Rahul Gupta v. State

1. The appeal is filed against the impugned order dated 18.03.2020 passed by the learned Special Judge, West District, Tis Hazari Courts, Delhi (hereinafter referred learned Trial Court) and to direct release of appellant on bail per Section 167 Criminal Procedure Code (Cr PC) read with Section 21(2) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred as MCOCA) in case FIR No.397/2019 registered at police station Hari Nagar.

2. The learned counsel for the appellant says FIR No.100/2018 was registered under NDPS Act at police station Hari Nagar, Delhi and accused Salman Tyagi was arrested on 17.02.2018 and appellant/accused Rahul Gupta, was arrested on 18.04.2018 in the said FIR. The appellant was granted regular bail in such FIR No.100/2018 on 05.07.2019 by this Court 2021:DHC:2895 on the ground there being no evidence against him, except disclosure statement of a co-accused.

3. However, on 13.08.2019, the present FIR was registered under MCOCA. On 03.10.2019 co-accused Salman Tyagi was arrested in the present FIR and appellant herein was arrested on 21.10.2019. There is a provision for extension of period of investigation under the Act from 90 days to 180 days, but such application for extension needs to be moved prior to the expiry of 90 days from the date of arrest of the accused.

4. The time for moving such application for extension of period of investigation qua accused Salman Tyagi was to expire on 02.01.2020 and qua the appellant herein on 21.01.2020.

5. It is alleged though, initially, Mr.Mahesh Patel, Advocate was appearing on behalf of all accused, including this appellant but on 26.11.2019, the appellant filed an application for bail through Mr.Rajiv Mohan, Advocate, who also filed his Vakalatnama. The order sheets since 26.11.2019 record the attendance of Sh. Rajiv Mohan, Advocate and of his associates for the appellants, as alleged. However on 24.12.2019, an application for extension of period of investigation to 180 days was moved qua all accused by the prosecution, as period of investigation qua accused Salman was going to expire on 02.01.2020 and the advance notice of the application was accepted by Mr.Mahesh Patel, Advocate for all accused.

6. On 26.12.2019 this application was listed, but none of the accused was present, accordingly, notice of this application was issued only to accused Salman Tyagi and his counsel Mr.Mahesh Patel, Advocate.

7. On 28.12.2019 an order was passed recording the presence of accused Salman Tyagi, being produced from custody along with his counsel Mr.Mahesh Patel. The matter was then adjourned from time to time till 07.01.2020 by the learned District Judge- Vacations till an extension was granted not only qua accused Salman Tyagi but also against other accused; including the appellant herein. The order dated 07.01.2020 inter alia notes:- “Considering the progressive investigation reported by the IO and the investigation that remains to be conducted in respect of remaining accused and evidence needed to be collected, I find it reasonable to extend the time of investigation for further period of 75 days from 15.01.2020.”

8. The learned counsel for the appellant relies upon order dated 28.11.2019 and subsequent orders where it notes the presence of Mr.Mahesh Patel, Advocate for all accused except accused Rahul Gupta, hence it is argued no notice for such extension was ever given to this accused/appellant and in any case Mr.Mahesh Patel, Advocate accepted notice for other accused, than this appellant hence the appellant is entitled to bail.

9. The learned counsel for the appellant referred to Hitendra Vishnu Thakur and Others vs State of Maharashtra and Others (1994) 4 SCC 602 which held:-

10. In Sanjay Dutt vs State through CBI (1994) 5 SCC 410 it was held:- “(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 subsection (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. Hence, it is argued proviso to sub-Section (b) of Section (2) of Section 21 of MCOCA is pari materia to Section 20(4) (bb) of the TADA, hence if we apply same analogy, notice ought to have been given to appellant on an application for extension of time to file charge sheet.

11. The learned APP for the State on the other hand referred to Sharjeel Imam vs. State of NCT of Delhi in CRL.M.C.1475/2020 decided on 10.07.2020 which notes:-

and Mohd.Maroof @ Ibrahim & Ors. vs. State in CRL.M.C.3644/2014 decided on 12.05.2015 wherein it was held: “30. No doubt, on 7th June, 2014, the accused persons/petitioners were not produced before Court at the time of extension of time of investigation for 30 days, though it is the requirement of the principle of natural justice and for issuance of notice to the accused. However, it has come on the record that the trial Court had issued a notice to the counsel who were appearing on behalf of the accused, they did not appear despite of having knowledge about the concerned application. One of the counsel refused to receive the notice. He did not appear when the application for extension of time of investigation for 30 days was taken up. If he had any objection about the production of accused at the time of extension, he could have appeared and pointed out the same to the trial court. The reasons given by the counsel are unacceptable. This Court after having gone through the report submitted by the Public Prosecutor allowed the prayer of the said application. Many other objections were raised by the counsel in this regard, I am of the view that while sitting in the jurisdiction of 482 Cr.P.C., the Court is not to decide the objections unless the order is perverse or it has been passed contrary to law. One of the objections is with regard to the appointment of public prosecutor by the Government. These are the issues which are to be considered at the time of framing of charge. Prima-facie, this Court is satisfied with the reasons recorded by the trial Court on the basis of the report of the Public Prosecutor. The report submitted by the Public Prosecutor is a very detailed report which indicates the progress of the investigation and specific reasons are given for the detention of the accused beyond 90 days to 120 days. All the objections raised by the petitioners are allowed to be taken by them at the time of framing of charge.”