THE STATE OF MAHARASHTRAversusSURENDRA PUNDLIK GADLING & ORS.

310                      [2019]REPORTS
               SUPREME COURT   3 S.C.R. 310               [2019] 3 S.C.R.


A                     THE STATE OF MAHARASHTRA
                                       v.
                 SURENDRA PUNDLIK GADLING & ORS.
                      (Criminal Appeal No. 264 of 2019)
B                            FEBRUARY 13, 2019
           [RANJAN GOGOI, CJI, L. NAGESWARA RAO AND
                   SANJAY KISHAN KAUL, JJ.]
             Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b),
      proviso – Claim of respondents/detenues for default bail based on
C
      the plea of non-fulfilment of requirement of proviso to s.43D(2)(b)
      – In the instant case, application for extension of period for
      investigation was filed by IO – On the same day itself, another
      application was filed under s.43D of the Act, for extension of
      period for further investigation and filing of charge-sheet in the
D     said crime enumerating grounds in detail and signed by the Public
      Prosecutor – Request made in the application was granted –
      Aggrieved, respondents challenged the said order before High Court
      – High Court held that the Public Prosecutor did not apply his mind
      and thus mandatory requirement of the proviso to s.43D(2)(b) was
      not fulfilled – On appeal, held: The first document, purporting to
E
      be the application of the IO, contained the reasons for extended
      period of investigation but the second document detailed out the
      grounds in extenso and cannot be said to be a mere reproduction of
      what was stated in the first document – The second document talked
      about the development and progress in the investigation –
F     A perusal of the grounds showed that the allegation was that all the
      respondents were active members of the banned organisation and
      in the course of investigation, the seized electronic records were
      sent to FSL, Mumbai, for its report, which was still awaited – The
      data was stated to be voluminous and further investigation was
      also required into the funding of the accused persons – The
G
      criminal conspiracy was stated to be spread over a number of
      cities, which needed further investigation – Further, the telephonic
      interconnection between the respondents and other ‘absconding
      and underground accused persons’ was also set out as grounds for
      seeking the extension – The material set out in this document met
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                                     310
     STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                           311
                 GADLING & ORS.

with the requirements of the proviso, insofar as the reasons for        A
seeking extension for the period of investigation were concerned –
It cannot, thus, be said that there was complete absence of
application of mind by the Public Prosecutor – Since there was, as
per the comparison of the two documents, an application of mind
by the Public Prosecutor as well as an endorsement by him, the
                                                                        B
infirmities in the form would not entitle the respondents to benefit
of a default bail when in substance there was an application of
mind – Order of High Court is set aside.
      Allowing the appeal, the Court
      HELD: 1. Whether the necessary ingredients of the                 C
proviso to Section 43D(2)(b) of the said Act were set out in the
application submitted:
        A perusal of the proviso to Section 43D(2)(b) of the said
Act shows that there are certain requirements that need to be
fulfilled, for its proper application. These are as under: It has not   D
been possible to complete the investigation within the period of
90 days. A report to be submitted by the Public Prosecutor. Said
report indicating the progress of investigation and the specific
reasons for detention of the accused beyond the period of 90
days. Satisfaction of the Court in respect of the report of the
Public Prosecutor. The document which purports to be the                E
report of the Public Prosecutor is, in the case in the form of an
application under Section 43D of the said Act. A perusal of the
contents of the document shows that the development and
progress in the investigation have been set out. The
developments leading to the incident have also been so set forth.       F
A perusal of the grounds shows that the allegation is that all the
respondents are active members of the banned organisation, CPI
(Maoist). In the course of investigation, documents, pen drives,
CD, DVD, etc. were seized and the electronic records were sent
to FSL, Mumbai, for its report, which was still awaited. The data
was stated to be voluminous and further investigation was also          G
required in to the funding of the accused persons. The criminal
conspiracy was stated to be spread over a number of cities, which
needed further investigation, and financial details of the
respondents were still being ascertained. Further, investigation
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312           SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     into the telephonic interconnection between the respondents and
      other ‘absconding and underground accused persons’ and also
      into the attempt to train young students were also set out as
      grounds for seeking the extension. It was also set out that, upon
      completion of the investigation, permission under Section 45 of
      the said Act is sought for sanction of prosecution for filing the
B
      charge-sheet. [Paras 15-16] [318-G-H; 319-A-E]
           2. Analysis of the document purporting to be the report of
      the Public Prosecutor:
             Initially, on 30.8.2018, an application was submitted by the
C     IO through the Public Prosecutor, setting out the reasons for
      seeking extension of ninety (90) days, to complete the
      investigation under the said Act. The submission for the appellant
      is that on the issue being visited in greater depth on the same
      day, by the Public Prosecutor, a second document was filed, which
      is, in fact, the report of the Public Prosecutor, in terms of the
D     provisions of Section 43D of the said Act. A closer look at this
      document does indicate that the State of Maharashtra is
      represented through the Assistant Commissioner of Police but
      according to the learned senior counsel it is only a description of
      there presentation. The document also purports to be an
E     “application” under Section 43D of the said Act for extension of
      a period of ninety (90) days for further investigation and the word
      “application” is again repeated before the recital of facts. The
      fact that the Public Prosecutor had duly appended her signatures
      at the end of the application, and the very fact that there were
      changes in the second application, from the earlier application
F     would show, as contended, that there has been application of mind
      of the Public Prosecutor, which is the real sine qua non of the
      report to be made by the Public Prosecutor. [Paras 19, 22]
      [320-A-D; 322-F-G]
            Hitendra Vishnu Thakur & Ors. v. State of Maharashtra
G           & Ors. (1994) 4 SCC 602 : [1994] 1 Suppl. SCR
            360 ; Sanjay Kumar Kedia alias Sanjay Kedia v.
            Intelligence Officer, Narcotics Control Bureau
            & Anr. (2009) 17 SCC 631 : [2010] 1 SCR 555
            – relied on.
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     STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                           313
                 GADLING & ORS.

      3. The first document, purporting to be the application of        A
the IO, contained the reasons for such extended period of
investigation but the second document details out the grounds
in extenso and cannot be said to be only a mere reproduction of
what is stated in the first document. It cannot, thus, be said that
there has been complete absence of application of mind by the
                                                                        B
public prosecutor. There is merit in the contention for the
appellant/State that the question is more of substance than form.
The second document in the form of an application has been filed
on the same day. It is not as if the first document, which is an
application of the IO was withdrawn to file the second document,
which purports to be the report of the public prosecutor. It is on      C
the analysis of the first document that the second document has
been filed, albeit both containing the endorsement of the public
prosecutor. There are averments in the second application
referring to the progress of the investigation and the rejoinder
elucidates that the public prosecutor had the benefit of scrutinising
                                                                        D
these papers. There are additional and expanded grounds set
out in the second document. The public prosecutor has the option
to agree or disagree with the reasons given by the IO for seeking
extension of time but in the facts of this case, the second
document in the form of an application shows scrutiny of the first
document and thereafter details grounds and expanded reasons            E
for the requirement of further time to complete the investigation.
[Para 36, 37, 39] [327-B-E; 328-A-B]
                       Case Law Reference
[1994] 1 Suppl. SCR 360           relied on            Para 24
                                                                        F
[2010] 1 SCR 555                  relied on            Para 30

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 264 of 2019.
      From the Judgment and Order dated 24.10.2018 of the High Court    G
of Judicature at Bombay in Criminal Writ Petition No. 4148 of 2018.
       Vikramjit Banerjee, ASG, Mukul Rohatgi, Dr. Abhishek Manu
Singhvi, Kapil Sibal, Anand Grover, Raju Ramachandran, Ms. Indira
Jaising, Sr. Advs., Nishant Ramakantrao Katneshwarkar, Anoop Kandari,
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314            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A     Ms. Deepa Kulkarni, Nihalsing Rathod, Jagdish Meshram, Amit Bhandari,
      Anil Adelkar, Aakarsh Kamra, Ms. Aishwarya Bhati, Ms. Uttara Babbar,
      Damodar Solanki, B. V. Balaram Das, Barun Kumar, K. V. Muthu
      Kumar, Ms. A. Mahajan, Ms. Tripti Tandon, Anirudh A., Aakarsh Kamra,
      S. Gowthaman, Paras Nath Singh, Ms. Nehmat Kaur, Ms. Nupur Kumar,
      Sunil Fernandes, Ms. Priyansh, Shadan Farasat, Advs. for the appearing
B
      parties.
            The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J. 1. Leave granted.
             2. The respondents/detenues claimed default bail in view of the
C     failure of the appellant/State to file a charge-sheet within ninety (90)
      days, under the provisions of Section 43D of The Unlawful Activities
      (Prevention) Act, 1967 (hereinafter referred to as the ‘said Act’)and
      also for seeking extension for completion of investigation, for a period of
      ninety (90) further days, in a manner that did not meet with the
D     requirements of the proviso to sub-section (2)(b) of Section 43D of the
      said Act. The latter has become an issue of contention inasmuch as it
      has been argued that the endeavour of the State Government cannot be
      said to indicate the submission of a ‘report of the Public Prosecutor’,
      specifying reasons for detention beyond the period of ninety (90) days.

E            3. An F.I.R. was lodged by one Tushar Ramesh Damgude on
      8.1.2018 at Vishrambaug Police Station, Pune under Sections153-A,
      505(1)(b), 117, & 34 of the Indian Penal Code, 1860,seeking to report an
      incident that occurred at Shaniwarwada, Pune on31.12.2017. It has
      been alleged that between 2:00 p.m. and 10:00 p.m., on 31.12.2017, at
      Shaniwarwada, Pune, members of the ‘Kabir Kala Manch’, under the
F     head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of
      the Elgar Parishad, where active members of CPI (Maoist) supposedly
      raised inflammatory slogans and engaged in certain other allied activities,
      with the intention to conspire, incite and abet the commission of terrorist
      acts and other unlawful activities by using violent means, thus, promoting
G     enmity between different groups, which ultimately culminated in the
      break-out of violent riots on 1.1.2018, at a place popularly known as
      Bhima Koregaon, where a large population of people was said to have
      gathered to celebrate the 200th anniversary of the battle at Bhima
      Koregaon. In the process of investigation, the police alleged that the
      accused persons, along with other accused are active members of the
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      STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                                   315
        GADLING & ORS. [SANJAY KISHAN KAUL, J.]

banned organisation, CPI (Maoist), and that it was under the connivance,         A
guidance and directions of this banned organisation that the event of the
nature, as occurred on 31.12.2017, was organised through a frontal
organisation going by the name of ‘Kabir Kala Manch’. In the search
and seizure operations conducted, respondents were found to be in
possession of Naxalite literature, pamphlets, letters, correspondence,
                                                                                 B
audio-video electronic devices and other material, which were alleged
to be used for inciting people, to create violence and cause public disorder.
Some of the respondents were also stated to be financiers of the illegal
activity and it was also alleged that students from an eminent educational
institution were taken to the forest area, occupied by Maoist Guerrilla, to
meet underground Naxalites and indoctrinate and train them. The entire           C
endeavour was alleged to be an attempt to create an atmosphere that
would motivate minority groups against the Union of India and the State
of Maharashtra and create public disorder, aimed at vilifying the
sovereignty, security and integrity of the nation and striking terror in the
heart of peaceful citizens. It is in pursuance of such investigation and
                                                                                 D
material found that offences under Section 120B of the IPC along with
Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the said Act came to be
added to the charges.
      4. After the initial police custody, judicial custody of the respondents
was sought, for a period of 90 days, for completion of investigation,
which period came to an end on 3.9.2018. The proviso to Section                  E
43D(2)(b) of the said Act was pressed into service for seeking an
extension of custody by another 90 days. The relevant provision reads
as under:
       “43D. Modified application of certain provisions of the
       Code.—                                                                    F


       xxxx        xxxx             xxxx              xxxx              xxxx
       (2) Section 167 of the Code shall apply in relation to a case involving
       an offence punishable under this Act subject to the modification          G
       that in sub-section (2),—
       xxxx        xxxx             xxxx              xxxx              xxxx


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316             SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           (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 Prosecutor indicating
B           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 hundred and eighty days:”
              5. An application was purportedly preferred by the Investigating
      Officer (herein referred to as the‘IO’),Dr. Shivaji Panditrao Pawar, on
C     30.8.2018, which was submitted through the District Government Pleader,
      Shivajinagar. Reasons for extension of time were set out, i.e., non-
      receipt of some mirror images from the FSL in respect of electronic
      devices, large-scale data collected requiring more time for analysis, bank
      details of the accused and some other details not being received, further
      inquiry required about objectionable contents of documents and
D     correspondence seized, further time required for investigation about funds,
      further time also required to investigate whether there were some other
      accused, etc. It appears that there was a realisation that the application
      may not meet the legal requirements for seeking an extension of time
      for investigation and thus, on the same day itself, another application
E     was submitted. The title of the application suggests that it was submitted
      by the State of Maharashtra (through the Assistant Commissioner of
      Police, Swargate Division, Pune City). A perusal of the document
      suggests that it is an application under Section 43D of the said Act, for
      an extension of a period of 90 days, for further investigation and filing of
      charge-sheet in the said crime. The grounds have been set out in detail
F     from sub-para (a) to (l). At the end of the application, it has been stated
      that it is filed by the applicant, and on the left side it is written “Smt.
      Ujwala S. Pawar, District Govt. Pleader &Public Prosecutor, Pune”,
      who has appended her signature thereto.
            6. An order regarding this application was passed by the Special
G     Judge and the Additional Sessions Judge on 2.9.2018, acceding to the
      request made in the application. The order records that all the accused
      persons and their counsel, the IO and the DGP were present in the
      Court and that arguments were submitted on behalf of the prosecution.

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      STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                                   317
        GADLING & ORS. [SANJAY KISHAN KAUL, J.]

The following was recorded with respect to the accused, “However, the            A
accused persons and their counsels submitted that they are not willing to
submit anything.” The case diary was perused and prima facie it is
stated to have revealed a collection of voluminous data in electronic
form, some of which showed the involvement of the respondents in the
alleged commission of the offence. Such record, it was observed, had
                                                                                 B
been sent to the FSL and reports were awaited. Some of the papers
collected by the IO also showed that students from Tata Institute of
Social Science were taken by accused Mahesh Rao to a forest area of
Maoist Guerilla, to meet underground Naxalite and to train them. Since
the investigation was in progress and at a crucial stage, and there had
been certain progress in the investigation, the period for investigation         C
was extended beyond 90 days, upto 180 days.
       7. The aforesaid order was challenged in the writ petition, before
the Bombay High Court. Vide impugned order dated 24.10.2018, the
pleas of the respondents found favour with the learned single Judge of
the Bombay High Court inasmuch as on the basis of the records, a                 D
finding was reached that the Public Prosecutor could not be said to have
applied his mind and, thus, the mandatory requirement of the proviso of
clause (b) of sub-section (2) of Section 43D of the said Act was not
met.
      8. Aggrieved by the said order, the State of Maharashtra preferred         E
two SLPs before this Court, in which notice was issued and operation of
the order was stayed on 29.10.2018.
        9. In the conspectus of the aforesaid facts, the sole question which
arises for consideration is whether the application presented on 30.8.2018,
under the proviso to Section 43D(2)(b) of the said Act, conforms to the          F
norms laid down by that provision, as enunciated in the judgments of this
Court.
     10. Mr. Mukul Rohatgi, learned Senior Counsel advanced
submission on behalf of the State Government/appellant while Dr. A.M.
Singhvi, Ms. Indira Jaising and Mr. Anand Grover, Senior Advocates               G
advanced the case of the respondents.
         11. We are setting forth the scope of the controversy under different
heads:

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318             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     Respondents had never argued their case before the trial court:
             12. Learned senior counsel for the State of Maharashtra sought
      to contend that the order sheet of the trial court itself shows that the
      counsel for the respondents and the respondents present refused to make
      submissions before the trial court. It was submitted that in such a scenario,
B     a writ petition filed by these respondents ought not to have been
      entertained.
             13. On the other hand, learned senior counsel for the respondents
      contended that the matter was not as simple as was sought to be made
      out by learned senior counsel for the appellant. In a nutshell, it was
C     pleaded that there was no sufficient opportunity given to present the
      case, as the case of the respondents was called for on the very next day
      after the application was submitted before the Special Court, on
      31.8.2018. The respondents were produced on 1.9.2018, when they
      were given copies of the application. The lawyers were stated to not
      have been initially available on 1.9.2018, since it was a Saturday. A
D     request was made for adjournment till 3.9.2018 (Monday), which
      undisputedly was the last day, but that request was declined and the
      matter was listed on 2.9.2018. Certain other allegations have also been
      made.
             14. We are of the view that nothing much turns on the aforesaid
E     plea as the High Court, in its wisdom, decided to consider the merits of
      the controversy. The appellant/State having approached the Special
      Court at the last minute did create a scenario before the Court where an
      endeavour was made to complete the proceedings, in respect of the
      matter in issue, within the next two days. At this stage, the respondents
F     cannot be denied the benefit of advancing their case, the High Court
      having considered their case on merits.
      Whether the necessary ingredients of the proviso to Section 43D(2)(b)
      of the said Act were set out in the application submitted:
            15. A perusal of the proviso to Section 43D(2)(b) of the said Act
G     shows that there are certain requirements that need to be fulfilled, for its
      proper application. These are as under:
            a. It has not been possible to complete the investigation within the
               period of 90 days.

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      STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                                   319
        GADLING & ORS. [SANJAY KISHAN KAUL, J.]

      b. A report to be submitted by the Public Prosecutor.                      A
      c. Said report indicating the progress of investigation and the specific
         reasons for detention of the accused beyond the period of 90
         days.
      d. Satisfaction of the Court in respect of the report of the Public
         Prosecutor.                                                             B

       16. The document which purports to be the report of the Public
Prosecutor is, in the case before us, in the form of an application under
Section 43D of the said Act. A perusal of the contents of the document
shows that the development and progress in the investigation have been
set out. The developments leading to the incident have also been so set          C
forth. A perusal of the grounds shows that the allegation is that all the
respondents are active members of the banned organisation, CPI
(Maoist). In the course of investigation, documents, pen drives, CD,
DVD, etc. Were seized and the electronic records were sent to FSL,
Mumbai, for its report, which was still awaited. The data was stated to          D
be voluminous and further investigation was also required into the funding
of the accused persons. The criminal conspiracy was stated to be spread
over a number of cities, which needed further investigation, and financial
details of the respondents were still being ascertained. Further,
investigation into the telephonic interconnection between the respondents
and other ‘absconding and underground accused persons’ and also into             E
the attempt to train young students were also set out as grounds for
seeking the extension. It was also set out that, upon completion of the
investigation, permission under Section 45 of the said Act is sought for
sanction of prosecution for filing the charge-sheet.
      17. We are unable to accept the plea advanced on behalf of the             F
respondents that the material set out in the document does not meet with
the requirements of the proviso, insofar as the reasons for seeking
extension for the period of investigation are concerned.
       18. The troublesome aspect, however, in the present case, to be
dealt with by us, is the issue whether the document submitted, itself, can       G
be said to be one which is really a report of the Public Prosecutor, meeting
the requirements of what the Public Prosecutor is required to do as per
the proviso to Section 43D(2)(b) of the said Act.

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320            SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     Analysis of the document purporting to be the report of the Public
      Prosecutor:
             19. The facts in respect of the controversy are broadly not in
      dispute. It has been mentioned earlier that initially, on 30.8.2018, an
      application was submitted by the IO through the Public Prosecutor, setting
B     out the reasons for seeking extension of ninety (90) days, to complete
      the investigation under the said Act. The submission of Mr. Mukul
      Rohatgi, learned Senior Counsel for the appellant is that on the issue
      being visited in greater depth on the same day, by the Public Prosecutor,
      a second document was filed, which is, in fact, the report of the Public
      Prosecutor, in terms of the provisions of Section 43D of the said Act. A
C     closer look at this document does indicate that the State of Maharashtra
      is represented through the Assistant Commissioner of Police, Swargate
      Division, Pune City, but according to the learned senior counsel it is only
      a description of the representation. The document also purports to be
      an “application” under Section 43D of the said Act for extension of a
D     period of ninety (90) days for further investigation and the word
      “application” is again repeated before the recital of facts. The third
      factual aspect is mentioned in para 10 of the application, which reads as
      under:
            “10. That according to the provisions of Section 43(D) (sic) of
E           UAPA Act, 1967, if the investigation pertaining to the said Act is
            not completed within the period of 90 days, then, after filing the
            application/report by the investigation officer, the said period
            of 90 days can be extended up to the period of 180 days. It is
            submitted that the investigation of the said crime is in progress.
            That the investigation has not yet completed and, therefore, the
F           investigation authority approached this Hon’ble Court for
            extension of further period of 90 days on the following
            grounds:
                                         GROUNDS

G           a. That all the accused are the active members of banned
               organisation, i.e., C.P.I. (Maoist) and are having direct nexus
               of unlawful activities of the said organisation, viz., CPI (Maoist).
            b. That, during the investigation, seized devised, document, pen
               drives, CD, DVD, hard disk, sim cards and other electronic
               records were sent to FSL Mumbai for its report and for mirror
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STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                                   321
  GADLING & ORS. [SANJAY KISHAN KAUL, J.]

   image of the data contained in the said electronic devices. That        A
   the report from FSL is awaiting (sic).
c. That there is a voluminous data in the said electronic record
   which requires to investigate in order to ascertain the
   implementation of these unlawful activities not only in the State
   of Maharashtra, but in other States also and all over India.            B
d. That it is also necessary to investigate from where the funds
   are available to the accused persons which is utilised by the
   said accused for promoting the unlawful activities of the banned
   organisation.
e. That during the investigation, it is also revealed that the accused     C
    in pursuance of their criminal conspiracy engaged in the
    unlawful activities of banned organisation at Delhi, Mumbai,
    Nagpur, Gadchiroli and Chhattisgarh. That further investigation
    in this context has yet to complete.
f. That it is necessary to ascertain the details of Bank Account of        D
    all the accused persons as well as their transactions in their
    respective accounts.
g. That it is revealed during the investigation through seized CDR
    reports of mobile phones of the accused persons that they are
    in communication with each other as well as with the absconded         E
    and underground accused persons. That investigate(sic)
    pertaining to the said communication is yet to be completed.
h. That during the investigation, it is revealed and (sic.) the students
    from Tata Institute of Social Science Mumbai were taken by
    accused Mahesh Rao safely and secretly to forest areas of              F
    Maoist Guerilla to meet absconding underground Naxalite and
    to train them. The investigation in this respect is in progress.
i. That the accused persons are having their own Facebook
   accounts and e-mails. That investigation regarding the said
   Facebook account as well as e-mail communications are in                G
   progress.
j. That after the arrest of accused P. VaraVara Rao, Vernon
    Gonsalves & Arum Thomas Parera as well as Sudha Bhardwaj
    & Gautam Naulakha on 28.8.2018 the Naxalite material in the
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322            SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A              form of electronic record seized from these accused persons
               and investigation is pertaining to the said seizure of the documents
               and electronic records is going on at FSL.
            k. That all the accused persons are the masterminds of banned
               organisation of CPI (Maoist) and were found involved in
B              commission of illegal act with the intention to commit or
               advocate, abate (sic.) and incite people to take violence and
               create public disorder with intent to threaten the unity, integrity,
               security and sovereignty of India. That investigation in respect
               of the same is yet to be completed.
C           l. After completion of the investigating (sic.) permission u/s 45 of
               Unlawful Activities (Prevention) Act, 1967 sanction for
               prosecution is required to be obtained for filing the charge sheet
               against all the accused persons.”
                                                     (emphasis supplied by us)
D            20. The averment in the aforesaid paragraph, thus, is that the
      application/report was filed by the IO that the IO had approached the
      Court for an extension of a period of further ninety (90) days to complete
      the investigation.
            21. Once again, in para 13 of the aforementioned document, a
E     similar averment is made about the IO approaching the Court.
             22. Learned senior counsel for the appellant, however, contended
      that this was more a question of format, rather than of substance. His
      contention was that in view of the limited period of time left, the
      application was moved on an urgent basis and considering the seriousness
F     of the matter, it should not be looked at technically but as a matter of
      substance. The fact that the Public Prosecutor had duly appended her
      signatures at the end of the application, and the very fact that there
      were changes in the second application, from the earlier application would
      show, as contended, that there has been application of mind of the Public
      Prosecutor, which is the real sine qua non of the report to be made by
G
      the Public Prosecutor.
            23. It could not, however, be seriously disputed that the report of
      the Public Prosecutor could have been worded better or that if the
      appellant had approached the Court some time earlier, it would have
H
          STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                               323
            GADLING & ORS. [SANJAY KISHAN KAUL, J.]

been more appropriate. The alleged infirmities are, however, sought to           A
be explained away by learned senior counsel for the appellant by referring
to certain other facts, i.e., the mention of the progress of the investigation
in the report/application and the fact that investigation papers were indeed
submitted to the Public Prosecutor, the factum of filing of two separate
documents referred to aforesaid, indicating application of mind by the
                                                                                 B
Public Prosecutor, the mention of additional grounds in the subsequent
document submitted by the Public Prosecutor, etc. It is the case of the
appellant that it was only after scrutinising the earlier application of the
even date that the Public Prosecutor filed the report, albeit in the form of
an application.
        24. The crucial judgment relied upon, by both the sets of counsel        C
for the parties, is Hitendra Vishnu Thakur & Ors. v. State of
Maharashtra & Ors. 1. The accused had been detained under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as the ‘TADA’). The TADA was amended by the Amendment
Act No.43 of 1993, which inter alia reduced the time for filing of a             D
chargesheet from one year to 180 days and also introduced a new clause
(bb) in Section 20(4), providing for grant of extension of time for
completion of investigation and filing of challan on a report of the Public
Prosecutor, indicating the progress of the investigation and the specific
reasons for detention by the designated court, subject, however, to
maximum compulsory detention of one year. Thus, the difference                   E
between this case and the case before us is only in the periods insofar as
in this case and the said Act, the corresponding period for judicial custody
for the purpose of completion of investigation is 90 + 90 days. In the
case of Hitendra Vishnu Thakur2,this Court had faulted the report
submitted by the Public Prosecutor, to hold that the parameters                  F
contemplated by clause (bb) had not been met.
       25. Mr. Mukul Rohatgi, learned senior counsel contended that the
facts relating to what was the report of the Public Prosecutor in that
case and the present case are different. In this behalf, he invited our
attention to para 73 of the judgment, where the application had been             G
reproduced. The application was in the form of an affidavit of the IO.
At the bottom of the application, it showed the same being signed by the
IO, but with an endorsement by the Public Prosecutor that it was
identified before him. It was found that the designated court had erred
1
    (1994) 4 SCC 602
2
    (supra)                                                                      H
324                 SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A     in treating the application of the IO as a report of the Public Prosecutor,
      where the Public Prosecutor had merely identified the deponent of the
      affidavit (the IO) and such identification, alone could not justify the
      application to be treated as a report of the Public Prosecutor. It was
      sought to be contended by Mr. Rohatgi that on the other hand, in the
      case before us, there had been an actual application of mind of the
B
      Public Prosecutor, as witnessed by the submission of two different
      applications before the Special Court, and other reasons as
      aforementioned.
             26. On the other hand, Dr. A.M. Singhvi, sought to rely upon the
      same facts as mentioned above, that the mere appending of the signatures
C     by the Public Prosecutor would not suffice and in fact the earlier
      document, which was submitted by the IO was also signed by the Public
      Prosecutor. The submission, thus, was that the Public Prosecutor was
      merely endorsing what the IO had set forth in the application, without
      any independent application of mind. Not only that, learned senior counsel
D     drew our attention to the order passed by the trial court to contend that
      the designated court also appears to have treated the document in question
      as an application for extension of period of investigation that had been
      submitted by the IO. Moreover, it was also argued that reasons provided
      by the IO for an extension in the period of investigation did not appears
      to be genuine.
E
            27. Learned senior counsel sought to emphasise that the appellant
      cannot get away from the requirements stipulated in the judgement of
      Hitendra Vishnu Thakur,3 for a document to be treated as a report of
      the Public Prosecutor and the mandatory requirements stipulated in this
      context, in Section 20(4)(bb) of TADA. In this behalf he referred to
F     para 23of the aforementioned judgement.
             28. A perusal of the aforesaid paragraph shows that the emphasis
      laid by this Court was on the legislature, in its wisdom, not leaving it to
      the IO to make an application for seeking an extension of time from the
      Court and, thus, requiring the investigating agency to submit itself to the
G     scrutiny of the Public Prosecutor, in the first instance, and satisfying him
      about the progress of the investigation and furnishing reasons for seeking
      further custody of an accused. Otherwise, an accused could be kept in
      continued detention, during unnecessarily prolonged investigation, at the
      whims of the police. This Court also emphasised that the Public
      3
H         (supra)
         STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                             325
           GADLING & ORS. [SANJAY KISHAN KAUL, J.]

Prosecutor is not a part of the investigating agency, but is an independent   A
statutory authority and, thus, is expected to independently apply his mind
to the request of the investigating agency, before submitting a report to
the Court for extension of time with a view to enable the investigating
agency to complete its investigation. Thus, “He is not merely a post
office or a forwarding agency. A Public Prosecutor may or may not
                                                                              B
agree with the reasons given by the investigating officer for seeking
extension of time and may find that the investigation had not progressed
in the proper manner or that there has been unnecessary, deliberate or
avoidable delay in completing the investigation. In that event, he may
not submit any report to the Court under clause (bb) to seek extension of
time.”                                                                        C
       29. The observations in para 23 also then go on to state that the
Public Prosecutor may attach the request of the IO along with his request
or application or report, but his report must disclose, on the face of it,
that he has applied his mind and has been satisfied with the progress of
the investigation and considered a grant of further time, to complete the     D
investigation, as necessary. This report is not merely a formality, but is
a very vital report as it affects the liberty of an accused. The request of
an IO for extension of time is no substitute for the report of the Public
Prosecutor. We may notice that it has been very clearly set out that it is
not merely a question of the form in which the request for extension is to
be made, but one of substance, as it is to assist the designated court to     E
independently decide whether or not to grant such extension. It cannot
be a mere presentation and forwarding of the request of the IO to the
Court. The mere labelling of the document as a report or an application
was stated to be not of much consequence, but what was held to be of
consequence was that there could not be a mere reproduction of the            F
application or request of the IO by the Public Prosecutor in his report,
without demonstration of the application of his mind and a recording of
his own satisfaction.
      30. The aforesaid line of argument was supported by Mr. Anand
Grover and Ms. Indira Jaising, learned senior counsels. A reference           G
was also made to the judgment in Sanjay Kumar Kedia alias Sanjay
Kedia v. Intelligence Officer, Narcotics Control Bureau &Anr.4
      31. Insofar as the facts are concerned, the accused was arrested
under the Narcotic Drugs and Psychotropic Substances Act, 1985 and
4
    (2009) 17 SCC 631                                                         H
326                    SUPREME COURT REPORTS                         [2019] 3 S.C.R.


A     was kept in detention for the initial period of 180 days. The complaint
      was filed just before the expiry of the statutorily stipulated one year
      period. The endeavour of the accused to seek bail post filing of the
      complaint did not succeed and it is thereafter that an endeavour was
      made to assail the initial extension of detention on the ground that the
      report of the Public Prosecutor did not meet the relevant test. At that
B
      stage also, ultimately the Supreme Court held in favour of the accused
      by opining that he would be entitled to “default bail” relying on the
      judgment in Hitendra Vishnu Thakur5.
             32. A further plea sought to be advanced, on reliance upon the
      Sanjay Kedia6 judgment, was that “compelling reasons” are required
C     to be disclosed for extension of time beyond 180 days and that no such
      compelling reasons have been disclosed in the present case.
             33. In order to complete the recital of facts, we may note at this
      stage that the chargesheet in the present case was filed on
      15.11.2018,within the extended period of 90 days and, thus, it is open to
D     the respondents to seek bail from the competent court; but then the
      contention of the counsel for the respondents was based on the facts
      that if the respondents are entitled to default bail, they should not be
      compelled to go through the rigours of applying for a regular bail, post
      filing of the chargesheet.
E                   34. We have given our deep thought to the controversy in question.
             35. There is no doubt that the report/application of the public
      prosecutor, setting out the reasons for extension of ninety (90) days of
      custody to complete investigation leaves something to be desired. The
      first document placed before the trial court was an application/report
F     filed by the IO, though that is also stated to contain the signature of the
      public prosecutor. The second document, which purports to be the report
      of the public prosecutor, has also been filed in the form of an application.
      There is repetition of averments that the IO is approaching the court.
      Para 10 of the second document again mentions that the investigating
G     authority had approached the court for an extension of a further period
      of ninety (90) days on the grounds set out therein and the trial court also
      appears to have treated the document in question as an application filed
      by the IO. A clarity in the form of a proper endorsement by the public
      5
          (supra)
      6
          (supra)
H
           STATE OF MAHARASHTRA v. SURENDRA PUNDLIK                              327
             GADLING & ORS. [SANJAY KISHAN KAUL, J.]

prosecutor that he had perused the grounds in the earlier document               A
submitted by the IO and, thus, was satisfied that a case had been made
out for extension of time to complete the investigation would have obviated
such a controversy. But that is not to be.
       36. We may, however, notice that insofar as the existence of
reasons for such extension, we have found that the same exist in the             B
detailed grounds extracted aforesaid. The first document, purporting to
be the application of the IO, contains the reasons for such extended
period of investigation but the second document details out the grounds
in extenso and cannot be said to be only a mere reproduction of what is
stated in the first document. It cannot, thus, be said that there has been
complete absence of application of mind by the public prosecutor.                C

        37. There is merit in the contention of the learned senior counsel
for the appellant/State that the question is more of substance than form,
an aspect even emphasised in Hitendra Vishnu Thakur7 case, which
has been relied upon by learned counsel for both the parties. The second
document in the form of an application has been filed on the same day.           D
It is not as if the first document, which is an application of the IO was
withdrawn to file the second document, which purports to be the report
of the public prosecutor. It is on the analysis of the first document that
the second document has been filed, albeit both containing the
endorsement of the public prosecutor. There are averments in the second          E
application referring to the progress of the investigation and the rejoinder
before us elucidates that the public prosecutor had the benefit of
scrutinising these papers. There are additional and expanded grounds
set out in the second document.
       38. Mr. Mukul Rohatgi, learned senior counsel appearing for the           F
appellant/State has rightly contended that there is a material difference
in the facts of the present case and those of Hitendra Vishnu Thakur8
case, inasmuch as the application in that case was in the form of an
affidavit of the IO, whose signatures were identified by an endorsement
of the public prosecutor. It is in those circumstances it was held that
mere identification by the public prosecutor, of the deponent of the affidavit   G
could not justify the application to be treated as a report of the public
prosecutor. In the present case, the second document contains a clear
endorsement of the public prosecutor in support of the averments made
therein.
7
    (supra)
8
     (supra)                                                                     H
328                 SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A            39. No doubt, in para 23 of Hitendra Vishnu Thakur9 case, this
      Court laid emphasis on the importance of the scrutiny by a public
      prosecutor so as to not leave the detenu in the hands of the IO alone,
      being the police authority. The public prosecutor, thus, has the option to
      agree or disagree with the reasons given by the IO for seeking extension
      of time but in the facts of the present case, the second document in the
B
      form of an application shows scrutiny of the first document and thereafter
      details grounds and expanded reasons for the requirement of further
      time to complete the investigation.
             40. Undoubtedly the request of an IO for extension of time is not
      a substitute for the report of the public prosecutor but since we find that
C     there has been, as per the comparison of the two documents, an
      application of mind by the public prosecutor as well as an endorsement
      by him, the infirmities in the form should not entitle the respondents to
      the benefit of a default bail when in substance there has been an
      application of mind. The detailed grounds certainly fall within the category
D     of “compelling reasons” as enunciated in Sanjay Kedia10 case.
             41. We are, thus, not able to persuade ourselves to agree with the
      conclusions of the learned single Judge of the Bombay High Court in the
      impugned order and hold that the respondents would not be entitled to
      the benefit of default bail and consequently the impugned order is set
E     aside.
              42. We may, however, clarify that since the charge-sheet has
      been filed, any observations made by us herein, would not, in any manner,
      affect the right of the respondents to seek regular bail from the trial
      court, if so advised, which would be decided on its own merits by the
F     trial court.
                43. The appeal is allowed leaving the parties to bear their own
      costs.


      Devika Gujral                                                 Appeal allowed.
G


      9
          (supra)
      10
          (supra)


H