Point of Law : Extension of period of investigation - Procedure when investigation cannot be completed in twenty four hours - When a report is submitted by public prosecutor to Designated Court for grant of extension under clause (bb), its notice should be issued to accused before granting such an extension so that an accused may have an opportunity to oppose extension on all legitimate and legal grounds available to him.

JUDGMENT :

1. The appeal is filed against the impugned order dated 18.03.2020 passed by the learned Special Judge, West District, Tis Hazari Courts, Delhi (hereinafter referred learned Trial Court) and to direct release of appellant on bail per Section 167 Criminal Procedure Code (Cr PC) read with Section 21(2) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred as MCOCA) in case FIR No.397/2019 registered at police station Hari Nagar.

2. The learned counsel for the appellant says FIR No.100/2018 was registered under NDPS Act at police station Hari Nagar, Delhi and accused Salman Tyagi was arrested on 17.02.2018 and appellant/accused Rahul Gupta, was arrested on 18.04.2018 in the said FIR. The appellant was granted regular bail in such FIR No.100/2018 on 05.07.2019 by this Court on the ground there being no evidence against him, except disclosure statement of a co-accused.

3. However, on 13.08.2019, the present FIR was registered under MCOCA. On 03.10.2019 co-accused Salman Tyagi was arrested in the present FIR and appellant herein was arrested on 21.10.2019. There is a provision for extension of period of investigation under the Act from 90 days to 180 days, but such application for extension needs to be moved prior to the expiry of 90 days from the date of arrest of the accused.

4. The time for moving such application for extension of period of investigation qua accused Salman Tyagi was to expire on 02.01.2020 and qua the appellant herein on 21.01.2020.

5. It is alleged though, initially, Mr.Mahesh Patel, Advocate was appearing on behalf of all accused, including this appellant but on 26.11.2019, the appellant filed an application for bail through Mr.Rajiv Mohan, Advocate, who also filed his Vakalatnama. The order sheets since 26.11.2019 record the attendance of Sh. Rajiv Mohan, Advocate and of his associates for the appellants, as alleged. However on 24.12.2019, an application for extension of period of investigation to 180 days was moved qua all accused by the prosecution, as period of investigation qua accused Salman was going to expire on 02.01.2020 and the advance notice of the application was accepted by Mr.Mahesh Patel, Advocate for all accused.

6. On 26.12.2019 this application was listed, but none of the accused was present, accordingly, notice of this application was issued only to accused Salman Tyagi and his counsel Mr.Mahesh Patel, Advocate.

7. On 28.12.2019 an order was passed recording the presence of accused Salman Tyagi, being produced from custody along with his counsel Mr.Mahesh Patel. The matter was then adjourned from time to time till 07.01.2020 by the learned District Judge-Vacations till an extension was granted not only qua accused Salman Tyagi but also against other accused; including the appellant herein. The order dated 07.01.2020 inter alia notes:-

“Considering the progressive investigation reported by the IO and the investigation that remains to be conducted in respect of remaining accused and evidence needed to be collected, I find it reasonable to extend the time of investigation for further period of 75 days from 15.01.2020.”

8. The learned counsel for the appellant relies upon order dated 28.11.2019 and subsequent orders where it notes the presence of Mr.Mahesh Patel, Advocate for all accused except accused Rahul Gupta, hence it is argued no notice for such extension was ever given to this accused/appellant and in any case Mr.Mahesh Patel, Advocate accepted notice for other accused, than this appellant hence the appellant is entitled to bail.

9. The learned counsel for the appellant referred to Hitendra Vishnu Thakur and Others vs State of Maharashtra and Others (1994) 4 SCC 602 which held:-

“21. Thus, we find that once the period for filing the charge-sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to