Abdul Halim @ Halim vs State

Hon''ble Mrs. Justice K. Hema

This petition is filed for granting bail. On 03.03.2006 at about 12.30 P.M., the Station House Officer of a Police Station received telephonic information that two bombs were placed in the KSRTC bus stand and moffusil bus Stand. He, along with the police party rushed the spot and on reaching there, both the bombs exploded within a gap of 30 minutes. Therefore, two crimes were registered at the police station in respect of the two explosions and investigation was conducted.

The investigation was handed over to the CBCID SIG III and the case was reregistered under Sections 120B, 124(A) 153(A) read with Section 34 of the Indian Penal Code and Sections 4 and 5 of the Explosives Substances Act. Offences under sections 15(a) and 15(a)(ii) of under Unlawful Activities (Prevention) Act (''the Act'', or ''the Special Act'' for short) were also included. The National Investigation Agency (''NIA'', for short) is conducting investigation into the crimes, as per the orders of Ministry of Home Affairs, Government of India. Petitioner is the third accused in both the crimes.

Learned counsel for petitioner, Sri. S. Rajeev submitted that investigation is not yet completed and the charge sheet is also not laid. Petitioner was arrested on 22.07.2009 and, in this case, he is in custody for the past 359 days. The petitioner is, thus, in custody for more than 90 days and he is entitled for bail on default, u/s 167(2) of the Code of Criminal Procedure ("the Code", for short) read with Section 43 D (2) of the Act, it is argued.

It is also pointed out by learned counsel for petitioner that no report was filed by Public Prosecutor before the lower court, as required u/s 43D(2) of the Act, for extension of the detention period from 90 days to 180 days and hence, lower court has not extended the period of detention to 180 days. In the absence of a report by the Public Prosecutor indicating the progress of investigation and specific reasons for detention beyond 90 days, the court cannot extend the period of detention to 180 days, in the light of Section 43D(2) of the Act, it is argued.

It is also pointed out by learned counsel for petitioner that the date of commission of the alleged offences is 03.03.2006 but, the offences allegedly committed in this case are under Sections 15(a) and Section 15(a)(ii) of the Act. Those Sections were introduced only by way of the amended Act of 2008, much after the date of occurrence. Therefore, petitioner cannot be said to have committed the offences alleged against him under the Act and he deserves to be released on bail, it is submitted.

This petition is strongly opposed. Learned Standing Counsel for the NIA, Sri. T.P.M. Ibrahim Khan submitted that the offfences committed by petitioner are very serious in nature. Though originally, sections 15(a) and Section 15(a)(ii) were included, on noticing the inadvertant mistake, a report was filed on 9.12.2009 by Dy. S.P. Crime branch, to incorporate section 15 of the old Act. The act committed by accused is a "terrorist act", and it is an offence u/s 1-5 of the old Act. The case diary reveals that the allegations made against petitioner are true and hence, he cannot be granted bail, in view of Section 43D(5) of the Act, it is submitted. As per Section 43D(6), the restrictions in Section 43D(5) are in addition to the restrictions contained in the Code and hence the accused cannot be released on bail u/s 167(2), it is argued.

On hearing both sides, I find that a reading of Section 43 D of the Act and section 167 of the Code is quite essential to take a decision in this application. Section 167 of the Code, excluding the portions which are not relevant for disposal of this petition is extracted below:

Procedure when investigation cannot be completed in twenty-four hours.--(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that--

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,--

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life "or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production- of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation //.--xxx

Section 43D of the Act, excluding the relevant portions is extracted as follows:

43-D. Modified application of certain provisions of the Code.--(1) 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 that in sub-section (2),--

(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

(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 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: 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, if any, for requesting such police custody.

(3)xxx.

(4)xxx

(5)Notwithstanding anything contained in the Code, no person accused of an offence 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 u/s 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)xxx.

A reading of Section 167 of the code shows that "no Magistrate shall authorise the detention of the accused person in custody" for a total period exceeding "ninety days", where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In other cases, it shall not exceed 60 days. This prohibition relating to detention of a person is contained in Section 167(2) of the Code and it applies only to cases in which, investigation is not complete.

A reading of Sub-section(2) of section 43D of the Act shows that Section 167 of the Code shall apply, in relation to a case involving an offence punishable under the Act. But, it shall apply, subject to certain modifications referred to in sub-clause (a) and (b) of section 43D(2) of the Act. One such modification is in respect of the number of days, referred to in section 167 of the Code. The other modification enables the court to extent period of detention from 90 days to 180 days. In short, by virtue of the modifications referred to in Section 43D(2)(a) and (b) of the Act. Section 167(2) of the Code virtually stands amended, for the purpose of the Act.

So, while dealing with offence under the Act, section 167 of the Code has to be read, with reference to the two modifications referred to in section 43D(2)(a) and (b) of the Act and by inserting such modifications in Section 167. If so read, it follows that in cases in which investigation is not complete whatever be the offence allegedly committed by an accused under the Act, he shall not ordinarily be detained in custody for a period exceeding 90 days. This is in view of Section 43D(2) (a) of the Act. However, the court has the power to extend such period of "ninety days" up to 180 days, under certain circumstances, by virtue of Section 43D(2)(b) of the Act,

For extending the period of custody form 90 days to 180 days u/s 43D(2)(b) of the Act, there must be a report of the Public Prosecutor before the court, indicating the progress of the investigation and the specific reasons for the detention of the accused beyond ninety days and the court must be satisfied that such extension can be granted. But, that does not mean that the bar for detention beyond the prescribed period u/s 167(2) of the Code is taken away- by the provision contained in Section 43 D (2) (b) of the Act. It only dilutes the rigor contained in Section 167(2) of the code, to a limited extent, by enabling the court to extend the period of detention from 90 days to 180 days.

Still, the normal rule is that there shall not be any detention of an accused in custody for a period exceeding 90 days, but in exceptional cases, such period of detention can be extended up to 180 days, that too, if the court has the requisite satisfaction, as referred to in section 43D(2)(b) of the Act. Thus, in a case in which the court has legally extended the period of detention from 90 days upto 180 days u/s 43D(2)(b) of the Act, the court shall not authorise detention of such accused in custody, even for a day exceeding 180 days. But, then, what will the court do with such an accused? Section 167(2) of the Code itself is an answer to this.

Section 167(2) of the Code lays down that an accused person who cannot be detained in custody for beyond the period prescribed therein "shall be released on bail", if he is prepared to, and does furnish bail. Thus, it is clear that if investigation is not completed and accused is in custody for such period, as referred to in the proviso to section 167(2) of the code, depending on the nature of punishment, the court shall not, under any circumstance, detain such person in custody, if such accused is prepared to and furnishes bail.

Section 167(2) of the code not only lays down a bar for detaining a person beyond a particular period, but it also mandates that such accused "SHALL" be released on bail. Whatever be the offence committed by a person under the Special Act, whatever be the punishment prescribed for such offence., such person shall not be detained in custody for any period exceeding the maximum prescribed u/s 43D (2) of the Act, if the investigation is not complete. It is worthy to bear in mind what a three member bench of the Supreme Court said in Mantoo Majumdar and Another Vs. State of Bihar, . The relevant portion from the above decision is extracted as follows:

To put a man in prison and forget his personhood thereafter, to deprive a man of his personal liberty for an arbitrary period without monitoring by the law, to keep a man in continued custody unmindful of just, fair and reasonable procedure -- these shake the faith in the rule of law and militate against the mandates of Part III of the Constitution. And yet, that is precisely what has happened in the present case.

But, learned Standing Counsel for NIA strongly refuted this position and vehemently contended that the accused cannot be granted bail, in the light of the provision contained in sub-section (5) of Section 43D of the Act. This argument cannot be brushed aside lightly. Section 43D(1)(5) of the Act lays down that notwithstanding any thing contained in the Code, no person accused of an offence punishable under Chapter IV and VI of the Act (the offence alleged against the petitioner in the case falls under Chapter IV of the Act), shall be released on bail, if there are reasonable grounds for believing that the accusation against such person is prima facie true.

Learned Standing Counsellor NIA submitted that the case diary in this case reveals that the accusation made against petitioner are true and hence, he cannot be granted bail, because of the absolute prohibition contained in section 43D(5) of the Act. According to T him, the provision in section 43D(5) of the Act is introduced into the Act, to prevent terrorist acts, mainly in this country''s safety and hence, the objects of the Act have to be borne in mind and petitioner may not be granted bail, in the light of the express prohibition contained in the Act u/s 43D(5), it is submitted. He also submitted that this restriction is in addition to any restriction contained in the Code, as per Section 43D(6) of the Act.

On a close reading of the relevant provisions, I am unable to accept the above contentions, for reasons more than one. First of all, Section 43D(2) of the Act provides that the provision contained in section 167 of the Code SHALL apply to a case involving an offence punishable under the Act. A reading of section 167(2) of the Code makes it clear that there is a total ban in detaining a person in custody beyond a particular period and there is also a mandate thereunder, that the court shall release such person on bail, if he is prepared to and furnishes bail. Therefore, in a case involving offence u/s the Special Act. the ban and mandate u/s 167(2) shall equally apply.

The requirements to be satisfied for granting bail to a person u/s 167(2) read with section 43D(2)(a) and (b) are: i) that the investigation is not complete. ii) that the accused is in detention in custody for the period which is prescribed for the particular offence, iii) that the accused is prepared to and, furnishes bail. If the above three requirements are satisfied, the court shall, not only, not detain such accused in custody, but it shall also release the accused on bail. The merit of the case is totally irrelevant to a case to which Section 43D(2) applies.

The Supreme Court in Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, held thus:

The right to bail u/s 167(2) proviso (a) thereto is absolute. It is a legislative command and not court''s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that Staqe, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds."(Emphasis supplied).

Learned counsel for petitioner also brought to my notice another decision of the Supreme Court in Union of India (UOI) Vs. Thamisharasi and Others, in which, Considering more or less similar provisions under the NDPS Act and Section 167(2) of the Code, the Supreme Court held thus:

The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused.

Thus, whatever be the merit of the case, the court is under the mandate of law and it shall release the accused on bail, if the requirements of Section 167(2) of the code read with Section 43D(2) of the Act are satisfied. But, if the arguments advanced by learned Standing Counsel for NIA on the scope of section 43D(5) of the Act are accepted, the court will be bound to consider the merits of the case, to decide whether bail is to be refused.

While Section 43D(5) of the Act provides that the court shall REFUSE bail, if the allegations made against accused are prima facie true, as per Section 167(2) read with 43D(2) of the Act, the court shall GRANT bail, if the requirements thereunder are satisfied. The court is under a compulsion to release the accused on bail u/s 167(2) read with Section 43D(2) of the Act, irrespective of the merit of the case.

Thus, while merit is relevant u/s 43D(5) of the Act, merit is irrelevant u/s 43D(2) of the Act read with section 167(2) of the Code. While the court shall refuse bail under the former, the court shall grant bail under the latter provisions. Thus, the provision contained in the two subsections of section 43D of the Act, viz., sub-section (1) and (5) appears to be mutually inconsistent.

Legislature cannot be understood to lay down inconsistent provisions in the two sub-sections of the same provision viz., section 43D of the Act. The apparent inconsistency in section 43D(2) and Section 43D(5) needs to be harmonised, by giving a meaningful interpretation to the relevant provisions. So, I think, a reference-to section 43D(6) will be necessary in this context. Section 43D(6) of the Act lays down that the restrictions on granting of bail specified in subsection (5) is in addition to the restriction under the Code or any other law for the time being in force, on granting of bail.

The expression "on granting of bail" referred to in Section 43D(6) is quite relevant here. As per Section 43D(6) of the Act, whatever is specified in Section 43D(5) of the Act shall apply "on granting bail". Though it may appear on a first blush that there is a prohibition in Section 43D(5) of the Act, it is not actually a prohibition, as revealed from the language of section 43D(6) of the Act. By virtue of the expression, "restriction" referred to in Section 43D(6), it has to be understood that what is specified in Section 43D(5) of the Act is only a " restriction", on granting of bail. The apparent prohibition referred to in Section 43D(5) is not an absolute prohibition to grant bail, but it is only a restriction, while granting bail.

A close reading of sub-section (5) and (6) of Section 43D of the Act makes it clear that the provision contained in Section 43D (5) relates to granting of bail, subject to certain restrictions just like Section 437 of the Code. Section 43D(5) of the Act actually enables the court to grant bail, depending on the merit of the case, subject to the "restrictions" contained therein. This position can be better understood and explained, with reference to section 437 of the Code.

Section 437 of the Code relates to powers of the court to grant bail. Section 437(1)(i) provides that an accused shall not be released on bail, if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. At the same time, Section 437 lays down that the Court "may" grant bail.

Thus, despite the ban contained in Section 437(1)(i) of the Code, the court may grant bail u/s 437. It is well-settled that the court is empowered to grant bail, u/s 437 of the Code and the power u/s 437 is discretionary.

In such circumstances, I am of the view that the provisions contained in Section 43D(5) of the Act is only akin to Section 437 to 439 of the Code. Section 43D(5) of the Act has to be read along with the provision contained in Section 437 or Section 439 of the Code, while a bail application is considered in a case involving offence under the Special Act. Section 437 of the Code enables the court to grant bail, subject to the restrictions contained therein, and Section 43D(5) of the Act only provides additional restrictions while granting bait, as stated in Section" 43D (6) of the Code. So, by virtue of section 43D(6) of the Act, the prohibition in Section 43D(5) of the Act, has to be construed only as a ''restriction'' "on granting bail", in addition to the restrictions contained in the code "on granting bail".

In short, in a case in which, an accused applies for bail, u/s 437 or section 439 of the code, if the court, on a perusal of the case diary or the report made u/s 173 of the code is of opinion that there are no reasonable ground for believing that the accusation against the person is prima facie true, the court may grant bail. The restriction/prohibition in section 43D(5) of the Act applies only if, from the materials in the case diary or final report, the court eewt forms an opinion that the accusation against accused are prima facie true.

The merit of the case is relevant u/s 43D(5) of the Act, but merit is not relevant u/s 43D(2) of the Act. So, the mandate u/s 167(2) of the Code read with Section 43D(5) of the Act compels the Court to grant bail, irrespective of the merit. Hence, whatever be the restriction/prohibition that appears in Section 43D(5) of the Act, it shall not, in any manner, interdict the court from releasing an accused on bail, under 167(2) of the Code read with Section 43D(2) of the Act. The mandate u/s 167 (2) of the Code, (subject to the modifications contained in Section 43D(2) of the Act) shall be followed by the courts, in letter and spirit, in cases in which investigation relates to an offence under the Special Act. Now, coming to the facts of this case, I find that admittedly, the investigation is not complete in this case. No charge sheet is laid so far. Petitioner is in continuous detention for a period of more than 180 days. He is in custody for the past 359 days in this case with effect from 22.07.2009 onwards. Petitioner is prepared to furnish bail. In such circumstances, by virtue of proviso to Section 167(2) of the Code read with section 43D(2) of the Act, the court is under a legal compulsion to release petitioner on bail. Section 43D(5) will not be a bar to release the accused on bail-on-default, for the reasons already discussed. (In such circumstances, I need not resolve the dispute whether the lower court has extended the period to 180 days or whether there is a report by Public Prosecutor etc.) In the result, the following order is passed:

Petitioner shall be released on bail on his executing a bond for Rs. 1 lakh with two solvent sureties each for the like sum to the satisfaction of the Court concerned, on the following conditions:

(i) Petitioner shall report before the investigating officer on all Mondays, Wednesdays and Saturdays between 10 A.M. and 1 P.M.

(ii) On all other days of the week, between 10A.M. and 1 P.M., petitioner shall report before the SHO of the Police station, in which, the crime was originally registered, (iii) Petitioner shall not leave the limits of the police station, within which, the crime is originally registered, except for compliance of condition No. 1.

(iv) Petitioner shall surrender his passport before the lower court within 7 days of his release, and if he is not in possession of any passport, he shall file an affidavit to that effect within such time,

(v) Petitioner shall not influence or intimidate any witness or tamper with the evidence,

(vi) If petitioner is involved in any case of similar nature, his bail is liable to be cancelled.

This petition is allowed.