The Delhi High Court in the matter of Khalid Vs. STATE (Govt. of N.C.T. of Delhi) held that the Accused is not entitled to get a copy of the application seeking an extension of the time for the completion of the investigation and also of the reports submitted by the prosecutor in terms of proviso of section 167 of the code inserted by virtue of section 43D (2) of Unlawful Activities (Prevention) Act, 1967
An F.I.R. no. 59/2020 was registered under section 147/148/149/120B I.P.C., on 06.03.2020 by SI Arvind Kumar of Delhi Police based on the information received from one of his informer who informed that the riots which took place in Delhi on 23rd, 24th and 25th of February 2020, were a result of a conspiracy. One Umar Khalid, a student of Jawahar Lal Nehru University and his accomplices, were alleged to be the conspirator of these riots from a different organisation. Umar Khalid was also alleged to have delivered hate speeches in different places. He also appealed persons to come and obstruct public road so that people could believe internationally that the minorities have been oppressed. He was also alleged to call women and children to protest at different places in Delhi, and weapons like firearms, petrol bomb, acid bottles were collected at Chand Bagh, Gokul Puri, Shiv Vihar and other areas. F.I.R. further alleges that Danish had the responsibility for assembling mobs from outside the other areas; therefore, only Khalid and Danish were named in the F.I.R.
The investigating agency on 15.03.2020 added some more offences under section 120B, 302,307,124A,153A,186,353,395,427,435,436,452,454, 109 and 114 IPC ; Section 3 and 4 of the prevention of Damage Of Public Property Act, 1984; and Section 25 and 27 of Arms Act, 1959. After that, offences under section 13/16/17 & 18 of UAPA were also added on 19.04,2020. Consequently, the petitioner was arrested and taken into police custody for remand. On various occasion, police applied for the extension of time for the completion of the investigation, which was allowed by the Court.
There were two main questions involve d in the petition. First is, whether the accused had a right to be heard for opposing the application filed for the extension of time to complete the investigation in terms of proviso to section 167 of the code of criminal procedure inserted by virtue of section 43D(2) of UAPA.
Second – If the answer of the first question is yes, whether the accused had a right to copy of the application filed for the extension of time to complete the investigation and also of the report submitted by the public prosecutors in terms of proviso to section 167 inserted by virtue of section 43D(2) of UAPA.
CONTENTION OF THE PARTIES
The petitioner and co-accused contended that they were entitled to a copy of the application filed for the extension of time for the completion of the investigation and for extending the period of judicial custody to oppose the same. He contended that in the case of Sharjeel Imam Vs. State Crl. M.C. 1475/2020, decided on 10.07.2020, the accused were supplied the documents relied upon by the prosecution which were also part of the criminal miscellaneous petition. He further contended that the petitioner had a right to be heard to oppose the application as has been held by the Supreme Court in Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors. (1994) 4 SCC 602. The petitioner also submitted that he also had a right to be communicated about the grounds of the application for the extension of time for the completion of the investigation. Therefore, he further pleaded that prosecution must have supplied the copy of the application and the grounds for making such application.
However, the Respondents contended that there was no question of supplying a copy of the application to the accused filed for the extension of time for the completion of the investigation. The prosecution relied upon the case of Sanjay Vs .state through C.B.I. Bombay (II) (1994) 5 SCC 410. It was further contended that through Sanjay Dutt’s case the Supreme Court has overruled the decision of Hitendra Vishnu Thakur case and now the presence of the accused during the hearing is the only requirement to afford an opportunity of being heard to oppose the application for the extension of time for the completion of investigation which
had been complied.
FINDINGS OF THE COURT
The Court observed that by virtue of proviso of section 167 of the code of criminal procedure as inserted by section 43D (2) of UAPA, the period of the extension could be extended beyond the period of one hundred and eighty days if the report of the public prosecutor indicates the progress of the investigation and the Court is satisfied in respect of the progress of the investigation, and there is a requirement of further time to complete the investigation.
The Court observed that the contention of the state to the effect 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 the extension of his judicial custody or extension of time for completion of the investigation is, plainly, unacceptable. The Court held that the Supreme Court qualified that such notice [in
terms of the decision in Hitendra Vishnu Thakur (supra)] to mean a notice to the accused which requires his production in Court in accordance with Section 167(1) of the Cr.PC.
The Court further observed that the requirement of such notice is not a written notice it only means the presence of the accused in the Court when the Court was considering the application for extension of time for the completion of the investigation. Thus, a notice was required to be issued to the accused of being present in the Court when such application was to be considered by the Court.
It was further held that the right of the accused to have a detailed reason for the application needs to be curtailed as it may frustrate the investigation, which was incomplete and in progress. If the manner of the investigation to be conducted was disclosed to the accused, this might tamper the evidence which was yet to be taken. Concealment of such reports does not mean that the accused has been denied the right to oppose, accused can bring the facts and circumstances of the case before the Court as may be necessary for opposing the application. Hence, the Court held that the accused had a right to oppose the application for the extension of time for the completion of the investigation.
The accused do not have a right to copy of the reports of the prosecutor, as, such reports were maintained as police diary under section 174 of the code of criminal procedure and used to satisfy the Court regarding the investigation and extension of time to complete the same. It was to be done to ensure that the investigation does not get frustrated, and the manner of the investigation should not be disclosed to the accused who may adversely affect the same. Therefore, the accused does not have such right to a copy of the reports of the prosecutor.
Therefore, given the above, the Court held that the accused has a right to oppose the application for the extension of time for the completion of the investigation but does not have a right of the copy of the reports of the prosecutor or application seeking an extension of time for investigation.