Rambeer Shokeen v. State of Nct of Delhi

A. M. KHANWILKAR, J. 1. These appeals, by special leave, question the legality and tenability of the judgment and order passed by the learned Single Judge of the High Court of Delhi at New Delhi dated 22 nd May, 2017 in Criminal Appeal No.311/2017 and Criminal M. (Bail) No.525/2017. 2. Briefly stated, the appellant has been named as an accused in FIR No.10 of 2015 registered at the Police Station (Special Cell), Delhi, for offence punishable under Sections 3 & 4 of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as the “MCOCA”). He has also been named as an accused in FIR No.65/2016 for offen ce punishable under Sections 26 & 27 of the Arms Act, registered at the same police station. He was declared as a proclaimed offender in connection with the said case and was later arrested on 27 th November, 2016. 379 3. The appellant came to be arrested in connection with the present FIR on 1 st December, 2016. Before the expiry of 90 days period, the Additional Public Prosecutor on 28 th February, 2017 moved an application for extension of time to file charge-sheet up to 15 th March, 2017. The said application reads thus: “ANNEXURE P-3 IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA # 25, PATIALA HOUSE COURTS, NEW DELHI. FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act P S Special Cell, Lodhi Colony, Delhi. Subject : Regarding extension of limitation period upto 15.03.2017 Hon’ble Sir, It is submitted that I have perused the report of t he Investigating Officer of this case. The allegations against above Accused Rambeer Shokeen in present case are that he along with other syndicate members was running an organized crime syndicate in Delhi & other states by committing a s eries of sensational crimes including gruesome and inimical murder, extortion by putting by some businessmen in fear with criminal intimidation, obstruction of Govt. servants to deter them from discharge of official duties and offences under the ar ms act etc. The above accused Rambeer Shokeen was continuously evading his arrest and didn’t join investigation. O n 20.04.2015, non-bailable warrant against him was issued but couldn’t be executed, as not available at his possible hideouts and later on after further proceedings, he was declared P.O. Sl. No. Name, Parentage & address Date of arrest S/V 01 RAMBEER SHOKEEN aged – 37 years, S/0 Shri Naval Singh r/o H.No.151, Extension-IV, Nangloi, Delhi-41 & permanent address – H.No.70, village Kamruddin Nagar, P.S. Nihal Vihar, Delhi. 01.12.2016 RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] on 26.08.2015 by this Hon’ble Court. On 27.11.2016, he was arrested in case FIR No.65/2016 U/s 25/27 Arms Act of P .S. Special Cell, Delhi and later on 01.12.2016, arrested in this case. During investigation, several evidences including followi ngs have been collected against above accused Rambeer Shokeen: 01. Income Tax Return report (ITR) dated 10.02.2017 from year 2006-2016, which reflects that he has not filed ITR during this period, while he has incurred huge expense s during Delhi Legislative Elections of year 2013 & 20 15 apart from other expenses. 02. Reports regarding property details from the off ence of Sub-Registrar West, SDM-Nangloi etc. 03. FORM 26 submitted by him before Election Office r showing details of moveable & immovable properties etc . THE INVESTIGATION OF THE CASE IS TO BE CONDUCTED ON FOLLOWING GROUNDS 01. As per FORM 26 submitted by the Accused before Election Commission to contest Delhi Legislative Assembly Electi on for Assembly Constituency-08 in year 2013, he has shown immoveable and moveable assets of himself & his wife worth Rs. 1.85 (approx.), while he and his wife Mrs. Reet a Shokeen are not found filing income tax returns dur ing year 2006-2016, so the investigation on this point is necessarily required. 02. To make further interrogation from accused to verify the source of huge amount of money in respect of the assets as mentioned above vis-à-vis the ITR for a period 2006-2016 (NIL returns), the details of which were obtained o n 10.02.2017. In view of above pending investigation points, it is, humbly requested that the limitation period for filing cha rge sheet against above accused Rambeer Shokeen may be extend ed upto 15.03.2017, so that charge sheet against him m ay be filed before the Hon’ble Court as per the time limit f ixed by 381 Hon’ble Court. Submitted please, Sd./- 28.02.17 (RAVINDRA KUMAR) Addl. Public Prosecutor Patiala House Court, New Delhi Dated: 28.02.2017" 4. On the same day i.e. 28 th February, 2017, the accused moved an application for grant of statutory bail under Section 167(2) of the Code of Criminal Procedure read with Section 21(2)(b) of MCOCA . The Special Judge, by an order dated 28 th February, 2017, extended the judicial custody of the appellant until 1 st March, 2017. The said order reads thus: “An application for further extension of JC moved on behalf of IO. Copy given. Report is also submitted by Ld. APP for State for the purposes of extension of JC beyond 90 days and for seeking f urther extension of time for investigation beyond period of 90 days . JC is extended till 01.03.2017. Put up with main file for arguments on this application on 01.03.2017. Copy of Order be given dasti.” 5. On 1 st March, 2017, the appellant filed his reply to oppose the application filed by the Additional Public Prosecutor seeking extension of limitation period for filing of charge-sheet against the appellant, upto 15 th March, 2017. Besides, the appellant was produced before the District & Sessions Judge and as the Presiding Officer of the Special Court was on leave, the District & Sessions Judge passed the following order: “01.03.2017 File is put up before me Shri Rakesh Pandit, Ld. Spl. Judg e, NIA/POCSO/MCOCA, ASJ-01, PHC, New Delhi is on leave today on account of un-wellness. Present : Shri Devender Kumar, Ld. Chief PP for the S tate RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] along with Shri Ravindra Kumar, Ld. Addl. PP and AC P Hridaya Bhushan Accused produced from JC. Shri Mehmood Pracha and Shri R.H.A. Sikander, Ld. Counsels for the accused Rambeer Shokeen. Reply has been filed on behalf of accused Rambeer Shoke en to the application moved on behalf of the State see king extension of time for filing the charge sheet. Copy supplied. An application has been moved on behalf of State see king extension of JC of the accused above named. As Ld. Presiding Officer is on leave. Judicial custody of the accused Rambeer Shokeen is extended till 07.03.2017. Merits of the application dated 28.02.2017 shall be decided by the concerned court. Ld. Chief PP for the State submits that he has not been supplied with the copy of the application moved on behalf of the accused Rambeer Shokeen under Section 167(2) of Cr.P.C. see king grant of statutory bail. Ld. Counsel for the accused is direc ted to supply the copy of the same during the course of the day against proper receipt. Put up on 07.03.2017 for further proceedings.” 6. On the next day i.e. 2 nd March, 2017, the appellant moved another application for grant of statutory bail under Section 16 7(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA. 7. On 4 th March, 2017, the ACP/Special Cell/NDR, Lodhi Colony, New Delhi, moved an application before the Special Court for permission to interrogate the appellant in Central Jail No.3, Tihar, Delhi. The said application reads thus: “ANNEXURE P-8 IN THE COURT OF SHRI RAKESH PANDIT, LD. ASJ, MCOCA# 25, PATIALA HOUSE COURTS, NEW DELHI. FIR No.10/2015 dated 23.02.2015 U/s 3/4 MCOC Act P S Special Cell, Lodhi Colony, Delhi. 383 Subject :Regarding permission for interrogation in C entral Jail, Tihar, Delhi. Hon’ble Sir, It is submitted that the present case is pending investi gation against accused Rambeer Shokeen and other syndicate members for running an organized crime syndicate in De lhi & other states by committing a series of sensational crimes including gruesome and inimical murder, extortion by putting by some businessmen in fear with criminal intimidat ion, obstruction of Govt. servants to deter them from discharge of official duties and offences under the arms act etc. On 01.12.2016, accused Rambeer Shokeen was arrested in this case. During investigation it is revealed that in Nove mber 2013, he had filed an affidavit before Election Comm ission to contest Delhi Legislative Assembly Election. In this a ffidavit, he has shown immoveable and moveable assets of himsel f & his wife worth Rs.1.85 crores (approx.). As per repo rt dated 10.02.2017 of Income Tax Department, neither he nor his wife Mrs. Reeta Shokeen has filed income tax returns durin g year 2006-2016. In view of above, it is humbly requested that the ne cessary permission to interrogate accused Rambeer Shokeen ma y be granted in Central Jail No.3, Tihar, Delhi. The acc used Rambeer Shokeen is running in judicial custody till 07.03.2017. Submitted please, S/V Sl. No. Name, Parentage & address Date of arrest 01 RAM BEER SHOK EEN aged – 37 years, S/0 Shri Naval Singh r/ o H.No.151, Extension-IV, Nangloi, Delhi-41 & permanent address – H.N o.70, village Kamruddin N agar, P.S. Nihal Vihar, Delhi. 01.12.2016 RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] Sd./- (HRIDAYA BHUSHAN) ACP/Special Cell/NDR Lodhi Colony, New Delhi Dated: 04.03.2017" The Special Judge considered the said application on 4 th March, 2017 and allowed the prayer for permission to interrogate the appellant in judicial custody before 7 th March, 2017. The order passed by the Special Court reads thus: “04.03.2017 File is put up before me as Shri Rakesh Pandit, Ld. Spl. Judge, NIA/POCSO/MCOCA, ASJ-01, PHC has gone to Odisha for National Seminar, Judicial Academy, Cuttack. Present : Shri Ravindra Kumar Ld. Addl. PP for the State ACP Hridaya Bhushan along with Inspector Ravinder Kumar Tyagi. Accused Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dab as and Rahul Dabas produced from JC. An application has been moved on behalf of Special Cell seeking permission to interrogate the accused Rambe er Shokeen in Central Jail No.3, Tihar Delhi submitting that the accused Rambeer Shokeen was arrested in this case o n 01.12.2016 and he is running in JC which is extende d till 07.03.2017. During investigation it is revealed tha t in November, 2013, he has filed an affidavit before El ection Commission to contest Delhi Legislative Assembly Ele ction and in the said affidavit, he has shown his immovab le and moveable assets as well as of his wife which is worth Rs .1.85 crores (approx.). It is stated that as per the repo rt dated 10.02.2017 of Income Tax Department, neither he nor his wife Smt. Reeta Shokeen has filed income tax return during the year 2006-2016. Heard. Keeping in view the fact and circumstances, the application stands allowed by permitting Special Ce ll to 385 interrogate the accused Rambeer Shokeen in judicial custody before 07.03.2017. Application stands disposed of accordingly. Copy of this Order be sent to Superintendent, Tihar Jail, Delhi for complia nce. Copy of this Order be also given to the Special Cell, as prayed for. Put up on 18.03.2017 for further proceedings.” 8. On 7 th March, 2017, the application for extension of time for filing charge-sheet dated 28 th February, 2017 and the application filed by the appellant for grant of statutory bail dated 2 nd March, 2017, were taken up by the Special Court. The Court after considering the arguments of the parties passed the following order: “07.03.2017 Present: Shri Ravindra Kumar Ld. APP for State. Shri Mehmood Pracha and Sh. R.H.A. Sikander counsel f or accused. Accused Rambeer Shokeen from JC. IO ACP Hirdey Bhushan in person. Arguments heard on application for extension of tim e for investigation dated 28.02.2017 and on application u/sec.167 (2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.) Put up for order on these applications on 08.03.2017. JC is extended till 08.03.2017. Copy of order be given dasti.” 9. As directed, the matter was taken up by the Special Cour t on 8th March, 2017 when the prosecution filed supplementary charge-sheet against the appellant. The Court passed the following order: “08.03.2017 Present: Shri Ravindra Kumar Ld. APP for State. Shri Mehmood Pracha and Sh. R.H.A. Sikander and Prateek Gupta counsel for accused Rambeer Shokeen. RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] IO ACP Hirdey Bhushan in person. Accused Rambeer Shokeen from JC. Supplementary charge sheet filed with respect to Ac cused Rambeer Shokeen. Charge sheet perused I take cognizance of the offen ces involved. Copies of documents supplied with respect to the charge she et against Rambeer Shokeen. Time sought by IO to supply copy of earlier charge sheet against other accused persons. Same be supplied within 7 working days. Put up for scrutiny of documents on 18.03.2017. Considering the fact that supplementary charge shee t has already been filed against accused Rambeer Shokeen, so the application regarding extension of time dated 28.02 .2017 become infructuous and thus dismissed as infructuous. Put up for arguments/order on application u/sec. 16 7 (2) Cr.P.C. on 09.03.2017.” 10. Again, the matter was taken up on 9 th March, 2017 when the hearing on statutory bail application remained inconclusive. The Court passed the following order: “09.03.2017 Present: Shri Ravindra Kumar Ld. APP for State. Shri Mehmood Pracha and Prateek Gupta counsel for accused Rambeer Shokeen. Part arguments on application u/sec.167 (2) Cr.P.C. Heard. Put up for further arguments on this application on 14.03.2017.” 11. Finally, on 14 th March, 2017 the Special Court rejected the statutory bail application dated 2 nd March, 2017 filed by the appellant. The relevant extract of the observations/reasons recorded by the Special Court reads: 387 “xxx xxx xxx xxx xxx So, in these circumstances, the application dated 28.02.2 017 i.e. seeking extension of period to file charge she et/ investigation was not decided on merits (as sought vide order dated 01.03.2017). Moreover, on 08.03.2017, cannot be decided on merits as the charge-sheet was already filed before order on this application. So, in these circumstances, the issue before the court in this application is that whether vide order dated 01.03.2017, t he said court of Ld. District & Session Judge, NDD was withi n its power to extend the judicial custody of the accuse d or not and for that purpose whether there should be a specific order of extension of period of investigation. As far as this issue is concerned, the law says that it is the prerogative of the investigating agency to file char ge sheet/ complete investigation, as per their wishes. The Court cann ot interfere in the period/duration of investigation. However , in Sec.21(2)(b) MCOCA, the rider is that in case if th e investigation is not completed within 90 days and t he prosecution/IO wanted that the accused shall remain in judicial custody, then only he has to move in terms of Sec.21(2)(b ) of MCOCA. In this case, the prosecution had moved such applicatio n on 28.02.2017 (analogous to the movement of applicatio n u/ sec.167(2) Cr.P.C. by accused, before charge-sheet) . The order could not be passed as the court under Sec.5(5) MCOCA had stated that the same is to be heard by the concerned court. So, there was no lapse on the part of IO. He had al ready moved the application on time. As far as the JC is concerned, the same has been extended by the concerned court after the application u/sec.28(2)(b) MCOCA is already moved by the IO. So, in these circumstances, the court had acted in legal way in extending the period of judicial custody sin ce the application for seeking extension of time was already pe nding before the court. So, in these circumstances, no ground exists which suggest that there was illegal custody of accused beyond the period RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] of 90 days from the day of his first judicial remand and he is entitled for statutory bail u/sec.21(2)(b) of MCOCA. So, the application u/sec. 167(2) Cr.P.C. alternati vely read as application u/sec.21(2)(b) of MCOCA is dismissed. Copy of order be given dasti. Put up for purpose fixed on date already fixed i.e. 18.03.2017.” 12. Aggrieved, the appellant filed Criminal Appeal No.311/2017 before the High Court of Delhi at New Delhi and challenged the legality of orders dated 1 st March, 2017, 4 th March, 2017, 7 th March, 2017 and 14 th March, 2017. Besides, the appellant moved an application for grant of interim bail. By the impugned judgment, the High Court has rejected Criminal Appeal No.311/2017 and Criminal M. (Bail) No.525/2017 on 22 nd May, 2017. 13. The principal argument of the appellant before the High Court as noted in paragraph 20 of the impugned judgment is that the report / application submitted by the Additional Public Prosecutor for extension of time to file charge-sheet till 15 th March, 2017, was not in conformity with the requirement of proviso to Section 167(2) of Cr.P.C. The appellant placed reliance on the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra ,1 to buttress his submission. After adverting to the legal position expounded in the said decision, the High Court in paragraph 24 considered the factual matrix relevant for answer ing the issue. The contention specifically raised by the appellant has been dealt with from paragraph 25 of the impugned judgment and noted thus: “25. The request submitted by the public prosecutor on 28.2.2017 seeking extension of the period for filin g charge- sheet against him in this case till 15.3.2017, briefly r eferred to the report of the investigating officer that had been submitted before him (the public prosecutor) and up on its perusal the brief background facts were mentioned indicating certain steps that had been taken to collect eviden ce with regard to the income and assets of the appellant. The pub lic prosecutor informed the special court by the said reque st in writing that investigation of the case was to be co nducted, inter alia, by his ¯’further interrogation’ as to the s ource of 1 (1994) 4 SCC 602 389 money for acquiring the assets worth Rs. 1.85 crores as had been declared to be held by him and his wife to the Election Commission at the time of contesting the election t o Delhi Legislative Assembly in 2013, income-tax returns not having been filed by him or his wife during 2006-2016. 26. Pertinent to mention here that the request for interrogati on of the appellant in custody made by the investigating officer on 4.3.2017, granted on the same date by the Distri ct and Sessions Judge, was for the same reasons and on the same grounds as were set out by the public prosecutor in his request submitted on 28.2.2017. 27. It is true that the request of the public prosecutor submi tted on 28.2.2017 is not captioned as ‘report’ nor does it specifically refer to the provision contained in th e second proviso to Section 167 (2) Cr.P.C. But, this cannot be construed as a deficiency. It has to be borne in mind that it is not a matter of form but one of substance. The request in w riting dated 28.2.2017 of the additional public prosecutor satisfi es the twin criteria of the second proviso to Section 167 (2) Cr.P.C. It indicates that the public prosecutor had su bjected the investigating officer’s report as made to him to scrutiny and also informed the court the progress of the investigation and setting out the reasons why the continued deten tion of the appellant in custody was necessary. Therefore, it has to be accepted as a ‘report’ of the public prosecutor sat isfying the requirements of second proviso to Section 167 (2) Cr.P.C. Whether or not, in the facts and circumstances of the case , as prevailing on the date such report was submitted to the spec ial court will have to be considered separately. 28. As noted above, the appellant had moved an applicat ion under Section 167(2) Cr.P.C. for release on bail by default under Section 167(2) Cr.P.C. on 28.2.2017. It is fa irly conceded by the learned counsel for the appellant tha t such application moved on 28.2.2017 was premature as ninety days would expire only on 1.3.2017. 29. On 28.2.2017, besides the application of the investigating officer seeking extension of the custody period of the RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] appellant, the report of the public prosecutor for extension of the period of investigation had come be submitted to the special court. Without doubt, the report could be cons idered before expiry of the period of ninety days or on the l ast day of such period ordinarily available which would be 1.3.2017. The special court, within its judicial discretion, d ecided to postpone the consideration to the following date i.e. 1.3.2017. It is reflected in the order passed on 1.3.2017 by the Distr ict and Sessions Judge, as extracted earlier, that the ad ditional sessions judge presiding over the special court was indispos ed and, therefore, on leave of absence on 1.3.2017. The Distric t and Sessions Judge, before whom the file was placed for consideration of the report of the public prosecutor and the application of the investigating officer, decided to d efer the former to 7.3.2017 for it to be ‘decided by the con cerned court’ while extending the judicial custody for suc h period. Questions have been raised as to the competence of the District and Sessions Judge to deal with this case under MCOCA on the plea that the judicial officer presidi ng over the court of District and Sessions Judge was not desi gnated as a special court in terms of Section 5 MCOCA.” 14. While dealing with the argument regarding the competence of the District & Sessions Judge, the High Court referred to the Notification dated 15 th September, 2010 and opined that it was regarding conferral of powers of Presiding Officer of the Special Court un der MCOCA ascribable to Section 5 of the special enactment. Further, the Lieutenant Governor of National Capital Territory of Delhi was pleased to confer on each member of the Delhi Higher Judicial Service, inter alia, the powers of Presiding Officer of the Special Court under MCOC A as extended to NCT of Delhi, with conferral of powers to be exercised “with effect from the date of assumption of the charge” of such post in pursuance of “transfer or posting orders by the Chief Justice of the Delhi High Court”. 15. The High Court then considered the grounds urged by the appellant and after adverting to Section 5 of MCOCA and Section 15 of the General Clauses Act and the reported precedents pressed into service by both the sides, answered the issue against the appellant. The High Court concluded that the validity of Notification dated 15 th September, 391 2010, issued by the Lieutenant Governor of NCT of Delhi, inter a lia, conferring powers to be exercised by the members of Delhi Higher Judicial Service, in terms of MCOCA, such empowerment b eing “ex- officio”, cannot be questioned. 16. As regards the merits of the application for grant of statutory bail, the High Court adverted to the decisions relied upon by the parties. In paragraph 69 the Court then observed: “69. As has been held above, the District and Sessions Judge, while dealing with the matter arising out of, inter alia, the report of the public prosecutor on 01.03.2017, and the additional sessions judge presiding over the specia l court also dealing, amongst others, with the said report of the publi c prosecutor on 07.03.2017 and 08.03.2017, failed to discharge the judicial responsibility properly. The consideration of the report of the public prosecutor, submitted (on 28.0 2.2017) well in time before expiry of the period of ninety days ordinary available, was deferred unnecessarily on 01.03.2017 and beyond till it was treated, wrongly so, as ¯infruct uous on 08.03.2017. It is against this backdrop that the ap pellant argues that there being no order in terms of second pr oviso to Section 167(2) Cr.P.C. enlarging the period of investigati on, a right to bail by default has accrued in his favou r which cannot be defeated by submission of the charge shee t on 07.03.2017. The crucial question, however, is as to wh ether such benefit can be extended to the appellant in a fact- situation where the investigating police officer, and the public prosecutor, had done their part of the duty under t he law, well within time, and the default in consideration of, and decision on, the report of the public prosecutor was wholly for the reasons (or, shall we say, fault) attributa ble to the District & Sessions Judge and the special court.” 17. Again in paragraphs 74 to 77, the Court observed thus: “74. It is clear that the report submitted on 28.02.2017 by the public prosecutor in terms of second proviso to Section 167(2) Cr. PC seeking enlargement of time for completion o f investigation did not receive due consideration of th e court. If the grounds on which the public prosecutor was RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] recommending extension of time were sufficient, there would be no justification for its denial and, resultantly absolutely no justification for the appellant to be released o n bail by default. If, on the other hand, the request was unfounded, it should have been rejected and an appropriate order extending relea se on bail by default should have been passed. 75. Since the report did not receive due considerat ion and was improperly treated as ‘infructuous’, there are two op tions available before this court : one, to remit the matter back to the special court for a proper decision on the report or, tw o, to consider the report and pass appropriate order thereupo n. The former course would only entail further delay. In a case involving questions of personal liberty, such cours e is not desirable. In this view, the learned counsel on both sides were also heard on the merits of the report of the public prosecut or, bearing in mind that this court is duty bound to secur e the ends of justice and to prevent abuse of the process of court. 76. The background facts and circumstances of the c ase against the appellant have already been noted. Certain assets of the appellant and members of his immediate famil y had come to light for which, prima facie, there was no ac count, particularly in view of the declaration made on the subject in 2013, when he was a candidate in the election to De lhi Legislative Assembly. Noticeably, the investigating offi cer was seeking opportunity to interrogate the appellant against thes e facts to seek his explanation, if any. Under the provisio ns of the special enactment (MCOCA), the investigating po lice officer is entitled to interrogate the accused in judicial c ustody. As mentioned earlier, a formal request to this effect made b y the investigating officer was allowed by order date d 04.03.2017. The report submitted on 28.02.2017 by the public prosecutor, thus, is found to pass the necessary muster of the second proviso to Section 167(2) as inserted in the Co de of Criminal Procedure by Section 21(2) of MCOCA. The f act that the charge-sheet was filed on 08.03.2017, only re-assures that the request for enlargement of time for comple tion of investigation made on 28.02.2017 was not with ulterior motive. 393 77. In above view, in the considered view of this co urt, the request made by the public prosecutor should not only hav e received due consideration of the special court on 28.02.2017, or the District & Sessions Judge on 01.03.2017, but also deserved to be allowed. The trashing of the said re port as “infructuous”, by order dated 08.03.2017, was thus not only incorrect but improper. In these circumstances, in exe rcise of the jurisdiction vested in this court to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of proceedings of the inferior crimi nal court (under Section 397 Cr. PC), as indeed invoking the ‘inherent powers’ of this court to secure the ends of justice and pr event abuse of the judicial process (under Section 482 Cr. PC), th e order dated 08.03.2017 disposing of the report of the public prosecutor under second proviso to Section 167(2) Cr. PC is set aside and, instead the said report is accepted and the period for completion of investigation of the case at hand against the appellant is extended till 08.03.2017 w hen the report under Section 173 Cr. PC (supplementary charge-sheet) against him was actually filed. In this view, the prayer of the appellant for release on bail by default under Section 167(2) is rendered impermissible and is accordingly declined.” 18. Being aggrieved, the appellant has approached this Court by way of these appeals. In the course of hearing, the on ly argument canvassed by the counsel for the appellant was about the entitlement of the appellant for grant of statutory bail as, admittedly, the Special Court did not pass any specific order on the report/application for extension of time for filing of charge-sheet against the appellant pref erred by the Additional Public Prosecutor. In absence of such an order, contends the appellant, the appellant acquired an indefeasible right. Thus, he ought to have been granted statutory bail as prayed vide applicati on dated 2 nd March, 2017, under Section 167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA. As the statutory period of 90 days had already expired and there was no extension of time granted to the prosecution by the Special Court to file the charge-sheet, filing of the charge-sheet a gainst the appellant on 8 th March, 2017 could not denude the appellant of statutory bail. In support of his submission, reliance is placed on the decisions in the case of Union of India v. Nirala Yadav ,2Uday Mohanlal Acharya 2 (2014) 9 SCC 457 RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] v. State of Maharashtra ,3 and Sanjay Dutt v. State through CBI 4. No other argument has been canvassed by the learned counsel f or the appellant in these appeals. 19. The respondent on the other hand would support the reasons recorded by the Special Court and by the High Court to oppos e these appeals. According to the respondent, the Special Court and t he High Court have not committed any error in rejecting the prayer for grant of statutory bail, in view of indisputable facts of the prese nt case. The appellant was well advised not to pursue his application for g rant of statutory bail application dated 28 th February, 2017. For, by that date, 90 days period for filing charge-sheet had not expired. Resulta ntly, the question of entertaining prayer for grant of statutory bail did not arise. As regards the statutory bail application filed on 2 nd March, 2017, the same was also misconceived as the Additional Public Prosecut or had already filed report/application for extension of time on 28 th February, 2017 itself and the Court had extended the judicial custody of the appellant pursuant to the said application until 1 st March, 2017. Again on 1 st March, 2017, the hearing on report/application for extension of time preferred by the Additional Public Prosecutor was deferred and judicial custody was finally extended until 8 th March, 2017. Further, merely because no express order was passed on the said report/application of the Additional Public Prosecutor on 2 nd March, 2017 or for that matter, till 8 th March, 2017 when the charge-sheet was filed against the appellant, ipso facto did not create any right in favour of the appellant. For, judicial custody of the appellant was consciously extended by the competent Cour t from time to time (from 28 th February, 2017 till the filing of charge-sheet). In any case, the Special Court, in law, was obliged to first decide the said report/application for extension of time preferred by the Additional Public Prosecutor, and only if the same was to be rejected before filing of the charge-sheet or expiry of the period of judicial custody of the appellant, could the appellant claim that an indefeasible right had accr ued in his favour. In other words, application for grant of statutory bail preferred by the appellant on 2 nd March, 2017 was also premature and in any case, the same could not have been taken up for consideration until the report/application for extension of time to file charge-sheet submitted by the Additional Public Prosecutor dated 28 th February, 2017, was finally decided. In support of this submission, reliance has been placed on the 3 (2001) 5 SCC 453 4 (1994) 5 SCC 410 395 dictum in paragraph 48 of the decision of the Constitution Bench in Sanjay Dutt’s case (supra). It is contended that the decisions in Uday Mohanlal Acharya (supra), Nirala Yadav (supra) and Sanjay Dutt will be of no avail to the appellant as the exposition in those cases was in light of the facts of those cases. It is contended that the High Court justly considered the merits of the report of the Additional Public Prosecut or dated 28 th February, 2017 for extension of time, and after analysing the relevant aspects, concluded that the request made by the Additi onal Public Prosecutor was genuine and appropriate. The High Court, after hearing both sides, concluded that the time to file charge-sheet against the appellant stood extended till 8 th March, 2017 when the same was, in fact, filed. Resultantly, the application for grant of statutory bail filed by the appellant albeit on 2 nd March, 2017, was bound to be dismissed. According to the respondents, these appeals are devoid of merit and ought to be dismissed. 20. We have heard Mr. Mehmood Pracha, learned couns el appearing for the appellant and Ms. Pinky Anand, learned Additiona l Solicitor General assisted by Mr. Aman Sinha, learned senior counsel and Mr. B.V. Balaram Das, learned counsel for the respondent. 21. After having analysed the facts and events as unfolded from 28 th February, 2017 until 8 th March, 2017, it is indisputable that on 28 th February, 2017, the Additional Public Prosecutor had filed repo rt for extension of time to file charge-sheet against the appell ant until 15 th March, 2017. The same was filed within time, before the expiry of 90 days from the date of initial arrest of the appellant in connection with the subject FIR. Realising this position, the appellant did not pursue his first application for statutory bail dated 28 th February, 2017. Instead, he was advised to file a fresh statutory bail application on 2 nd March, 2017. Admittedly, on 2 nd March, 2017 the report submitted by the Additional Public Prosecutor dated 28 th February, 2017 was still undecided. Therefore, no right can be said to have accrued to the appellant for grant of bail on the ground of default. In law, only upon rejection of the prayer for extension of time sought by the Additional Public Prosecutor, right in favour of the appellant for grant of statutory bail could have ignited. The mere fact that 90 days period from the date of initial arrest of the appellant in connection with the subject FIR had lapsed on 2 nd March, 2017, could not ineluctably entail in grant of statutory bail to the appellant. Moreso, when no decision was taken by the Court on the report/application submitted by the Additional Public Prosecutor until 8 th RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] March, 2017, on which date the supplementary charge-sheet against the appellant was filed in Court. Considering the effect of fi ling of the supplementary charge-sheet against the appellant, coupled with the fact that his judicial custody was extended by the Court of competent jurisdiction until the pendency of consideration of the report/application for extension of time to file the charge-sheet, in law, it is unfathomable as to how the appellant could claim to have any accrued right to be released on bail on the ground of default or for that matter, such a right having become indefeasible. 22. The legal position has been expounded by the Constitution Bench of the Supreme Court in the case of Sanjay Dutt (supra), in particular, in paragraph 48 as under: “48 . We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be rel eased on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision . The indefeasible right accruing to the accused in such a sit uation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan be ing filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the cas e under the provisions relating to grant of bail to an accused afte r the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 1 67 but different provisions of the Code of Criminal Proced ure. If that right had accrued to the accused but it remain ed unenforced till the filing of the challan, then the re is no question of its enforcement thereafter since it is exti nguished the moment challan is filed because Section 167 CrPC cease s to apply. The Division Bench also indicated that if there be such an application of the accused for release on bai l and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for ext ension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension 397 of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released o n bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602].)” (emphasis supplied) Further, the conclusion articulated in paragraph 53, makes it clear that the decision in Hitendra Vishnu Thakur (supra) must be understood accordingly. It observed thus: “53. As a result of the above discussion, our answers t o the three questions of law referred for our decision are as under: (1) xxx xxx xxx xxx (2)(a) Section 20(4) (bb) of the TADA Act only requ ires production of the accused before the court in accor dance with Section 167(1) of the Code of Criminal Procedu re and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 day s in accordance with the further proviso to clause (bb) of su b- section (4) of Section 20 of the TADA Act has to be underst ood in the judgment of the Division Bench of this Court in Hit endra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigatio n is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informi ng him that the question of extension of the period for completing RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] investigation is being considered, is alone sufficie nt for the purpose. (2)(b) The ‘indefeasible right’ of the accused to b e released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vish nu Thakur is a right which enures to, and is enforceable by th e accused only from the time of default till the fili ng of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under thi s provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on ba il forthwith. The accused, so released on bail may be arre sted and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwi thstanding the default in filing it within the time allowed, i s governed from the time of filing of the challan only by the p rovisions relating to the grant of bail applicable at that stage.” The aforementioned opinion has been expressed by the Constitution Bench in the context of question No.2 formulated in paragraph 2 of the judgment as under: “2. The questions of law indicated in the said order of reference, to be decided by us, are three, namely: (1) xxx xxx xxx xxx (2) The proper construction of clause (bb) of sub-secti on (4) of Section 20 of the TADA Act indicating the nature of r ight of an accused to be released on bail thereunder, o n the default to complete investigation within the time a llowed therein; (3) xxx xxx xxx xxx” 23. It is thus clear that no right had accrued to the appellant before filing of the charge-sheet; at best, it was an inchoate right until 8 th March, 2017. Resultantly, the question of granting statutory bail after filing of charge-sheet against the appellant and moreso during the pendency of 399 report/application for extension of time to file ch arge-sheet was impermissible. In other words, the application for grant of statutory bail filed by the appellant on 2 nd March, 2017, even if pending, could have been taken forward only if the prayer for extension of period was to be formally and expressly rejected by the Court. 24. As held by the Constitution Bench of this Court , the consideration of application for grant of statutory bail in a situation, as in the present case, was dependent on rejection of prayer of the Additional Public Prosecutor for extension of time. When such prayer is made, it is the duty of the Court to consider the report/application for extension of period for filing of the charge-sheet in the first instance; only if it was to be rejected could the prayer for grant of statutory bail be taken forward. In no case, the hearing on statutory bail applicati on precede the consideration of prayer for extension of the period for filing of the charge- sheet made by the Additional Public Prosecutor. 25. The Constitution Bench decision in Sanjay Dutt’s case (supra) also answers the next issue raised by the appellant about the absence of a valid remand/detention. In that, in the concluding part of the afore- quoted paragraph 48, the Court has opined that a petition seeking a writ of habeas corpus on the ground of absence of a valid order of remand or detention has to be dismissed if, on the date of return of the rule , the custody or detention is on the basis of a valid order. Admittedly, in the present case, the judicial custody of the appellant was extended by the Court of competent jurisdiction from time to time pending consideration of request to extend time to file charge-sheet, initially from 28 th February, 2017, till 1 st March 2017 and so continued from 1 st March, 2017, until 7 th March, 2017, and again from 7 th March, 2017, till 8 th March, 2017 - on which date the charge-sheet was filed against the appellant in the Court. The order passed by the Special Court on 8 th March, 2017, has been so construed by the High Court and additionally by explicitly extending the period for filing of the charge-sheet against the appellant until 8 th March, 2017. We find no error in that approach of the Hi gh Court. No interference is warranted in that regard. 26. The appellant, however, relies on the observations in Uday Mohanlal Acharya (supra) rendered by a three-Judge Bench of this Court. In the said case, the accused had himself surrendered in Court and was remanded to judicial custody. The period for filing of charge- sheet (60 days in that case) expired on 16 th August, 2000. The accused RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] moved an application on 17 th August, 2000, for grant of statutory bail on the ground of default in filing of charge-sheet within the statutory period of 60 days. That bail application was rejected by the Magistrate on the same day, holding that the provisions of Section 167(2) of Cr.P.C. had no application to the cases pertaining to the special enactment i.e. Maharashtra Protection of Interest of Depositors (i n Financial Establishments) Act, 1999. The accused then approached the High Court. When the matter was pending before the High Court, charge-sheet was filed before the Trial Judge on 30 th August, 2000. The High Court refused to grant relief on the ground that by the time the High Court could consider the correctness of the order on the statutory bail application pass ed by the competent Court, a charge-sheet was filed against the accused before the Magistrate and, therefore, the so called enforceable right did not survive or remained enforceable. In this backdrop, this Court considered the matter and answered the issue in favour of the accused on the finding that before the charge-sheet was filed, the accused had inv oked the remedy of statutory bail. Thus, the factum of filing of charge-sheet subsequently cannot defeat the right accrued to him. In the present case, before the appellant instituted the subject application for grant of statutory bail on 2 nd March, 2017, the Additional Public Prosecutor had already filed his report/application for extending the period for filing of charge- sheet against the appellant until 15 th March, 2017, but decision thereon was deferred. As held by the Constitution Bench in the case of Sanjay Dutt (supra), unless the report/application filed by the Additional Public Prosecutor for extension of time was rejected, no right would accrue in favour of the accused much less to consider his application for grant of statutory bail. Further, in such cases it is the duty of the concerned Court to first deal with the prayer for extension of period to file charge-sheet made by the Additional Public Prosecutor. The High Co urt, in the impugned judgement, thus answered the issue against the appellant and additionally considered the justness of the prayer made by the Additional Public Prosecutor for extension of period for filing charge-s heet. It recorded an express finding that the said request was genuine and appropriate and thus extended the time for that purpose till 8 th March, 2017. 27. Reverting to the decision in the case of Nirala Yadav (supra) rendered by two-Judge Bench, the accused in that case was arres ted and sent to judicial custody on 5 th December, 2006. After lapse of the 401 statutory period of 90 days on 14 th March, 2007, the accused filed application for grant of statutory bail on the ground of default. T he prosecution (CBI), however, on 15 th March, 2007, moved an application for extension of time for a period of 30 days. Since the application for grant of statutory bail filed by the accused preceded the filing of application for extension of time, the issue was answered in favour of the accused. In the present case, however, the prayer for extension of pe riod for filing charge-sheet was moved by the Additional Public Prosecutor before the statutory period had lapsed, but the same remained pending until 8 th March, 2017, when charge-sheet was filed in Court. Until the said request was formally and expressly rejected by the competent Court, in view of the exposition in the case of Sanjay Dutt (supra), the concerned Court could not have assumed jurisdiction to consider the prayer for grant of statutory bail of the appellant. The request made by the Additional Public Prosecutor was formally disposed of as infructuous on 8 th March, 2017, after filing of the charge-sheet against the appellant. Tha t was not an order of rejection of the request of the Additional Public Prosecutor as such. The High Court has examined this aspect and, in our opinion, rightly answered the issue against the appellant for the reasons recorded in paragraphs 75 to 77 of the impugned judgment, including by explicitly extending the time to file charge-sheet till 8 th March, 2017.We affirm the said view of the High Court. Therefore, even this decision relied upon by the appellant will be of no avail in the fact situation of the present case. 28. Taking overall view of the matter, therefore, it is noticed that the Additional Public Prosecutor had submitted his report to the concerned Court for extending time until 15 th March, 2017, to file the charge-sheet. That report was submitted on 28 th February, 2017, before expiry of the initial statutory period of 90 days for filing of the charge-sheet against the appellant. That request was disposed of by the Special Court on 8 th March, 2017 as infructuous, after the charge-sheet against the appellant was submitted in Court. Until 8 th March, 2017, the appellant was sent to judicial custody by the competent Court pending consideration of request of the Additional Public Prosecutor for extension of time t o file the charge-sheet. The Court, in law, could not have considered the prayer for grant of statutory bail of the appellant until 8 th March, 2017, on which date the charge-sheet was already filed against the app ellant in the concerned Court. Further, the High Court considered the circumstances RAMBEER SHOKEEN v. STATE OF NCT OF DELHI [A. M. KHANWILKAR, J.] in which the order came to be passed by the Special Court on 8 th March, 2017. In our opinion, it rightly held that the said request could not have been closed as having become infructuous. Rather, it was the duty of the Court to decide the request on its merits and only upon its rejection, proceed to consider the prayer for grant of statutory bail. The High Court, therefore, noticed that it had two options: first, to remit the matter back to the Special Court for a proper decision on the said report of the Additional Public Prosecutor dated 28 th February, 2017 or second, to consider the same itself and pass appropriate orders thereupon. It chose to adopt the second option, which was thought desirable and not objected to by the appellant as can be discerned from the noting in paragraph 75 of the impugned judgment. The High Court, in paragraph 76 of the impugned judgment, then proceeded to consider the prayer for extension of time made in the report submitted by the Additional Public Prosecutor on 28 th February, 2017, and, for tangible reasons, found the same to be genuine and appropriate. Having thus held, it allowed the said request by extending the time to file charge-sheet till 8 th March, 2017. We find no infirmity in the said approach of the High Court. Having extended the time till 8 th March, 2017 and as the charge-sheet was already filed on that date, the question of considering the prayer for grant of statutory bail of the appellant vide application dated 2 nd March, 2017, on the ground of default, did not survive for further consideration. Right to gr ant of statutory bail would have enured to the accused only after rejection of the request for extension of time prayed by the Additi onal Public Prosecutor. As a result, the High Court rightly rejected the p rayer for grant of statutory bail pursued by the appellant vide application dated 2 nd March, 2017. We are in full agreement with the said conclusion reached by the High Court. 29. A priori , these appeals must fail. Indeed, rejection of the prayer for grant of statutory bail will not come in the way of the appellant in pursuing his remedy for grant of regular bail on merit. The appellant is free to pursue that remedy which may be considered on its own merits in accordance with law. 30. Accordingly, these appeals are dismissed being devoid of merits. Nidhi Jain Appeals dismissed.