DEVINDERPAL SINGHversusGOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

                  DEVINDERPAL SINGH                                              A
                          v.
     GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

                           NOVEMBER 14, 1995
                                                                                 B
                [AS. ANAND AND SUHAS C. SEN, JJ.]

       The Te1rorist and Disrnptive Activities (Prevention) Act, 1987: Section
20(4)(bb)-lnvestigation-Grant of extension of time-Beyond statutory
period of 180 days-Validity o~To be considered with reference to the facts
as existing on date of order-Absence of report ofpublic prosecutor-Accused
                                                                                 c
not being produced and infomied of the question of grant of extension being
considered-Held: Order granting extension by Designated Court rendered
erroneous and could not be sustained.

      The appellant was arrested under the Terrorist and Disruptive D
Activities (Prevention) Act, 1987 and was remanded to judicial custody
which was extended from time to time. Before the expiry of the statutory
period of 180 days an application was moved in the Designated Court for
                                                           • that purpose
extension of time for completion of the investigation and for
a prayer was also made for extending the period of detention of the
appellant beyond the period 180 days. The Designated Court allowed the E
application. The appellant thereafter, moved an application in the Desig-
nated Court for bail. While the bail application was pending in the Desig-
nated Court the appellant preferred the present appeal.

        On behalf of the appellant it was contended that by virtue of proviso    F
to Section 20(4)(bb) of the Act, it was possible for the Designated Court
to extend the statutory period of detention beyond the prescribed period
of 180 days only if the conditions laid down in that sub-section were
fulfilled; that an essential requirement of sub-section (4) (bb) of Section 20
was that there would have to be a report of the Public Prosecutor indicat-
ing the progress of the investigation and also the specific reasons for the      G
detention of the accused beyond the aforesaid statutory period; that in the
instant case, the Public Prosecutor, had not given any such report; that
the Designated Court 'Yas in error in extending the period of detention
without any report of the Public Prosecutor, as required by the statute;
and that the order was behind his back.                                          H
                                     199
    200                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A         Disposing of the appeal, this Court

           HELD : 1.1. The Designated Court granted extension of time to the
    investigating agency for completion of the investigation under Section
    20(4) (bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
    This extension was granted on an application made by the investigating
B   officer only and without any report of the public prosecutor. (203-G]

          1.2. The validity of an order granting extension under Section
    20(4)(bb) of the Act is to be considered with reference to the facts as
    existing on the date of the order. The order passed by the Designated Court
C   without any report of the public prosecutor and without even the appellant
    being produced and informed by the Designated Court that question of
    grant of extension of the period for completing investigation was under
    consideration, renders the order granting extension by the Designated
    Court erroneous and it cannot be sustained. [205-B-C]

D         Hitender Vishnu Thakur v. State of Maharashtra, [1994) 4 SCC 602,
    referred to.

          2. An application for grant of bail on the ground that the prosecution
    had failed to confl>lete investigation within the statutory period of 180 days
    was filed and is pending before the Designated Court, this Court refrains
E   from dealing with the bail application filed in this Court or express any
    opinion on the merits of the bail application pending before the Designated
    Court. (206-A-B]

          Sanjay Dutt v. State, [1994) S SCC 410, cited.
F
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1331 of 1995.

          From the Judgment and Order dated 12.7.95 of the Designated Court
    No. II, Tis Hazari, Delhi in F.I.R. No. 316/93, P.S. Parliament Street, New
G   Delhi.

          Lokesh Kumar and R.S. Sodhi for the Appellant.



H
          R.P. Srivastava and B.K. Prasad for the Respondent.

          The fodgment of the Court was delivered by
                                                                                     -
  DEVINDERPALSINGHv. GOVT. OFNATIONALCAPITAL[SEN,J.] 201

     SEN, J. Special leave granted.                                          A
      Devinderpal Singh, the appellant herein, was deported from Ger-
many and was arrested on his arrival at New Delhi on the charge of having
travelled to Germany on a false passport. A case being FIR No. 22/93
under Section 419/420/468/471, Indian Penal Code, and Section 12 of the
Passport Act, was registered against him. He was subsequently ordered to     B
be released on bail.

      On the very same day i.e. 19th January, 1993, the appellant was also
arrested in another case being FIR No. 316/93 registered under Section
302/307/326/323/436/120-B, Indian Penal Code, Sections 3, 4 and 5 of the     c
Terrorist and Disruptive Activities (Prevention) Act, 1987 and Sections 4
and 5 of the Explosive Substances Act.

       The appellant was remanded to judicial custody which was extended
from time to time and the statutory period of 180 days expired on 17th .
July, 1995.                                                              D

      Before the expiry of the aforesaid statutory period of 180 days,
application was moved on 12th July, 1995 for extension of time for com-
pletion of the investigation and for that purpose a prayer was also made
for extending the period of detention of the appellant beyond the period     E
of 180 days. The Designated Court No. II, Tis Hazari, Delhi, ordered:

        "I have seen the entire file and progress of investigation. I have
        heard today the Ld. P .P. The evidence has to be collected from
        Jaipur, Baroda, Ahmedabad against the accused persons and that
        some of the offenders are yet to be arrested against whom some F
        clues are received very recently. Keeping this in view, I am of the
        opinion that this is a fit case where extension of time as per
        provisions of Sec. 20(4)(bb) TADA and Act 93, should be given.
        I accordingly allow extension of period for another sixty days at
        the expiry of first statutory period of 180 days with direction to G
        positively complete the investigation by then."

      The appellant was produced before the Additional Chief
Metropolitan Magistrate, New Delhi, on 17th July, 1995 and the period of
judicial remand was extended on the ground that the Designated Court
had already extended the time for completion of the investigation for H
    202                   SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A another 60 days. Consequently, the judicial remand of the appellant was
    extended for a further period of 60 days till 15th September, 1995.

          The appellant, therefore, on 17th July, 1995, moved an application
    for bail on the ground that the prosecution had failed to complete the
    investigation within the statutory period of 180 days and that no inde-
B   pendent report has been submitted by the designated Public Prosecutor
    regarding the progress of the investigation and specific reasons for detain-
    ing the appellant beyond the statutory period of 180 days were not stated
    by the Public Prosecutor. The further contention of the appellant was that
    he was not produced before the Designated Court at the time of hearing
c   of the application for extension on 12th July, 1995 and the order of
    extension was passed behind his back and without giving him .any oppor-
    tunity to show cause why the prayer for extension should not be allowed.

          Mr. Sodhi appearing on behalf of the appellant, has contended that
D by virtue of the proviso to sub-section (4) (bb) of Section 20, it is possible
    for the Designated Court to extend the statutory period of detention            '
    beyond the prescribed period of 180 days only if the conditions laid down
    in that sub-section are fulfilled. An essential requirement of sub-section
    (4)(bb) of Section 20 is that there will have to be a report of the Public
    Prosecutor indicating the progress of the investigation and also the specific
E   reasons for the detention of the accused beyond the aforesaid statutory
    period. In the instant case, the. Public Prosecutor has not given any such
    report. The Designated Court, therefore, was in error in extending the
    period of detention without any report of the Public Prosecutor, as re-
    quired by the statute. Mr. Sodhi further argued that in the judgment in the
F   case of Hitender Vishnu Thakur v. State of Maharashtra, [1994) 4 SCC 602,
    (in which one of us, Dr. Anand, J. was a party), it was clearly laid do\vn
    that no extension under clause (bb) can be granted for reasons other than
    those specifically contained therein and the requirements of clause (bb)
    must be strictly complied with before any extension was granted. The
    accused had acquired an indefeasible right to be released on bail in this
G   case on account of the default of the prosecution. The Designated Court
    was clearly in error in extending the time, even though the Public
    Prosecutor had failed to make a report as required by the statute. It was
    also emphasised by Mr. Sodhi that the order of extension was passed
    without any notice to the accused and without producing him before the
H   Court.
   DEVINDERPALSINGHv. GOVT. OFNATIONALCAPITAL[SEN,J.] 203

      On behalf of the respondent, Mr. R.P. Srivastava has argued that A
there is sufficient material on record and good ground for extending the
period of detention beyond the statutory period. It was contended that the
application for extension of time of the period of detention was fully
considered and heard by the Designated Court. The order to extend the
period of detention was passed only after carefully perusing the case diaries B
and other relevant materials on record of the case. He drew our attention
to the statement made on behalf of the respondent in the affidavit filed in
this Court by S.N. Srivastava, Deputy Commissioner of Police, Head
Quarters-II, PHO, Delhi, that a challan has been filed under Section 173
of the Code of Criminal Procedure against the appellant before the Addi-
tional Sessions Judge, Delhi, on 13th September, 1995.                        C
      Mr. Srivastava contended that in the case of Sanjay Dutt v. State,
[1994) 5 sec 410, it has been laid down that the indefeasible right accrued
to the accused for non-compliance with the requirements of Section
20(4)(bb) was enforceable only prior to the filing of the challan. This
indefeasible right did not survive or couid not be enforced after the challan   D
was filed. The appellant had failed to enforce his right before the challan
was filed and, therefore, he could not enforce this right any more now that
the challan has been filed.

      Mr. Sodhi countered this argument by saying that the order passed         E
by the Designated Court was clearly erroneous. When the Court heard the
case, the challan had not been filed at all. He further contended that the
decision in Sanjay Dutt's case was given on a concession made by the
counsel appearing on behalf of the appellant and the Court had no oc-
casion to examine this issue in detail.
                                                                                F
      We need not express any opinion on this aspect of the matter. The
decision in Sanjay Dutt's case was rendered by a Bench of Five Judges and
is binding upon this Court.

       The Designated Court granted extension of time to the investigating
agency for completion of the investigation under clause (bb) of Section G
20(4) of TADA. This extension was granted on an application made by the
investigating officer only and without any report of the public prosecutor.
It is submitted by Mr. Sodhi that extension was granted behind the back
of the appellant aad without permitting the appellant to have his say against
the grant of extension. This position has not been controverted by learned H
    204                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A counsel for the respondents. In Hitendra Vishnu Thakur's case (supra), it
    was observed :

            "Thus, for seeking extension of time under clause (bb), the public
            prosecutor after an independent application of his mind to the
            request of the investigating agency, is required to make a report
B           to the Designated Court indicating therein the progress of the
            investigation and disclosing justification for keeping the accused
            in further custody to enable the investigating agency to complete
            the investigation. The public prosecutor may attach the request of
            the investigating officer alongwith his request or application and
c           report, but his report, as envisaged under clause (bb ), must dis-
            close on the face of it that he has applied his mind and was satisfied
            with the progress of the investigation and considered grant of
            further time to complete the investigation necessary. The use of
            the expression "on the report of the public prosecutor indicating
            the progress of the investigation and the specific reasons for the
D           detention of the accused beyond the said period" as occurring in
            clause (bb) in sub-section (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
E           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."
F
          In Hitendra Vishnu Thakur's case (supra) it was also opined that no
    extension can be granted by the Designated Court under Clause (bb) unless
    the ac;cused is put on notice and permitted to have his say so as to be able
    to object to the grant of extension.
G
          The Constitution Bench in Sanjay Dutt's case (supra) did not express
    any contrary opinion in so far as the requirement of the report of the public
    prosecutor for grant of extension is concerned or on the effect of the
    absence of such a report under clause (bb) of Section 20(4), but observed
H   that the 'notice' contemplated in the decision in Hitendra Vishnu 17iakur's
   DEVINDERPALSINGHv. GOVT. OFNATIONALCAPITAL[SEN,J.] 205

case before granting extension for completion of investigation is not to be A
construed as a "written notice" to the accused and that only the production
of the accused at the time of consideration of the report of the public
prosecutor for grant of extension and informing him that the question of
extension of the period for completing the invec;tigation was being con-
sidered would be sufficient notice to the accused.
                                                                                   B
       The validity of an order granting extension under Clause (bb) of
Section 20(4) of TADA is to be considered with reference to the facts as
existing on the date of the order. Mr. Sodhi is right in his contention that
the order passed by the Designated Court on 12th July, 1995, without any
report of the public prosecutor and without even the appellant being               C
produced and informed by the Designated Court that question of grant of
extension of the period for completing investigation was under considera-
tion, renders the order granting extension by the Designated Court er-
roneous and it cannot be sustained.
                                                                                   D
       This now takes us to the question of grant of bail to the appellant.
Learned counsel for the parties state that challan has since been filed on
30.9.95. Learned counsel are at variance about the effect of filing the
challan on the right of the appellant to be released on bail. This question
was examined in Sanjay Dutt's case (supra), where it has been laid down
that the right to be released on bail for failure to complete the investigation    E
within the prescribed time is not automatic and even if 'indefeasible' it has
to be 'availed of' by the accused at the appropriate stage and that :

         "The indefeasible right accruing to the accused in such a situation
         is enforceable only prior to the filing of the challan and it does not    F
         survive or remain enforceable on the challan being filed, if already
         not availed of. Once the challan has been filed, the question of
         grant of bail has to be considered and decided only with reference
         to the merits of the case under the provisions relating to grant of
         bail to an accused after the filing of the challan. 17ie custody of the
        accused after the challan has been filed is not govemed by Section         G
        167 but different provisions of the Code of Criminal Procedure. If
        that 1ight had accrued to the accused but it remained unenfarced till
        the filing of the challan, then there is no question of its enforcement
        thereafter since it is extinguished the moment challan is filed because
        Section 167 Cr. P.C. ceases to apply.                                      H
    206                     SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A          Since, as submitted by Mr. Sodhi, an application for grant of bail on
    the ground that the prosecution had failed to complete investigation within
    the statutory period of 180 days was filed and is pending before the
    designated Court, we refrain from dealing with the bail application filed in


B
    this Court or express any opinion on the merits of the bail application
    pending before the Designated Court The Designated Court shall dispose
    of the pending bail application in accordance with law expeditiously,
                                                                                    ...
    keeping in view the principles laid down by this Court in the above referred
    cases.

             The appeal and the bail application are therefore disposed of in the
C terms noticed above. There shall be no order as to costs.
    v.s.s.                                                   Appeal disposed of.