Accused not entitled to copy of Prosecutor’s Extension Application?: An Analysis


On September 8, 2020 the Delhi High Court in its judgment titled Khalid v. State (Govt. of NCT of Delhi) categorically opined that an accused has a right to oppose a plea filed by the prosecution seeking extension of time to complete investigation beyond the initial period prescribed in the Special Statute, however, the accused would not have a right to ask for a copy of the application. The Court observed-

“The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.”

While canvasing its views, the learned Judge inter alia referenced a division bench ruling of the very High Court rendered in Syed Shahid Yusuf v. National Investigation Agency which has held that an accused cannot ask to see the reports of the public prosecutor as the same are like case diaries maintained under Section 172 of the CrPC and are used to satisfy the Court regarding the progress of the investigation as well as justification for seeking extension of time to complete the same.

It would be not be strange to specify here that the previously mentioned controlling of Syed Shahid Yusuf (supra) falls in opposition to the decisions of the Bombay High Court. In Rahul Shedge v. Insight Officer[i], the Bombay High Court referred to different decisions of the Apex Court and High Courts while watching

“Many times the remand reports are not shown to the accused persons, as certain confidential communication is made to the Court. It is also to be noted that the Public Prosecutor while indicating the progress of the investigation and quoting specific reasons for the detention of the accused if thinks that the disclosure of certain statements or certain part of investigation is not essential in the interest of justice and is inexpedient in the public interest, then she shall indicate accordingly in the said report and that confidentiality can always be maintained by the prosecution.”

It was finally held-

“Thus, when such report is filed and audience is required to be given to the accused, then naturally the copy of the said application is to be furnished to the accused.”

Before proceeding to evaluate the issue, it would be pertinent to understand the relevant provisions-

Proviso to Section 43D(2) of the Unlawful Activities Act (which is pari materia to relevant provisions of TADA, NDPS Act, MCOCA etc) envisages that if it is not possible to complete the investigation within the initial prescribed period, 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 initial prescribed period, extend the said period up to the maximum period prescribed in the Special Statute.

Section 172 of CrPC requires the Investigating Officer to maintain a case diary for the purpose of recording relevant details of day-to-day investigation carried out by him/her. However subsection (3) of Section 172 states-

“(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.”

Let us now proceed to examine the issue in the backdrop of landmark rulings rendered by the Apex Court.

In Hitendra Thakur v. State of Maharashtra the Supreme Court set aside the order of the Designated Court refusing to release the accused on default bail observing-

“41. From the above discussion and the admitted fact situation (date of arrest and period for completion of investigation and not filing of challan within the prescribed period not being in dispute), in the case of Hitendra Vishnu Thakur, we find that the extension of custody under clause(bb) was erroneously granted by an improper exercise of the jurisdiction by the Designated Court by placing an incorrect interpretation on the requirements as contemplated by clause(bb) by treating the application of the investigating officer read with his objections to the bail application as a report of the Public Prosecutor though without effecting the validity of further investigation. In the absence of grant of valid extension of custody to complete the investigation and file the challan, Hitendra Vishnu Thakur had acquired an indefeasible and absolute right to be released on bail as per the provisions of Section 20(4) of the Act, since the accused had offered to be released on bail on such terms as the Designated Court may prescribe. The Designated Court was, therefore, under an obligation to admit and release the appellant on bail under Section 20(4) of TADA read with Section 167(2) CrPC on the merits of the application under Section 20(4) itself uninfluenced by any other considerations.”

In Sanjay Dutt v. State through CBI, a five-judge-bench of the Supreme Court clarified the decision rendered in Hitendra Thakur holding-

“(2)(a) Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the Judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.”

In Sanjay Kedia v. Intelligence Officer, the Supreme Court reiterated the view rendered in Hitendra Thakur and released the accused charged under provisions of the NDPS Act on default bail observing-

“14. A bare perusal of this application (application for extension) shows that it has been filed by the investigating officer of respondent No.1 and does not indicate even remotely any application of mind on the part of the public prosecutor. It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days.”

The cumulative effect of abovementioned judgments clearly indicates that the although the notice given to the accused may not be a written notice, the report of the Prosecutor seeking extension of time to complete investigation is sine quo non and must satisfy the requirements contemplated under the said provision.

Now, the Delhi High Court has consistently opined that it is not permissible for the Accused to ask for the copy of the Report submitted by the prosecution for the purpose of seeking extension of time to complete investigation in the Special Statute as the report is equivalent to the case diary of an Investigating Officer under Section 172 of CrPC.

If this is the case, the accused would never even get a glimpse of the report and ipso facto would not be able to demonstrate to the Court as to how the report does not satisfy the conditions/requirements envisaged under the provision, if the factual matrix so exist. It is therefore clear that to make submissions on the report, the Accused would have to peruse it which is why a copy would naturally have to be served on him/her.

CONCLUSION

In the end it is essential to strike a balance between both the sides. Leaving apart the views expressed by the respective High Courts, it is clear that if a copy of the prosecutors report/extension application is not served on the accused, he/she would not be able to make submissions on the authenticity of the “report” which would essentially leave him/her with no option but to mechanically oppose the extension application. It is therefore in the interest of justice that the issue needs reconsideration in the spirit of rulings above-referenced so as to strike a balance in such cases where a fundamental question of law pertaining to personal liberty is involved.

Get Regular WhatsApp Updates

Recent Blogs

Money Recovery and Debt Collection in The Indian Economy
Jul 11, 2020

Our Services

Contact

3.