Debi Prosad Dey JUDGMENT
Debi Prosad Dey, J.
1. Challenge in this application under Section 482 of the Code of Criminal Procedure is the order dated 22nd March, 2017 passed by learned Chief Judicial Magistrate, Malda in connection with Kaliachak police station case No. 636 of 2016 dated 22nd September, 2016 under Section 489B/489C of the Indian Penal Code corresponding to GR case No. 4062 of 2016 with added Section 15(1)(4)(iii)/16 of UAPA Act whereby and where under learned Chief Judicial Magistrate has rejected the prayer for statutory bail of the petitioner. The petitioner was arrested in connection with Kaliachak police station case No. 5 of 2016 dated 03.01.2016 under Sections 147/148/149/323/325/326/332/333/353/186/379/427/435/436/506 of the Indian Penal Code read with Sections 3 and 4 of the PDPP Act and added Sections 411/307/120B of the Indian Penal Code read with Sections 25/27/35 of the Arms Act on 17th September, 2016 without any rhyme or reason and in fact the petitioner was falsely implicated in connection with aforesaid case. However, the petitioner was further implicated in connection with another case under Section 489B and 489C of the Indian Penal Code on 22nd September, 2016 when the petitioner was in police custody on the allegation that Rs. 1,45,000/- was recovered from the house of the petitioner. Admittedly, in the dead hours of night the police personnel had been to the house of the petitioner, broke open the padlock of the main gate, entered into the house and thereafter lodged an F.I.R. stating inter alia that Rs. 1,45,000/- fake Indian Currency Notes were recovered from the house of the petitioner. On 2nd October, 2016 learned Chief Judicial Magistrate, Malda observed that the investigation of the case being Kaliachak police station case No. 636 of 2016 dated 22nd September, 2016 under Section 489B/489C of the Indian Penal Code was taken over by the C.I.D., West Bengal vide order No. 1215.CS dated 28th September, 2016. Thereafter, obtaining sanction from the Special Superintendent of Police(Operations), Criminal Investigation Department, West Bengal the Investigating Agency submitted prayer for adding the provisions of the unlawful activities (Prevention Act) and the said prayer was allowed by the learned Magistrate. It may be mentioned here that the petitioner was subsequently granted bail in connection with Kaliachak police station case No. 05 of 2016 dated 3rd January, 2016. On 17.12.2016 the investigating agency submitted a prayer for extension of time to complete the investigation and thereby to detain the accused petitioner for 180 days and the said prayer was also allowed by learned Chief Judicial Magistrate. After expiry of 180 days the petitioner filed the application praying for statutory bail but the investigation agency submitted their charge sheet being charge sheet No. 151 of 2017 dated 21st March, 2017 before the learned Chief Judicial Magistrate. Learned Chief Judicial magistrate however did not take cognizance of the said charge sheet but simply rejected the prayer for bail on the ground that charge sheet has been submitted.
2. Being aggrieved by the said order this application has been filed for setting aside the said order of learned Chief Judicial Magistrate, Malda and consequently to allow the prayer of the petitioner for statutory bail in view of the settled principle of law.
3. Learned senior Counsel Mr. Basu appearing on behalf of the petitioner contended that the investigating agency acted in material illegality in filing such successive applications before the learned Chief Judicial Magistrate, Malda only in order to keep the petitioner behind the bar to feed fat their grudge against the petitioner who is a reputed businessman of the locality. It is submitted that the petitioner was arrested on 17th September, 2017 in connection with Kaliachak police station case No. 05 of 2016 dated 3rd January, 2016 and thereafter the petitioner was taken into police custody. Some interested persons of the locality helped the police in such arrest of the petitioner and thereafter with the help of those persons the house of the petitioner was ransacked in the dead hours of night and some Fake Indian Currency Notes were planted in the house of the petitioner so as to make him liable for having possession of such fake Indian Currency Notes. In connection with the subsequent case being Kaliachak police station case No. 636 of 2016 the petitioner was arrested for the offence under Section 489B/489C of the Indian Penal Code. Learned senior Counsel Mr. Basu further contended that the order for extension of the period of investigation passed by learned Chief Judicial Magistrate is illegal since no such prayer was submitted before the learned Chief Judicial magistrate by the Public Prosecutor but learned Chief Judicial Magistrate considered the prayer of the investigating officer only, which is contrary to law. Learned Advocate Mr. Ayan basu appearing on behalf of the State drew the attention of the Court at page 102 of the application where from it transpired that the Public Prosecutor had filed an application for extending the statutory period from 90 days to 180 days. The order passed by learned Chief Judicial Magistrate may be reproduced below:-
"Beyond the accused person a written objection has been filed for political gain he has been kept in J/C.
Therefore, he prays for rejection of the prayer of Deputy, S.P., C.I.D, West Bengal.
It appears from unlawful Activities(Prevention) Act, 1967 of Section 43-D(b) that if it is not possible for complete the investigation within said period of 90 days the court may if it is satisfied that the report of the Public Prosecutor indicating the progress of investigation and the specific reason for the detention of the accused beyond the said period of 90 days extend the said period upto 180 days.
Perused the C.D and material on record.
Prayer to add Section 15(1) (a) (iiia)/16(b) of U.A.P. Act, 1967 by the Deputy S.P, C.I.D., West Bengal has already been allowed on 17.12.2016 considering the C.D.
It appears from the C.D and material on record that the case is in progress and evidences are forthcoming. And after adding of Sections of U.A.P. Act, 1967 the said investigation was entrusted to Debajyoti Bhowmick, Deputy S.P, C.I.D., West Bengal.
It further appears from the record that prayer of T.I. Parade is allowed. The present I.O of this case submits that to investigate the case it required some time for examine the witnesses and trace out, hide out behind the FICH with intend to break down the financial stability of India.
So, considering all, I am in view that there is sufficient material indicating progress of investigation and there is sufficient reason to detain the accused person beyond the said period of 90 days.
So, prayer of I.O is allowed.
Detention of the accused person extended to 180 days."
4. It is apparent from the aforesaid order that learned Chief Judicial Magistrate being fully aware of Section 43-D(b) of unlawful activities Prevention Act, 1967 considered the prayer of the investigating officer and thereafter allowed the same. There is absolutely no whisper in the aforesaid order that the report of learned Public Prosecutor was duly considered by learned Chief Judicial Magistrate. Moreover, such report of learned Public Prosecutor at page 102 of the petition reveals that learned Public Prosecutor has narrated the progress of investigation but did not assign any reason as to why the statutory period of detention be extended from 90 days to 180 days. The Public Prosecutor did not act in terms of the UAPA Act and learned Chief Judicial Magistrate had no occasion to deal with such prayer of learned Public Prosecutor. The order of learned Chief Judicial Magistrate being contrary to law, is not legal, if not illegal.
5. Be that as it may, the order of learned Chief Judicial Magistrate palpably appears to be illegal for non compliance with the mandatory provision of 43-D(b) of the UAPA Act. The statutory period of detention of the present petitioner expired on 22nd March, 2017 but the learned Chief Judicial Magistrate rejected the bail prayer without assigning any reason. Curiously enough though charge sheet under Section 489B/489C of the Indian Penal Code was submitted on that date learned Magistrate did not take any cognizance of the said charge sheet and directed to keep the charge sheet on record and thereafter without assigning any reason rejected the bail prayer. Learned senior Counsel Mr. Basu contended that the alleged charge sheet submitted by the Deputy Superintendent of Police has rightly been discarded by learned Chief Judicial Magistrate for not having sanction in terms of Section 45 of the UAPA Act and accordingly it was incumbent upon learned Chief Judicial Magistrate to release the petitioner on bail after expiry of the statutory period of detention of 180 days. Relying on rule 3 of the Unlawful Activity (prevention) (recommendation and sanction of prosecution) Rules, 2008 learned senior Counsel Mr. Basu contended that such sanction ought to have been given by an independent authority within seven working days of the receipt of the evidence gathered by the investigating officer and that having not been done, the entire report in final form ought not to have been accepted as charge sheet. Mr. Basu contended that the Unlawful Activities (prevention) Act was implemented to provide more effective prevention of certain unlawful activities of individuals associations for dealing with terrorist activities and matters connected there with and that is why stringent provisions have been made with regard to the detention investigation and providing sanction thereof. Learned Advocate Mr. Ayan Basu however contended that mere failure of the prosecution to obtain sanction would not entitle the petitioner to get an order of bail. It is further submitted that mere not having sanction would not render the entire charge sheet valueless and would not give any mileage to the petitioner to avail of the opportunity of statutory detention. In support of his contention Mr. Ayan Basu has relied on a decision reported in MANU/SC/0196/2013 : (2013) 2 C Cr LR (SC) 545 (Suresh Kr. Bhikamchand Jain v. state of Maharashtra and anr).
6. It is well settled principle of law that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge sheet. The Hon'ble Court has further been pleased to hold that sanction is an enabling provision of prosecution which is totally separate from the concept of investigation, which is concluded by filing of the charge sheet. The Apex Court has decided and has stated aforesaid in respect of a case under Indian Penal Code and Prevention of Corruption Act. However, the Apex Court did not take into consideration in the decision referred to herein above the provisions of Unlawful Activities (Prevention)Act, 1967. The procedure for obtaining sanction has been incorporated in various Acts and the purpose of providing such sanction is to scrutinizing the result of investigation so as to protect public servant or to ascertain if the materials collected during investigation are sufficient to prosecute any person. The Unlawful Activities (Prevention Act) 1967 has been enacted with the object of dealing with terrorist activities and prevention of some unlawful activities of individuals and the associations. Rule 3 of the said Act has provided a specific time limit to submit its recommendation to the concerned government within 7 days by an independent authority scrutinizing and evaluating the materials collected during investigation, which culminated in filing of charge sheet. This special act provides a special procedure for according sanction. A specific authority has been assigned with the task of according such sanction, which is neither associated with the prosecution nor has had any connection with the investigating authority. The sanction in a UAPA Act is a sine-qua-non for submission of charge sheet under UAPA Act. Therefore, the alleged report in final form in the form of charge sheet filed by the investigating authority before learned Chief Judicial Magistrate cannot be accepted to be a charge sheet or report in final form for want of necessary sanction from the appropriate authority in terms of UAPA Act.
7. It is therefore apparent from the discussions made in the forgoing paragraphs that learned Chief Judicial Magistrate did not comply with the provision of Section 43-D(b) of the UAPA Act while extending the period of detention from 90 days to 180 days by its order dated 17.12.2016. From the scheme of UAPA Act it is clear that submission of a valid report of the Public Prosecutor not only indicating progress of investigation but also disclosing specific reasons for extension of period of detention is a sine-qua-non for extension of the period of detention under Section 167 (2) of the Code of Criminal Procedure from three months to six months. (Reference may be had of from the decision of Sanjay Kumar Kedia @ Sanjay Kedia v. Narcotics Control Bureau & Anr MANU/SC/1963/2009 : (2009) 17 SCC 631 para 12). Secondly, the order impugned does not reveal any reasons for rejection of bail prayer of the petitioner. The order also does not reveal as to what happened to that charge sheet said to have been filed by the Investigating Officer without any sanction as stipulated under UAPA Act. Unfortunately, learned Chief Judicial Magistrate did not even apply his mind with regard to the contents of that report in final form in terms of UAPA Act and has failed to take cognizance of the fact that the statutory detention of the petitioner was over on the date of his filing such application. In the decision reported in MANU/SC/0900/2012 : AIR 2012 SC 660 (Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors) it was observed by the Hon'ble Apex Court that further detention of the accused would be deemed to be illegal for not having appropriate report of the Public Prosecutor for extension of the period of detention and subsequent filing of such report cannot legalize the further detention of the accused giving retrospective effect to such report. I have already stated in the foregoing paragraphs that the prayer of Investigating Officer was considered by learned Chief Judicial Magistrate while extending the period of statutory detention from 90 days to 180 days and learned Chief Judicial Magistrate did not even consider any such prayer of the Public Prosecutor. In that view of this case and having regard to the principle of law enunciated in the aforesaid decision it may safely be stated that further detention of the petitioner was not in accordance with law. Learned single Judge of Co-ordinate Bench of this Court in a decision reported in (2016) 4 C Cr LR (Cal) 535 (Moraful Saikh @ Morful Saikh v. State of West Bengal) and one unreported decision of this Court in CRR 1143 of 2017 (Gurupada Roy v. State of West Bengal) has observed as follows:-
"It is trite law that if statutory bail had been availed of and was illegally denied, the said right does not stand eclipsed by the subsequent filing of charge sheet. Reference in that regard may be made to Union of India v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in MANU/SC/0580/2014 : (2014) 9 SCC 457."
8. Our High Court thereafter released the petitioner on bail relying on Union of India v. Marla Ja Ra (Supra). It may be mentioned that apparently there may be some sort of dispute with regard to the proposition of law enunciated by the Hon'ble Supreme Court in the decision reported in MANU/SC/0196/2013 : (2013) 2 C Cr LR (SC) 545 (Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr.) and MANU/SC/0900/2012 : AIR 2012 SC 660 (Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors)
9. However, both the decisions have been authored by equal strength of the Judges of the Hon'ble Supreme Court and it has been observed by a Special Bench decision of our High Court reported in MANU/WB/0001/1988 : AIR 1988 Cal Page 1 Bholanath v. Madanmohan Karmakar that where there are contrary decisions of the Supreme Court rendered by benches of equal strength, the High Court, in theory, being bound by each one, is in effect bound by none and is not necessarily obliged to follow the later in point of time, but may follow the one which, according to it, is better in point of law. The Supreme Court has dealt with the UAPA Act in the decision of MANU/SC/0900/2012 : AIR 2012 SC 660 (Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors) (Supra) and therefore I find it better in point of law in relation to the decision of Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr. (Supra) and therefore I rely on the decision of MANU/SC/0900/2012 : AIR 2012 SC 660 (Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors) (Supra).
10. During the pendency of the case pursuant to the direction of this Court the NIA authority was impleaded as opposite party and accordingly the NIA authority has submitted a report stating inter alia that the investigation is still going on. It is apparent from such report that high quality fake Indian Currency Notes with face value of Rs. 1,45,000/- was found from the possession of the present petitioner and the investigation is still going on. Supplementary charge sheet would be filed shortly after obtaining other relevant evidences. No comment is made against the further investigation of the NIA agency and the agency is at liberty to complete the investigation in accordance with law. However, the petitioner is entitled to get statutory bail for the reasons stated hereinabove.
11. It has also been observed in Uday Mohanlal Acharya v. State of Maharashtra in MANU/SC/0222/2001 : (2001) 5 SCC 453 para 13 that unjustified denial for right to statutory bail to an accused would not result in extinguishment in such right by subsequent filing of police report. Accordingly the order impugned dated 22.3.2017 passed by learned Chief Judicial Magistrate in GR case No. 4062 of 2016 is set aside and the petitioner Ashadullh Biswas is directed to be released on statutory bail upon furnishing bond of Rs. 2,00000/- with two sureties of Rs. 1,00000/- each one of whom must be local to the satisfaction of the learned Chief Judicial Magistrate, Malda subject to the condition that the petitioner shall not enter within the jurisdiction of District-Malda until further order and he shall appear before the trial Court where the UAPA proceeding is pending on every date of hearing and shall not intimidate the witness, tamper with the evidence in any manner whatsoever and would disclose his place of residence outside Malda at the time of filing bail bond and he shall attend the local police station of his residence twice in a month and he shall submit his passport before the trial Court.
12. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible
Later.
Learned Advocate Mr. Sanjay Bardhan appearing on behalf of the N.I.A. prays for stay of this order. At the time of filing the report in final form, the N.I.A. was not there. I find the presence of N.I.A. was only required in order to know about the further investigation that is being conducted by N.I.A. Admittedly, the N.I.A. is still going on the investigation. In that view of this case, the prayer for stay is considered and rejected.
Later.
At this stage, learned senior Counsel Mr. Basu submits that the case has already been transferred to the learned Chief Judge, City Sessions Court, Calcutta, Special Court, under N.I. Act in terms of the order dated 27th March, 2017. The order is thus modified to the extent that the petitioner is directed to be released on statutory bail upon furnishing bond of Rs. 2,00,000/- with two sureties of Rs. 1,00,00/- to the satisfaction of learned Chief Judge, City Sessions Court, Calcutta, Special Court, under N.I. Act instead of learned Chief Judicial Magistrate, Malda. The remaining portions of the order remain unaltered.
Mr. Bardhan is present in Court.
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