N.D. Patnaik, J.@mdashThe petitioner, Sri Kondapalli Seetharamayya, who was accused in Crime No. 1 of 1993, Investigation Cell, Intelligence, Hyderabad, registered under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short TADA) and Section 8 of A.P. Public Security Act, was arrested on 20th March, 1993 at Anamanapudi village, Krishna district. Susbsequently he was produced before the designated Court, i.e. Metropolitan Sessions Judge, Hyderabad and remanded to Judicial custody and is now lodged in the Central Jail, Musheerabad, Secunderabad. On 19-3-1994 a charge sheet was filed against him along with two others under Sections 3 and 4 of TADA Act and Section 8 of the A.P. Public Security Act in the Court of the Metropolitan Sessions Judge, Hyderabad which is the designated Court under the TADA Act. The designated Court had taken cognizance of the case and registered it as Sessions Case No. 130 of 1994 and made over to the IV Additional Sessions Judge, which is also a designated Court under the TADA Act. On 23-3-1994 another charge-sheet was filed against the petitioner and other accused for offences u/s 120B, I.P.C., read with Section 3(1)(3) and (4) of TADA Act and Section 8 of the A.P. Public Security Act.
2. The petitioner filed bail application on 5-5-1994 before the designated Court to release him on bail which was dismissed. Subsequently he has filed this application under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus or similar order or direction and declare the detention of the petitioner as illegal and enlarge the petitioner on bail as required by Section 167 of the Criminal Procedure Code.
3. Before going into the respective contentions of the parties we would like to refer to the relevant provisions of the Criminal Procedure Code and the TADA Act.
4. Section 167(2), Cr.P.C., says that the Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days on the whole. The proviso to sub-section (2) of Section 167, Cr.P.C., reads as follows :
"Provided that -
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused persons shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provision of Chapter XXXIII for the purpose of that Chapter".
Section 20 sub-section (4) of the TADA Act as amended by Act 43 of 1993 says that "Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that -
"(a) the reference in sub-section (1) thereof to "Judicial Magistrate" shall be construed as a reference to "Judicial Magistrate or Executive Magistrate or Special Executive Magistrate;
(b) the reference in sub-section (2) thereof to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as reference to "sixty days" (one hundered and eighty days) and (one hundered and eighty days) respectively; and
(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely :-
Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, 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 one hundred and eighty days; and" .. .. ..
Therefore, in respect of the offence involving TADA Act the accused cannot be detained for a period of more than 180 days unless the charge sheet is filed; but the designated Court can extend the said period of 180 days up to one year, if it is satisfied that it is not possible to complete the investigation within the said period of 180 days.
5. The petitioner contended in his affidavit, inter alia, that his detention after completion of 180 days is unlawful even if some charge sheet has been filed on the last day of the completion of the remand period of one year.
6. In the counter affidavit filed by the 3rd respondent it is stated that the designated Court has been extending the term of the petitioner to the judicial custody from time to time. It is not in dispute that the designated Court has remanded the petitioner to judicial custody from time to time extending up to the period of one year from the date of his arrest, which is 20th March, 1993. As we have referred to above, a charge sheet was filed against the accused on 19-3-1994 under Sections 3 and 4 of the TADA Act and Section 8 of the Public Security Act i.e. within the period of one year and further charge sheet was filed on 23-3-1994 u/s 120B, I.P.C. read with Section 3(1)(3) and (4) of the TADA Act, and Section 8 of the A.P. Public Security Act.
7. Sri K. G. Kannairan, the learned counsel for the petitioner, contends that there is absolutely no investigation into the offence registered against the petitioner herein but the charge sheet which was filed on 19-3-1994 is a re-production of the additional charge sheet filed against some other accused in S.C. No. 207/1993 and therefore it cannot be considered to be a charge sheet all in the eye of law. As regards the second charge sheet 23-3-1994 he contends that Section 120B, I.P.C. deals with criminal conspiracy whereas the charge sheet is filed u/s 120B read with Section 3(1)(3) and (4) of TADA Act which also deals with conspiracy and he contends that there cannot be a conspiracy to commit another conspiracy. He has contended that these two charge sheets were filed by the investigating officer in the mala fide exercise of their power in order to detain the accused in prison as an undertrial prisoner on account of his political philosophy.
8. On the other hand, Sri Ravender Rao, representing the learned Advocate General, produced before us the case diary in Crime No. 1/1993 registered against the petitioner and two others, which shows the investigation made by the investigating agency culminating in the filing of the two charge sheets. It is contended that as the charge sheet is filed within one year, the detention is no longer illegal. He has pointed out that the additional charge sheet in S.C. 207/1993 was filed on 12-4-1994 i.e. subsequent to the filing of the charge sheet against the petitioner herein on 19-3-1994 and therefore it cannot be contended that the charge sheet against the accused is physical reproduction of the charge sheet filed in S.C. 207/93. He has contended that the petitioner, Sri Kondapalli Seetaramayya is also involved in the conspiracy for commission of those offences though he was not shown as accused in the case and therefore a chargesheet is filed against the petitioner on those allegations also.
9. We have compared the allegations made in the additional charge sheet in S.C. No. 207/93 with the allegations made in the present charge sheet. In the additional charge sheet filed in S.C. 207/93 there are references to the role played by Sri. K. Seetaramayya in the meeting held by the party and it is stated that in pursuance of the criminal conspiracy hatched by these accused and from the action plans the accused have passed on and by utilising the arms and ammunition the accused have provided, the activities of CPI (ML) group and Peoples War Group have committed brutal offences. A list of offences committed throughout the State is given. Insofar as the offences committed in Hyderabad city is concerned a list of 9 offences has been given.
10. In the charge-sheet filed against the petitioner and two others on 19-3-1994 eight offences have been mentioned and a comparison with the additional charge sheet in S.C. No. 207/93 shows that they are the same as the offences noted in the additional charge sheet of S.C. 207/93 omitting Crime No. 43 of 1993 of Saifabad police station. The eight charges listed in charge sheet dated 19-3-1994 are :-
(1) Cr. No. 176/91, u/Ss. 148, 120B, 382, 307, 449, 365, I.P.C., Sections 25(1)(a), 27 of Arms Act, 1959, Ss. 3 and 4 of TADA Act of P. S. Narayanaguda.
(2) Cr. No. 240/91, u/Ss. 147, 148, 302, I.P.C. of P. S. Nallakunta, Hyderabad.
(3) Cr. No. 314/90, u/Ss. 436, 302, 307, I.P.C. of Govt. Railway Police, Secunderabad.
(4) Cr. No. 311/90, u/S. 302, I.P.C., Sections 25, 27 of I.A. Act, of P. S. Malkajigiri, R.R. Dist.
(5) Cr. No. 138/91, u/Ss. 147, 307, I.P.C. of P. S. Sanathnagar, R.R. District.
(6) Cr. No. 256/91 u/Ss. 3 and 4 of Explosive Substances Act of P. S. Sanathanagar, R.R. Dist.
(7) Cr. No. 360/91, u/S. 302, I.P.C. r/w. 25(1) of Indian Arms Act and Ss. 4 and 6 of TADA Act of P. S. Saroornagar.
(8) Cr. No. 510/91, u/Ss. 147, 148, 447, 307, 324 r/w, 149, I.P.C. of P. S. Saroornagar, R.R. Dist.
11. The learned counsel for the petitioner has pointed out that regarding 8 offences mentioned in the charge sheet filed against the petitioner and two others Item No. 3 i.e. Cr. No. 314/90 of G.R.P. Secunderabad ended in acquittal. Item Nos. 4, 5 and 6 were closed as undetectable. Item No. 7 the accused are discharged under TADA Act. With regard to Item No. 8 no charge sheet is yet filed. He has pointed out that with regard to the offences covered by Items 2 and 8 there is no reference to TADA Act. So, only with regard to 1st item i.e. Crime No. 176/91 in which charge sheet is not yet filed, reference to the provisions of I.P.C., as well as TADA Act is made. Mr. Ravinder Rao, has drawn out attention to a memo filed by the Investigating Officer in the designated Court on 23-3-1994 about the stage of those cases. He has contended that since the petitioner Kondapalli Seetaramayya was also a party to the conspiracy in pursuance of which the above offences were committed, the charge sheet dated 19-3-1994 is filed against him for the same offences for which additional charge sheet in S.C. No. 207/93 was filed against some other accused also. Even if some of the cases were closed as undetectable and one case ended in acquittal and in two other cases the provisions of TADA Act are not invoked, still one offence i.e. Cr. No. 176/91 of Narayanaguda P.S. committed in pursuance of the conspiracy in the metropolitan areas of Hyderabad and Rangareddy district is there, where a charge sheet is yet to be filed and there is possibility of the petitioner being prosecuted as accused in that case. Therefore, it cannot be said that there is no offence against the petitioner under TADA Act and the charge sheet in the present case is filed only in order to continue his detention in the jail as undertrial prisoner. We are, therefore, unable to agree with the contention of Sri K. G. Kannabiran, the learned counsel for the petitioner that the additional charge sheet dated 19-3-1994 is filed without any investigation.
12. In the charge sheet dated 19-3-1994 it is stated that the offences u/s 120B, I.P.C. read with Sections 121, 122, 123, 124A, I.P.C. are still pending investigation against the petitioner and some others u/s 173(8), Cr.P.C. Subsequently additional charge sheet dated 23-3-1994 is filed against the petitioner and others u/s 120B, I.P.C. read with Section 3(1)(3) and (4) of TADA Act and Section 8 of A.P. Public Security Act after examining two witnesses. Sri Ravindra Rao, has taken us through the statement of those witnesses. We are unable to accept the contention of the learned counsel for the petitioner that the second charge sheet is no charge sheet at all. His contention that there cannot be a conspiracy to commit another conspiracy and so there cannot be additional charge sheet u/s 120B read with Section 3 of TADA Act also cannot be accepted because it is for the Court before which the charge sheet is filed to consider what are the offences which are made out on the basis of statements of the witnesses.
13. It is further contended by Sri Kannabiran, the learned counsel for the petitioner, that both the charge sheets are filed by the investigating officer in the male fide exercise of his power, just to keep the petitioner in confinement in jail. We are also not convinced with this argument because, the record discloses that the investigating officer has filed the charge sheet after completing the investigation in the manner prescribed by the Criminal Code. If the investigation is not satisfactory or if there is no sufficient evidence against the petitioner that is a matter, which has got to be considered by the trial Court i.e. the designed Court, which is seized of the the case. But, it cannot be said that the action of the investigating officer in filing the two charge sheets against the accused is mala fide. In the decisionn reported in State of Bihar v. P. P. Sharma 1992 SCC 192, Ramaswamy, J observed in para 30 as follows :-
"Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercise discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power"
There is no allegation of personal bias against the investigation officer. But the contention is that there is an oblique motive in filing the charge sheet in keeping the petitioner in detention in the jail as undertrial prisoner. As we have stated above earlier we do not find any material to substantiate this allegation. Moreover, the investigating officer is not made as respondent to meet that allegation. In para 55 of the above said judgment it is stated that, "It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity". Therefore we are unable to accept the contention of the learned counsel for the petitioner that these two charge-sheets are filed in the mala fide exercise of power and so they should be ignored.
14. For the reason stated above, we are unable to agree with the contention of Sri K. G. Kannabiran, the learned counsel for the petitioner, that there is no charge sheet dated 19-3-1994 in the eye of law and since the charge sheet is not filed within one year the petitioner is entitled for release u/s 167 Cr.P.C.
15. The next contention is that u/s 167 Cr.P.C. as amended by Section 20 of TADA Act the charge sheet should be filed within 180 days. The proviso says that where it is not possible to complete the investigation in the said period of one hundred and eighty days, it can be extended up to one year on the report of the Public Prosecutor. But, in this case as no report is filed by the Public Prosecutor it is contended that the designated Court ought to have released the petitioner on bail after the expiry of the period of 180 days. The proviso to Section 167(2) Cr.P.C. says that where the charge sheet is not filed within the prescribed time the accused person shall be released on bail, if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. In
"In conclusion we may (even at the cost of repetition) say that an accused person seeking bail u/s 20(4) has to make an application to the Court for grant of bail on grounds of the ''default'' of the prosecution and the Court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail u/s 20(4) of TADA and both the provisions operate in separate and independent fields."
In this case admittedly no application has been filed by the petitioner for release on bail after the expiry of the period of 180 days on the ground that no charge sheet is filed by the investigating agency. He has filed the bail application in the designated Court only after the charge sheet is filed on 19-3-1994 and the present application in the High Court is filed after that bail application is dismissed. In
16. The last contention urged by the learned counsel for the petitioner is that this Court in exercise of its powers under Article 226 of the Constitution may grant bail to the petitioner. In Kartar Singh v. State of Punjab it is stated in para 359 as follows :-
"Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption, Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or other (not being an interlocutory order) of a Designated Court etc. The overriding effect of the provisions of the Act (i.e. Section 25 of TADA Act) and the Rules made thereunder and the non-obstante clause in Section 20(7) reading, "Notwithstanding anything contained in the Code." clearly postulate that is granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in
17. Therefore, though under Article 226 of the Constitution this Court has got jurisdiction to entertain bail application and grant bail, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. Having regard to the serious allegations made against the petitioner herein in both the charge sheets i.e. 19-3-1994 and 23-3-1994 we feel that this is not a case where we can interfere exercising the jurisdiction of this Court under Article 226 of the Constitution and grant bail to the petitioner. Therefore, the request of the learned counsel for the petitioner on that ground also is rejected.
18. In the result, the writ petition is dismissed.
19. Petition dismissed.
