[Default Bail] Prosecutor not a postman, must apply mind before filing report under MCOC Act for extending time to investigate: Bombay HC
The Court observed that the prosecutors must apply their own mind before filing a report under the 21(2)(b) of the Maharashtra Control of Organised Crime Act seeking an extension of time to complete ...
[Default Bail] Prosecutor not a postman, must apply mind before filing report under MCOC Act for extending time to investigate: Bombay HC
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The Bombay High Court recently exhorted public prosecutors to apply their mind before filing applications seeking an extension of time to investigate crimes under the Maharashtra Control of Organised Crime Act, 1999 beyond the 90-day period ordinarily prescribed for the filing of a charge-sheet.

The Aurangabad Bench of the Bombay High Court comprising of Justices RV Ghuge and BU Debadwar observed that when a public prosecutor has to present such an application by the Investigating Agency, he/she must submit an independent report as well after deducing their own reasons for agreeing or disagreeing the application.

Pertinently, if a criminal investigation is not complete and a chargesheet not filed within a 90-day period, Section 167 (2) of the CrPC lays down that the accused would ordinarily have a right to be released on default bail.

Under the Maharashtra Control of Organised Crime Act (MCOC Act), 1999, the time for investigation can be extended beyond the 90-day period if an application is made for a time extension for up to 180 days.

As per Section 21 (2) (b) of the MCOC Act, the application must be moved "on 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."

In the instant case, an application was made by the investigating agency seeking more time to investigate offences registered against the accused under the IPC, the Arms Act and the MCOC Act.

The Special Court accepted the application by the investigating agency and rejected the plea made for default bail by the accused after the lapse of 90 days.

On appeal, the Bombay High Court found merit in the submissions made for the accused that the Public Prosecutor had not filed a report in due compliance with Section 21 (2) (b) of the MCOC Act.

The Bench proceeded to emphasise,

"... the role of the Public Prosecutor and has considered it to be a one of applying mind independently to the request of the Investigation Agency, before submitting his report to the Special Court approving the request for extension of time. He is not a mere postman or a forwarding agency."
Bombay High Court

For the benefit of the litigants and the lawyers, the Court proceeded to enlist the ingredients to be considered by the prosecutor while making such a report, i.e.:

  • Reasons evidencing the personal satisfaction of the public prosecutor as regards the progress in investigation made,

  • The reasons for which the investigation could not be completed and

  • The object to be achieved through investigation for which an extended period of time is necessary.

The Court added that the report "cannot be in the form of a miscellaneous application to be filed for seeking extension of time." This independent report should accompany the Investigation Agency's report, as also laid down in Section 21 (2) (b) of the MCOC Act.

The Court has now directed the Registrar (Judicial) to circulate a copy of this order to the Chief Secretary of the State, the Director-General of Police and the Director of Prosecution so that directions can be issued to prosecutors for meticulously following the law in the submission of their report on the reasons for extending the time to investigate.

The issue of the report arose when the bail applicant pointed out to the Court that no report had been filed under Section 21(2)(b) of the MCOC Act by the prosecutor before the Special Court when seeking an extension of time to complete the investigation.

Relying on Supreme Court judgments, it was submitted that the applicant was entitled to default bail under Section 167 (2) of the CrPC.

While hearing the matter, the Court found that the ‘report’ which was submitted before the Special Court was a one-page application. Expressing its dissatisfaction over the same, the High Court explained that the prosecutor has to give his reasons for agreeing with the Investigating Agency.

If he is not convinced with the reasons given by the Investigative Agency in seeking an extension of time, then he has the “freedom to disagree” and it is “within his power to refuse” to forward that report, the High Court said.

The court eventually granted default bail after considering the provisions of Section 167(2), CrPC and on finding that the Special Court's order rejecting the same was cryptic in its reasoning.

The Court however upheld the conditions imposed by the Special Court while granting bail.

Read order here:

Aurangabad Bench_29092020.pdf

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