SAYED MOHD. AHMED KAZMIversusSTATE, GNCTD & ORS.

                           (2012] 9 S.C.R. 836


A                   SAYED MOHD. AHMED KAZMI
                                     V.
                      STATE, GNCTD & ORS.
             (Criminal Appeal Nos. 1695-1697 of 2012)

                          OCTOBER 19, 2012
B
       [ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR
                AND J. CHELAMESWAR, JJ.]

          Code of Criminal Procedure, 1973 - 167 (2) -
C    Prosecution of accused ulss. 302, 427 and 1208-tPC and ss.
     16 and 18 of Unlawful Activities (Prevention) Act - Accused
     sent to judicial custody by Magistrate - After completion of
    judicial custody for 90 days, Magistrate extended the period
     of investigation and custody of the accused by another 90
D    days - In revision against the order of the Magistrate, Sessions
     Court held the custody of the accused to be illegal - Accused's
     application uls. 167(2) seeking default bail as no charge-sheet
     was filed within 90 days - The Magistrate instead of hearing
     the application for bail, kept on renotifying the hearing - In the
E    meantime State filing fresh application seeking further
     extention of investigation period and the custody of the
     accused - Magistrate did not consider the bail application and
     extended the investigation period and custody of the accused
    for 90 days with retrospective effect i.e. from the date the initial
F   judicial custody for 90 days got over - Thereafter prosecution
    filed charge-sheet - Accused further filed application for early
    hearing which was dismissed by High Court - Appeal against
     the orders of"High Court - Held: The order of the Magistrate
    extending time of investigation and custody of the accused
G   for 90 days with retrospective effect and the orders of High
    Court are set aside - The accused acquired the right for
    statutory bail when his custody was held to be illegal - The
    Magistrate could not defeat the statutory right which accrued
    to the accused on the expiry of 90 days from the date he was

H                                  836
SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 837
                 ORS.
taken into custody- Unlawful Activities (Prevention) Act, 1967   A
- Penal Code, 1860.

     Sanjay Dutt vs. State through CBI (1994) 5 SCC 410:
1994 (3) Suppl. CR 263 ; Dr. Bipin Shanli/al Panchal vs.
State of Gujarat (1996) 1 SCC 718: 1996 (1) SCR 193 •            B
distinguished.

    Uday Mohan/al Acharya vs. State of Maharashtra (2001)
5 SCC 453: 2001 (2) SCR 878 - referred to.
                     Case Law Reference:                         c
   2001 (2) SCR 878               Referred to      Para 19
   1994 (3) Suppl. .SCR 263       Distinguished Para 19
   1996 (1) SCR 193               Distinguished Para 22
                                                                 D
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1695-1697 of 2012.

    From the Judgment & Order dated 02.07.2012,
06.07.2012 and 06.08.2012 of the High Court of Delhi at New      E
Delhi in Criminal M.C. No. 2180 of 2012.

    Mehmood Pracha, Gajinder Kumar, Sheikh Faroz Iqbal,
Sneha Singh, Chander Shekhar, Chirag M. Shroff for the
Appellant.
                                                                 F
      Harin P. Raval, ASG Shriniwas Khalap, Anirudh Sharma,
Anando Mukharji, Palash Kanwar, D.S. Mahra, 8.V. Bairam Das
for the Respondents.

    The Order of the Court was delivered by
                                                                 G
    ALTAMAS KABIR, CJI. 1. Leave granted.

     2. These appeals arise out the judgment and orders dated
2nd July, 2012, 6th July, 2012 and 6th August, 2012, passed
by the Delhi High Court in Crl. M.C. No.2180 of 2012.            H
    838      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A      3. By virtue of the first order dated 2nd July, 2012, the High
  Court issued notice on the question whether the Court of the
  Chief Metropolitan Magistrate was competent to remand the
  accused beyond 15 days for offences under the provisions of
  the Unlawful Activities (Prevention) Act, 1967. Notice was also
B issued to the learned Additional Solicitor General since the
  case involved interpretation of the provisions of the National
  Investigation Agency Act, 2008, the Code of Criminal
  Procedure, 1973 and the abovementioned Unlawful Activities
  (Prevention) Act, 1967. Proceedings pending before the
e learned Additional Sessions Judge, Central-II, Delhi, in CR
  No.86 of 2012, were also stayed till the next date of hearing
  and the matter was directed to be listed on 9th October, 2012.
  By a subsequent order dated 6th July, 2012, the High Court
  modified its earlier order and directed the Chief Metropolitan
  Magistrate to extend the remand of the accused and to take
0
  cognizance of offences under the Unlawful Activities
  (Prevention) Act, 1967. By yet another order dated 6th August,
  2012, the High Court rejected the Appellant's prayer for early
  hearing of the matter indicating that in view of the heavy board
  of the Court it was not possible to accommodate the
E Appellant's request for early hearing.

       4. Although, the Special Leave Petition was directed
  against the said three orders, during the hearing thereof,
  another question of substantial importance surfaced when on
F behalf of the Appellant an application, being Crl. M.A.
  No.19883-85 of 2012 for grant of statutory bail under Section
  167(2) Cr.P.C. was filed, and was taken up for hearing along
  with the appeal.

      · 5. Appearing in support of the Appeals, Mr. Mehmood
G Pracha, learned Advocate, urged that on 13th February, 2012,
  the police registered FIR No.4 of 2012 in respect of offences
  alleged to have been committed under Sections 307, 427 and
  120-B of the Indian Penal Code in connection with an explosion
  involving an Israeli Embassy vehicle carrying the wife of an
H
 SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 839
         ORS. [ALTAMAS KABIR, CJI.]

Israeli Diplomat which had occurred at about 3.15 p.m. at the       A
Aurangzeb Road/Safdarjung Road crossing. The alleged
offences were later amended to cover Sections 16 and 18 of
the Unlawful Activities (Prevention) Act, 1967.

     6. On 6th March, 2012, the Appellant, Sayed Mohd.
                                                                    B
Ahmed Kazmi, was apprehended by some unidentified men in
plain clothes from outside the Indian Islamic Culture Centre at
Lodhi Road at about 11.30 p.m. He was produced before the
learned Chief Metropolitan Magistrate on 7th March, 2012, who
remanded him to 20 day police custody, subject to certain
conditions. On 25th March, 2012, the Investigating Agency           C
completed its investigation, two days prior to the expiry of the
20 day remand period, and the learned Magjstrate was
informed that no further custodial interrogation of the Appellant
was required. Consequently, the Appellant was sent to judicial
custody for a further period of 14 days.                            D

     7. On 28th March, 2012, a prayer for bail was made on
behalf of the Appellant under Section 437 Cr.P.C. The said
application was heard, but the Appellant's prayer for bail was
rejected on 3rd April, 2012. In between various other               E
proceedings were taken with regard to the inspection of the
damaged car.

     8. On 2nd June, 2012, the Appellant was produced before
the Chief Metropolitan Magistrate, since his 90 days' period
of custody was to expire on 3rd June, 2012, and further custody     F
of 90 days' was sought for by the prosecution. The learned
Magistrate by his order dated 2nd June, 2012, extended the
period of investigation and the custody of the Appellant by
another 90 days. The said order dated 2nd June, 2012, was
challenged by the Appellant by way of CR No.86 of 2012 which        G
came up for consideration before the learned Additional
Sessions Judge on 8th June, 2012. The learned Additional
Sessions Judge, inter alia, held that it was only the Sessions
Court and not the Chief Metropolitan Magistrate which had the
competence to even extend the judicial custody of the accused       H
    840     SUPREME COURT REPORTS                 [2012] 9 S.C.R.

A and to entertain cases of such nature.

       9. On 22nd June, 2012, the Appellant was produced
  before the learned Chief Judicial Magistrate for extension of
  his custody. However, on behalf of the Appellant, an application
  had been made under Section 167(2) Cr.P.C. on 17th July,
8
  2012, seeking default bail as no charge-sheet had been filed
  within the 90 day period of the Appellant's custody. The said
  application was dismissed by the learned Magistrate despite
  the observations made by the Additional Sessions Judge in his
  order of 8th June, 2012.
c
       10. The matter was, thereafter, referred by the learned
  Chief Metropolitan Magistrate to the District and Sessions
  Judge who directed that the judicial custody of the Appellant
  be extended till 3rd July, 2012. On 30th June, 2012, without
D serving any notice to the Appellant, the State filed Crl. M.C.
  No.2180 of 2012 under Section 482 Cr.P.C. before the High
  Court questioning the validity of the order passed by the learned
  Additional Sessions Judge on 8th June, 2012. By its order
  dated 2nd July,· 2012, the High Court stayed the observations
E of the Additional Sessions Judge, Central II, Delhi, in CR No.86
  of 2012. The Appellant's application for grant of statutory bail
  could not, therefore, be taken up by the Additional Sessions
  Judge till the High Court on 13th July, 2012, vacated the stay
  in respect of the proceedings in CR No.86 of 2012, subject to
F an undertaking to be given that the question of law involved
  would not be agitated and the revision would be restricted only
  to the factual aspects of the case. In that context, on the same
  date, the counsel for the Appellant moved another application
  before the learned Chief Metropolitan Magistrate under Section
G 167(4) Cr.P.C. and the same was listed for con.sideration on
  17th July, 2012. In the meantime, on 16th July, 2012, CR No.86
  of 2012 which had been filed by the Appellant came up for final
  arguments and on 17th July, 2012, the Additional Sessions
  Judge allowed the application and held that the custody of the
  Appellant was illegal.
H
SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 841
        ORS. [ALTAMAS KABIR, CJI.]
    11. In view of the order passed by the Additional Sessions     A
Judge declaring the Appellant's custody to be illegal, on the
same day, counsel for the Appellant appeared before the Chief
Metropolitan Magistrate and the application under Section
167(2) Cr.P.C. was listed for hearing, but, instead of hearing
the application on the said date, the Chief Metropolitan           8
Magistrate renotified the hearing for 18th July, 2012.

     12. On 18th July, 2012, the State filed a fresh application
before the Chief MetropolitanMagistrate seeking further
extension of the Appellant's custody and the investigation
period. On receiving the said application, the learned Chief       C
Metropolitan Magistrate directed a copy of the said application
to be served on the counsel for the Appellant and renotified the
matter for hearing on 20th July, 2012.

     13. On 20th July, 2012, the Chief Metropolitan Magistrate     o
took up the application for extension of custody filed on behalf
of the prosecution instead of considering the Appellant's
application under Section 167(2) Cr.P.C. and by his order of
even date, the learned Chief Metropolitan Magistrate extended
the time of interrogation and custody of the Appellant for 90      E
days with retrospective effect from 2nd June, 2012.

     14. The aforesaid order of the learned Chief Metropolitan
Magistrate was challenged by the Appellant by way of CR
No.86 of 2012 in the Sessions Court. The Additional Sessions
Judge in his order of 30th July, 2012, observed that the said      F
revisional application involved mixed questions of law and fact
and adjourned the matter till 12th October, 2012. In the
meantime, on 31st July, 2012, the prosecution filed charge-
sheet. This was followed by the Appellant's application before
the High Court in Crl. M.A. No.13484 of 2012 for early hearing,    G
on which the High Court made the observation that on account
of the heavy board of the Court it was not possible to
accommodate the request for early hearing and the matter was
renotified to 9th October, 2012, which is the impvgned order
in these appeals.                                                  H
    842      SUl-'REME COURT REPORTS                [2012] 9 S.C.R.


A        15. Appearing for the Appellant, Mr. Mehmood Pracha,
    learned Advocate, contended that once the period of 90 days,
    as stipulated under clause (a) (i) of the proviso to Subsection
    (2) of Section 167 Cr.P.C., came to an end, the right of a person
    arrested in connection with the commission of an offence to be
8   released on statutory bail commenced and could not be
    extinguished by a subsequent application for extension of the
    period of custody. Mr. Pracha submitted that on 17th July, 2012,
    the Appellant's custody was held to be illegal by the Additional
    Sessions Judge in CR No.86 of 2012 and on the same day,
C   the Appellant's application under Section 167(2) Cr.P.C. was
    pending hearing before the learned Chief Metropolitan
    Magistrate, who, however, did not hear the application and
    renotified the hearing for 18th July, 2012. The fact that the
    application stood renotified for the next day, did not take away
    the fact that the application was pending on 17th July, 2012,
O   when the period of custody of the Appellant had not only ended,
    but had been declared to be illegal. Mr. Pracha submitted that
    the application of 18th July, 2012, filed on behalf of the
    prosecution for extension of the period of custody, which was
    allowed by the learned Chief Metropolitan Magistrate on 20th
E   July, 2012, without considering the Appellant's application
    under Section 167(2) Cr.P.C. and the subsequent extension of
    time of investigation and custody of the Appellant with
    retrospective effect from 2nd June, 2012, did not improve the
    matter to any extent, as far as the prosecution is concerned,
F   since on the expiry of the first period of custody beyond 90
    days, there was no application pending for extension of the
    period of custody, as contemplated under the amended
    provisions of Section 167(2) Cr.P.C.

G       16. At this juncture, it may be useful to indicate that the
  provisions of Section 167(2) of the Code were modified by
  virtue of Section 430 of the Unlawful Activities (Prevention) Act,
  1967. The modification of the provisions of Section 167(2)
  Cr.P.C. by virtue of Section 430. of the aforesaid Act is
H extracted hereinbelow :-
 SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 843
         ORS. [ALTAMAS KABIR, CJI.]
     "430. Modified application of certain provisions of              A
     the Code. - (1) Notwithstanding anything contained in the
     Code or any other law, every offence punishable under this
     Act shall be deemed to be a cognizable offence within the
     meaning of clause (c) of section 2 of the Code, and
     "cognizable case" as defined in that clause shall be             B
     construed accordingly.

     (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),-
                                                                      c
     (a) the references to "fifteen days", "ninety days" and "sixty
     days", wherever they occur, shall be construed as
     references to "thirty days", "ninety days" and "ninety days"
     respectively; and
                                                                      D
     (b) after the proviso, the following provisos shall be
     inserted, namely:-

    Provided further that if it is not possible to complete the
    investigation within the said period of ninety days, the
    Court may if it is satisfied with the report of the Public        E
    Prosecutor indicating the progress of the investigation and
    the specific reasons for the detention of the accused
    beyond the said period of ninety days, extend the said
    period up to one hundrea and eighty days:
                                                                      F
    Provided also that if the police officer making the
    investigation under this Act, requests, for the purposes of
    investigation, for police custody from judicial custody of any
    person in judicial custody, he shall file an affidavit stating
    the reasons for doing so and shall also explain the delay,        G
    if any, for requesting such police custody.".

    17. By virtue of the aforesaid modification to the provisions
of Section 167(2) Cr.P.C., the period of 90 days stipulated for
completion of investigation and filing of charge-sheet, was
                                                                      H
    844     SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A modified by virtue of the amended proviso, which indicated that
  if the investigation could not be completed within 90 days and
  if the Court was satisfied with the report of the Public
  Prosecutor indicating the progress of the investigation and the
  specific reasons for detention of the accused beyond the period
B of 90 days, extend the said period upto 180 days. In other
  words, the custody of an accused could be directed initially for
  a period of 90 days and, thereafter, for a further period of 90
  days, in all a total of 180 days, for the purpose of filing charge-
  sheet. In the event the charge-sheet was not filed even within
c the extended period of 180 days, the. conditions directing that
  the accused persons shall be released on bail if he is prepared
  to do and does furnish bail, would become operative.

        18. Mr. Pracha submitted that in the instant case on 17th
  July, 2012, when the Appellant's initial custody was held to be
D illegal, the right of the Appellant to grant of statutory bail under
  clause (a)(ii) of Sub-section (2) of Section 167 became
  operative and the Appellant became entitled to grant of
  statutory bail and the mere fact that on a subsequent
  application for extension of the period of custody, such custody
E was extended, was immaterial and was of no consequence, as
  had been contended in the High Court cin behalf of the
  prosecution.

        19. In support of his submissions, Mr. Pracha referred to
F and relied upon a Three-Judge Bench decision of this Court in
  Uday Mohan/al Acharya Vs. State of Maharashtra [(2001) 5
  sec 453), wherein while referring to the earlier decision of this
  Court in the case of Sanjay Dutt Vs. State through CBI [(1994)
  5 SCC 410], this Court interpreted the expression "if not already
G availed of' to mean that the Magistrate has to dispose of an
  application under Section 167(2) forthwith and on being
  satisfied that the accused had been in custody for the specified
  period, that no charge-sheet had been filed and that the
  accused was prepared to furnish bail, the Magistrate is obliged
  to grant bail, even if after the filing of the application by the
H
SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 845
        ORS. [ALTAMAS KABIR, CJI.]
accused a charge-sheet had been filed. Mr. Pracha submitted          A
that so long as an application was pending before a charge-
sheet had been filed after the expiry of the stipulated period
for filing of charge-sheet, the accused had an indefeasible right
to be released on statutory bail, as contemplated under the
proviso to Section 167(2) Cr.P.C. Mr. Pracha submitted that          B
the aforesaid decision was ad idem with the facts of the instant
case, wherein the Appellant's application for grant of statutory
bail was pending on the day when the Appellant's custody was
declared to be illegal by the Additional Sessions Judge.

     20. Mr. Pracha submitted that the order passed by the           C
learned Chief Metropolitan Magistrate as also the High Court,
were not sustainable, having been made in contravention of the
provisions of Section 167(2) Cr.P.C. and were, therefore, liable
to be set aside and the Appellant was entitled to be released
on statutory bail.                                                   D

     21. On the other hand, learned Additional Solicitor General,
Mr. Harin P. Raval, contended that there had been no breach
of the provisions of Section 167(2) Cr.P.C. as the right of the
Appellant for grant of statutory bail stood extinguished once the    E
application for extension of the time for completing investigation
had been filed by the prosecution on 18th July, 2012. Mr. Raval
contended that it was settled law that if an accused did not avail
of the remedy contemplated under Section 167(2) Cr.P.C.
before the charge-sheet was filed, such right was no longer
                                                                     F
indefeasible and was rendered nugatory upon filing of the
charge-sheet.

     22. In support of his submissions, the learned Additional
Solicitor General referred to the Constitution Bench decision
of this Court in the case of Sanjay Dutt (supra), wherein the        G
aforesaid proposition of law was considered. The learned
Additional Solicitor General submitted that it had been held by
the Constitution Bench that in matters relating to the Terrorist
and Disruptive Activities (Prevention) Act, 1987, default in
completion of investigation within 180 days gave the accused         H
    846      SUPREME COURT REPORTS                     [2012] 9 S.C.R.


A an indefeasible right to bail, but the time of default continues
  till the filing of the challan, but does not survive thereafter. It was
  held that after filing of the challan, grant of bail would have to
  be decided on merit. Reference was also made to the decision
  of this Court in Dr. Bipin Shanti/a/ Panchal v. State of Gujarat
B [(1996)1 sec 718], in which the same legal position was
  reiterated.

        23. The learned Additional Solicitor General submitted that
   once the period for completing investigation was extended on
   18.7.2012 and the Appellant's application, if any, for statutory
C bail remained undecided, by virtue of the ratio of the decisions
   in the case of Sanjay Dutt (supra) and the subsequent case of
   Dr. Bipin Shanti/al Panchal (supra), the right, if any, of the
   Appellant for grant of statutory bail was rendered null and void.
 _ The learned Additional Solicitor General, therefore, submitted
D that no interference was called for in the order passed by the
   learned Additional Sessions Judge and also of the High Court
   and the appeal was liable to be dismissed.

        24. Having carefully considered the submissions made on
E behalf of the respective parties, the relevant provisions of law
  and the decision cited, we are unable to accept the
  submissions advanced on behalf of the State by the learned
  Additional Solicitor General, Mr. Raval. There is no denying the
  fact that on 17th July, 2012, when CR No.86 of 2012 was
  allowed by the Additional Sessions Judge and the custody of
F the Appellant was held to be illegal and an application under
  Section 167 (2) Cr.P.C. was made on behalf of the Appellant
  for grant of statutory bail which was listed for hearing. Instead
  of hearing the application, the Chief Metropolitan Magistrate
  adjourned the same till the next day when the Public Prosecutor
G filed an application for extension of the period of custody and
  investigation and on 20th July, 2012 extended the time of
  investigation and the custody of the Appellant for a further
  period of 90 days with retrospective effect from 2nd June, 2012.
  Not only is the retrospectivity of the order of the Chief
H
 SAYED MOHD. AHMED KAZMI v. STATE, GNCTD & 847
         ORS. [ALTAMAS KABIR, CJI.]

Metropolitan Magistrate untenable, it could not- also defeat the     A
statutory right which had accrued to the Appellant on the expiry
of 90 days from the date when the Appellant was taken into
custody. Such right, as has been commented upon by this Court
in the case of Sanjay Dutt (supra) and the other cases cited
by the learned Additional Solicitor General, could only be           B
distinguished once the charge-sheet had been filed in the case
and no application has been made prior thereto for grant of
statutory bail. It is well-established that if an accused does not
exercise his right to grant of statutory bail before charge-sheet
is filed, he loses his right to such benefit once such charge-       c
sheet is filed and can, thereafter, only apply for regular bail.

     25. The circumstances, in this case, however, are different
in that the Appellant had exercised his right to statutory bail on
the very same day on which his custody was held to be illegal
and such an application was left undecided by the Chief              D
Metropolitan Magistrate till after the application filed by the
prosecution for extension of time to complete investigation was
taken up and orders were passed thereupon.

     26. We are unable to appreciate the procedure adopted           E
by the Chief Metropolitan Magistrate, which has been endorsed
by the High Court and we are of the view that the Appellant
acquired the right for grant of statutory bail on 17th July, 2012,
when his custody was held to be illegal by the Additional
Sessions Judge since his application for statutory bail was          F
pending at the time when the application for extension of time
for continuing the investigation was filed by the prosecution. In
our view, the right of the Appellant to grant of statutory bail
remained unaffected by the subsequent application and both
the Chief Metropolitan Magistrate and the High Court erred in        G
holding otherwise.

    27. We therefore, allow the appeal, set aside the order
dated 20th July, 2012, passed by the Chief Metropolitan
Magistrate extending the time of investigation and custody of
                                                                     H
    848     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A the accused for 90 days, with retrospective effect from 2nd June,
  2012, and the orders of the High Court dated 2nd July, 2012,
  6th July, 2012 and 6th August, 2012, impugn3d in the appeal
  and direct that the Appellant be released cin bail to the
  satisfaction of the Chief Metropolitan Magistrate, upon such
B conditions as may be deemed fit and proper, including
  surrender of passport, reporting to the local police station, and
  not leaving the city limits where the Appellant would be residing
  without the leave of the Court, so as to ensure the presence of
  the accusedAppellant at the time of the trial.
c K.K.T                                           Appeal allowed