| Case Name : | Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Ors. AIR 2012 SC 660 |
| Referred Judgements : | 2001 (5) SCC 453, Uday Mohanlal Acharya Versus [ State of Maharashtra ] |
| Date of judgement : | October 19, 2012. |
| Court : | Supreme Court of India |
| Case Type : | Criminal Appeal |
| Appellant: | SAYED MOHD. AHMED KAZMI |
| Respondants : | STATE, GNCTD & ORS. |
| Issue/ Querry : | 1)Whether the Court of the Chief Metropolitan Magistrate was competent to remand the accused beyond 15 days for offenses under the Unlawful Activities (Prevention) Act, 1967. 2) Whether the appellant was entitled to statutory bail under Section 167(2) of the Cr.P.C. |
Facts-
1. On 13th February, 2012, an explosion occurred involving an Israeli Embassy vehicle carrying the wife of an Israeli Diplomat at the Aurangzeb Road/Safdarjung Road crossing. The police registered FIR No.4 of 2012 in connection with the alleged offences under Sections 307, 427, and 120-B of the Indian Penal Code, which were later amended to include Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967.
2. On 6th March, 2012, the appellant, Sayed Mohd. Ahmed Kazmi, was apprehended by unidentified individuals in plain clothes outside the Indian Islamic Culture Centre at Lodhi Road.
3. The appellant was remanded to 20 days of police custody by the Chief Metropolitan Magistrate on 7th March, 2012. The investigation was completed by the Investigating Agency on 25th March, 2012, and the appellant was then sent to judicial custody for a further period of 14 days.
4. On 28th March, 2012, the appellant applied for bail under Section 437 of the Cr.P.C., but his application was rejected on 3rd April, 2012.
5. On 2nd June, 2012, the Chief Metropolitan Magistrate extended the period of investigation and the custody of the appellant by another 90 days, which was challenged by the appellant.
6. On 17th July, 2012, the Additional Sessions Judge declared the appellant’s custody as illegal, and the appellant applied for statutory bail under Section 167(2) of the Cr.P.C. However, instead of hearing the bail application, the Chief Metropolitan Magistrate adjourned it and later granted an extension of custody and investigation.
7. The appellant, Sayed Mohd. Ahmed Kazmi, challenged the order of the Chief Metropolitan Magistrate through CR No.86 of 2012 in the Sessions Court.
8. The Additional Sessions Judge, in an order dated 30th July, 2012, observed that the revisional application involved mixed questions of law and fact and adjourned the matter until 12th October, 2012.
9. On 31st July, 2012, the prosecution filed a charge-sheet against the appellant.
10. The appellant’s counsel, Mr. Mehmood Pracha, contended that the right to statutory bail is triggered once the period of 90 days, as stipulated in Section 167(2) of the Cr.P.C., comes to an end. He argued that the subsequent application for the extension of custody cannot extinguish the right to statutory bail that had already accrued.
11. Mr. Pracha argued that on 17th July, 2012, the appellant’s custody was declared illegal by the Additional Sessions Judge in CR No.86 of 2012. On the same day, the appellant’s application under Section 167(2) Cr.P.C. for statutory bail was pending before the Chief Metropolitan Magistrate. However, instead of hearing the application, the magistrate adjourned it for the next day.
12.The prosecution filed an application on 18th July, 2012, for an extension of the period of custody, which was granted by the Chief Metropolitan Magistrate on 20th July, 2012. The magistrate did not consider the appellant’s application for statutory bail.
13. Mr. Pracha argued that the subsequent extension of custody and investigation with retrospective effect from 2nd June, 2012, did not improve the prosecution’s case. According to him, as of the expiry of the initial period of custody beyond 90 days, there was no pending application for the extension of custody, as required under the amended provisions of Section 167(2) Cr.P.C.
14. It is mentioned that Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) was modified by Section 43D of the Unlawful Activities (Prevention) Act, 1967. The modifications included an increase in the time limits for police custody and judicial custody.
Issue-
1)Whether the Court of the Chief Metropolitan Magistrate was competent to remand the accused beyond 15 days for offenses under the Unlawful Activities (Prevention) Act, 1967.
2) Whether the appellant was entitled to statutory bail under Section 167(2) of the Cr.P.C.
Arguments-
On behalf of the appellant:
1) The appellant’s counsel, Mr. Mehmood Pracha, argued that the custody of the appellant was declared illegal by the Additional Sessions Judge on 17th July, 2012. As a result, the appellant became entitled to statutory bail under Section 167(2) of the Cr.P.C. This section provides that if the investigation is not completed within the specified period (in this case, 90 days), the accused person is entitled to be released on bail.
2) It was contended that the Chief Metropolitan Magistrate had adjourned the hearing of the appellant’s application for statutory bail instead of deciding it on the same day when the custody was declared illegal. The appellant’s counsel argued that this procedural delay violated the appellant’s right to timely consideration of his bail application. They argued that the pending bail application should have been heard before entertaining any application for extension of custody or investigation.
On behalf of the State:
1) The learned Additional Solicitor General, Mr. Raval, presented arguments supporting the actions of the Chief Metropolitan Magistrate and the High Court.
2) The State likely contended that the subsequent application for extension of time for investigation superseded the appellant’s application for statutory bail. They may have argued that once the extension was granted, the appellant’s right to statutory bail was no longer applicable. They might have relied on the principle that the right to statutory bail ceases once the charge-sheet is filed and the accused person can only apply for regular bail thereafter.
Prayed –
The appellant, Sayed Mohd. Ahmed Kazmi, likely prayed for the grant of statutory bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C). It can be assumed that the appellant’s prayer would involve seeking release from custody based on the expiration of the initial 90-day period of custody and the declaration of his custody as illegal by the Additional Sessions Judge. The appellant may have also requested the court to set aside the orders of the Chief Metropolitan Magistrate and the High Court, which extended the period of custody and investigation. Additionally, the appellant might have requested the court to consider the factual aspects of the case and ensure that his statutory right to bail is protected and not affected by subsequent applications or extensions.
Judgement –
The court found that the appellant had the right to statutory bail on the same day when his custody was declared illegal by the Additional Sessions Judge. However, instead of hearing the application for bail, the Chief Metropolitan Magistrate adjourned it and granted an extension of custody and investigation for a further 90 days with retrospective effect. The court held that the retrospectivity of the order was untenable and could not defeat the appellant’s statutory right that had accrued after 90 days of custody.
The court disagreed with the procedure adopted by the Chief Metropolitan Magistrate and endorsed by the High Court. They ruled that the appellant acquired the right to statutory bail on the day his custody was declared illegal, and this right remained unaffected by the subsequent application for extension of time for investigation. The court concluded that both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise.
As a result, the appeal was allowed, and the order of the Chief Metropolitan Magistrate extending custody and investigation was set aside. The orders of the High Court were also set aside. The court directed that the appellant be released on bail to the satisfaction of the Chief Metropolitan Magistrate, with appropriate conditions such as surrendering the passport, reporting to the local police station, and not leaving the city limits without the court’s permission to ensure the appellant’s presence during the trial.
Conclusion –
In this case we can conclude that the Chief Metropolitan Magistrate initially extended the appellant’s custody and allowed the investigation to continue beyond the initial 90-day period. The Additional Sessions Judge later declared the appellant’s custody to be illegal. The appellant had filed an application for statutory bail on the same day when his custody was declared illegal. However, instead of hearing the bail application, the Chief Metropolitan Magistrate adjourned it and granted an extension of custody and investigation for a further 90 days with retrospective effect. The court found that the retrospectivity of the Chief Metropolitan Magistrate’s order was untenable and that the appellant had a statutory right to bail once his custody was declared illegal. The court held that the appellant’s right to statutory bail remained unaffected by the subsequent application for extension of time for investigation. The court set aside the orders of the Chief Metropolitan Magistrate and the High Court and directed the release of the appellant on bail, subject to certain conditions.
written by Mrugen Dhage intern under legal vidhiya
