Sharmistha Chowdhury And Another vs State Of West Bengal And Others

27.07.2017 C. R. R. 602 of 2017 Sl. No.79 with akd & C. R. R. 1341 of 2017 PA to J. Bagchi, J.

SHARMISTHA CHOWDHURY AND ANOTHER

. . . PETITIONER VERSUS

STATE OF WEST BENGAL AND OTHERS . . . OPPOSITE PARTIES

Mr. Bikash Ranjan Bhattacharyya, Mr. Jayanta Narayan Chatterjee, Mr. Srishendu Sinha Roy, Mr. Apalak Basu ... for the petitioners

Mr. Kishore Dutta .. Ld. Advocate General Mr. Rajdeep Mazumdar ... for the State

The lower court records have been received.

Petitioners in CRR 602 of 2017 have approached this Court,

inter alia, assailing the applicability of Sections 16/18 of the Unlawful

Activities (Prevention) Act, 1967 [hereinafter referred to as UAPA Act]

to the instant case.

During the pendency of the petition, Mr. Bikash Ranjan

Bhattacharyya, learned senior advocate appearing for the petitioners

sought leave to assail the order dated 6th April, 2017 extending the

period of detention of the petitioners under Section 167(2) of the Code of

Criminal Procedure in terms of Section 43D(2) of UAPA Act and order

dated 28.6.2017 denying statutory bail to the petitioners herein. Such

prayer, being incidental to the principal relief sought for, was permitted to

be canvassed in this petition.

2

On perusal of the order dated 6th April, 2017 passed by the

learned Magistrate, I found that the order was written by different hands

and had called for a report from the judicial officer as to circumstances

under which such order came to be recorded in such manner. Report

received from his end revealed a very disturbing state of affairs. The

Magistrate upon receiving the prayer for extension of period of detention

from the Investigating Agency had dictated the order to the ASI of Police

attached to the General Registrar section and upon giving such dictation

had merely affixed the word 'allowed' to the said order. The step taken

by the Magistrate in outsourcing the recording of judicial orders to

officers unattached to his Court particularly to a police personnel is an

issue of grave concern. It amounts to a gross breach of the constitutional

mandate of separation of executive from the judiciary and strikes a fatal

blow to the independent functioning of judicial institution and

preservation of fairness in administration of criminal justice. That apart,

the contents of the aforesaid order patently expose utter non-compliance

of pre-requisites in the matter of extending the period of detention of an

accused charged of offences under the UAPA Act in term of Section

43D(2) of the said Act.

Section 43D(2) of the UAPA Act empowers the Court to

remand an accused to police custody for 30 days instead of 15 days and

to judicial custody upto 90 days in the event the investigation involves

offences under the said Act. First proviso to the said sub-section

empowers the Court on being satisfied with the report of Public

Prosecutor indicating progress of investigation and specific reasons for

further detention of an accused, to extend the period of detention

pending investigation from 60 days to 180 days. It is, therefore, evident 3

that mere applicability of offences under UAPA Act does not ipso facto

extend the period of detention of an accused pending investigation from

90 days to 180 days. Such extension is an exercise of judicial discretion

which may be permitted upon the following statutory pre-conditions being

satisfied:

(a) Report filed by the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond 90 days;

(b) Recording of satisfaction by the Court on such report filed by the Public Prosecutor that further detention of the accused is necessary for progress of investigation;

Perusal of the aforesaid order shows complete non-conformity

to both the conditions necessary to extend the period of detention of an

accused during investigation.

Firstly, report in the instant case was not filed by the Public

Prosecutor but by the Investigating Officer of the case.

Learned Advocate General argued that such report was, in

fact, supported by the Public Prosecutor as he had argued in favour of

extension on such report.

The role of the Public Prosecutor and that of the Investigating

Officer are clear and distinct in the scheme of investigation and

prosecution of criminal case. While the Investigating Officer has the duty

to investigate a crime, it is the role of the Public Prosecutor to prosecute

an offender upon conclusion of such investigation. The roles being clear

and distinct, cannot be interchanged and therefore, I am of the opinion

that a report of the Public Prosecutor means a report filed by the Public

Prosecutor himself indicating progress of investigation and reasons for

further detention and not one filed by the Investigating Agency to which 4

he orally ascribes support. Furthermore, a Public Prosecutor is not a

mouthpiece or mere agent of the investigating agency. He is

independent of the investigating agency and has a duty to ensure fair

play in the course of trial.

In Shiv Kumar vs. Hukam Chand, (1999) 7 SCC 467 the Apex

Court elucidated the independence of the Public Prosecutor in criminal

trials in the following words:-

"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor."

Similarly in Manu Sharma vs. State (NCT of Delhi), (2010) 6

SCC 1 the Court held:-

"187. . . .a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused."

An apt example of the independent role of the Prosecutor

under the scheme of the Code is evident from his authority to withdraw 5

prosecution under Section 321 of the Code of Criminal Procedure. Public

Prosecutor in such cases is to act as an independent authority while

taking decision to withdraw prosecution and cannot be a mouthpiece

either of the Investigating Agency or the State.

Similarly, in his role to file a report seeking extension of period

of detention during the investigation in terms of proviso to Section 43D(2)

of UAPA Act, the Public Prosecutor is required to act independently and

not lend concurrence to the ipse dixit of the Investigating Agency as he

did in the present case.

Reference may be made to Hitendra Vishnu Thakur vs.

State of Maharashtra, (1994) 4 SCC 602, the Court emphasized on the

independent role of the Public Prosecutor in making application for

extension period of detention under TADA wherein Section 20(4)(bb) of

TADA providing for such extension is similar to the first provision to

Section 43(D)(2) of UAPA Act. The Court held as follows:-

"23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor 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 the investigation. He is not 6

merely a post office or a forwarding agency. A public prosecutor may or may not 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. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court 'shall' release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance.

The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the 'default' of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub-section (4) of Section 20 as discussed in the earlier part of this 7

judgment. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the public prosecutor 'presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."

If I am to accept the contention of the learned Advocate

General that the oral support of the Public Prosecutor to the report of the

Investigating Agency already filed is substantial compliance of such

requirement, the action of the Public Prosecutor would no longer be an 8

independent one and would fall foul of the vice of dictation. The

procedural pre-requisites in Section 43D of UAPA Act which vest

jurisdiction on the Court to prescribe a longer period of detention of an

accused during investigation than under ordinary law must be

scrupulously adhered to. It is an axiomatic principle of interpretation that

any law affecting liberty of an individual must be strictly interpreted. It

may not be out of place to recount the sage opinion of Felix Frankfurter,

a noted jurist, in Mc Nabb vs. United States, 318 US 332 (1943), that

"the history of liberty has largely been the history of the

observance of procedural safeguards."

Hence, I am of the opinion that the report of the Investigating

Officer seeking extension does not tantamount to a report as required

under the law and no extension could have been granted by the learned

Magistrate on such report.

Coming to the next consideration relating to satisfaction

recorded by the learned Magistrate, I have already observed that the

concerned Magistrate had hopelessly failed to apply his mind to the facts

of the case independently and, in fact, affixed his stamp of mechanical

approval to the ipse dixit of the Investigating Agency. No reasons are

recorded in the said order by the Magistrate as to why he allowed the

prayer for extension. It is painful to note such abject surrender of judicial

authority to the wish of the investigating agency seeking extension of

period of detention. I have no hesitation in my mind to conclude that the

manner in which the learned Magistrate had abdicated his judicial

responsibilities render the impugned order extending period of detention

is void and non est in the eye of law.

9

Judged from the aforesaid premise, the maximum period of

detention of the petitioners permissible under Section 43D(2) of the

UAPA Act had expired upon completion of 90 days i.e. on 25th April,

2016. Accordingly, the petitioners had availed of statutory bail on 28th

June, 2016 prior to filing of police report on 3rd July, 2016. However, their

prayer was mechanically rejected.

In this backdrop, learned Advocate General strenuously urged

that the statutory bail to the petitioners cannot be granted as of right in

view of the scheme of Section 43D of the Act. He drew my attention to

the proviso to sub-section (5) of Section 43D and submitted that the

restrictions envisaged therein would fetter the right of the court even in

the matter of statutory bail if the State is able to demonstrate that a prima

facie case is made out against the accused. He further drew my attention

to the change in the words used in the aforesaid proviso in comparison

to the relevant provision under the repealed Prevention of Terrorism Act,

2002, that is, Section 49(7) of the said Act. He submitted as sufficient

materials had been collected against the petitioners in the course of

investigation clearly making out a prima facie case under the provisions

of UAPA Act, statutory bail be denied to them in the instant case.

Mr. Bhattacharyya, learned senior advocate for the petitioners,

however, rebutted such submission on the anvil that the right to statutory

bail is an indefeasible right if the conditions precedent are satisfied and it

is not within the discretionary domain of the court to deny an accused

statutory bail if he is otherwise entitled to do it and is able to furnish the

bail bond as directed by the Court. He further submitted that the proviso

to sub-section (5) of Section 43D of the UAPA Act is an amelioration of

the law restricting the discretion of the Court in granting bail to an 10

accused when compared with Section 49(7) of POTA where the onus

was on the accused to show that he is not guilty to be released on bail.

Similar provision of NDPS Act has been interpreted by the court to hold

that such restriction does not make an inroad on the right of an accused

to statutory bail upon default. He referred to the judgment of the Apex

Court in Sayed Mohd. Ahmad Kazmi vs. State reported in (2012) 12

SCC 1 wherein the Apex Court had granted statutory bail to an accused

on default as a matter of right under UAPA Act.

In rebuttal, learned Advocate General submitted that the

aforesaid proviso had not been considered by the Apex Court in the said

report.

The contentious issue raised before me is whether proviso to

sub-section (5) of Section 43D of UAPA Act would affect the right of an

accused to get statutory bail on default. Section 43D reads as follows:-

" S.43D. Modified application of certain provisions of 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 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), -

(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:

11 Provided also that if the police officer making the investigation under this Act, requests, for the purpose 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) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that

(a) the reference in sub-section (1) thereof-

(i) to 'the State Government' shall be construed as a reference to 'the Central Government or the State Government'

(ii) to 'order of the State Government' shall be construed as a reference to 'order of the Central Government or the State Government, as the case may be', and

(b) the reference in sub-section (2) thereof, to 'the State Government' shall be construed as a reference to 'the Central Government or the State Government, as the case may be'.

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapter 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 recording in writing. "

12

Sub-section (5) of Section 43D of UAPA Act opens with a non-

obstante clause excluding the operation of the Code of Criminal

Procedure. However, the non-obstante clause does not refer to the other

provisions in the said section particularly sub-section (2) thereof relating

to statutory bail to an accused.

On the other hand, a plain reading of sub-sections (5), (6) &

(7) of Section 43D shows that the scope of operation of the said

provisions relate to the discretionary jurisdiction of the court to grant bail

on merit not to cases where bail is granted to an accused on default. The

said provisions create restrictions on the discretionary jurisdiction of the

court to grant bail as vested under Sections 437/439 of the Code of

Criminal Procedure. The non-obstante clause in sub-section (5) is to be

read in that perspective and cannot be interpreted to deny an accused

statutory bail when he is otherwise entitled to in terms of Section 43D(2)

of the UAPA Act.

It may be relevant to note that similar restrictive clause exist in

other statutes like NDPS Act. Section 37 of the NDPS Act imposes

restriction on grant of bail in cases involving commercial quantity of

narcotic substance etc. Under the said provision, in the event the Public

Prosecutor opposes the prayer for bail, the Court shall not grant bail to

the accused until the accused is able to satisfy that he is not guilty of

offence and that he shall not commit offence in future.

The applicability of such restriction upon the right of an

accused to avail statutory bail under NDPS Act fell for decision before

the Apex Court in Union of India vs. Thamisharasi and Ors., (1995) 4

SCC 190 wherein the Court unequivocally held that the right of statutory

bail is unaffected by the restrictions imposed under Section 37 of the 13

said Act. Proviso to sub-section (5) of Section 43D, in my opinion, fall in

the same species of restriction as Section 37 of the NDPS Act and would

call for similar interpretation. I am further fortified in this regard by the

ratio in Sayed Mohd. Ahmad Kazmi vs. State (NCT of Delhi), (2012)

12 SCC 1 wherein the Apex Court extended the privilege of statutory bail

to an accused under UAPA Act irrespective of the satisfaction of the

court as required under the proviso to sub-section (5) of Section 43D of

the said Act.

For the aforesaid reasons, I am unable to accede to the

submissions of the learned Advocate General that the petitioners are not

entitled to statutory bail in view of the restrictions imposed in proviso to

sub-section (5) of Section 43D of UAPA Act. Materials placed before me

clearly show that the statutory period of detention had not been lawful,

extended beyond 90 days and the petitioners had availed of their right to

statutory bail before the filing of police report. Unjustified denial of right to

statutory bail to an accused would not result in extinguishment of such

right by subsequent filing of police report. [See Uday Mohanlal Acharya

vs. State of Maharashtra, (2001) 5 SCC 453 (para-13)]

Hence, I am of the opinion that the petitioners had rightly

availed their statutory bail on 28th June, 2017 but were illegally denied

the same without authority of law. Accordingly, I am of the opinion that

the impugned orders dated 6th April, 2017 and 28th June, 2017 are liable

to be set aside and petitioners are entitled to statutory bail.

Petitioners namely, (1) Sharmistha Chowdhury & (2) Pradip

Singha Thakur are directed to be released on statutory bail upon

furnishing a bond of Rs.50,000/- (Rupees Fifty thousand only) each, with

two sureties of like amount each, one of whom must be local, to the 14

satisfaction of the learned Additional Chief Judicial Magistrate, Baruipur,

South 24-Parganas subject to condition that the said petitioners shall not

enter the jurisdiction of Cossipore, Rajarhat and Bhangar Police Stations

until further orders. They shall appear before the trial court on every date

of hearing and shall not intimidate witnesses nor tamper with evidence in

any manner whatsoever.

In the event they fail to appear before the trial Court without

justifiable cause, the trial court shall be at liberty to cancel their order of

bail automatically without reference to this court.

Trial court is directed to proceed with the matter in accordance

with law.

The lower court records along with a copy of this order be sent

down at once to the learned trial court for necessary action.

Let this matter appear along with C.R.R. 1341 of 2017 under

the heading 'Contested Application' for hearing four weeks hence.

However, both the matters will appear under the heading 'To

be Mentioned' for submission of compliance report by the learned

Magistrate on 3rd August, 2017.

I have noted with grave concern the practice of recording

orders with the assistance of police personnel attached to the General

Registrar section or otherwise is not only illegal but affects the

independence of judiciary and the constitutional mandate of separation

of judiciary from the executive. Rule 183 of Calcutta High Court Criminal

(Subordinate Courts) Rules, 1985 lays down the procedure for recording

judicial orders which reads as follows:-

"R.183. Orders requiring the exercise of judicial discretion and the final order shall be recorded by the Magistrate in his own hand or typed by him, 15

others may be recorded under his direction by the Bench Clerk."

Accordingly, I deem it necessary to pass the following

directions in exercise my powers of superintendence for future guidance

of the criminal courts:-

(a) Judges/Magistrates shall record orders strictly in terms of Rule 183 of the Criminal Rules and Orders (Sub-ordinate Court Rules), 1985.

(b) Alternatively, in view of the technological advancement and the availability of personal computers/laptops to the judicial personnel, they may also transcribe their orders on the computers and take a printout thereof and upon affixation of their signature thereto, the said hardcopy shall be treated as a valid transcription of the order passed by the said court.

(c) Under no circumstances, any judicial officer shall take assistance of any external agency particularly police officers in the matter of recording and/or transcribing orders of the Court.

(d) Any breach of such duty shall invite departmental proceeding so far as the judicial personnel is concerned.

Registrar General of this Court shall circulate these directions to

all Judges/Magistrates for necessary compliance. Director, State Judicial

Academy shall ensure that necessary training is imparted to judicial

officers attending the academy so that judicial orders are duly recorded

in the manner as indicated above.

Photostat certified copy of this order, if applied for, be given to

the parties on priority basis upon compliance of all formalities.

(Joymalya Bagchi, J.)