto
15.03.2017 – Special judge by order dated 28.02.2017 extended
judicial custody of the appellant until 01.03.2017 – On the same
day accused filed application for grant of statutory bail but the D
same was not pursued – On the next day 02.03.2017, after the expiry
of 90 days period, appellant filed another application for grant of
statutory bail – Judicial custody kept on extending from time to time
until 08.03.2017 on which date charge sheet was filed and the
Special court disposed of the Public Prosecutor’s application as
infructuous – Thereafter, on 14.03.2017 Special Judge rejected the E
bail application dated 02.03.2017 – Challenge to, before the High
Court – High Court rejected the prayer of the appellant to be
released on bail by default – On appeal, held: No right can be said
to have accrued to the appellant for grant of bail on the ground of
default – Right to grant of statutory bail would have enured to the F
appellant only after rejection of the request for extension of time
prayed by the Additional Public Prosecutor – Mere fact that 90
days period from the date of initial arrest of the appellant had lapsed
on 02.03.2017, could not ineluctably entail in grant of statutory
bail to the appellant – Moreso, when no decision was taken by the
Court on the application submitted by the Additional Public G
Prosecutor until 08.03.2017, on which date the supplementary
charge-sheet against the appellant was filed in Court – Considering
the effect of filing of the supplementary charge-sheet against the
appellant, coupled with the fact that his judicial custody was
extended until the pendency of consideration of the application for
H
373
374 SUPREME COURT REPORTS [2018] 1 S.C.R.
A extension of time to file the charge-sheet, in law, it is unfathomable
as to how the appellant could claim to have any accrued right to be
released on bail on the ground of default or for that matter, such a
right having become indefeasible – No right had accrued to the
appellant before filing of the charge-sheet; at best, it was an inchoate
right until 8.03.2017 – Granting statutory bail after filing of charge-
B
sheet against the appellant and more so during the pendency of the
application for extension of time to file charge-sheet was
impermissible – Thus, the High Court rightly rejected the prayer
for grant of statutory bail by the appellant.
Dismissing the appeals, the Court
C
HELD: 1.1 On 28.02.2017, the Additional Public Prosecutor
had filed report for extension of time to file charge-sheet against
the appellant until 15.03.2017. The same was filed within time,
before the expiry of 90 days from the date of initial arrest of the
appellant in connection with the subject FIR. Realising this
D position, the appellant did not pursue his first application for
statutory bail dated 28.02.2017. Instead, he was advised to file a
fresh statutory bail application on 02.03.2017. On 02.03.2017 the
report submitted by the Additional Public Prosecutor was still
undecided. Therefore, no right can be said to have accrued to
E the appellant for grant of bail on the ground of default. In law,
only upon rejection of the prayer for extension of time sought by
the Additional Public Prosecutor, right in favour of the appellant
for grant of statutory bail could have ignited. The mere fact that
90 days period from the date of initial arrest of the appellant in
connection with the subject FIR had lapsed on 02.03.2017, could
F not ineluctably entail in grant of statutory bail to the appellant.
Moreso, when no decision was taken by the Court on the report/
application submitted by the Additional Public Prosecutor until
08.03.2017, on which date the supplementary charge-sheet against
the appellant was filed in Court. Considering the effect of filing of
G the supplementary charge-sheet against the appellant, coupled
with the fact that his judicial custody was extended by the Court
of competent jurisdiction until the pendency of consideration of
the application for extension of time to file the charge-sheet, in
law, it is unfathomable as to how the appellant could claim to have
any accrued right to be released on bail on the ground of default
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 375
or, such a right having become indefeasible. [Para 21][395-E-H; A
396-A-B]
1.2 No right had accrued to the appellant before filing of
the charge-sheet; at best, it was an inchoate right until 08.03.2017.
Resultantly, the question of granting statutory bail after filing of
charge-sheet against the appellant and moreso during the B
pendency of report/application for extension of time to file charge-
sheet was impermissible. In other words, the application for grant
of statutory bail filed by the appellant on 02.03.2017, even if
pending, could have been taken forward only if the prayer for
extension of period was to be formally and expressly rejected by
the Court. [Para 23][398-G-H; 399-A-B] C
1.3 The consideration of application for grant of statutory
bail in a situation, was dependent on rejection of prayer of the
Additional Public Prosecutor for extension of time. When such
prayer is made, it is the duty of the Court to consider the report/
application for extension of period for filing of the charge-sheet D
in the first instance; only if it was to be rejected could the prayer
for grant of statutory bail be taken forward. In no case, the hearing
on statutory bail application precede the consideration of prayer
for extension of the period for filing of the charge-sheet made by
the Additional Public Prosecutor. [Para 24][399-B-C]
E
1.4 In the instant case, the judicial custody of the appellant
was extended by the Court of competent jurisdiction from time
to time pending consideration of request to extend time to file
charge-sheet, initially from 28.02.2017, till 01.03.2017 and so
continued from 01.03.2017, until 07.03.2017, and again from
07.03.2017, till 08.03.2017 on which date the charge-sheet was F
filed against the appellant in the Court. The order passed by the
Special Court on 08.03.2017, has been so construed by the High
Court and additionally by explicitly extending the period for filing
of the charge-sheet against the appellant until 08.03.2017. There
is no error in that approach of the High Court. [Para 25][399-E- G
G]
1.5 In the instant case, before the appellant instituted the
subject application for grant of statutory bail on 02.03.2017, the
Additional Public Prosecutor had already filed his report/
application for extending the period for filing of charge-sheet
H
376 SUPREME COURT REPORTS [2018] 1 S.C.R.
A against the appellant until 15.03.2017, but decision thereon was
deferred. As held by the Constitution Bench in the case of Sanjay
Dutt case, unless the report/application filed by the Additional
Public Prosecutor for extension of time was rejected, no right
would accrue in favour of the accused much less to consider his
application for grant of statutory bail. Further, in such cases it is
B
the duty of the concerned Court to first deal with the prayer for
extension of period to file charge-sheet made by the Additional
Public Prosecutor. The High Court, thus answered the issue
against the appellant and additionally considered the justness of
the prayer made by the Additional Public Prosecutor for extension
C of period for filing charge-sheet. It recorded an express finding
that the said request was genuine and appropriate and thus
extended the time for that purpose till 08.03.2017. [Para 26][400-
D-G]
1.6 In the instant case, the prayer for extension of period
D for filing charge-sheet was moved by the Additional Public
Prosecutor before the statutory period had lapsed, but the same
remained pending until 08.03.2017, when charge-sheet was filed
in Court. Until the said request was formally and expressly
rejected by the competent Court, in view of the exposition in the
case of Sanjay Dutt case, the concerned Court could not have
E assumed jurisdiction to consider the prayer for grant of statutory
bail of the appellant. The request made by the Additional Public
Prosecutor was formally disposed of as infructuous on 08.03.2017,
after filing of the charge-sheet against the appellant. That was
not an order of rejection of the request of the Additional Public
F Prosecutor as such. The High Court examined this aspect and,
rightly answered the issue against the appellant for the reasons
recorded in the impugned judgment, including by explicitly
extending the time to file charge-sheet till 08.03.2017. The said
view of the High Court is affirmed. [Para 27][401-B-E]
G 1.7 Taking overall view of the matter, it is noticed that the
report was submitted, before expiry of the initial statutory period
of 90 days for filing of the charge-sheet against the appellant.
That request was disposed of by the Special Court on 08.03.2017
as infructuous, after the charge-sheet against the appellant was
submitted in Court. Until 08.03.2017, the appellant was sent to
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 377
judicial custody by the competent Court pending consideration A
of request of the Additional Public Prosecutor for extension of
time to file the charge-sheet. The Court, in law, could not have
considered the prayer for grant of statutory bail of the appellant
until 08.03.2017, on which date the charge-sheet was already filed
against the appellant in the concerned Court. Further, the High
B
Court considered the circumstances in which the order came to
be passed by the Special Court on 08.03.2017. It rightly held that
the said request could not have been closed as having become
infructuous. Rather, it was the duty of the Court to decide the
request on its merits and only upon its rejection, proceed to
consider the prayer for grant of statutory bail. The High Court, C
therefore, noticed that it had two options: first, to remit the matter
back to the Special Court for a proper decision on the said report
of the Additional Public Prosecutor dated 28.02.2017 or second,
to consider the same itself and pass appropriate orders thereupon.
It chose to adopt the second option, which was thought desirable
D
and not objected to by the appellant as can be discerned from the
noting in of the impugned judgment. The High Court, then
proceeded to consider the prayer for extension of time made in
the report submitted by the Additional Public Prosecutor on
28.02.2017, and, for tangible reasons, found the same to be
genuine and appropriate. Having thus held, it allowed the said E
request by extending the time to file charge-sheet till 08.03.2017.
There is no infirmity in the said approach of the High Court.
Having extended the time till 08.03.2017 and as the charge-sheet
was already filed on that date, the question of considering the
prayer for grant of statutory bail of the appellant vide application
F
dated 02.03.2017, on the ground of default, did not survive for
further consideration. Right to grant of statutory bail would have
enured to the accused only after rejection of the request for
extension of time prayed by the Additional Public Prosecutor. As
a result, the High Court rightly rejected the prayer for grant of
statutory bail pursued by the appellant vide application dated G
02.03.2017. The conclusion reached by the High Court is
concurred with. The rejection of the prayer for grant of statutory
bail would not come in the way of the appellant in pursuing his
remedy for grant of regular bail on merit. [Paras 28-29][401-F-
H; 402-A-F]
H
378 SUPREME COURT REPORTS [2018] 1 S.C.R.
A Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : [1994] 1 Suppl. SCR 360; Union of India
v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148;
Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. State
through CBI (1994) 5 SCC 410 : [1994] 3 Suppl. SCR
B
263 – referred to.
Case Law Reference
[1994] 1 Suppl. SCR 360 referred to Para 13
[2014] 6 SCR 148 referred to Para 18
C [2001] 2 SCR 878 referred to Para 18
[1994] 3 Suppl. SCR 263 referred to Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 2181-2182 of 2017.
From the Judgment and Order dated 22.05.2017 of the High Court
D of Delhi at New Delhi, in Criminal Appeal No. 311 of 2017 & Criminal M.
(Bail) No. 525 of 2017.
Mehmood Pracha, R. H. A. Sikander, Prateek Gupta, Mohd.
Danish, Mansoor Ali, Mrs. Sudha Gupta, Advs. for the Appellant.
Ms. Pinky Anand, ASG, Aman Sinha, Sr. Adv., Ms. Binu Tamta,
E Sumit Teterwal, B. V. Balaram Das, Advs. for the Respondent.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. These appeals, by special leave,
question the legality and tenability of the judgment and order passed by
the learned Single Judge of the High Court of Delhi at New Delhi dated
F 22nd May, 2017 in Criminal Appeal No.311/2017 and Criminal M. (Bail)
No.525/2017.
2. Briefly stated, the appellant has been named as an accused in
FIR No.10 of 2015 registered at the Police Station (Special Cell), Delhi,
for offence punishable under Sections 3 & 4 of the Maharashtra Control
G of Organized Crime Act, 1999 (hereinafter referred to as the “MCOCA”).
He has also been named as an accused in FIR No.65/2016 for offence
punishable under Sections 26 & 27 of the Arms Act, registered at the
same police station. He was declared as a proclaimed offender in
connection with the said case and was later arrested on 27th November,
2016.
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 379
[A. M. KHANWILKAR, J.]
3. The appellant came to be arrested in connection with the present A
FIR on 1st December, 2016. Before the expiry of 90 days period, the
Additional Public Prosecutor on 28th February, 2017 moved an application
for extension of time to file charge-sheet up to 15th March, 2017. The
said application reads thus:
“ANNEXURE P-3 B
IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA #
25, PATIALA HOUSE COURTS, NEW DELHI.
FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS
Special Cell, Lodhi Colony, Delhi.
C
Sl. No. Name, Parentage & address Date of arrest
01 RAMBEER SHOKEEN aged – 37 years, 01.12.2016
S/0 Shri Naval Singh r/o H.No.151,
Extension-IV, Nangloi, Delhi-41 &
S/V permanent address – H.No.70, village D
Kamruddin Nagar, P.S. Nihal Vihar,
Delhi.
Subject : Regarding extension of limitation period upto
15.03.2017
Hon’ble Sir, E
It is submitted that I have perused the report of the
Investigating Officer of this case. The allegations against
above Accused Rambeer Shokeen in present case are that he
along with other syndicate members was running an organized
crime syndicate in Delhi & other states by committing a series F
of sensational crimes including gruesome and inimical murder,
extortion by putting by some businessmen in fear with criminal
intimidation, obstruction of Govt. servants to deter them from
discharge of official duties and offences under the arms act
etc. G
The above accused Rambeer Shokeen was continuously
evading his arrest and didn’t join investigation. On
20.04.2015, non-bailable warrant against him was issued but
couldn’t be executed, as not available at his possible hideouts
and later on after further proceedings, he was declared P.O.
H
380 SUPREME COURT REPORTS [2018] 1 S.C.R.
A on 26.08.2015 by this Hon’ble Court. On 27.11.2016, he was
arrested in case FIR No.65/2016 U/s 25/27 Arms Act of P.S.
Special Cell, Delhi and later on 01.12.2016, arrested in this
case.
During investigation, several evidences including followings
B have been collected against above accused Rambeer Shokeen:
01. Income Tax Return report (ITR) dated 10.02.2017 from
year 2006-2016, which reflects that he has not filed ITR
during this period, while he has incurred huge expenses
during Delhi Legislative Elections of year 2013 & 2015
C apart from other expenses.
02. Reports regarding property details from the offence of
Sub-Registrar West, SDM-Nangloi etc.
03. FORM 26 submitted by him before Election Officer
showing details of moveable & immovable properties etc.
D
THE INVESTIGATION OF THE CASE IS TO BE CONDUCTED
ON FOLLOWING GROUNDS
01. As per FORM 26 submitted by the Accused before Election
Commission to contest Delhi Legislative Assembly Election
for Assembly Constituency-08 in year 2013, he has shown
E
immoveable and moveable assets of himself & his wife worth
Rs. 1.85 (approx.), while he and his wife Mrs. Reeta
Shokeen are not found filing income tax returns during
year 2006-2016, so the investigation on this point is
necessarily required.
F
02. To make further interrogation from accused to verify the
source of huge amount of money in respect of the assets as
mentioned above vis-à-vis the ITR for a period 2006-2016
(NIL returns), the details of which were obtained on
10.02.2017.
G In view of above pending investigation points, it is, humbly
requested that the limitation period for filing charge sheet
against above accused Rambeer Shokeen may be extended
upto 15.03.2017, so that charge sheet against him may be
filed before the Hon’ble Court as per the time limit fixed by
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 381
[A. M. KHANWILKAR, J.]
Hon’ble Court. A
Submitted please, Sd./- 28.02.17
(RAVINDRA KUMAR)
Addl. Public Prosecutor
Patiala House Court, New Delhi B
Dated: 28.02.2017"
4. On the same day i.e. 28th February, 2017, the accused moved
an application for grant of statutory bail under Section 167(2) of the
Code of Criminal Procedure read with Section 21(2)(b) of MCOCA.
C
The Special Judge, by an order dated 28th February, 2017, extended the
judicial custody of the appellant until 1st March, 2017. The said order
reads thus:
“An application for further extension of JC moved on behalf
of IO. Copy given.
D
Report is also submitted by Ld. APP for State for the purposes
of extension of JC beyond 90 days and for seeking further
extension of time for investigation beyond period of 90 days.
JC is extended till 01.03.2017.
Put up with main file for arguments on this application on E
01.03.2017.
Copy of Order be given dasti.”
5. On 1st March, 2017, the appellant filed his reply to oppose the
application filed by the Additional Public Prosecutor seeking extension F
of limitation period for filing of charge-sheet against the appellant, upto
15th March, 2017. Besides, the appellant was produced before the District
& Sessions Judge and as the Presiding Officer of the Special Court was
on leave, the District & Sessions Judge passed the following order:
“01.03.2017
G
File is put up before me Shri Rakesh Pandit, Ld. Spl. Judge,
NIA/POCSO/MCOCA, ASJ-01, PHC, New Delhi is on leave
today on account of un-wellness.
Present : Shri Devender Kumar, Ld. Chief PP for the State
H
382 SUPREME COURT REPORTS [2018] 1 S.C.R.
A along with Shri Ravindra Kumar, Ld. Addl. PP and ACP
Hridaya Bhushan
Accused produced from JC.
Shri Mehmood Pracha and Shri R.H.A. Sikander, Ld. Counsels
for the accused Rambeer Shokeen.
B
Reply has been filed on behalf of accused Rambeer Shokeen
to the application moved on behalf of the State seeking
extension of time for filing the charge sheet. Copy supplied.
An application has been moved on behalf of State seeking
extension of JC of the accused above named.
C
As Ld. Presiding Officer is on leave. Judicial custody of the
accused Rambeer Shokeen is extended till 07.03.2017. Merits
of the application dated 28.02.2017 shall be decided by the
concerned court.
D Ld. Chief PP for the State submits that he has not been supplied
with the copy of the application moved on behalf of the accused
Rambeer Shokeen under Section 167(2) of Cr.P.C. seeking
grant of statutory bail. Ld. Counsel for the accused is directed
to supply the copy of the same during the course of the day
against proper receipt.
E
Put up on 07.03.2017 for further proceedings.”
6. On the next day i.e. 2nd March, 2017, the appellant moved
another application for grant of statutory bail under Section 167(2) of
Cr.P.C. read with Section 21(2)(b) of MCOCA.
F 7. On 4th March, 2017, the ACP/Special Cell/NDR, Lodhi Colony,
New Delhi, moved an application before the Special Court for permission
to interrogate the appellant in Central Jail No.3, Tihar, Delhi. The said
application reads thus:
“ANNEXURE P-8
G IN THE COURT OF SHRI RAKESH PANDIT, LD. ASJ, MCOCA#
25, PATIALA HOUSE COURTS, NEW DELHI.
FIR No.10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS
Special Cell, Lodhi Colony, Delhi.
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 383
[A. M. KHANWILKAR, J.]
A
Sl. Na m e, Paren tag e & D a te o f ar rest
No . a dd ress
01 R AM BE E R S H OK EEN a ged – 0 1.1 2.20 16
3 7 year s, S/0 S hr i Nava l Sin gh
r/ o H .No .1 51 , Exten sion -IV ,
S/V Na n glo i, D elhi-41 & B
p erm an ent ad dr ess – H .N o.70 ,
villa ge Ka m ru dd in N ag ar, P .S .
Ni ha l Vih ar, D elhi.
Subject : Regarding permission for interrogation in Central
Jail, Tihar, Delhi. C
Hon’ble Sir,
It is submitted that the present case is pending investigation
against accused Rambeer Shokeen and other syndicate
members for running an organized crime syndicate in Delhi
& other states by committing a series of sensational crimes D
including gruesome and inimical murder, extortion by putting
by some businessmen in fear with criminal intimidation,
obstruction of Govt. servants to deter them from discharge of
official duties and offences under the arms act etc.
On 01.12.2016, accused Rambeer Shokeen was arrested in E
this case. During investigation it is revealed that in November
2013, he had filed an affidavit before Election Commission
to contest Delhi Legislative Assembly Election. In this affidavit,
he has shown immoveable and moveable assets of himself &
his wife worth Rs.1.85 crores (approx.). As per report dated F
10.02.2017 of Income Tax Department, neither he nor his
wife Mrs. Reeta Shokeen has filed income tax returns during
year 2006-2016.
In view of above, it is humbly requested that the necessary
permission to interrogate accused Rambeer Shokeen may be G
granted in Central Jail No.3, Tihar, Delhi. The accused
Rambeer Shokeen is running in judicial custody till
07.03.2017.
Submitted please,
H
384 SUPREME COURT REPORTS [2018] 1 S.C.R.
A Sd./-
(HRIDAYA BHUSHAN)
ACP/Special Cell/NDR
Lodhi Colony, New Delhi
B Dated: 04.03.2017"
The Special Judge considered the said application on 4th March,
2017 and allowed the prayer for permission to interrogate the appellant
in judicial custody before 7th March, 2017. The order passed by the
Special Court reads thus:
C
“04.03.2017
File is put up before me as Shri Rakesh Pandit, Ld. Spl. Judge,
NIA/POCSO/MCOCA, ASJ-01, PHC has gone to Odisha for
National Seminar, Judicial Academy, Cuttack.
D Present : Shri Ravindra Kumar Ld. Addl. PP for the State
ACP Hridaya Bhushan along with Inspector Ravinder Kumar
Tyagi.
Accused Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dabas
and Rahul Dabas produced from JC.
E
An application has been moved on behalf of Special Cell
seeking permission to interrogate the accused Rambeer
Shokeen in Central Jail No.3, Tihar Delhi submitting that the
accused Rambeer Shokeen was arrested in this case on
01.12.2016 and he is running in JC which is extended till
F 07.03.2017. During investigation it is revealed that in
November, 2013, he has filed an affidavit before Election
Commission to contest Delhi Legislative Assembly Election
and in the said affidavit, he has shown his immovable and
moveable assets as well as of his wife which is worth Rs.1.85
G crores (approx.). It is stated that as per the report dated
10.02.2017 of Income Tax Department, neither he nor his
wife Smt. Reeta Shokeen has filed income tax return during
the year 2006-2016.
Heard. Keeping in view the fact and circumstances, the
application stands allowed by permitting Special Cell to
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 385
[A. M. KHANWILKAR, J.]
interrogate the accused Rambeer Shokeen in judicial custody A
before 07.03.2017.
Application stands disposed of accordingly. Copy of this Order
be sent to Superintendent, Tihar Jail, Delhi for compliance.
Copy of this Order be also given to the Special Cell, as prayed
for. B
Put up on 18.03.2017 for further proceedings.”
8. On 7th March, 2017, the application for extension of time for
filing charge-sheet dated 28th February, 2017 and the application filed by
the appellant for grant of statutory bail dated 2nd March, 2017, were C
taken up by the Special Court. The Court after considering the arguments
of the parties passed the following order:
“07.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
D
Shri Mehmood Pracha and Sh. R.H.A. Sikander counsel for
accused.
Accused Rambeer Shokeen from JC.
IO ACP Hirdey Bhushan in person.
Arguments heard on application for extension of time for E
investigation dated 28.02.2017 and on application u/sec.167
(2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.)
Put up for order on these applications on 08.03.2017.
JC is extended till 08.03.2017. F
Copy of order be given dasti.”
9. As directed, the matter was taken up by the Special Court on
8th March, 2017 when the prosecution filed supplementary charge-sheet
against the appellant. The Court passed the following order:
“08.03.2017 G
Present: Shri Ravindra Kumar Ld. APP for State.
Shri Mehmood Pracha and Sh. R.H.A. Sikander and Prateek
Gupta counsel for accused Rambeer Shokeen.
H
386 SUPREME COURT REPORTS [2018] 1 S.C.R.
A IO ACP Hirdey Bhushan in person.
Accused Rambeer Shokeen from JC.
Supplementary charge sheet filed with respect to Accused
Rambeer Shokeen.
B Charge sheet perused I take cognizance of the offences
involved.
Copies of documents supplied with respect to the charge sheet
against Rambeer Shokeen. Time sought by IO to supply copy
of earlier charge sheet against other accused persons. Same
C be supplied within 7 working days.
Put up for scrutiny of documents on 18.03.2017.
Considering the fact that supplementary charge sheet has
already been filed against accused Rambeer Shokeen, so the
application regarding extension of time dated 28.02.2017
D become infructuous and thus dismissed as infructuous.
Put up for arguments/order on application u/sec. 167 (2)
Cr.P.C. on 09.03.2017.”
10. Again, the matter was taken up on 9th March, 2017 when the
hearing on statutory bail application remained inconclusive. The Court
E passed the following order:
“09.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
Shri Mehmood Pracha and Prateek Gupta counsel for
F accused Rambeer Shokeen.
Part arguments on application u/sec.167 (2) Cr.P.C.
Heard.
Put up for further arguments on this application on
G 14.03.2017.”
11. Finally, on 14th March, 2017 the Special Court rejected the
statutory bail application dated 2nd March, 2017 filed by the appellant.
The relevant extract of the observations/reasons recorded by the Special
Court reads:
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 387
[A. M. KHANWILKAR, J.]
“xxx xxx xxx xxx xxx A
So, in these circumstances, the application dated 28.02.2017
i.e. seeking extension of period to file charge sheet/
investigation was not decided on merits (as sought vide order
dated 01.03.2017). Moreover, on 08.03.2017, cannot be
decided on merits as the charge-sheet was already filed before B
order on this application.
So, in these circumstances, the issue before the court in this
application is that whether vide order dated 01.03.2017, the
said court of Ld. District & Session Judge, NDD was within
its power to extend the judicial custody of the accused or not C
and for that purpose whether there should be a specific order
of extension of period of investigation.
As far as this issue is concerned, the law says that it is the
prerogative of the investigating agency to file charge sheet/
complete investigation, as per their wishes. The Court cannot D
interfere in the period/duration of investigation. However, in
Sec.21(2)(b) MCOCA, the rider is that in case if the
investigation is not completed within 90 days and the
prosecution/IO wanted that the accused shall remain in judicial
custody, then only he has to move in terms of Sec.21(2)(b) of
MCOCA. E
In this case, the prosecution had moved such application on
28.02.2017 (analogous to the movement of application u/
sec.167(2) Cr.P.C. by accused, before charge-sheet). The
order could not be passed as the court under Sec.5(5) MCOCA
had stated that the same is to be heard by the concerned court. F
So, there was no lapse on the part of IO. He had already
moved the application on time. As far as the JC is concerned,
the same has been extended by the concerned court after the
application u/sec.28(2)(b) MCOCA is already moved by the
IO. So, in these circumstances, the court had acted in legal G
way in extending the period of judicial custody since the
application for seeking extension of time was already pending
before the court.
So, in these circumstances, no ground exists which suggest
that there was illegal custody of accused beyond the period
H
388 SUPREME COURT REPORTS [2018] 1 S.C.R.
A of 90 days from the day of his first judicial remand and he is
entitled for statutory bail u/sec.21(2)(b) of MCOCA.
So, the application u/sec. 167(2) Cr.P.C. alternatively read
as application u/sec.21(2)(b) of MCOCA is dismissed.
Copy of order be given dasti.
B
Put up for purpose fixed on date already fixed i.e.
18.03.2017.”
12. Aggrieved, the appellant filed Criminal Appeal No.311/2017
before the High Court of Delhi at New Delhi and challenged the legality
C of orders dated 1st March, 2017, 4th March, 2017, 7th March, 2017 and
14th March, 2017. Besides, the appellant moved an application for grant
of interim bail. By the impugned judgment, the High Court has rejected
Criminal Appeal No.311/2017 and Criminal M. (Bail) No.525/2017 on
22nd May, 2017.
D 13. The principal argument of the appellant before the High Court
as noted in paragraph 20 of the impugned judgment is that the report/
application submitted by the Additional Public Prosecutor for extension
of time to file charge-sheet till 15th March, 2017, was not in conformity
with the requirement of proviso to Section 167(2) of Cr.P.C. The appellant
placed reliance on the decision of this Court in Hitendra Vishnu Thakur
E v. State of Maharashtra,1 to buttress his submission. After adverting to
the legal position expounded in the said decision, the High Court in
paragraph 24 considered the factual matrix relevant for answering the
issue. The contention specifically raised by the appellant has been dealt
with from paragraph 25 of the impugned judgment and noted thus:
F “25. The request submitted by the public prosecutor on
28.2.2017 seeking extension of the period for filing charge-
sheet against him in this case till 15.3.2017, briefly referred
to the report of the investigating officer that had been
submitted before him (the public prosecutor) and upon its
perusal the brief background facts were mentioned indicating
G
certain steps that had been taken to collect evidence with
regard to the income and assets of the appellant. The public
prosecutor informed the special court by the said request in
writing that investigation of the case was to be conducted,
inter alia, by his ¯’further interrogation’ as to the source of
H 1
(1994) 4 SCC 602
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 389
[A. M. KHANWILKAR, J.]
money for acquiring the assets worth Rs. 1.85 crores as had A
been declared to be held by him and his wife to the Election
Commission at the time of contesting the election to Delhi
Legislative Assembly in 2013, income-tax returns not having
been filed by him or his wife during 2006-2016.
26. Pertinent to mention here that the request for interrogation B
of the appellant in custody made by the investigating officer
on 4.3.2017, granted on the same date by the District and
Sessions Judge, was for the same reasons and on the same
grounds as were set out by the public prosecutor in his request
submitted on 28.2.2017.
C
27. It is true that the request of the public prosecutor submitted
on 28.2.2017 is not captioned as ‘report’ nor does it
specifically refer to the provision contained in the second
proviso to Section 167 (2) Cr.P.C. But, this cannot be construed
as a deficiency. It has to be borne in mind that it is not a
matter of form but one of substance. The request in writing D
dated 28.2.2017 of the additional public prosecutor satisfies
the twin criteria of the second proviso to Section 167 (2)
Cr.P.C. It indicates that the public prosecutor had subjected
the investigating officer’s report as made to him to scrutiny
and also informed the court the progress of the investigation E
and setting out the reasons why the continued detention of
the appellant in custody was necessary. Therefore, it has to
be accepted as a ‘report’ of the public prosecutor satisfying
the requirements of second proviso to Section 167 (2) Cr.P.C.
Whether or not, in the facts and circumstances of the case, as
prevailing on the date such report was submitted to the special F
court will have to be considered separately.
28. As noted above, the appellant had moved an application
under Section 167(2) Cr.P.C. for release on bail by default
under Section 167(2) Cr.P.C. on 28.2.2017. It is fairly
conceded by the learned counsel for the appellant that such G
application moved on 28.2.2017 was premature as ninety days
would expire only on 1.3.2017.
29. On 28.2.2017, besides the application of the investigating
officer seeking extension of the custody period of the
H
390 SUPREME COURT REPORTS [2018] 1 S.C.R.
A appellant, the report of the public prosecutor for extension
of the period of investigation had come be submitted to the
special court. Without doubt, the report could be considered
before expiry of the period of ninety days or on the last day
of such period ordinarily available which would be 1.3.2017.
The special court, within its judicial discretion, decided to
B
postpone the consideration to the following date i.e. 1.3.2017.
It is reflected in the order passed on 1.3.2017 by the District
and Sessions Judge, as extracted earlier, that the additional
sessions judge presiding over the special court was indisposed
and, therefore, on leave of absence on 1.3.2017. The District
C and Sessions Judge, before whom the file was placed for
consideration of the report of the public prosecutor and the
application of the investigating officer, decided to defer the
former to 7.3.2017 for it to be ‘decided by the concerned
court’ while extending the judicial custody for such period.
Questions have been raised as to the competence of the
D
District and Sessions Judge to deal with this case under
MCOCA on the plea that the judicial officer presiding over
the court of District and Sessions Judge was not designated
as a special court in terms of Section 5 MCOCA.”
14. While dealing with the argument regarding the competence of
E the District & Sessions Judge, the High Court referred to the Notification
dated 15th September, 2010 and opined that it was regarding conferral of
powers of Presiding Officer of the Special Court under MCOCA
ascribable to Section 5 of the special enactment. Further, the Lieutenant
Governor of National Capital Territory of Delhi was pleased to confer
F on each member of the Delhi Higher Judicial Service, inter alia, the
powers of Presiding Officer of the Special Court under MCOCA as
extended to NCT of Delhi, with conferral of powers to be exercised
“with effect from the date of assumption of the charge” of such post in
pursuance of “transfer or posting orders by the Chief Justice of the
Delhi High Court”.
G
15. The High Court then considered the grounds urged by the
appellant and after adverting to Section 5 of MCOCA and Section 15 of
the General Clauses Act and the reported precedents pressed into service
by both the sides, answered the issue against the appellant. The High
Court concluded that the validity of Notification dated 15th September,
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 391
[A. M. KHANWILKAR, J.]
2010, issued by the Lieutenant Governor of NCT of Delhi, inter alia, A
conferring powers to be exercised by the members of Delhi Higher
Judicial Service, in terms of MCOCA, such empowerment being “ex-
officio”, cannot be questioned.
16. As regards the merits of the application for grant of statutory
bail, the High Court adverted to the decisions relied upon by the parties. B
In paragraph 69 the Court then observed:
“69. As has been held above, the District and Sessions Judge,
while dealing with the matter arising out of, inter alia, the
report of the public prosecutor on 01.03.2017, and the
additional sessions judge presiding over the special court C
also dealing, amongst others, with the said report of the public
prosecutor on 07.03.2017 and 08.03.2017, failed to discharge
the judicial responsibility properly. The consideration of the
report of the public prosecutor, submitted (on 28.02.2017)
well in time before expiry of the period of ninety days ordinary
available, was deferred unnecessarily on 01.03.2017 and D
beyond till it was treated, wrongly so, as ¯infructuous on
08.03.2017. It is against this backdrop that the appellant
argues that there being no order in terms of second proviso
to Section 167(2) Cr.P.C. enlarging the period of investigation,
a right to bail by default has accrued in his favour which E
cannot be defeated by submission of the charge sheet on
07.03.2017. The crucial question, however, is as to whether
such benefit can be extended to the appellant in a fact-
situation where the investigating police officer, and the public
prosecutor, had done their part of the duty under the law,
well within time, and the default in consideration of, and F
decision on, the report of the public prosecutor was wholly
for the reasons (or, shall we say, fault) attributable to the
District & Sessions Judge and the special court.”
17. Again in paragraphs 74 to 77, the Court observed thus:
G
“74. It is clear that the report submitted on 28.02.2017 by the
public prosecutor in terms of second proviso to Section 167(2)
Cr. PC seeking enlargement of time for completion of
investigation did not receive due consideration of the court.
If the grounds on which the public prosecutor was
H
392 SUPREME COURT REPORTS [2018] 1 S.C.R.
A recommending extension of time were sufficient, there would
be no justification for its denial and, resultantly absolutely
no justification for the appellant to be released on bail by
default.
If, on the other hand, the request was unfounded, it should
B have been rejected and an appropriate order extending release
on bail by default should have been passed.
75. Since the report did not receive due consideration and
was improperly treated as ‘infructuous’, there are two options
available before this court : one, to remit the matter back to
C the special court for a proper decision on the report or, two,
to consider the report and pass appropriate order thereupon.
The former course would only entail further delay. In a case
involving questions of personal liberty, such course is not
desirable. In this view, the learned counsel on both sides were
also heard on the merits of the report of the public prosecutor,
D bearing in mind that this court is duty bound to secure the
ends of justice and to prevent abuse of the process of court.
76. The background facts and circumstances of the case
against the appellant have already been noted. Certain assets
of the appellant and members of his immediate family had
E come to light for which, prima facie, there was no account,
particularly in view of the declaration made on the subject in
2013, when he was a candidate in the election to Delhi
Legislative Assembly. Noticeably, the investigating officer was
seeking opportunity to interrogate the appellant against these
F facts to seek his explanation, if any. Under the provisions of
the special enactment (MCOCA), the investigating police
officer is entitled to interrogate the accused in judicial custody.
As mentioned earlier, a formal request to this effect made by
the investigating officer was allowed by order dated
04.03.2017. The report submitted on 28.02.2017 by the public
G prosecutor, thus, is found to pass the necessary muster of the
second proviso to Section 167(2) as inserted in the Code of
Criminal Procedure by Section 21(2) of MCOCA. The fact
that the charge-sheet was filed on 08.03.2017, only re-assures
that the request for enlargement of time for completion of
H investigation made on 28.02.2017 was not with ulterior motive.
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 393
[A. M. KHANWILKAR, J.]
77. In above view, in the considered view of this court, the A
request made by the public prosecutor should not only have
received due consideration of the special court on 28.02.2017,
or the District & Sessions Judge on 01.03.2017, but also
deserved to be allowed. The trashing of the said report as
“infructuous”, by order dated 08.03.2017, was thus not only
B
incorrect but improper. In these circumstances, in exercise of
the jurisdiction vested in this court to satisfy itself as to the
correctness, legality or propriety of the order passed or as to
the regularity of proceedings of the inferior criminal court
(under Section 397 Cr. PC), as indeed invoking the ‘inherent
powers’ of this court to secure the ends of justice and prevent C
abuse of the judicial process (under Section 482 Cr. PC), the
order dated 08.03.2017 disposing of the report of the public
prosecutor under second proviso to Section 167(2) Cr. PC is
set aside and, instead the said report is accepted and the
period for completion of investigation of the case at hand
D
against the appellant is extended till 08.03.2017 when the
report under Section 173 Cr. PC (supplementary charge-sheet)
against him was actually filed. In this view, the prayer of the
appellant for release on bail by default under Section 167(2)
is rendered impermissible and is accordingly declined.”
18. Being aggrieved, the appellant has approached this Court by E
way of these appeals. In the course of hearing, the only argument
canvassed by the counsel for the appellant was about the entitlement of
the appellant for grant of statutory bail as, admittedly, the Special Court
did not pass any specific order on the report/application for extension of
time for filing of charge-sheet against the appellant preferred by the F
Additional Public Prosecutor. In absence of such an order, contends the
appellant, the appellant acquired an indefeasible right. Thus, he ought to
have been granted statutory bail as prayed vide application dated 2nd
March, 2017, under Section 167(2) of Cr.P.C. read with Section 21(2)(b)
of MCOCA. As the statutory period of 90 days had already expired and
there was no extension of time granted to the prosecution by the Special G
Court to file the charge-sheet, filing of the charge-sheet against the
appellant on 8th March, 2017 could not denude the appellant of statutory
bail. In support of his submission, reliance is placed on the decisions in
the case of Union of India v. Nirala Yadav,2 Uday Mohanlal Acharya
2
(2014) 9 SCC 457 H
394 SUPREME COURT REPORTS [2018] 1 S.C.R.
A v. State of Maharashtra,3 and Sanjay Dutt v. State through CBI 4.
No other argument has been canvassed by the learned counsel for the
appellant in these appeals.
19. The respondent on the other hand would support the reasons
recorded by the Special Court and by the High Court to oppose these
B appeals. According to the respondent, the Special Court and the High
Court have not committed any error in rejecting the prayer for grant of
statutory bail, in view of indisputable facts of the present case. The
appellant was well advised not to pursue his application for grant of
statutory bail application dated 28th February, 2017. For, by that date, 90
days period for filing charge-sheet had not expired. Resultantly, the
C question of entertaining prayer for grant of statutory bail did not arise.
As regards the statutory bail application filed on 2nd March, 2017, the
same was also misconceived as the Additional Public Prosecutor had
already filed report/application for extension of time on 28th February,
2017 itself and the Court had extended the judicial custody of the appellant
D pursuant to the said application until 1st March, 2017. Again on 1st March,
2017, the hearing on report/application for extension of time preferred
by the Additional Public Prosecutor was deferred and judicial custody
was finally extended until 8th March, 2017. Further, merely because no
express order was passed on the said report/application of the Additional
Public Prosecutor on 2nd March, 2017 or for that matter, till 8th March,
E 2017 when the charge-sheet was filed against the appellant, ipso facto
did not create any right in favour of the appellant. For, judicial custody of
the appellant was consciously extended by the competent Court from
time to time (from 28th February, 2017 till the filing of charge-sheet). In
any case, the Special Court, in law, was obliged to first decide the said
F report/application for extension of time preferred by the Additional Public
Prosecutor, and only if the same was to be rejected before filing of the
charge-sheet or expiry of the period of judicial custody of the appellant,
could the appellant claim that an indefeasible right had accrued in his
favour. In other words, application for grant of statutory bail preferred
by the appellant on 2nd March, 2017 was also premature and in any
G case, the same could not have been taken up for consideration until the
report/application for extension of time to file charge-sheet submitted by
the Additional Public Prosecutor dated 28th February, 2017, was finally
decided. In support of this submission, reliance has been placed on the
3
(2001) 5 SCC 453
4
H (1994) 5 SCC 410
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 395
[A. M. KHANWILKAR, J.]
dictum in paragraph 48 of the decision of the Constitution Bench in Sanjay A
Dutt’s case (supra). It is contended that the decisions in Uday Mohanlal
Acharya (supra), Nirala Yadav (supra) and Sanjay Dutt will be of no
avail to the appellant as the exposition in those cases was in light of the
facts of those cases. It is contended that the High Court justly considered
the merits of the report of the Additional Public Prosecutor dated 28th
B
February, 2017 for extension of time, and after analysing the relevant
aspects, concluded that the request made by the Additional Public
Prosecutor was genuine and appropriate. The High Court, after hearing
both sides, concluded that the time to file charge-sheet against the appellant
stood extended till 8th March, 2017 when the same was, in fact, filed.
Resultantly, the application for grant of statutory bail filed by the appellant C
albeit on 2nd March, 2017, was bound to be dismissed. According to the
respondents, these appeals are devoid of merit and ought to be dismissed.
20. We have heard Mr. Mehmood Pracha, learned counsel
appearing for the appellant and Ms. Pinky Anand, learned Additional
Solicitor General assisted by Mr. Aman Sinha, learned senior counsel D
and Mr. B.V. Balaram Das, learned counsel for the respondent.
21. After having analysed the facts and events as unfolded from
28th February, 2017 until 8th March, 2017, it is indisputable that on 28th
February, 2017, the Additional Public Prosecutor had filed report for
extension of time to file charge-sheet against the appellant until 15th E
March, 2017. The same was filed within time, before the expiry of 90
days from the date of initial arrest of the appellant in connection with the
subject FIR. Realising this position, the appellant did not pursue his first
application for statutory bail dated 28th February, 2017. Instead, he was
advised to file a fresh statutory bail application on 2nd March, 2017.
Admittedly, on 2nd March, 2017 the report submitted by the Additional F
Public Prosecutor dated 28 th February, 2017 was still undecided.
Therefore, no right can be said to have accrued to the appellant for
grant of bail on the ground of default. In law, only upon rejection of the
prayer for extension of time sought by the Additional Public Prosecutor,
right in favour of the appellant for grant of statutory bail could have G
ignited. The mere fact that 90 days period from the date of initial arrest
of the appellant in connection with the subject FIR had lapsed on 2 nd
March, 2017, could not ineluctably entail in grant of statutory bail to the
appellant. Moreso, when no decision was taken by the Court on the
report/application submitted by the Additional Public Prosecutor until 8th
H
396 SUPREME COURT REPORTS [2018] 1 S.C.R.
A March, 2017, on which date the supplementary charge-sheet against the
appellant was filed in Court. Considering the effect of filing of the
supplementary charge-sheet against the appellant, coupled with the fact
that his judicial custody was extended by the Court of competent
jurisdiction until the pendency of consideration of the report/application
for extension of time to file the charge-sheet, in law, it is unfathomable
B
as to how the appellant could claim to have any accrued right to be
released on bail on the ground of default or for that matter, such a right
having become indefeasible.
22. The legal position has been expounded by the Constitution
Bench of the Supreme Court in the case of Sanjay Dutt (supra), in
C particular, in paragraph 48 as under:
“48. We have no doubt that the common stance before us of
the nature of indefeasible right of the accused to be released
on bail by virtue of Section 20(4)(bb) is based on a correct
reading of the principle indicated in that decision. The
D indefeasible right accruing to the accused in such a situation
is enforceable only prior to the filing of the challan and it
does not survive or remain enforceable on the challan being
filed, if already not availed of. Once the challan has been
filed, the question of grant of bail has to be considered and
E decided only with reference to the merits of the case under
the provisions relating to grant of bail to an accused after the
filing of the challan. The custody of the accused after the
challan has been filed is not governed by Section 167 but
different provisions of the Code of Criminal Procedure. If
that right had accrued to the accused but it remained
F unenforced till the filing of the challan, then there is no
question of its enforcement thereafter since it is extinguished
the moment challan is filed because Section 167 CrPC ceases
to apply. The Division Bench also indicated that if there be
such an application of the accused for release on bail and
G also a prayer for extension of time to complete the investigation
according to the proviso in Section 20(4)(bb), both of them
should be considered together. It is obvious that no bail can
be given even in such a case unless the prayer for extension
of the period is rejected. In short, the grant of bail in such a
situation is also subject to refusal of the prayer for extension
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 397
[A. M. KHANWILKAR, J.]
of time, if such a prayer is made. If the accused applies for A
bail under this provision on expiry of the period of 180 days
or the extended period, as the case may be, then he has to be
released on bail forthwith. The accused, so released on bail
may be arrested and committed to custody according to the
provisions of the Code of Criminal Procedure. It is settled by
B
Constitution Bench decisions that a petition seeking the writ
of habeas corpus on the ground of absence of a valid order of
remand or detention of the accused, has to be dismissed, if on
the date of return of the rule, the custody or detention is on
the basis of a valid order. (See Naranjan Singh
Nathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC C
106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of
Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113]
and A.K. Gopalan v. Government of India [(1966) 2 SCR 427
: AIR 1966 SC 816 : 1966 Cri LJ 602].)”
(emphasis supplied) D
Further, the conclusion articulated in paragraph 53, makes it clear
that the decision in Hitendra Vishnu Thakur (supra) must be understood
accordingly. It observed thus:
“53. As a result of the above discussion, our answers to the E
three questions of law referred for our decision are as under:
(1) xxx xxx xxx xxx
(2)(a) Section 20(4) (bb) of the TADA Act only requires
production of the accused before the court in accordance
with Section 167(1) of the Code of Criminal Procedure and F
this is how the requirement of notice to the accused before
granting extension beyond the prescribed period of 180 days
in accordance with the further proviso to clause (bb) of sub-
section (4) of Section 20 of the TADA Act has to be understood
in the judgment of the Division Bench of this Court in Hitendra
G
Vishnu Thakur. The requirement of such notice to the accused
before granting the extension for completing the investigation
is not a written notice to the accused giving reasons therein.
Production of the accused at that time in the court informing
him that the question of extension of the period for completing
H
398 SUPREME COURT REPORTS [2018] 1 S.C.R.
A investigation is being considered, is alone sufficient for the
purpose.
(2)(b) The ‘indefeasible right’ of the accused to be released
on bail in accordance with Section 20(4)(bb) of the TADA
Act read with Section 167(2) of the Code of Criminal Procedure
B in default of completion of the investigation and filing of the
challan within the time allowed, as held in Hitendra Vishnu
Thakur is a right which enures to, and is enforceable by the
accused only from the time of default till the filing of the
challan and it does not survive or remain enforceable on the
challan being filed. If the accused applies for bail under this
C provision on expiry of the period of 180 days or the extended
period, as the case may be, then he has to be released on bail
forthwith. The accused, so released on bail may be arrested
and committed to custody according to the provisions of the
Code of Criminal Procedure. The right of the accused to be
D released on bail after filing of the challan, notwithstanding
the default in filing it within the time allowed, is governed
from the time of filing of the challan only by the provisions
relating to the grant of bail applicable at that stage.”
The aforementioned opinion has been expressed by the Constitution
E Bench in the context of question No.2 formulated in paragraph 2 of the
judgment as under:
“2. The questions of law indicated in the said order of
reference, to be decided by us, are three, namely:
(1) xxx xxx xxx xxx
F
(2) The proper construction of clause (bb) of sub-section (4)
of Section 20 of the TADA Act indicating the nature of right
of an accused to be released on bail thereunder, on the
default to complete investigation within the time allowed
therein;
G
(3) xxx xxx xxx xxx”
23. It is thus clear that no right had accrued to the appellant before
filing of the charge-sheet; at best, it was an inchoate right until 8th March,
2017. Resultantly, the question of granting statutory bail after filing of
charge-sheet against the appellant and moreso during the pendency of
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 399
[A. M. KHANWILKAR, J.]
report/application for extension of time to file charge-sheet was A
impermissible. In other words, the application for grant of statutory bail
filed by the appellant on 2nd March, 2017, even if pending, could have
been taken forward only if the prayer for extension of period was to be
formally and expressly rejected by the Court.
24. As held by the Constitution Bench of this Court, the B
consideration of application for grant of statutory bail in a situation, as in
the present case, was dependent on rejection of prayer of the Additional
Public Prosecutor for extension of time. When such prayer is made, it is
the duty of the Court to consider the report/application for extension of
period for filing of the charge-sheet in the first instance; only if it was to
be rejected could the prayer for grant of statutory bail be taken forward. C
In no case, the hearing on statutory bail application precede the
consideration of prayer for extension of the period for filing of the charge-
sheet made by the Additional Public Prosecutor.
25. The Constitution Bench decision in Sanjay Dutt’s case (supra)
also answers the next issue raised by the appellant about the absence of D
a valid remand/detention. In that, in the concluding part of the afore-
quoted paragraph 48, the Court has opined that a petition seeking a writ
of habeas corpus on the ground of absence of a valid order of remand or
detention has to be dismissed if, on the date of return of the rule, the
custody or detention is on the basis of a valid order. Admittedly, in the E
present case, the judicial custody of the appellant was extended by the
Court of competent jurisdiction from time to time pending consideration
of request to extend time to file charge-sheet, initially from 28th February,
2017, till 1st March 2017 and so continued from 1st March, 2017, until 7th
March, 2017, and again from 7th March, 2017, till 8th March, 2017 - on
which date the charge-sheet was filed against the appellant in the Court. F
The order passed by the Special Court on 8th March, 2017, has been so
construed by the High Court and additionally by explicitly extending the
period for filing of the charge-sheet against the appellant until 8th March,
2017. We find no error in that approach of the High Court. No
interference is warranted in that regard. G
26. The appellant, however, relies on the observations in Uday
Mohanlal Acharya (supra) rendered by a three-Judge Bench of this
Court. In the said case, the accused had himself surrendered in Court
and was remanded to judicial custody. The period for filing of charge-
sheet (60 days in that case) expired on 16th August, 2000. The accused H
400 SUPREME COURT REPORTS [2018] 1 S.C.R.
A moved an application on 17th August, 2000, for grant of statutory bail on
the ground of default in filing of charge-sheet within the statutory period
of 60 days. That bail application was rejected by the Magistrate on the
same day, holding that the provisions of Section 167(2) of Cr.P.C. had no
application to the cases pertaining to the special enactment i.e.
Maharashtra Protection of Interest of Depositors (in Financial
B
Establishments) Act, 1999. The accused then approached the High Court.
When the matter was pending before the High Court, charge-sheet was
filed before the Trial Judge on 30th August, 2000. The High Court refused
to grant relief on the ground that by the time the High Court could consider
the correctness of the order on the statutory bail application passed by
C the competent Court, a charge-sheet was filed against the accused before
the Magistrate and, therefore, the so called enforceable right did not
survive or remained enforceable. In this backdrop, this Court considered
the matter and answered the issue in favour of the accused on the finding
that before the charge-sheet was filed, the accused had invoked the
remedy of statutory bail. Thus, the factum of filing of charge-sheet
D
subsequently cannot defeat the right accrued to him. In the present case,
before the appellant instituted the subject application for grant of statutory
bail on 2nd March, 2017, the Additional Public Prosecutor had already
filed his report/application for extending the period for filing of charge-
sheet against the appellant until 15th March, 2017, but decision thereon
E was deferred. As held by the Constitution Bench in the case of Sanjay
Dutt (supra), unless the report/application filed by the Additional Public
Prosecutor for extension of time was rejected, no right would accrue in
favour of the accused much less to consider his application for grant of
statutory bail. Further, in such cases it is the duty of the concerned Court
to first deal with the prayer for extension of period to file charge-sheet
F
made by the Additional Public Prosecutor. The High Court, in the
impugned judgement, thus answered the issue against the appellant and
additionally considered the justness of the prayer made by the Additional
Public Prosecutor for extension of period for filing charge-sheet. It
recorded an express finding that the said request was genuine and
G appropriate and thus extended the time for that purpose till 8th March,
2017.
27. Reverting to the decision in the case of Nirala Yadav (supra)
rendered by two-Judge Bench, the accused in that case was arrested
and sent to judicial custody on 5th December, 2006. After lapse of the
H
RAMBEER SHOKEEN v. STATE OF NCT OF DELHI 401
[A. M. KHANWILKAR, J.]
statutory period of 90 days on 14th March, 2007, the accused filed A
application for grant of statutory bail on the ground of default. The
prosecution (CBI), however, on 15th March, 2007, moved an application
for extension of time for a period of 30 days. Since the application for
grant of statutory bail filed by the accused preceded the filing of application
for extension of time, the issue was answered in favour of the accused.
B
In the present case, however, the prayer for extension of period for
filing charge-sheet was moved by the Additional Public Prosecutor before
the statutory period had lapsed, but the same remained pending until 8th
March, 2017, when charge-sheet was filed in Court. Until the said request
was formally and expressly rejected by the competent Court, in view of
the exposition in the case of Sanjay Dutt (supra), the concerned Court C
could not have assumed jurisdiction to consider the prayer for grant of
statutory bail of the appellant. The request made by the Additional Public
Prosecutor was formally disposed of as infructuous on 8th March, 2017,
after filing of the charge-sheet against the appellant. That was not an
order of rejection of the request of the Additional Public Prosecutor as
D
such. The High Court has examined this aspect and, in our opinion, rightly
answered the issue against the appellant for the reasons recorded in
paragraphs 75 to 77 of the impugned judgment, including by explicitly
extending the time to file charge-sheet till 8th March, 2017.We affirm
the said view of the High Court. Therefore, even this decision relied
upon by the appellant will be of no avail in the fact situation of the present E
case.
28. Taking overall view of the matter, therefore, it is noticed that
the Additional Public Prosecutor had submitted his report to the concerned
Court for extending time until 15th March, 2017, to file the charge-sheet.
That report was submitted on 28th February, 2017, before expiry of the F
initial statutory period of 90 days for filing of the charge-sheet against
the appellant. That request was disposed of by the Special Court on 8th
March, 2017 as infructuous, after the charge-sheet against the appellant
was submitted in Court. Until 8th March, 2017, the appellant was sent to
judicial custody by the competent Court pending consideration of request
of the Additional Public Prosecutor for extension of time to file the G
charge-sheet. The Court, in law, could not have considered the prayer
for grant of statutory bail of the appellant until 8th March, 2017, on which
date the charge-sheet was already filed against the appellant in the
concerned Court. Further, the High Court considered the circumstances
H
402 SUPREME COURT REPORTS [2018] 1 S.C.R.
A in which the order came to be passed by the Special Court on 8th March,
2017. In our opinion, it rightly held that the said request could not have
been closed as having become infructuous. Rather, it was the duty of
the Court to decide the request on its merits and only upon its rejection,
proceed to consider the prayer for grant of statutory bail. The High
Court, therefore, noticed that it had two options: first, to remit the matter
B
back to the Special Court for a proper decision on the said report of the
Additional Public Prosecutor dated 28th February, 2017 or second, to
consider the same itself and pass appropriate orders thereupon. It chose
to adopt the second option, which was thought desirable and not objected
to by the appellant as can be discerned from the noting in paragraph 75
C of the impugned judgment. The High Court, in paragraph 76 of the
impugned judgment, then proceeded to consider the prayer for extension
of time made in the report submitted by the Additional Public Prosecutor
on 28th February, 2017, and, for tangible reasons, found the same to be
genuine and appropriate. Having thus held, it allowed the said request by
extending the time to file charge-sheet till 8th March, 2017. We find no
D
infirmity in the said approach of the High Court. Having extended the
time till 8th March, 2017 and as the charge-sheet was already filed on
that date, the question of considering the prayer for grant of statutory
bail of the appellant vide application dated 2nd March, 2017, on the ground
of default, did not survive for further consideration. Right to grant of
E statutory bail would have enured to the accused only after rejection of
the request for extension of time prayed by the Additional Public
Prosecutor. As a result, the High Court rightly rejected the prayer for
grant of statutory bail pursued by the appellant vide application dated 2 nd
March, 2017. We are in full agreement with the said conclusion reached
by the High Court.
F
29. A priori, these appeals must fail. Indeed, rejection of the
prayer for grant of statutory bail will not come in the way of the appellant
in pursuing his remedy for grant of regular bail on merit. The appellant
is free to pursue that remedy which may be considered on its own merits
in accordance with law.
G
30. Accordingly, these appeals are dismissed being devoid of
merits.
Nidhi Jain Appeals dismissed.
H
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