Accused under UAPA has a right to be heard against the extension of time for completion of investigation by police
The Hon’ble High Court of Delhi in Khalid V. State (Govt. of NCT of Delhi), CRL.M.C. 1697/2020 held that an accused under the Unlawful Activities (Prevention) Act, 1967 has the right to be heard against an application for extension of time for completion of investigation accruing out of the proviso to Section 167 of the Cr.P.C as modified by Section 43(d)(2) of UAPA. 
Background-
The accused was charged under UAPA in relation to Delhi Riots, claiming that the ASJ denied his right to oppose the application for extension of time of the investigation against him under UAPA as well wrongfully denied him copies of the application of the Public Prosecutor.

Held-
The bench headed by Hon’ble justice Vibhu Bakru while examining the question as to the right of the accused to be heard and seek copies of application seeking extension of time for completion of investigation under UAPA observed that, “The two questions that are required to be addressed in this petition are: first, whether the accused has a right to be heard to oppose an application seeking extension of time for completion of investigation moved in terms of the proviso to Section 167 of the Code of Criminal Procedure, 1973 (Cr.PC) as inserted by virtue of Section 43D(2) of the UAPA; and second, if the answer to the aforesaid question is in the affirmative, whether the accused has a right to a copy of the application seeking extension of time for completion of the investigation and also the report submitted by the Public Prosecutor in terms of the proviso to Section 167 of the Cr.PC as inserted by virtue of Section 43D(2) of the UAPA.”

It was further observed that “It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him. The above passage was also referred to by the Division Bench of this Court in Syed Maqbool v. NIA: (2014) 8 HCC (Del)107. In that case, the Division Bench of this Court had, after noting the aforesaid passage, observed that the said decision did not assist the appellants (in that case) in any manner, because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard.” It was further expounded that “the question whether an accused has a right to be heard to oppose an application seeking extension of his custody and extension of time for completion of the investigation, is answered in the affirmative.”

While examining the issue of supply of copies of the application the Hon’ble Court observed that “The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.”


 
 
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 Background- The accused was charged under UAPA in relation to Delhi Riots, claiming that the ASJ denied his right to oppose the application for extension of time of the investigation against him under UAPA as well wrongfully denied him copies of the application of the Public Prosecutor. 
Held-
The bench headed by Hon’ble justice Vibhu Bakru while examining the question as to the right of the accused to be heard and seek copies of application seeking extension of time for completion of investigation under UAPA observed that, “The two questions that are required to be addressed in this petition are: first, whether the accused has a right to be heard to oppose an application seeking extension of time for completion of investigation moved in terms of the proviso to Section 167 of the Code of Criminal Procedure, 1973 (Cr.PC) as inserted by virtue of Section 43D(2) of the UAPA; and second, if the answer to the aforesaid question is in the affirmative, whether the accused has a right to a copy of the application seeking extension of time for completion of the investigation and also the report submitted by the Public Prosecutor in terms of the proviso to Section 167 of the Cr.PC as inserted by virtue of Section 43D(2) of the UAPA.”

It was further observed that “It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him. The above passage was also referred to by the Division Bench of this Court in Syed Maqbool v. NIA: (2014) 8 HCC (Del)107. In that case, the Division Bench of this Court had, after noting the aforesaid passage, observed that the said decision did not assist the appellants (in that case) in any manner, because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard.” It was further expounded that “the question whether an accused has a right to be heard to oppose an application seeking extension of his custody and extension of time for completion of the investigation, is answered in the affirmative.”

While examining the issue of supply of copies of the application the Hon’ble Court observed that “The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.”


 
 
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 Held- The bench headed by Hon’ble justice Vibhu Bakru while examining the question as to the right of the accused to be heard and seek copies of application seeking extension of time for completion of investigation under UAPA observed that, “The two questions that are required to be addressed in this petition are: first, whether the accused has a right to be heard to oppose an application seeking extension of time for completion of investigation moved in terms of the proviso to Section 167 of the Code of Criminal Procedure, 1973 (Cr.PC) as inserted by virtue of Section 43D(2) of the UAPA; and second, if the answer to the aforesaid question is in the affirmative, whether the accused has a right to a copy of the application seeking extension of time for completion of the investigation and also the report submitted by the Public Prosecutor in terms of the proviso to Section 167 of the Cr.PC as inserted by virtue of Section 43D(2) of the UAPA.” 
It was further observed that “It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him. The above passage was also referred to by the Division Bench of this Court in Syed Maqbool v. NIA: (2014) 8 HCC (Del)107. In that case, the Division Bench of this Court had, after noting the aforesaid passage, observed that the said decision did not assist the appellants (in that case) in any manner, because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard.” It was further expounded that “the question whether an accused has a right to be heard to oppose an application seeking extension of his custody and extension of time for completion of the investigation, is answered in the affirmative.”

While examining the issue of supply of copies of the application the Hon’ble Court observed that “The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.”


 
 
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 It was further observed that “It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him. The above passage was also referred to by the Division Bench of this Court in Syed Maqbool v. NIA: (2014) 8 HCC (Del)107. In that case, the Division Bench of this Court had, after noting the aforesaid passage, observed that the said decision did not assist the appellants (in that case) in any manner, because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard.” It was further expounded that “the question whether an accused has a right to be heard to oppose an application seeking extension of his custody and extension of time for completion of the investigation, is answered in the affirmative.” 
While examining the issue of supply of copies of the application the Hon’ble Court observed that “The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.”


 
 
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 While examining the issue of supply of copies of the application the Hon’ble Court observed that “The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove, the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the propensity to adversely affect the investigation. It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation.” 

 
 
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IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 08.09.2020 STATEAct 1967and extended the period of investigation in FIR No. 59 2020 registered with PS Crime Branch till CRL. M.C. 1697 2020 17.09.2020. The learned ASJ also extended the period of detention of the accused persons including the petitioner till the said date The petitioner contends that the impugned order violates the principles of natural justice as the petitioner was neither provided a copy of the applicationwhich was allowed by virtue of the impugned order nor afforded a meaningful opportunity to be heard in opposition of the said application. The petitioner contends that the same violates the petitioner’s right under Article 21 of the Constitution of India The controversy in the present petition arises in the context of FIR No. 59 2020 under Section 147 148 149 120B of the Indian Penal Code 1860registered with PS Crime Branch on 06.03.2020 The said FIR was registered by SI Arvind Kumar of Crime Branch Delhi Police. He had reported that one of his informers had informed him that the riots which had taken place in Delhi on 23rd 24th and 25th of February 2020 were a result of a pre planned conspiracy. He alleged that the conspiracy for spreading these riots was hatched by one Umar Khalid a student of Jawahar Lal Nehru University and his accomplices from different organizations. Umar Khalid had allegedly delivered hate speeches in different places. He had appealed to persons to come and obstruct public roads in order to lead people to believe internationally that minorities in India were being oppressed He alleged that as a part of the controversy women and children were called to protest at different places in Delhi and weapons like firearms petrol bomb acid bottles were collected at Chand Bagh Gokul Puri CRL. M.C. 1697 2020 Shiv Vihar and other areas. It was alleged that responsibility for assembling the mobs from other outside areas was assigned to one Danish. Umar Khalid and Danish were the only two persons named in On 15.03.2020 the Investigating Agency added offences under Section 120B read with Sections 302 307 124A 153A 186 353 395 427 435 436 452 454 109 and 114 of the IPC Sections 3 and 4 of the Prevention of Damage of Public Property Act 1984 and Sections 25 and 27 of the Arms Act 1959. Thereafter on 19.04.2020 offences under Sections 13 16 17 & 18 of UAPA were also included The petitioner was arrested on 21.03.2020 and he was remanded to police custody for six days that is till 27.03.2020. Thereafter the petitioner’s police custody was extended from time to time till 05.04.2020. He was produced before the learned Duty Magistrate on 04.04.2020 and was remanded to judicial custody till 19.04.2020. The petitioner’s judicial custody was extended from time to time till On 26.05.2020 filed an application under Section 43D of UAPA seeking extension of custody of the petitioner and one other accusedtill 14.06.2020. The respondent also sought judicial custody of three other accused persons for a further period of thirty days. On 30.05.2020 the learned Court allowed the State’s application inter alia seeking extension of judicial custody of the petitioner till 14.06.2020 CRL. M.C. 1697 2020 Thereafter on 08.06.2020 the State filed an application in terms of the proviso to Section 167(2) of Cr.PC as inserted by virtue of Section 43D(2) of UAPA seeking extension of time for completion of investigation till 17.09.2020. The said application was partly allowed in terms of the order dated 15.06.2020 and the time for completing the investigation was extended till 14.08.2020. On that day the State also sought extension of the judicial custody of the petitioner and the Court extended the term of judicial custody of the petitioner till 25.06.2020. On 25.06.2020 the Court further extended the same till 24.07.2020 On 10.08.2020 the Investigating Agency once again moved an application seeking extension of time for concluding the investigation for a further period till 17.09.2020. However the copy of the said application was not provided to the petitioner as according to the State the same was not necessary. By an order dated 10.08.2020 the learned Court issued notice to the petitioner for a hearing scheduled on 11.08.2020 without any directions that the copy of the application be supplied to the petitioner On 11.08.2020 arguments on the said application were partly heard. The petitioner and other accused insisted that copy of the application be supplied to them so that they could oppose the same After hearing the petitioner and other accused the Court adjourned the matter to 13.08.2020 for further arguments. The Court also directed the accused to furnish their written submissions along with relevant case laws relied upon by them. In compliance with the said order the CRL. M.C. 1697 2020 petitioner filed a written synopsis of the arguments and opposed the said application seeking extension of time for completion of investigation and for seeking extension of the petitioner’s custody The said application was allowed by the order dated 13.08.2020 which is impugned herein It was contended on behalf of the petitioner and other co accused that they are entitled to a copy of the application filed by the seeking extension of time for completion of investigation and for extending the period of judicial custody so that they can oppose the same. The said contention was not accepted by the learned ASJ. The Court held that in terms of the decision of this Court in Sharjeel Imam v. State of NCT of Delhi: 2020 SCC OnLine DEL 734 it was not necessary that the accused be provided the application report moved on behalf of the State for extension of time to complete the investigation as contemplated under the proviso to Section 167 of the Cr.PC as inserted by virtue of Section 43D of the The learned ASJ examined the application cum report submitted by the learned Special Public Prosecutor as well as the case diaries of the case and observed that specific reasons for seeking extension of time to complete the investigation and compelling reasons in respect of each accused for extension of their custody are borne out from the report and the case diaries. The Court further recorded its satisfaction that the prosecution has made out a case for extension of period of investigation and detention of accused persons and accordingly CRL. M.C. 1697 2020 allowed the said application 11. By the impugned order the Court also rejected the contention that seeking further extension of time for completion of investigation amounted to review of the order dated 15.06.2020 whereby the learned Court had extended the time for completion of investigating 12. Mr Chauhan learned counsel appearing for the petitioner contended that the petitioner is entitled to a copy of the application seeking extension of time for completion of the investigation. He submitted that the learned ASJ had rejected the petitioner’s request for a copy of the applications by referring to the decisions of this Court in Sharjeel Imam v. State: Crl. M.C. 1475 2020 decided on 10.07.2020 Syed Maqbool v. NIA: Crl. A. 781 2013 decided on 05.08.2014 and Syed Shahid Yusuf v. NIA: Crl. A. 426 2018 decided on 31.05.2018 He contended that in none of these cases a copy of the application was denied to the accused. He contended that in Sharjeel Imam supra) the documents relied upon by the prosecution were in fact supplied to the accused and were part of the criminal miscellaneous petition. In that case the arguments largely revolved around the question of issue of written notice to the accused 13. Next he contended that the petitioner had a right to be heard to oppose the extension of time for completion of the investigation as held by the Supreme Court in Hitendra Vishnu Thakur and Ors. v State of Maharashtra and Ors.:4 SCC 602. He contended that CRL. M.C. 1697 2020 in this case the learned Court has declined to provide such opportunity and has proceeded on the basis that the petitioner and other accused had no right to oppose the application seeking extension of time. He further submitted the said right to oppose an application for extension of time would not be meaningful if the grounds on which such extension was sought were not communicated to the accused. He submitted that in this view it was essential for the prosecution to have supplied a copy of the application indicating the reasons why extension of time for completion of investigation is sought by the 14. Mr Chauhan also relied upon the decisions in Devinderpal Singh v. Govt of National Capital Territory of Delhi:1 SCC 44 Syed Shahid Yusuf v. NIA: Crl. A. 426 2018 decided on and Wajid Abdul Wahid Shaikh v. State of Maharashtra:ALL MR4278 15. Mr Aman Lekhi learned ASG countered the aforesaid submissions. He stated that the issues raised in the present petition were squarely covered by the decision of a Coordinate Bench of this Court in Sharjeel Imam5 SCC 410 there was no requirement of issuing any written notice and therefore there was no reason to supply the application seeking extension of time for completion of the investigation or the report submitted by the Public Prosecutor. He submitted that given this view the questions CRL. M.C. 1697 2020 raised by the petitioner in this petition were no longer res integra. He also submitted that the reliance placed by the petitioner on the decision of the Supreme Court in Devinderpalwas misplaced He contended that in that case the Supreme Court had referred to the decision in Hitendra Vishnu Thakurstood overruled by the Constitution Bench of the Supreme Court in Sanjay Duttthe decision in Devinderpal Singhwas of no assistance to the 16. Next he submitted that the reliance placed by the petitioner on the decision in the case of Syed Shahid Yusufwas wholly misplaced as the said decision was not an authority for the proposition that the application seeking extension of time for completion of the investigation in terms of the proviso to Section 43D of the UAPA is required to be supplied to the accused. He submitted that the said issue did not arise in that case. He further stated that the reliance placed on the decision of the Bombay High Court in Wajid Abdul Wahid Shaikhwas equally misplaced. He submitted that the said decision was rendered in the context of Maharashtra Control of Organised Crime Act 1999and was rendered in the backdrop of facts where the accused had refused to accept a copy of an application seeking extension of time for investigation. He further stated that in that case the Court had not considered the decision of the Supreme Court in Sanjay Duttthe Supreme Court had overruled the decision in Hitendra Vishnu Thakurinsofar as the requirement of the accused to be afforded an opportunity to oppose the extension of completion of investigation is concerned. He submitted that requirement was now limited to only ensuring that the accused is present in Court during the hearing. Mr Lekhi further submitted that the necessary ingredients for seeking extension of time for completion of the investigation are set out by the Supreme Court in State v Shakul Hameed:6 SCC 350 and the said conditions were fully complied with in the present case. He also submitted that there was no requirement for furnishing a separate application for extension of time for completion of the investigation and the prosecutor could submit a consolidated application cum report as has been held by the Supreme Court in Hitendra Vishnu Thakuras inserted by virtue of Section 43D(2) of the UAPA and second if the answer to the aforesaid question is in the affirmative whether the accused has a right to a copy of the application seeking extension of time for completion of the investigation and also the report submitted by the Public Prosecutor in terms of the proviso to Section 167 of the Cr.PC as inserted by virtue of Section 43D(2) of the UAPA 20. By virtue of Section 43D of the UAPA certain provisions of the Cr.PC stood modified in so far as its application to the offences under the UAPA. Sub sectionof Section 43D of UAPA mandates that the provisions of Section 167 of the Cr.PC shall apply in relation to a case involving an offence punishable under the UAPA albeit subject to certain modifications as set out therein. Sub sectionof Section 43D of the UAPA is set out below: “43D Modified application of certain provisions of this CRL. M.C. 1697 2020 Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub section— a) the references to “fifteen days” “ninety days” and “sixty days” wherever they occur shall be construed as references to “thirty days” “ninety days” and “ninety days” respectively and be inserted namely:— the proviso the following provisos shall “Provided further that if it is not possible to complete the investigation within the said period of ninety days the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days extend the said period up to one hundred and eighty days the police officer making the Provided also that investigation under this Act requests for the purposes of investigation for police custody from judicial custody of any person in judicial custody he shall file an affidavit stating the reasons for doing so and shall also explain the delay if any for requesting such police custody In terms of provisoto Sub sectionof Section 167 of the Cr.PC a Magistrate is proscribed to authorize detention of an accused person in custody for a period exceeding ninety days where the imprisonment for life or imprisonment for a term of not less than ten years and not exceeding sixty daysof the UAPA) where the investigation relates to CRL. M.C. 1697 2020 any other offence 22. On expiry of the said period of ninety days or sixty days as the case may be the accused has to be released on bail if he offers to and furnishes bail. It is well settled that a right to bail as per provisoto Section 167(2) of the Cr.PC is an absolute right and the Court has no discretion but to release the accused on bail if he offers and furnishes the same. It is also settled that in case of a default bail merits of the case are not to be examined and a Magistrate has no power to remand the person to custody beyond the stipulated period of ninety days or sixty days as the case may be3 In Rakesh Kumar Paul v. State of Assam:15 SCC 67 the Supreme Court had further held that it would be the duty of the concerned Magistrate to inform the accused of his right to seek a default bail in the case where he entitled to do so 24. By virtue of the proviso to Section 167 of the Cr.PC as introduced by virtue of Section 43D(2)(b) of the UAPA as applicable to cases under the said Act the detention of an accused can be extended to a period of one hundred and eighty days provided the Court is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of ninety days. Thus the is required to be satisfied regarding the progress of CRL. M.C. 1697 2020 investigation and the requirement of further time to complete the 25. Considering that the extension of time for completion of investigation extends the detention of an accused beyond the period of ninety days and further curtails his liberty the Supreme Court in Hitendra Vishnu Thakurhad in the context of Section 20(4)(bb) of the Terrorist and Disruptive ActivitiesAct 1987by virtue of which a proviso similar to that as set out in Section 43D(2)(b) of UAPA was inserted in Section 167(2) of Cr.PC in respect of offences under TADA held as under for grant of extension under clause“It would therefore serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution’s ‘default’. Similarly when a report is submitted by the public prosecutor to the Designated notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clausenor clauseof sub sectionof Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or prosecutor as the case may be would accord with fair play in action which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the CRL. M.C. 1697 2020 prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party.” italicized for emphasis It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him The above passage was also referred to by the Division Bench of this Court in Syed Maqbool v. NIA:8 HCCin any manner because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard 27. Mr Lekhi’s contention that the decision of the Supreme Court in Hitendra Vishnu Thakuris no longer good law as the said decision has been overruled in Sanjay Duttis unmerited. His contention that the decision of the Division Bench of this Court in Syed Maqboolis also per incuriam as it does not refer to the decision in Sanjay Duttis equally unmerited CRL. M.C. 1697 2020 In Sanjay Duttthe Constitution Bench of the Supreme Court did not overrule the earlier decision in Hitendra Vishnu Thakur supra). On the contrary the Court reiterated the requirement of issuing notice of the application seeking extension of custody time for completion of the investigation beyond the period of ninety days to the accused. However the Supreme Court qualified that such noticeto mean a notice to the accused which requires his production in Court accordance with Section 167(1) of the Cr.PC. The Supreme Court further explained that the requirement of such notice to the accused before granting of extension for completing the investigation is not a ‘written notice’ to the accused giving reasons therein but production of the accused in Court at the time of informing him that the question of extension of period for completing the investigation is being considered would be sufficient for the purpose. The relevant extract of the said decision is set out below “(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 clauseof sub sectionof Section 20 of the TADA Act has to be understood in the the Division Bench of 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 CRL. M.C. 1697 2020 question of extension of the period for completing the investigation is being considered is alone sufficient for Thus undisputedly a notice is required to be issued to the accused for his her production before the concerned Court and he she is required to be duly informed that the question of extending the time for completion of the investigation and or extending his her term in judicial custody is being considered It is also relevant to note that in Sanjay Dutt’s case it was also contended on behalf of the State that certain clarifications were required regarding the decision in Hitendra Vishnu Thakur’s case as the same was being construed by designated courts to mean that a right of an accused to be released on bail where the time for completing the investigation has expired is indefeasible and would survive even after a challanhas been filed in the court To this extent the Supreme Court authoritatively held that indefeasible right accruing to an accused in such a situation is only enforceable prior to filing of the challan and does not survive or remain enforceable on the challan being filed if the said right is not availed of. The Court accordingly clarified the decision in Hitendra Vishnu Thakurand further held that if the said decision was interpreted to have held otherwise the Court was unable to subscribe to that view. Thus if the decision in Hitendra Vishnu Thakurto that extent CRL. M.C. 1697 2020 31. Apart from clarifying the nature of the notice required to be given to the accused and further clarifying that an indefeasible right to be released on bail does not survive once a challan had been filed the decision in the case of Hitendra Vishnu Thakurremained undisturbed and continues to be binding law In Devinderpal Singhthe Supreme Court had observed In Hitendra Vishnu Thakur’s case it was also opined that no extension can be granted by the Designated Court under Clauseunless the accused is put on notice and permitted to have his say so as to be able to object to the grant of extension The Constitution Bench in Sanjay Dutt case did not express any contrary opinion in so far as the requirement of the report of the Public Prosecutor for grant of extension is concerned or on the effect of the absence of such a report under clauseof Section 20(4) but observed that the ‘notice’ contemplated in the decision in Hitendra Vishnu Thakur case before granting extension for completion of investigation is not to be construed as a “written notice” to the accused and that only the production of the accused at the time of consideration of the report of the Public Prosecutor for grant of extension and informing him that the question the period for investigation was being considered would be sufficient notice to the accused.” The above decision also makes it amply clear requirement of issuing notice to the accused as contemplated in Hitendra Vishnu Thakurwas not done away with by the CRL. M.C. 1697 2020 Supreme Court in Sanjay Duttinsofar as it the accused would have a right to oppose the application for extension of time In view of the above the contention that the requirement to afford an opportunity of hearing the accused to oppose the grant of extension of his judicial custody and extension of the time for completion of the investigation stood overruled by the Sanjay Dutt supra) is erroneous. The contention that the decision in Sanjay Dutt’s case is an authority for the proposition that an accused has to be produced in Court but has to remain a mere mute spectator to the proceedings in Court and has no right to oppose extension of his judicial custody or extension of time for completion of investigation is plainly unacceptable In Sharjeel Imamthis Court had after referring to the decisions in case of Devinderpal Singhand Sanjay Dutt supra) observed that the contention that the accused has a right to oppose the application report moved by the APP is not sustainable The same must be understood in the context of specific opposition to the reasons specified in the public prosecutor’s report as the accused is not entitled to a copy of the same. The import of the proviso to Section 167(2) of the Cr.PC as inserted by Section 43D(2)(b) of the UAPA is that the restriction on the court to extend custody of an accused beyond the period of ninety days pending filing of the report is relaxed on compliance with the conditions set out in the said proviso CRL. M.C. 1697 2020 The accused would surely have the right to oppose extension of his her judicial custody The decision in Sharjeel Imamcannot be understood to mean that the accused has no right to make any submission to oppose the extension of his judicial custody or the time to complete the investigation. It is also relevant to note that the principal contention that fell for consideration of the Court was whether a notice was in fact served on the accused. The Court had also examined the grounds on which extension of time was sought by the prosecution. If the decision of Sharjeel Imamis interpreted to mean that an accused would have no right whatsoever to oppose the grant of extension of judicial custody or extension of time for completing the investigation the same would run contrary to the decision of the in Hitendra Vishnu Thakur supra) and the observations made in Devinderpal Singh250 DLT 283 the Division Bench of this Court had unequivocal terms held that an accused cannot ask to see the reports the public prosecutor as those reports are like case diaries maintained under Section 174 of the Cr.PC and are used to satisfy the regarding the progress of the investigation as well as justification for seeking extension of time to complete the same. The relevant extract of the said decision is set out below: “42. As regards providing the Appellant with copies of the reports of the PP the Court is inclined to agree with the learned ASG that at the stage of extension of time for completion of investigation or extension of the period of detention in terms of the proviso to section 167 Cr PC the Appellant cannot ask to see the reports of the PP. Those reports like the case diary maintained under section 174 Cr PC are to satisfy the Court about the progress of investigation and the justification for In Syed Maqboolthe Division Bench of this Court had also ruled that it is not necessary that the order granting extension of CRL. M.C. 1697 2020 time sets out the reasons for the same in detail. The rationale for the said view was explained by the Court in the following words “24. But when an investigation is in progress and all suspects have yet to be arrested and further part evidence is gathered and on an analysis of the same further evidence has to be gathered from the material gathered the accused have to be interrogated an exposure of the evidence gathered and the course of investigation chartered till said date giving clue to further course of investigation which may be chartered it cannot be the requirement of law that the learned descriptively pen down the objective facts noted by him till the current stage of the investigation and then record the opinion as to why period of detention was to be extended. This would expose the investigating agency to a severe handicap. The other suspects would know the line of investigation and would be in a position to destroy evidence which has yet to be coalesced by the the Designated Court 25. As long as the learned Special Judge has recorded that he has perused the case diaries which as per law have not to be shared with the accused and has opined in the order that the learned Special Judge was satisfied that the completion of investigation warranted period of detention to be extended it would be sufficient compliance with law.” The reasons for concealing the report of the Public Prosecutor and the case diaries from the accused during the period of the investigation is to ensure that the investigation is not frustrated. As discussed hereinabove the manner in which the investigation is progressing and further inquiries that are proposed to take place need not be disclosed to the accused as such disclosure may have the CRL. M.C. 1697 2020 propensity to adversely affect the investigation It is for this reason that neither the case diaries nor the report submitted by the public prosecutor are required to be furnished to the accused nor are the reasons required to be set out in any detail in the order granting extension of time for completion of the investigation 43. Undeniably the accused is at a disadvantage since the accused would be unable to address the specific grounds on which the extension of time is sought and to this extent the hearing afforded to the accused may be of limited value. However this is unavoidable so as to ensure that the investigation is not hampered or frustrated in any In view of the above the question whether the petitioner is entitled to a copy of the application or the report furnished by the public prosecutor must be answered in the negative The court may now examine the controversy in the context of the facts of the present case. Although it has been contended that the learned ASJ had not afforded the petitioner any opportunity of being heard to oppose the application for extension of time for completing the investigation the same is without substance. The orders dated 10.08.2020 and 11.08.2020 clearly indicate that the learned Court had afforded ample opportunity for accused to make representation to oppose extension of time for completion of the investigation. The Court had also granted opportunity to the accused to file written submissions. A plain reading of the written submissions CRL. M.C. 1697 2020 filed on behalf of the petitioner indicates that the petitioner had limited his submissions to insisting that a copy of the application cum report of the public prosecutor be supplied to it in order for the petitioner to make further submissions This being the only argument canvassed on behalf of the petitioner the learned Court considered and rejected the same. Thus the impugned order cannot be faulted on the ground that the petitioner was not afforded adequate opportunity to be heard. The requirements of providing the petitioner a notice as well as an opportunity to be heard in opposition of the application for extension of time for completion of the investigation were complied with by the learned 47. A report indicating the progress of investigation including specific reasons for detaining the accused beyond the specified period was furnished. The learned Court had perused the same as well as examined the case diaries and had recorded its satisfaction in this In view of the above no interference with the impugned order is The petition is accordingly dismissed SEPTEMBER 08 2020 VIBHU BAKHRU J CRL. M.C. 1697 2020 Page 2