Mumbai: Extension of time can be granted to an investigating agency to complete a probe only if a “legal and valid” ground is shown for not completing the investigation within the time specified by law, the Bombay High Court has observed. Granting extension of time to complete the investigation on a “flimsy or invalid” ground will defeat the accused's right to seek default bail, and would violate his right guaranteed to him under Article 21 (personal Liberty) of the Constitution of India.
The high court granted default bail to two accused – Momin Moiuddin Gulam Hasan, alias Moin Mistri, and Asif Aminul Hussain Khan Adhikari – who were arrested by the ATS in September 2022 on charges of being members of the banned outfit Popular Front of India (PFI). An accused is entitled to default bail when the prosecution fails to file the chargesheet within a stipulated period of time.
Mistri and Adhikari had approached the HC challenging the January 18, 2023, order of the Special Court granting 15 days’ extension to the ATS to file chargesheet in the case. The ATS registered the offence on September 21, 2022, and the two were arrested on the following day for their alleged links with the banned PFI. The ATS had time to file a chargesheet till December 20, 2022.
The ATS sought an extra 90 days time to file chargesheet claiming that they needed to retrieve a large amount of electronic data from the Forensics Science Laboratory and to obtain sanction from the appropriate Government under Section 45 of the UAPA. The Special court, however, granted it 30 days, till January 19, 2023, noting that data had to be retrieved.
Once again, the ATS sought more time on January 18, saying that the investigation was complete but they were awaiting sanction for prosecution. The special judge allowed the application and granted extra time till February 3, 2023. The ATS filed the chargesheet a day prior.
Advocates Hassnain Kazi and Shraddha Vahval for the accused sought default bail submitting that the second application by ATS for extra time was not maintainable, as the same ground in first application was rejected. Also, it is a well-settled principle of law that the time required to obtain sanction from the appropriate authority is not a valid ground for extension of time to file the chargesheet, Kazi added.
State advocates Hiten Venegavkar and Prajakta Shinde, however, submitted that since the time to file the chargesheet was already extended before the expiry of the period, no right accrued in favour of the appellants to seek default bail.
Senior advocate Ashok Mumdargi who was appointed as amicus curiae (friend of court) pointed out that prosecution must apply for extension of time before the time to file the chargesheet expires. “... and if such a period expires, the right… (to bail) … accruses in favour of the accused,” Mundargi argued.
The court noted that the ATS, in its second application, specified that the investigation is complete and ample evidence is available for filing the chargesheet and an extension of time is prayed only for obtaining sanction.
“Once the investigation is complete, there is no question of granting an extension of time to file a chargesheet… as there is no question of seeking an extension of time on the ground that the application for grant of sanction under Section 45 of UAPA is pending; the reason being, that sanction is required for taking cognizance and not for filing chargesheet,” a bench of Justices Revati Mohite-Dere and Gauri Godse sad on Monday.
The judges emphasised that for filing a chargesheet, “sanction is not required”. “In the peculiar facts of the present case, once the order granting extension is held illegal and stands vitiated, the appellants are entitled to default bail,” the judges underlined. The court, hence directed their release on bail on furnishing a personal bond of rs1 lakh each.
