Subair A v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 CRL.MC NO. 5412 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRMP 1903/2022 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD PETITIONER/ACCUSED No.1: ``` ``` SUBAIR A AGED 33 YEARS S/O ABBAS, PARPPADI HOUSE, S.P. NAGAR,MUTTATHODY, NOW R/AT SAHIRA MUHAMMED QUARTERS, BHADIRA, KASARAGOD., PIN – 671 123 BY ADV P.RAKESH THAMBAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682 031 ``` ## **`OTHER PRESENT:`** ``` PP SMT. MAYA M.N. ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 5412 of 2022 -:2:- ## O R D E R Dated this the 22[nd] day of September, 2022 A common order was passed by Court of Sessions, Kasargod in Crl.M.P. No. 1903/22 and 1918/22 in Crime No.811/2021 of Adhur Police Station, Kasaragod. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to quash a common order to the extent it allowed Crl.M.P. No.1903/22 and the custody period of the first accused in Crime No.811/2011 was extended beyond 180 days. Copy of the common order is produced alongwith the petition on hand as Annexure A5. 2. The contention of the learned counsel for the petitioner was that the court below has failed to apply its mind to the allegations raised in Crl.M.P. No.1903/22 while passing the impugned order. According to him, said application was filed by the learned Public Prosecutor before the court below based on a report of the Investigating Officer in Crime No.811/2021 of Adhur Police Station seeking to extend the custody of the petitioner, who is the first accused in the case, beyond 180 days for the reason that investigation on material aspects are to be Crl.M.C. No. 5412 of 2022 -:3:- conducted in his presence in custody. Copy of the application submitted by the learned Public Prosecutor before the court below is produced alongwith the petition on hand as Annexure A2. According to the learned counsel, Annexure A2 is silent about the investigation conducted till then for 180 days with the petitioner in custody and therefore, the court below ought not to have passed the impugned order. Relying on Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) it is contended that the learned Public Prosecutor who has approached for extension of custody must have applied its mind to the report of the investigating officer prior to the filing of the application requesting for extension of custody. The learned Public Prosecutor must have to be convinced from the report that the investigating officer was pursuing with the investigation effectively and honestly during the detention period of the petitioner in custody for 180 days and despite exercise of due diligence the proposed investigation was left for consideration. The investigation proposed to be conducted by extending the period of custody further is to find out the sources of the contraband at Orissa and Andra Pradesh. As per the pleadings in Annexure A2 the petitioner is the main link of the Ganja transported from Crl.M.C. No. 5412 of 2022 ## -:4:- other States and he has also involvement in other crimes of similar nature. It is further stated that in order to find out the whereabouts of the co-accused of the petitioner and to trace them out, further custody of the petitioner is inevitable. 3. It is pertinent to note that there is absolutely no discussion on the kind of investigation conducted with the petitioner in custody for the initial 180 days. The contraband was detected and seized as early as on 26.11.2021 and eversince then the petitioner as well as his co-accused were in custody. Why the investigation now proposed to be conducted could not be pursued with during the initial 180 days’ custody was also not stated in Annexure A2 application. True that the quantum of the contraband seized is commercial quantity and Cr.P.C directs the investigation to be conducted and concluded within 180 days. Only in exceptional cases that the custody of the petitioner would be extended to conclude the investigation and that too on cogent and satisfactory reasons being furnished. Hitendra Vishnu Thakur and others v. State of Mharashtra and others [(1994) 4 SCC 602] was relied on by the learned counsel to rest his contention as above. Paragraph 23 of Hitendra supra being relevant is extracted hereunder : Crl.M.C. No. 5412 of 2022 -:5:- “23. We may at this stage, also on a plain reading of clause (bb) of sub-section (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 Crl.M.C. No. 5412 of 2022 ## -:6:- 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 sub-section (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 Crl.M.C. No. 5412 of 2022 ## -:7:- (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 sub-section (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the public prosecutor 'presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and Crl.M.C. No. 5412 of 2022 ## -:8:- in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report falls in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his Indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension.” 4. In the view of the Apex Court, the learned Public Prosecutor cannot act as a ‘Post Office’ while approaching the court with an application for extension of custody of the accused beyond 180 days. The Prosecutor has to apply his mind to the Crl.M.C. No. 5412 of 2022 -:9:- report furnished to him by the investigating officer demanding filing of an application seeking extension of custody of the accused. In the case on hand, the learned Public Prosecutor does not seem to have applied his mind to the report of the investigating officer, but has only acted as a Post Office. The court below has blindly relied on the pleadings in the application and passed the impugned order. In the absence of sufficient reasons to grant extension of custody of accused beyond 180 days, the accused cannot be denied of his statutory entitlement for bail. In the case on hand, without any hesitation, this Court finds that the entitlement of the petitioner for default bail has been declined to him without valid reasons and therefore justice demands setting aside of the impugned order. It is also noticed that the petitioner has been in custody for three months’ after passing of the impugned order. Therefore, the petitioner’s further custody for 90 more days was available for the investigating officer and ample opportunity has already been availed by him to conduct the rest of the investigation. In the result, Crl.M.C. stands allowed. The impugned order is set aside. Bail stands granted to the petitioner on execution by him of a bond for Rs.2,00,000/- (Rupees two lakhs only) with Crl.M.C. No. 5412 of 2022 -:10:- two solvent sureties each for the likesum to the satisfaction of the court below within a period of one week and also on compliance of conditions hereinbelow mentioned : _i) Petitioner shall surrender the passport before the court concerned and in case he does not possess one, he shall file an affidavit to that effect in the above court. If release of the passport is required at a later period, the petitioner shall be at liberty to move appropriate application before that Court and the same shall be considered in accordance with law. Passport shall be surrendered or affidavit shall be filed forthwith._ _ii) Petitioner shall co-operate with the investigation process and shall respond to the call of the investigating officer by notice, for the purpose of investigation._ _ii) Petitioner shall co-operate with the proceedings, before the District and Sessions Court, Kasaragod without failure._ _iii) The petitioner shall neither intimidate or attempt to influence the witnesses; nor tamper with evidence._ _iv) The petitioner shall not commit any offence while on bail._ In case of violation of any of the above conditions, the jurisdictional Court is empowered to consider any application for cancellation preferred by an empowered officer of the court and pass appropriate orders in accordance with law. Sd/- MARY JOSEPH, JUDGE. ttb Crl.M.C. No. 5412 of 2022 -:11:- ## **`APPENDIX OF CRL.MC 5412/2022`** ``` PETITIONER’S ANNEXURES : ``` |`Annexure A1`|`THE CERTIFIED COPy OF APPLICATION U/S`| |---|---| ||`167(2) CRPC`| |`Annexure A2`|`THE CERTIFIED COPIES OF APPLICATION U/S`| ||`36(A)4`| |`Annexure A3`|`THE CERTIFIED COPY OF COUNTER FOR`| ||`APPLICATION U/S 36(A)4`| |`Annexure A4`|`TRUE COPY OF THE HOSPITAL RECORDS OF`| ||`PETITIONER/ACCUSED NO.1`| |`Annexure A5`|`THE FAIR COPY OF THE COMMON ORDER IN`| ||`CRL.M.P.NO.1903/2022 AND 1918/2022`|