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2011 Supreme(Cal) 628
High Court of Judicature at Calcutta
J.N. PATEL & ASHIM KUMAR ROY
Saraswati Rai
Versus
Union of India
C.R.A. NO 411 of 2010
Decided On : 04-05-2011
Important Points
Act Referred
UNLAWFUL ACTIVITIES PREVENTION ACT : S.20, ., S.21, S.17
Headnote
NATIONAL INVESTIGATING AGENCY ACT - BAIL - DEFAULT - EXTENSION OF TIME - PUBLIC PROSECUTOR - INDEFEASIBLE RIGHT - COURT ANALYSIS - SECTION 43D - SECTION 167(2) - SECTION 15 - SECTION 2(E) - SECTION 2(U) - SECTION 24 - SECTION 19
Fact of the Case:
Appellant, Saraswati Rai, was arrested in connection with a case registered under Sections 121/121A/122/124A of the Indian Penal Code. The prosecution sought extension of time under Section 43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the appellant sought statutory bail under Section 167(2) of the Code of Criminal Procedure (CrPC). The trial court extended the time and rejected the appellant's bail application.
Finding of the Court:
The court held that the appellant was entitled to statutory bail as the charge sheet was not submitted within the statutory period of 90 days and there was no order of extension of time in terms of Section 43D(2)(b) of the UAPA. The court also held that the extension of time was granted on the report of a Public Prosecutor who was not appointed under Section 15 of the National Investigating Agency (NIA) Act, 2008 and therefore, the order of extension of time was not valid.
Issues: 1. Whether an indefeasible right of an accused to be released on bail accrued due to non-submission of charge-sheet within the statutory period can be denied by extending the time for investigation, by keeping the accused's application for statutory bail pending for days together, although the accused was prepared to furnish bail? 2. Whether a written notice to the accused before granting extension of time beyond the prescribed period of 90 days for conclusion of investigation is necessary? 3. Whether a Court is justified in keeping the prosecution's application for extension of time pending, although filed much before the expiry of statutory period, similarly the accused's application for statutory bail which was also filed immediately after expiry of statutory period with an offer to furnish bail and then disposed of both the application together after the period prescribed for conclusion of investigation under sub-section 2 (a) of Section 43D of the U.A. (P) Act has expired? 4. Whether the question of extension of time beyond the prescribed period of 90 days under sub-section (2)(b) of Section 43D of the U.A. (P) Act, 2008 can be considered on the report of a Public Prosecutor not being a Public Prosecutor appointed under Section 15 (1) of the NIA Act?
Ratio Decidendi: 1. The indefeasible right of an accused to be released on bail due to non-submission of charge-sheet within the statutory period cannot be denied by extending the time for investigation. 2. A written notice to the accused before granting extension of time beyond the prescribed period of 90 days for conclusion of investigation is not necessary, but the order should be passed in presence of the accused with a clear intimation to him that Court is going to consider prosecution's application for extension of time. 3. A Court is not justified in keeping the prosecution's application for extension of time pending and the accused's application for statutory bail pending together and then disposing of both the applications after the period prescribed for conclusion of investigation has expired. 4. The question of extension of time beyond the prescribed period of 90 days under sub-section (2)(b) of Section 43D of the U.A. (P) Act, 2008 cannot be considered on the report of a Public Prosecutor not being a Public Prosecutor appointed under Section 15 (1) of the NIA Act.
Final Decision: The appeal was allowed and the appellant was directed to be released on bail on a bond of Rs. 1 lakh with two sureties of Rs. 50,000/- each. The court also directed the trial court to conclude the trial strictly in terms of Section 19 of the NIA Act, 2008.
For the Appellant:Sekhar Kr. Basu, Somopriyo Chowdhury, Arnab Chatterjee, Advocates.
For the Respondent:B.R. Ghosal, G.S. Makher, Sanjoy Bardhan, Advocates.
ASHIM KUMAR ROY, J.
1. This is an appeal under Section 21 (4) of the National Investigating Agency Act, 2008 (hereinafter referred to as NIA Act) against an order refusing to grant bail on default to the appellant Saraswati Rai.
2. The present appellant, aged about 23 years and happened to be a student of Master of Business Administration, pursuing her study at IIAS School of Management, Siliguri was arrested on March 14, 2010 by the State police in connection with Matigara Police Station Case No. 51/2010, under Sections 121/121A/122/124A of the Indian Penal Code.
It is the case of the prosecution that on March 14, 2010 the Deputy Superintendent of Police, Siliguri received a written requisition from the Officer- In-Charge Commando, Imphal, East Monipur police for apprehension of one Ninjthoujam Tomba @ Koireng @ Rajen, a top most extremist group KYKL and MYL of Manipur, wanted in connection with criminal cases registered at Monipur and who was then moving through the Siliguri corridor. When source was engaged and it was learnt that 2/3 persons of the said extremist organization, who were then at Matigara area would move from Sevok Road Construction Side towards the Kurseong area through Khaprail Road in a Scorpio vehicle, registration No. WB/74/P-4775. To work out such information the said Deputy Superintendent of Police with force had been to Khaprail area under Matigara Police Station and positioned near Khaprail Bazar. Soon thereafter the said Scorpio vehicle of off-white colour was found passing through the said road and police intercepted the vehicle and found while a male person was driving the vehicle, one female was sitting with him on the front side. On interrogation of the person, who was driving the vehicle, he disclosed his identity as Ninjthoujam Tomba @ Koireng @ Rajen, while the co-passenger disclosed her identity as Saraswati Rai his close associates. As the identity of the person matched with the information received from the Monipur Police Station both of them were arrested and mobile phones and both Indian and Foreign currencies were recovered from them and the vehicle was seized. Thereafter, the principal accused Ninjthoujam Tomba @ Koireng @ Rajen was thoroughly interrogated when he admitted that he was the Commander-in-Chief of banned extremists group KYKL and MYL of Monipur and for last several months he was staying at Kurseong and running his organization and collecting money by extortion and firearms and also recruiting youths including ladies to wage war against the State.
In the meantime, in exercise of power conferred under sub-section (5) of Section 6 read with Section 8 of the NIA Act, 2008, the Central Government by a notification dated April 8, 2010 suo motu issued a direction entrusting the investigation of the said case to the National Investigating Agency (hereinafter referred to as NIA) as the materials collected during the investigation of the aforesaid case disclosed commission of schedule offences and further authorized them to investigate such other offences which may found to have been committed in connection therewith. Pursuant to such notification NIA/New Delhi Crime No. 6/2010 dated April 24, 2010 was registered and NIA undertook the investigation of the said case and on June 8, 2010 moved the Learned Sessions Judge, Darjeeling for adding Sections 17/20/21 of the Unlawful Activities (Prevention) Act, 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008, (hereinafter referred to as U.A. (P) Act) and such prayer was allowed.
Subsequently, on June 9, 2010 the District Public Prosecutor, Darjeeling representing the Investigating Agency, NIA moved an application under sub-section (2)(b) of Section 43D of the U.A. (P) Amendment Act, 2008 before the Court below for extension of time and simultaneously on June 18, 2010 an application was moved on behalf of the appellant seeking her release on the ground of non-submission of the charge-sheet within the statut
