Prosecutors must file own report for more seeking time to file charge sheet: Bombay HC
The Bombay high court has said that prosecutors are not postmen and must apply their mind and submit an independent report whenever investigation officers seek extension of time for filing a charge sheet to deprive the accused of default bail.
“He (the prosecutor) is not a mere postman or a forwarding agency,” said the bench of justice Ravindra Ghuge and justice BU Debadwar. The bench added that if the prosecutor agrees with reasons cited by the investigation agency, he would prepare his own independent report to assist the special court to decide whether the time period needs to be extended beyond 90 days and to a maximum of 180 days.
“If he is not convinced, he has the freedom to disagree with the reasons cited by the investigation agency and it is within his power even to refuse to submit a report,” said the bench. The essence is that the prosecutor must be convinced that the investigation is progressing and the investigation officer is unable to complete it within the prescribed time for justifiable reasons, the bench added.
The bench was hearing a petition filed by one Shaikh Moin Shaikh Mehmood, who was booked by Ramtirth police in Handed district for robbery. Subsequently, provisions of the Maharashtra Control of Organised Crime Act (MCOCA), 1999 were added in the case. Shaikh was arrested on June 2, 2020.
On August 31, 2020, the 90-day period for filing the charge sheet was over. On September 2, the investigating officers filed an application for extension of the period by another 90 days, as provided for in section 21(2)(b) of the MCOCA. Eight days later, the accused filed for default bail on the ground of failure of the investigation agency to file charge sheet in time stipulated under Section 167(2) of the Criminal Procedure Code.
Shaikh had moved HC after the special MCOCA court rejected his bail plea and granted extension for filing charge sheet, as prayed by the investigation officer.
The HC allowed his petition after noticing that the prosecutor had merely countersigned the investigation officer’s application for extension.
The court reiterated that the right to default bail accrues to the accused the moment the period prescribed under section 167(2) lapses and the court cannot extinguish the right.
“The law has to prevail and the prosecution cannot avail of such subterfuges to frustrate or destroy the legal right of the accused,” said the bench granting bail to Shaikh.
It added that the report of the prosecutor seeking extension must record his satisfaction about progress in investigation and valid reasons because of which the investigation could not be completed in time. But it noticed that prosecutors are unaware of these legal requirements and therefore directed that a copy of the judgment be sent for perusal of the chief secretary, director general of police and the director of prosecution, so that the prosecutors can be enlightened on the settled legal position.