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Citizens for Justice and Peace

Freedom in Sight for Surendra Gadling! Bombay HC quashes Order granting Extension of Time to file Chargesheet against the Human Rights Defender

24, Oct 2018 | Teesta Setalvad

Calling the order of the lower court granting extension of time to the Pune police to file a charge sheet against Surendra Gadling as ‘illegal’, Justice Mridula Bhatkar of the Bombay High Court quashed the Pune court order. Today’s order paves the way for Gadling and other activists to be released on bail. However the Judge stayed her own order from becoming operational till November 1, following a request from the Maharashtra government, thus giving time to the state to appeal.

Essentially, the Bombay high court allowed a petition filed by Surendra Gadling and four other activists. In effect, now, the trial court must grant bail to all five activists who were arrested in the first wave of arrests in June, 2018. Justice Mridula Bhatkar held that the Pune court order granting the police an additional 90 days to file the charge sheet and consequently extending the custody of Gadling and others was “illegal”.

CJP stands in solidarity with the human rights defenders targeted by a vindictive state. A healthy democracy needs voices of dissent. We also need human rights defenders and social activists to work tirelessly to uphold our shared values of equality, peace and justice. Join CJP now!

Under the Unlawful Activities Prevention Act (UAPA), bail is a matter of right after ninety days if the charge sheet has not been filed. But, if there is a delay on a valid ground, the public prosecutor in the case is permitted to file a report before the trial court explaining the reasons for the delay, and seek more time.

The Act mandates that if the trial court is satisfied with the report, it can extend the time for filing the charge sheet up to 180 days if the prosecuting agency applies their mind and lays down reasoned grounds for the delay before the court.

In the present case, it was alleged that the ‘reports’ that were considered by the lower court in Pune for grant of extension included an application and a written submission made by the Assistant Commissioner of Police (ACP), and the Investigating Officer. The public prosecutor was present in the court but he did not argue before the Court. The law, the judgement lays down requires that the prosecutor, who is an independent wing of the state and an officer of the court, assess and convince the court of the need to extend time.

Justice Bhatkar noted that the law mandated that the prosecutor assist the courts in all cases, unless something specific was required of the IOs, or other parties in any case. “The lower court committed an illegality in permitting the IO and the ACP to argue, the Judge has held.

The 22-page Order of the Bombay HC may be read here:

 

Gadling had argued before the high court that these reports cannot be considered same as the public prosecutor’s report.

Advocate General Ashutosh Kumbhakoni, however, argued that the ‘report’ mentioned under the Act must not be taken too “literally and that the ACP and IO’s arguments should be considered a prosecutor’s report. He further argued that police reports in the present case also bore the signature of the public prosecutor concerned and therefore, must be considered a valid document for granting the extension. On the previous hearing on Tuesday, Justice Bhatkar had questioned why the lower court had permitted the IO and the ACP to argue independently when the prosecutor was present in court.

She noted that the law mandated that the prosecutor assist the courts in all cases, unless something specific was required of the IOs, or other parties in any case. “The lower court committed an illegality in permitting the IO and the ACP to argue independently,” she had said.

Reaching her conclusions, the Judge held that it was clear in the present case that the Public Prosecutor had not filed her affidavit supporting the contentions of the state though the matter had been adjourned a week ago.

What is the Law?

In the case of Rambeer Shokeen (supra), the Supreme Court has dealt with sections 167 and 173 of Code of Criminal Procedure. In that case, the prosecution had filed an application for extension of time for filing chargesheet under Maharashtra Control of Organised Crime Act (MCOC Act) and that too, prior to expiry of 90 days. The accused also filed application for bail under section 167(2) of Code of Criminal Procedure and under Section 5 (2005) 7 SCC 29 21(2)(b) of MCOC Act. Both the applications were pending and the accused were remanded to judicial custody. The remand continued and 90 days expired.

Subsequently, a supplementary chargesheet was filed and thereafter, the trial court rejected the application for statutory bail. The High Court upheld the order of the Special Court and Supreme Court also maintained the order of the High Court. The Supreme Court in that case found the prayer for extension of time in the report submitted by the Additional Public Prosecutor specifying tangible reasons, to be genuine and appropriate. The Supreme Court held that the right to grant of statutory bail would have enured to the accused only after rejection of the request of extension of time prayed by the Additional Public Prosecutor. In the said case, there is no dispute that the report for extension of time was submitted by the Additional Public Prosecutor.

In that judgement, the Supreme Court also held that it has to be borne in mind that it is not a matter of form but one of substance. At the end of the said judgement, the Supreme Court while considering statutory bail has further held as under:

26. 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 8-3-2017. Resultantly, the question of granting statutory bail after filing of charge-sheet against the appellant and more so during the 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 2-3-2017, 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.”

However, in the present case, whether the report / application submitted to the trial Court is by the Public Prosecutor or not is the issue. In this case, the application was filed by the Public Prosecutor.

Important Excerpts from the Judgement:

“…The submissions of the learned Advocate General that while interpreting section 43-D, the Court should not deviate from the core object of the provisions of the said section that the satisfaction of the Court for extending the period is most important, cannot be disputed. However, the submissions of the learned Advocate General that the satisfaction of the Court is the goal of the proviso to section 43-D and the medium to achieve is subordinate or not material, cannot be accepted. The position of law is contrary to these submissions. The law states that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. This is an old good law laid down in the case of Nazir Ahmad vs. King-Emperor 6 and it was reiterated in many cases thereafter. For example, in the case of Chandra Kishore Jha vs. Mahavir Prasad & Ors.7. Hence, for the satisfaction of the conscience, the Judge needs able assistance of the Public Prosecutor, who is expected to file his/her report. The method, medium or ways to reach a goal equally matters in the administration of justice. Extension of time for more than 90 days is a very serious decision curtailing the statutory right of the accused, which is granted by the Legislature u/s 167(2) of the Code of Criminal Procedure. Therefore, the terms and clauses as pointed out by the learned Advocate General in the proviso are to be scrutinized.”

 

“… The section states that if it is not possible to complete the investigation within the period of 90 days, then, the Public Prosecutor to submit a report to the Court. In the said report, as per the proviso, the Public Prosecutor should indicate the progress of the investigation and the specific reasons for detention of the accused beyond the said period of 90 days are to be mentioned. Thereafter, the Court is required to consider the progress so also 6 AIR 1936 P.C. 253 (1) 7 (1999) 8 SCC 266 the reasons for detention and if its conscience is satisfied, then, the Court may extend the said period and that is upto 180 days. It is to be noted that it is not binding on the Court to extend the period upto 180 days. It is a discretion of the Court to accept the report of the Public Prosecutor or to reject the said report. The discretion necessary to be used judiciously and not arbitrarily.”

 

“..Thus, the Court’s power to extend the period of investigation vests in this enabling section.

  1. On the background of this factual report and the application, i.e., exhibits 29, 30 and 31, it is to be noted that in the proviso to section 43-D, the Legislature has specified that the report of the Public Prosecutor is a medium for the Court to satisfy its conscience. The Legislature did not mention a report or application of the Investigating Officer. Thus, the provision demands the Public Prosecutor to prepare a report with proper application of mind. In a number of judicial pronouncements, it is made amply clear that the Public Prosecutor is not a mouthpiece of the investigating machinery but he or she is an officer of the Court. The learned Advocate General has rightly submitted that the Public Prosecutor has a difficult task of wearing two hats i.e., to represent the Investigating Officer and also to assist the Court. However, to assist the Court, being an officer of the Court, is the first and foremost duty of the Public Prosecutor. Rather, the Court is very much dependent on the Public Prosecutor where the special powers are to be used under these provisions.

 

“… In the present case, exhibit 29 is undoubtedly a report of 30.8.2018 submitted by Dr.Shivaji Pawar, the Assistant Commissioner of Police, Swargate Division, Pune, below which the designation of District Government Pleader is typed and also mentioned that it was presented through the District Government Pleader. Exhibit 31 is the affidavit of Dr.Shivaji Pawar and the District Government Pleader has identified him. Exhibits 29 and 31 are not disputed. Exhibit 30 is the disputed document, where the controversy is whether the report or application submitted by the Public Prosecutor or it is an application submitted by the Assistant Commissioner of Police. The argument of the learned Advocate General that in view of the cases referred to and the ratio laid down in the case of Rambeer Shokeen (supra), substance is material and not the form and although the nomenclature is used as an application, it can be considered as a report, is though convincing, the key issue in the present matter as to who has submitted this report or application is not covered under the said case. Exhibit 30 is an application through Assistant

Commissioner of Police, Swargate Division, Pune City. He is the applicant. The application is under section 43-D of the Act for extension of the period by further 90 days for investigation and filing chargesheet in the said crime. In the body of the application or report, it is mentioned that the Investigating Officer has arrested the accused. In many places, routinely it is addressed by the applicant by his or her post that he holds and not by the first person. This application is signed by the Assistant Commissioner of Police and learned District Government Pleader has also signed below. In para 10, it is specifically mentioned as under:

“10) According to the provisions of Section 43(D) of UAPA  Act, 1967, if the investigation pertaining to the said Act is not completed within the period of 90 days, then, after filing the application/report by the investigating officer, the said period of 90 days can be extended upto the period of 180 days. …. ”(Emphasis added).

Thus, in the said paragraph, the Public Prosecutor has made it clear that this application is filed by the Investigating Officer and not by her. Moreover, the impugned order of the learned

Special Judge in para 1 opens as under:

“1. This application is filed by the Investigating Officer in Crime No.04/2018 of Vishrambag Police Station for grant of extension of 90 days after 03/09/2018 for further investigation and filing of charge sheet as per the provisions of section 43-D of the Unalwful Activities (Prevention) Act, 1967.” (emphasis added)

Further, in the impugned order, the learned Special Judge has mentioned in para 3 of the order that – “Investigating Officer and the learned DGP have submitted their arguments”.

In para 4, he again mentioned that –

“Investigating Officer and learned DGP have submitted…”

Thus, it appears that the Investigating Officer has argued the matter along with the Public Prosecutor. The Investigating Officer is the in-charge of the investigation. However, the reigns of the prosecution are necessarily in the hands of the Public Prosecutor.

In the present case, not only the application was submitted by the Investigating Officer but he also acted as a Prosecutor by arguing the case along with the Public Prosecutor.

“… There is no bar to make certain query through the learned Public Prosecutor to the investigating officer. On certain occasions, the Court directly calls upon the Investigating Officer to answer a particular query. However, the arguments are to be advanced by the Public Prosecutor, who represents the prosecution.

“.. This shows that the Investigating Officer has navigated the application for extension of period by further 90 days, which is not contemplated under the proviso to section 43-D of the Act. It is to be remembered that the Investigating Officer is always interested in the success or the conviction in the case.

However, it is the duty of the Public Prosecutor to assist the Court in the process of administration of justice by upholding the law. I rely on the judgment in the case Hitendra Vishnu Thakur vs. State of Maharashtra (supra), wherein it is held thus :

“… 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…”

 

“… In the said case of Hitendra Vishnu Thakur (supra), the Court dealt with section 20(4) of the TADA Act and section 167(2) of the Code of Criminal Procedure. Section 20(4) of the TADA and section 43-D of the Act are in pari materia. It is further held in the case of Hitendra Vishnu Thakur (supra) as under:

“23. … 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 subsection (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. …. ” (emphasis added)

Now the state of Maharashtra has been given a week to move the Supreme Court against this order.

 

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