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SUPREME COURT OF INDIA
Ranjan Gogoi, CJI., L. Nageswara Rao, Sanjay Kishan Kaul, JJ.
THE STATE OF MAHARASHTRA – Appellant
versus
SURENDRA PUNDLIK GADLING & ORS. – Respondents
CRIMINAL APPEAL No.264 of 2019 [Arising out of SLP (CRL.) No.9199 of 2018]
Decided On : 13-02-2019
Facts of Case:
Respondents/detenues claimed default bail in view of failure of appellant/State to file charge-sheet within ninety (90) days, under provisions of Section 43D of Unlawful Activities (Prevention) Act, 1967 and also for seeking extension for completion of investigation, for a period of ninety (90) further days, in a manner that did not meet with requirements of proviso to sub-section (2)(b) of Section 43D of said Act. Latter has become an issue of contention. Vide impugned order dated 24.10.2018, pleas of respondents found favour with Single Judge of Bombay High Court inasmuch as on the basis of records, a finding was reached that Public Prosecutor could not be said to have applied his mind and, thus, mandatory requirement of proviso of clause (b) of sub-section (2) of Section 43D of Act was not met.
Findings of Court:
We are not able to persuade ourselves to agree with conclusions of Single Judge of Bombay High Court in impugned order and hold that respondents would not be entitled to benefit of default bail and consequently impugned order is set aside. We may, however, clarify that since charge-sheet has been filed, any observations made by us herein, would not, in any manner, affect right of respondents to seek regular bail from trial court which would be decided on its own merits by trial court.
Result : Appeal allowed.
Ratio Decidendi: In proceedings under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, the request or application by the Investigating Officer for extension of the investigation period beyond 90 days is not a substitute for the mandatory report of the Public Prosecutor, which must independently indicate the progress of the investigation and specific reasons for the detention of the accused beyond 90 days, demonstrating the Public Prosecutor's application of mind. (!) (!) (!) (!) (!) (!) (!) (!) (!) However, where there is substantive compliance—evidenced by the Public Prosecutor's endorsement, scrutiny of investigation materials, and detailed articulation of progress and compelling reasons for extension (such as voluminous data analysis, pending forensic reports, financial trails, and conspiracy links)—mere infirmities in the form of the report (e.g., styled as an application by or through the Investigating Officer) do not entitle the accused to default bail under Section 167(2) CrPC as modified. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) The court's satisfaction is to be based on substance over technical form, ensuring the Public Prosecutor acts independently, not as a mere conduit. (!) (!) (!) (!) (!)
JUDGMENT
SANJAY KISHAN KAUL, J.
1. Leave granted.
2. The respondents/detenues claimed default bail in view of the failure of the appellant/State to file a charge-sheet within ninety (90) days, under the provisions of Section 43D of The Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the ‘said Act’) and also for seeking extension for completion of investigation, for a period of ninety (90) further days, in a manner that did not meet with the requirements of the proviso to sub-section (2)(b) of Section 43D of the said Act. The latter has become an issue of contention inasmuch as it has been argued that the endeavour of the State Government cannot be said to indicate the submission of a ‘report of the Public Prosecutor’, specifying reasons for detention beyond the period of ninety (90) days.
3. An F.I.R. was lodged by one Tushar Ramesh Damgude on 8.1.2018 at Vishrambaug Police Station, Pune under Sections 153-A, 505(1)(b), 117, & 34 of the Indian Penal Code, 1860, seeking to report an incident that occurred at Shaniwarwada, Pune on 31.12.2017. It has been alleged that between 2:00 p.m. and 10:00 p.m., on 31.12.2017, at Shaniwarwada, Pune, members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon. In the process of investigation, the police alleged that the accused persons, along with other accused are active members of the banned organisation, CPI (Maoist), and that it was under the connivance, guidance and directions of this banned organisation that the event of the nature, as occurred on 31.12.2017, was organised through a frontal organisation going by the name of ‘Kabir Kala Manch’. In the search and seizure operations conducted, respondents were found to be in possession of Naxalite literature, pamphlets, letters, correspondence, audio-video electronic devices and other material, which were alleged to be used for inciting people, to create violence and cause public disorder. Some of the respondents were also stated to be financiers of the illegal activity and it was also alleged that students from an eminent educational institution were taken to the forest area, occupied by Maoist Guerrilla, to meet underground Naxalites and indoctrinate and train them. The entire endeavour was alleged to be an attempt to create an atmosphere that would motivate minority groups against the Union of India and the State of Maharashtra and create public disorder, aimed at vilifying the sovereignty, security and integrity of the nation and striking terror in the heart of peaceful citizens. It is in pursuance of such investigation and material found that offences under Section 120B of the IPC along with Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the said Act came to be added to the charges.
4. After the initial police custody, judicial custody of the respondents was sought, for a period of 90 days, for completion of investigation, which period came to an end on 3.9.2018. The proviso to Section 43D(2) (b) of the said Act was pressed into service for seeking an extension of custody by another 90 days.
The relevant provision reads as under:
“43D. Modified application of certain provisions of the Code.—
xxxx xxxx xxxx xxxx xxxx
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—
xxxx xxxx xxxx
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