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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. DEVADASS, J.
S. KANNAN — Appellant
Vs.
STATE — Respondent
Crl. O.P. No. 913 of 2017
Decided on : 07-02-2017
Indian Penal Code, 1860 - Sections 419, 468, 471, 447, 420 - Unlawful Activities Act 1967 - Sections 18, 18(A), 18(B), 20, 38, 40(1)(c) - Petitioner is stated to be a member of Communist Party of India - He is alleged to be a terrorist - Learned counsel for the petitioner would contend that keeping a person in jail in connection with a criminal case, more particularly, involving of serious accusations and extending his remand period must be in accordance with law - There cannot be mechanical remand - Held, Honble Supreme Court negatived such a contention and held that there cannot be validation of illegal detention retrospectively - It means if the accused is entitled to default bail and he was denied such a bail unlawfully and if subsequently final report is filed, the illegality of having not granted the default bail cannot be cured - Now from the above survey of the case-law, what follows is that Court can remand an accused only on his production - Remand or extension of remand could be obtained only upon satisfaction of the Court based on the materials produced before it including the report filed by the Public Prosecutor - Any flaw on the part of the prosecution in this regard will not ensure benefit to the prosecution - But will ensure benefit to the accused - Indefeasible bail or bail orders on default cannot be curtailed, cannot be denied, cannot be defeated by any subsequent act by the prosecution - Bail granted.
Petition For Bail Under Section 439 CR.P.C.
Petition for bail.
2. Offences alleged are under Sections 419, 468, 471, 447, 420 of IPC and under Sections 18, 18(A), 18(B), 20, 38, 40(1)(c) of Unlawful Activities (Prevention) Act 1967 (shortly, hereinafter UAP Act) in Crime No. 529 of 2015.
3. Petitioner is stated to be a member of Communist Party of India (Maoist). It is banned by the Government. He is alleged to be a terrorist. He was already confined in Prison in connection with Crime No. 01 of 2015 offences under Sections 120-B IPC r/w 124-A IPC and 20 of UAP Act. This case has been registered by 'Q' Branch.
4. In connection with the present case, namely, Crime No. 529 of 2015, petitioner has been formally arrested on 29.03.2016. Subsequently, he has been produced before the concerned Court on 30.03.2016. Thereafter, his remand period was extended from time to time. When his period of stay in jail neared 90 days, the learned Public Prosecutor sought extension of his remand period by filing a report. Thus, the report has been filed in advance, that is to say on the 87th day. On 28.06.2016, the Court extended the remand period of the accused. Admittedly, on that day, the accused/petitioner was not produced in person. But he was produced through Video Conference.
5. The learned counsel for the petitioner would contend that keeping a person in jail in connection with a criminal case, more particularly, involving of serious accusations and extending his remand period must be in accordance with law. There cannot be mechanical remand.
6. The learned counsel for the petitioner would further contend that the accused must know, he shall be made aware of his case is being considered for extending his remand period under the UAP Act beyond 90 days. Of course, the ceiling limit is 180 days. When the remand extension report was filed, the accused was not made aware of. This is in violation of settled principles of law.
7. In this connection, the learned counsel would cite Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others AIR 1994 SC 2623 : (1994) 4 SCC 602 : LNIND 1994 SC 572 and Sanjay Dutt v. State through C.B.I., Bombay 1995 Cr. LJ 477 : (1994) 5 SCC 410 : LNIND 1994 SC 834 : (1995) 1 MLJ (Crl) 176.
8. In this connection, the learned counsel for the petitioner would also cite orders passed by this Court in Ganapathi and Others v. D.S.P., Valparai, Coimbatore District Crl. R.C. Nos. 1222 of 2015 and 19 of 2016 dated 20.01.2016 and Thiruselvam and Others v. D.S.P, Q. Branch, C.I.D., Ramanathapuram Range Crl. O.P. (MD) No. 361 of 2015 dated 30.06.2015.
9. The Investigating Officer filed counter.
10. The learned Public Prosecutor would contend that petitioner seeks bail. As the accused has committed certain offences under UAP Act, the rigour of Section 43D(5) proviso of UAP Act has to be satisfied. It is a pre-condition to grant bail. The accused has been produced through Video Conference. Such method of production has now been accepted.
11. I have anxiously considered the rival submissions, perused the averments in the bail petition, averments in the counter filed by the prosecution and the decisions cited.
12. Petitioner is being remanded from time to time under Section 167 Cr.P.C. Now Final Report (charge sheet) has been filed. Cognizance has been taken on the Final Report. Thereafter, petitioner has been produced under Section 309 Cr.P.C and his judicial custody is being extended from time to time.
13. Upon registration of a cognisable offence, if the Investigating Officer is not able to complete the investigation within 24 hours, then only remanding of the accused under Section 167 Cr.P.C will arise. Either for initial remand or for extension of remand, the accused has to be produced. As per Section 167 (2)(b) Cr.P.C. when the Investigating Officer seeks remand or extension of remand, the accused must be produced before the Court. The Officer must give extract of the case diary. The Court has to peruse it and satisfy it
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