AI Drafter 
TaxTMI 
TaxTMI 
2014 (8) TMI 1241
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....lants were arrested. Denied bail and sent to judicial custody the detention continued. Since investigation related to alleged offences committed under the Unlawful Activities (Prevention) Act, 1967 continued, Section 43D of the said Act permitted the designated Court to extend the period of detention to 180 days, and before 90 days period of detention lapsed, on May 23, 2013 an application was filed by the Investigating Officer supported by a report of the learned Public Prosecutor praying that period of detention of Syed Maqbool and Imran Khan be extended to 180 days. 3. The application dated May 23, 2013 filed by the Investigating Officer of the National Investigating Agency reads as under:- In The Court of Special Judge, Nia, Patiala House Courts Complex, New Delhi NIA Case number RC-06/2012/NIA/DLI, u/s 121A and 123 IPC, r/w section 17, 18, 18B and 20 of UA(P) Act, 1967 STATE (NIA) V/S Yasin Bhatkal and others Sub:- Prayer for extension of Judicial remand beyond the period of 90 days to 180 days in r/o accused persons namely : 1. Imran Khan @ Zakaria @ Saleem @ Fazal @ Tabrez @ Raju, S/O Wajid Khan R/o Peer Burhan Nagar, Near Masjid Sal....
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.... 5. That during the investigation of this case, huge numbers of Call details records (CDRs) have been collected and the analysis of the same is being done. Further CDRs/E-mail IDs of some other suspicious contact numbers are yet to be collected from the service providers for their examination and analysis, result of which are yet to come. Some items (mobile phone, retrieved e-mails etc.) have been forwarded to CFSL for forensic analysis and their examination reports are still awaited. The examination/ analysis of the call details/e-mails being time consuming process are likely to take further considerable time . 6. That during the investigation of this case, it has been revealed that accused persons are members of banned terrorist organization 'Indian' Mujahideen and involved in various terrorist activities endangering the safety and security of the nation and for which different Police Cases have been registered and Charge Sheets have been filed against them in the concerned Courts of Law after collection of sufficient evidences against them. Moreover, the investigation of this case is quite lengthy and voluminous, scattered in different parts of India like Ma....
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....Nia, Patiala House Court Complex, Delhi NIA Case number RC-06/2012/NIA/DLI, u/s 121A and 123 IPC, r/w section 17, 18, 18B and 20 of UA(P) Act, 1967 STATE (NIA) V/S Yasin Bhatkal and others Sub:- Report of Sr. Public Prosecutor with regard to prayer for extension of Judicial remand beyond the period of 90 days to 180 days in r/o accused persons namely: 1. Imran Khan @ Zakaria @ Saleem @ Fazal @ Tabrez @ Raj, S/O Wajid Khan R/o Peer Burhan Nagar, Near Masjid Saleheen, Bhagya Nagar, Nanded, Maharashtra (DOA ­ 28.02.2013) 2. Syed Maqbool @ Zuber s/o Syed Haji r/o Santan Nagar near Madina Masjid Dharmabad, Nanded, Maharashtra (DOA ­ 28.2.2013) MAY IT PLEASE YOUR HONOUR I have gone through the application of I.O. for extension of period of investigation from 90 days to 180 days. I have also perused the Case Diary of Case No.RC-06/2012. The 90 days period of remand would be expiring on 29.05.2013. I am of the view that investigation of the case is quite lengthy and voluminous. Huge number of call detail/email and IDs of the suspects are yet to be collected for examination and it would not be possible for C.I.O. of the cas....
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....had not read the reasons stated in the application filed by the Investigating Officer; for the reason if in the application it was indicated that the report of the Senior Public Prosecutor was being separately attached it meant that the report was prepared first. The Investigating Officer had the report with him. That is the reason why in the application the Investigating Officer wrote that the report of the Senior Public Prosecutor was separately attached. 8. Thus, on facts it was pleaded that the learned Judge presiding over the Special Court erred in granting the extension of the period of detention to up to 180 days. 9. The cause leading to the filing of the other three appeals Nos.1554/2013, 1557/2013 and 1559/2013 is that whereas against Wasim Akram Malik a charge sheet was filed on March 13, 2012 and a supplementary charge sheet was filed on August 27, 2013, concerning the other two appellants, along with the charge sheet filed, applications were filed under Section 173(8) of the Criminal Procedure Code pleading and praying as under:- In The Court of The Ld. Special Judge, Nia, Patiala House, New Delhi. National Investigation Agency, New Delhi Vs. ....
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....trict- Azamgarh, Uttar Pradesh, (9) Ariz Khan @ Junaid, son of Zafre Alam, resident of Kot Area, District- Azamgarh, Uttar Pradesh, (10) Md.Sajid @ Bada Sajid, son of Late Quraishan, resident of village/PO Sanjarpur, PS Saraimeer, Tehsil-Nizamabad, District- Azamgarh, Uttar Pradesh, (11) Md.Khalid, son of Late Sageer Ahmed, resident of Village/PO Sanjarpur, PS Saraimeer, Tehsil- Nizamabad, District- Azamgarh, Uttar Pradesh, (12) Mirza Shadab Beg, son of Mirza Ahtesham Beg, resident of Raja ka Kila, District- Azamgarh, Uttar Pradesh and others, who are presently absconding in the instant case, under provisions of section 173(8) Cr.P.C. 3. That the investigation of the case is scattered in various parts of the country viz. Delhi, Bihar, West Bengal, Maharashtra, Karnataka etc. Prayers/requisitions for obtaining documents vital for the case and voluminous in nature, have been made before the appropriate authorities, orders for which are yet to be issued/received. Further, analysis reports and expert opinions from CFSL are also yet to be received. The said documents and other credible evidences likely to crop up during the further investigation against the accused persons bein....
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....nvestigation when the charge sheet was filed, was proof that when the charge sheet was filed the investigation was not complete. Thus, the three appellants would be entitled to statutory bail. The applications seeking statutory bail were rejected. The order dated September 18, 2013 has been challenged in the three criminal appeals No. 1554/2013, 1557/2013 and 1559/2013. 12. The undisputed legal position on which neither side was at variance is that for offences under the Unlawful Activities (Prevention) Act, 1967 investigation can be conducted by the National Investigating Agency and the provisions of the Code of Criminal Procedure, 1973 would apply concerning investigation as also cognizance of offences by Courts, but as modified by the applicable provisions of the Unlawful Activities (Prevention) Act, 1967. The cognizance of reports had to be by the Designated Courts constituted as per law under the NIA Act. 13. Section 43D of the Unlawful Activities (Prevention) Act, 1967 which is material and relevant for our discussion reads as under:- "43D. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or any other ....
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....punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing." 14. The centre of gravity of the first argument concerns the first proviso to sub-Section 2 of Section 43D of the Unlawful Activities ....
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....e CFSL for forensic analysis. The application brings out that the investigation was scattered in at least six states. 18. The application and the report of the Public Prosecutor have indicated the progress of the investigation and the specific reasons for the detention of the accused up to 180 days. 19. The contention that the report was prepared first and the application later on for the reason in the application it was written that the report of the Public Prosecutor was separately attached and therefore it has to be inferred that the report of the Public Prosecutor could not be based on the contents of the application, would presume that reference of one document in the other would make the existence of one antithetical to the existence of the other. The argument is fallacious. It is possible to author a document and based on the appraisal thereof the second document can be authored and knowing fully well that both documents have to be filed simultaneously, in the former document i.e. the document prepared first a reference is made that the second document is being separately attached. 20. Thus, nothing turns on the fact that in the application moved by the Investigatin....
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.... extended, it would be sufficient compliance with law. 26. Learned counsel for the appellants have vehemently relied upon the decision of the Supreme Court reported as (1994) 4 SCC 602 Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors. to urge that in view of said decision where a similarly worded proviso was added to sub-Section 4 of Section 20 of TADA, the impugned order had to be set aside. 27. The proviso considered by the Supreme Court reads as under:- "Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days; and". 28. The Supreme Court held in para 30 as under:- 30. In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of 'default' of the prosecution and the court shall rel....
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....reason that sub-Section 2 of Section 173 of the Code of Criminal Procedure envisages the filing of the report before a Magistrate empowered to take cognizance of the offence and that the report must be on the completion of the investigation. The forward limb of the argument would be that an incomplete report is no report in the eyes of law. If a complete report is not filed within 180 days, the appellants would be entitled to statutory bail. 32. Section 173 of the Code of Criminal Procedure reads as under:- 173. Report of police officer on completion of investigation ­ (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, ....
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....rge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)." 33. It is trite that every investigation needs to be completed without unnecessary delay as per the mandate of sub-Section 1 of Section 173. Under sub-Section 2 as soon as the investigation is completed the report has to be forwarded to the Magistrate empowered to take cognizance of the offence. The contents of the report have to be as per sub-clauses (a) to (h) of sub-Section 2. 34. Now, an investigation would be complete if the Investigating Officer is able to gather all the facts, information and evidence as also is able to identify the accused and the requirements of sub-clause (a) to (d) are complied with in respect to the contents of the report. But sub-Section 8 of Section 173, which begins with a non-obstinate clause with a deeming provision interwoven, permits further investigation in respect of an of....