KAMAL CHAUHAN Vs. NATIONAL INVESTIGATION AGENCY

JUDGEMENT

(1.) Accused Kamal Chauhan has filed this appeal under Section 21 of the National Investigation Agency Act, 2008 (hereinafter referred to as 'the Act') challenging the order dated 9.5.2012 passed by the NIA, Special Court, Panchkula, whereby the application moved by the respondent for extending the period of completing investigation from 90 days to 180 days was allowed.

(2.) Accused Kamal Chauhan was arrested on 12.2.2012 in NIA Case No. 9 of 2010, which was registered under Sections 16, 18 of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as 'the UA (P) Act'], 302, 307, 124A, 438, 440 of the Indian Penal Code, 150, 151, 152 of the Railway Act, 3, 4, 6 of the Explosive Substances Act, 1908 and 3/4 of the Prevention of Damage to Public Property Act, 1984, pertaining to the Samjhauta Express Train blast, in which 68 persons died and 12 other persons were injured. During investigation, after initial police remand, accused Kamal Chauhan was sent to judicial custody and the investigation period of 90 days as provided under Section 167 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') read with proviso to Section 43-D (2) (b) of the UA (P) Act was going to expire on 11.5.2012. On 9.5.2012, an application, seeking extension of the period of completing investigation and filing supplementary challan against the accused from 90 days to 180 days, was moved by the National Investigation Agency through Inspector R.S. Jambwal. In the application, it was stated that investigation of the case is at the crucial stage and is spread over the different states to trace out the origin of the explosive used. It was further stated that travelling records of the accused persons from Madhya Pradesh to New Delhi, records pertaining to stay at New Delhi, details of communication used during the pre/post bomb explosion, bank records of the accused person were required to be verified. It was also stated that the other close associates of the accused were evading their arrest and if the accused gets free under the default clause, the other co-accused will not be apprehended. The NIA, Special Court, allowed the said application on 9.5.2012, while observing as under :-

(3.) Accused Kamal Chauhan has challenged the aforesaid order on two grounds. Firstly, that before granting extension of the period to complete investigation, the accused must be issued notice, so that he may be able to oppose such prayer on all legitimate and legal grounds, available to him. In the present case, neither the notice of the application was issued to the accused or his counsel, nor the accused was present at the time of passing of the impugned order. Thus, the principle of natural justice has not been complied with in this case. Therefore, the impugned order is illegal and liable to be set aside. Secondly, learned counsel argued that before extending the time to complete investigation, report of the Public Prosecutor was not placed before the court and without examining such report, the time has been extended by the trial court. It has been further argued that the application seeking extension of the time to complete investigation could be filed by the Public Prosecutor after applying his independent mind to the request of the investigating agency, but the investigating agency itself has no right to file an application seeking extension of time to complete the investigation. In the present case, without filing the report of the Public Prosecutor, straight way an application was filed by the investigating agency, which was illegally allowed without application of mind, without scrutinising the progress of the investigation and without furnishing the reasons for granting extension of time to complete the investigation. In support of his submissions, learned counsel for the appellant relies upon Hitendra Vishnu Thakur v. State of Maharashtra, 1994 SCC(Cri) 1087 and Sanjay Dutt v. State through C.B.I., Bombay (II), 1994 5 SCC 410.