Whether Special court can grant extension of time for filing of chargesheet on the application of Investigating officer?

In Saquib Abdul Hamid (supra), the Hon’ble Apex Court

dealt with the extension of the period of investigation and the

entitlement of an accused to default bail. The MCOC Act was at issue in this case.

23. We may at this stage, also on a plain reading of clause

(bb) of subsection (4) of Section 20, point out that the

Legislature has provided for seeking extension of time for

completion of investigation on a report of the public prosecutor.

The Legislature did not purposely leave it to an investigating

officer to make an application for seeking extension of time from

the court. This provision is in tune with the legislative intent to

have the investigations completed expeditiously and not to allow

an accused to be kept in continued detention during unnecessary

prolonged investigation at the whims of the police. The

Legislature expects that the investigation must be completed

with utmost promptitude but where it becomes necessary to seek

some more time for completion of the investigation, the

investigating agency must submit itself to the scrutiny of the

public prosecutor in the first instance and satisfy him about the

progress of the investigation and furnish reasons for seeking

further custody of an accused. A public prosecutor is an

important officer of the State Government and is appointed by

the State under the Code of Criminal Procedure. He is not a part

of the investigating agency. He is an independent statutory

authority. The public prosecutor is expected to independently

apply his mind to the request of the investigating agency before

submitting a report to the court for extension of time with a view

to enable the investigating agency to complete the investigation.

He is not merely a post office or a forwarding agency. A public

prosecutor may or may not agree with the reasons given by the

investigating officer for seeking extension of time and may find

that the investigation had not progressed in the proper manner

or that there has been unnecessary, deliberate or avoidable delay

in completing the investigation. In that event, he may not submit

any report to the court under clause (bb) to seek extension of

time. Thus, for seeking extension of time under clause (bb), the

public prosecutor after an independent application of his mind to

the request of the investigating agency is required to make a

report to the Designated Court indicating therein the progress of

the investigation and disclosing justification for keeping the

accused in further custody to enable the investigating agency to

complete the investigation. The public prosecutor may attach the

request of the investigating officer along with his request or

application and report, but his report, as envisaged under clause

(bb), must disclose on the face of it that he has applied his mind

and was satisfied with the progress of the investigation and

considered grant of further time to complete the investigation

necessary. The use of the expression “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” as occurring in clause (bb) in Ss. (2) of Section 167 as

amended by Section 20(4) are important and indicative of the

legislative intent not to keep an accused in custody unreasonably

and to grant extension only on the report of the public

prosecutor. The report of the public prosecutor, therefore, is not

merely a formality but a very vital report, because the

consequence of its acceptance affects the liberty of an accused

and it must, therefore, strictly comply with the requirements as

contained in clause (bb). The request of an investigating officer

for extension of time is no substitute for the report of the public

prosecutor. Where either no report as is envisaged by clause (bb)

is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to

complete the investigation. Where the Designated Court declines

to grant such an extension, the right to be released on bail on

account of the default of the prosecution becomes indefeasible

and cannot be defeated by reasons other than those

contemplated by Ss. (4) of Section 20 as discussed in the earlier

part of this judgment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 502 OF 2020

Shaikh Moin Shaikh Mehmood, Vs State of Maharashtra,

 

CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR, JJ.

DATED : 24TH SEPTEMBER, 2020

ORAL ORDER [ PER Ravindra V. Ghuge, J. ]

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