- (1.) This is an appeal under Section 21(4) of the National Investigating Agency Act, 2008 (hereinafter referred to as NIA Act) against an order refusing to grant bail on default to the Appellant Saraswati Rai.
(2.) The present Appellant, aged about 23 years and happened to be a student of Master of Business Administration, pursuing her study at IIAS School of Management, Siliguri was arrested on March 14, 2010 by the State police in connection with Matigara Police Station Case No. 51/2010, under Sections 121/121A/122/124A of the Indian Penal Code. It is the case of the prosecution that on March 14, 2010 the Deputy Superintendent of Police, Siliguri received a written requisition from the Officer-In-Charge Commando, Imphal, East Monipur police for apprehension of one Ninjthoujam Tomba @ Koireng @ Rajen, a top most extremist group KYKL and MYL of Manipur, wanted in connection with criminal cases registered at Monipur and who was then moving through the Siliguri corridor. When source was engaged and it was learnt that 2/3 persons of the said extremist organization, who were then at Matigara area would move from Sevok Road Construction Side towards the Kurseong area through Khaprail Road in a Scorpio vehicle, registration No. WB/74/P-4775. To work out such information the said Deputy Superintendent of Police with force had been to Khaprail area under Matigara Police Station and positioned near Khaprail Bazar. Soon thereafter the said Scorpio vehicle of off-white colour was found passing through the said road and police intercepted the vehicle and found while a male person was driving the vehicle, one female was sitting with him on the front side. On interrogation of the person, who was driving the vehicle, he disclosed his identity as Ninjthoujam Tomba @ Koireng @ Rajen, while the co-passenger disclosed her identity as Saraswati Rai his close associates. As the identity of the person matched with the information received from the Monipur Police Station both of them were arrested and mobile phones and both Indian and Foreign currencies were recovered from them and the vehicle was seized. Thereafter, the principal accused Ninjthoujam Tomba @ Koireng @ Rajen was thoroughly interrogated when he admitted that he was the Commander-in-Chief of banned extremists group KYKL and MYL of Monipur and for last several months he was staying at Kurseong and running his organization and collecting money by extortion and firearms and also recruiting youths including ladies to wage war against the State. In the meantime, in exercise of power conferred under Sub-section (5) of Section 6 read with Section 8 of the NIA Act, 2008, the Central Government by a notification dated April 8, 2010 suo motu issued a direction entrusting the investigation of the said case to the National Investigating Agency (hereinafter referred to as NIA) as the materials collected during the investigation of the aforesaid case disclosed commission of schedule offences and further authorized them to investigate such other offences which may found to have been committed in connection therewith. Pursuant to such notification NIA/New Delhi Crime No. 6/2010 dated April 24, 2010 was registered and NIA undertook the investigation of the said case and on June 8, 2010 moved the Learned Sessions Judge, Darjeeling for adding Sections 17/20/21 of the Unlawful Activities (Prevention) Act, 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008, (hereinafter referred to as U.A. (P) Act) and such prayer was allowed. Subsequently, on June 9, 2010 the District Public Prosecutor, Darjeeling representing the Investigating Agency, NIA moved an application under Sub-section (2) (b) of Section 43D of the U.A. (P) Amendment Act, 2008 before the Court below for extension of time and simultaneously on June 18, 2010 an application was moved on behalf of the Appellant seeking her release on the ground of non-submission of the charge-sheet within the statutory period. On the prayer of the prosecution the Learned Judge fixed June 22, 2010 for hearing of the Appellant's application for statutory bail. On June 22, 2010 both the applications, viz., the application for extension of time as well as the Appellant's application for bail were taken up for hearing. When the Learned Judge allowed the prosecution prayer for extension of time and rejected the Appellant's prayer for bail as time has been extended. Now, in this appeal both the orders, one allowing the prayer of the prosecution for extension of time as well as the order rejecting the Appellant's prayer for bail are under challenge.
(3.) Mr. Sekhar Basu, the learned Counsel appearing on behalf of the Appellant vehemently contended that in connection with the aforesaid case when no charge-sheet was submitted within the statutory period of 90 days from the date of arrest of the Appellant and there was no order of extension of time in terms of Sub-section (2)(b) of Section 43D of the U.A. (P) Amendment Act, 2008 read with Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as Code of Criminal Procedure), and the Appellant having moved the Court concerned for statutory bail invoking default clause and as was ready to furnish the bail bond, as required by the Court, in such circumstances the Court was left with no option but to release her on bail. It was further contended that the right of the accused to avail the statutory bail on default of the prosecution in filing charge-sheet within the statutory period of 90 days cannot be denied by extending the time of completion of investigation, by making an order long after the expiry of statutory period. It was further contended that extension of time was granted not only long after the expiry of statutory period but without any prior notice to the accused and on a "Bandh day" when the learned advocate of the Appellant through whom she was all through represented in the matter could not be present in Court. In this connection the reliance have been placed on an observation of the Hon'ble Supreme Court at paragraph 21 in the decision, viz., Hintendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors.,1994 SCC 1087 where the Apex Court observed; It is true neither Clause (b) nor Clause (bb) of Sub-section (4) of Section 20 TADA specifically provide for issuance of such a notice but in our opinion the issuance of such a notice must be read into this provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principle of natural justice and issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which Courts have always engaged even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. Lastly, it was contended such extension of time in terms of Sub-section (2)(b) of Section 43D of the U.A. (P) Act, 2008, if at all can only be made on the basis of a report of the Public Prosecutor, appointed under Sub-section (1) of Section 15 of the NIA Act, indicating the progress of investigation and the specific reason for detention of the accused beyond the period of 90 days and not on the report of anyone else. It was submitted in this case extension of time was allowed on the report of the District Public Prosecutor, Darjeeling, who was never a Public Prosecutor appointed in terms of the provision of Sub-section (1) of Section 15 of the NIA Act. The Learned Counsel of the Appellant in support of his submissions heavily relied on the decision of the Hon'ble Supreme Court, in the case of Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer,Narcotic Control Bureau and Anr. 2010 1 AIR(SC) 862.;