Jigar @ Jimmy Pravinchandra Adatiya vs State Of Gujarat

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1656 OF 2022 [Arising out of SLP (Crl.) No. 7696 of 2021]

Jigar @ Jimmy Pravinchandra Adatiya … Appellant

v.

State of Gujarat … Respondent

WITH

Criminal Appeal No.1657 OF 2022 [Arising out of SLP (Crl.) No. 7609 of 2021]

WITH

Criminal Appeal Nos.1658­1659 OF 2022 [Arising out of SLP (Crl.) Nos.7678­7679 of 2021]

AND

Criminal Appeal No. 1660 OF 2022 [Arising out of SLP (Crl.) No. 7758 of 2021]

JUDGMENT

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2022.09.23 17:05:00 IST Abhay S. Oka, J.

Reason:

Leave granted.

2 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

FACTUAL ASPECTS

2. The appellants are the accused in FIR

No.112020082021862020 registered with Jamnagar City ‘A’

Division Police Station in Gujarat for the offences under

Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of The Gujarat

Control of Terrorism and Organised Crime Act, 2015 (for

short ‘the 2015 Act’). Section 167 of the Code of Criminal

Procedure, 1973 (for short ‘CrPC’) has been amended in

relation to the cases involving offences punishable under the

2015 Act. By virtue of sub­section (2) of Section 20 of the

2015 Act, a proviso has been added in addition to the

existing proviso to sub­section (2) of Section 167 of CrPC

which permits the Special Court established under the 2015

Act to extend the period of 90 days provided to complete the

investigation up to 180 days. The Special Court is

empowered to extend the period up to 180 days on a report of

the Public Prosecutor setting out the progress of the

investigation and the specific reasons for continuing

detention of the accused beyond the period of 90 days. 3 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

3. The aforesaid First Information Report was registered

on 15th October 2020. The accused were arrested on different

dates. Reports were submitted by the Public Prosecutor

seeking extension of time up to 180 days to complete the

investigation. In three cases, the reports were submitted on

8th January 2021, and in one case, it was submitted on 21 st

January 2021. The prayer for extending the time up to 180

days was allowed by the Special Court on the very day on

which the applications were filed. Being aggrieved by the said

orders of the Special Court, separate applications under

Section 482 of CrPC were preferred by the appellants. By the

impugned common Judgment dated 15th September 2021,

the learned Single Judge of Gujarat High Court rejected the

applications made by the appellants under Section 482 of

CrPC. The details such as the respective dates of arrest and

the dates of making applications are as under:­

S. Name of the Particulars Date of Date of Date of No. accused Arrest filing filing application application under for default Section bail 20(2)(b) of GUJCTOC 1 Nileshbhai Criminal 16.10.2020 08.01.2021 04.02.2021 Mansukhbhai Misc.

Tolia Application Allowed on No.4901 of the same 4

Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

2021 (SLP day (Crl.) No.7758/ 2021)

2 Vasantbhai @ Criminal 01.11.2020 21.01.2021 02.02.2021 Vasantrai Misc.

Liladharbhai Application Allowed on Mansata No.4902 of the same 2021 (SLP day (Crl.) No.7609/ 2021) 3 Yashpalsinh Criminal 28/ 08.01.2021 03.02.2021 Mahendrasinh Misc. 29.10.2020 Jadeja and Application Allowed on Jashpalsinh No.4904 of the same Mahendrasinh 2021 day Jadeja (SLP (Crl.) No. 7678­79/ 2021)

4 Jigar @ Jimmy Criminal 16.10.2020 08.01.2021 03.02.2021 Pravinchandra Misc. Adatiya Application Allowed on No.4928 of the same 2021 (SLP day (Crl.) No.7696/ 2021)

4. The main ground urged in support of the appeals is

that when the Special Court passed orders on the reports

submitted by the learned Public Prosecutor by which time to

complete investigation was extended up to 180 days, the

presence of none of the accused was procured either

physically or through video conference and that they were 5 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

not even informed about the reports submitted by the Public

Prosecutor.

SUBMISSIONS OF THE APPELLANTS

5. Ms. Nitya Ramakrishnan, the learned senior counsel

appearing for the appellants has made detailed submissions.

Reliance has been placed on the decisions of this Court in the

case of Hitendra Vishnu Thakur and others v. State of

Maharashtra and others1 and Sanjay Dutt v. State through

CBI, Bombay (II)2. Her submission is that when the Special

Court exercised the power under the proviso added by sub­

section (2) of Section 20 of the 2015 Act to sub­section (2) of

Section 167 of CrPC, the presence of the appellants was

admittedly not procured even through video conference.

Admittedly, before the reports submitted by the Public

Prosecutor seeking extension of time up to 180 days were

considered, the Special Court did not inform the appellants

about such reports being filed by the Public Prosecutor. Her

submission is that in the case of Sanjay Dutt2, the

Constitution Bench of this Court has clearly laid down that

1 (1994) 4 SCC 602 2 (1994) 5 SCC 410 6 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

the production of the accused before the Special Court on the

date on which such a report is considered is mandatory and

that by producing the accused before the Court, he must be

informed about such a report submitted by the Public

Prosecutor. Thus, there is a violation of the mandate of law

laid down by the Constitution Bench of this Court. She

pointed out that the appellants moved applications for grant

of default bail as they were not aware of the filing of the

reports by the Public Prosecutor and the orders of the Special

Court extending the period for investigation. In view of the

extension of time granted by the Special Court, the case of

the appellants for grant of default bail under sub­section (2)

of Section 167 of CrPC was not considered by the Special

Court. On 9th April 2021, a charge sheet was filed by the

police. Her submission is that the order granting extension

to complete investigation is completely illegal as the same has

been passed without following the mandate laid down in the

case of Sanjay Dutt2. Her submission is that the order

granting extension passed by the Special Court deserves to

be set aside. As the applications for default bail were made

by the appellants after the expiry of the statutory period of 90 7 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

days but before filing the charge sheet, the appellants are

entitled to default bail.

6. The learned senior counsel submitted that the decision

of this Court in the case of Hitendra Vishnu Thakur1 was

modified by the Constitution Bench in the case of Sanjay

Dutt2 on a very limited aspect. She submitted that the

requirement of law laid down in the case of Hitendra Vishnu

Thakur1 regarding procuring the presence of the accused at

the time of considering the report seeking extension of time

and requirement of putting the accused to the notice of the

filing of such a report has not been disturbed in the case of

Sanjay Dutt2. On the contrary, the decision of the

Constitution Bench in the case of Sanjay Dutt2 reiterates the

mandatory requirement of production of the accused before

the Court at the time of consideration of the report submitted

by the Public Prosecutor. The only modification made by the

Constitution Bench in the decision of Hitendra Vishnu

Thakur1 is by holding that the mode of giving notice to the

accused is by informing him about the filing of such a report

by producing him before the Special Court and a written 8 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

notice is not required. Her submission is that as this Court

in the case of Sanjay Dutt2 has laid down the requirement of

informing the accused about the filing of a report seeking

extension of time up to 180 days, it is obvious that the

accused on receiving the intimation is entitled to object to the

prayer made by the Public Prosecutor for grant of extension

of time. However, it is not necessary for the Special Court to

supply a copy of the report submitted by the Public

Prosecutor to the accused. Her submission is that the

proviso added by sub­section (2) of Section 20 of the 2015 Act

is pari materia with the proviso added by clause (bb) of sub­

section (4) of Section 20 of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (for short ‘TADA Act”) to sub­

section (2) of Section 167 of CrPC. Therefore, the decisions of

this Court in the case of Hitendra Vishnu Thakur1 and

Sanjay Dutt2 will squarely apply to the facts of the case. She

pointed out that the decision of this Court in the case of

Sanjay Dutt2 was consistently followed in many decisions by

this Court. In the case of Ateef Nasir Mulla v. State of

Maharashtra3, this Court followed the law laid down by this 3 (2005) 7 SCC 29 9 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

Court in both the aforesaid decisions while dealing with the

similar provisions under clause (b) of sub­section (2) of

Section 49 of Prevention of Terrorism Act, 2002 (for short

‘POTA’). She submitted that while dealing with a similar

provision in the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short ‘NDPS Act’), in the case of Sanjay Kumar

Kedia Alias Sanjay Kedia v. Intelligence Officer, Narcotics

Control Bureau and Another4, this Court followed the

decision in the case of Hitendra Vishnu Thakur1. The

learned senior counsel also invited our attention to a decision

of this Court in the case of S. Kasi v. State through the

Inspector of Police Samaynallur Police Station Madurai

District5. She also invited our attention to another decision

in the case of Bikramjit Singh v. State of Punjab6. She

urged that in both the aforesaid decisions, this Court held

that the right to get default bail under sub­section (2) of

Section 167 of CrPC is not merely a statutory right but a

fundamental right guaranteed to an accused. She also

referred to another decision of this Court in the case of M. 4 (2009)17 SCC 631 5 2020 SCC OnLine SC 529 6 (2020) 10 SCC 616 10 Crl.A.@SLP(Crl.)No.7696 of 2021 etc. Ravindran v. Intelligence Officer, Directorate of Revenue

Intelligence7 which holds that sub­section (2) of Section 167

of CrPC is integrally linked to the constitutional commitment

under Article 21 of the Constitution of India promising

protection of life and personal liberty against unlawful and

arbitrary detention. Therefore, the provision of sub­section

(2) of Section 167 should be interpreted in a manner that

serves this object. She also relied upon a decision of the

Karnataka High Court in the case of Muzammil Pasha &

Ors. Etc. v. National Investigating Agency etc.8.

7. Her submission is that in violation of the law laid down

by the Constitution Bench in the case of Sanjay Dutt2, the

time to carry out the investigation was extended by the

Special Court. Therefore, the said order is completely illegal

as it infringes the right of the appellants to get default bail

which is held to be a fundamental right guaranteed by Article

21 of the Constitution of India.

SUBMISSIONS OF THE RESPONDENT

7 (2021) 2 SCC 485 8 2021 SCC OnLine Kar 12688 11 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

8. Shri Aman Lekhi, the learned Additional Solicitor

General of India (ASG) submitted that the accused is not

entitled to a written notice of the reports submitted by the

Public Prosecutor for seeking extension of time. He submitted

that the report of the Public Prosecutor is considered by the

Special Court at a stage when the investigation is in progress.

His submission is that accused has no say in the matter of

grant of extension of time as he has no right of being heard at

the stage of the investigation. He relied upon a decision of

this Court in the case of Narender G. Goel v. State of

Maharashtra and Anr.9.

9. Learned ASG further submitted that the inquiry at the

time of consideration of the report submitted by the Public

Prosecutor for extension of time is very limited. He relied

upon a decision of this Court in the case of State of

Maharashtra v. Surendra Pundlik Gadling and Ors.10. He

submitted that if a report is submitted by the Public

Prosecutor indicating the progress of the investigation and

the specific reasons for continuing the detention of the

9 (2009) 6 SCC 65 10 (2019) 5 SCC 178 12 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

accused beyond a period of 90 days, the Special Court is

empowered to grant the extension. He submitted that in the

present case, the reports submitted by the Public Prosecutor

indicate that there was an application of mind by the Public

Prosecutor and all details as required were submitted. He

urged that the decision of this Court in the case of Sanjay

Kumar Kedia4 is per incuriam as the binding precedent in the

case of Sanjay Dutt2 was not considered by this Court.

10. His submission is that the obligation to produce the

accused before the Court is mandatory only when his

detention in police custody is sought. He submitted that

mere non­production of the accused on the day on which the

Special Court considered the request for the grant of

extension of time will not vitiate the order extending the time.

His submission is that in view of Section 460 of CrPC, the

order will not stand vitiated. His submission is that in any

case, no prejudice has been caused to the appellants due to

their non­production and there has been no failure of justice.

Learned ASG submitted that physical production of the

accused was not feasible due to Covid­19 conditions and that 13 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

inadequate bandwidth prevented the virtual production of the

accused persons. He submitted that the reasons given by the

High Court are cogent and correct.

REJOINDER OF THE APPELLANTS

11. By way of rejoinder, the learned senior counsel

appearing for the appellant submitted that without disturbing

the law laid down in the case of Hitendra Vishnu Thakur1,

the Constitution Bench in the case of Sanjay Dutt2 has held

that service of written notice to the accused is not necessary

and it would suffice if the accused was present in the Court

and was informed that the request for extension of time to

complete the investigation is being considered. She submitted

that there is no material placed on record to show that in

January 2021 when the reports submitted by the Public

Prosecutor were considered by the Special Court, either the

Standard Operating Procedure prevailing at that time

prohibited the physical production of the accused or there

was no proper connectivity which prevented the production

even virtually. Her submission is that the said plea has no

foundation at all.

14 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

FURTHER SUBMISSIONS

12. On 09th February 2022, submissions were concluded.

Thereafter, we noticed that sub­section (5) of Section 20 of

the 2015 Act was not brought to our notice during the course

of submissions. Therefore, on 10th March 2022, the appeals

were again listed on Board for further hearing, and time was

granted to the learned counsel appearing for the parties to

make further submissions on the limited issue of the

applicability of sub­section (5) of Section 20 of the 2015 Act.

Thereafter, the appeals could not be listed immediately due

to the change of the constitution of the Bench. Ultimately,

further submissions were heard on 23rd August 2022.

13. Ms. Nitya Ramakrishnan, learned senior counsel

appearing for the appellants pointed out that though sub­

section (5) of Section 20, which overrides the provisions of

CrPC, provides that the accused shall not be granted bail if it

is noticed by the Special Court that he was on bail in an

offence under the 2015 Act or under any other Act on the

date of the offence in question, the same will not come in the

way of the appellants getting default bail. She pointed out 15 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

that an identical provision in the form of sub­section (5) of

Section 21 of the Maharashtra Control of Organised Crime

Act, 1999 (for short, ‘the MCOCA’) has been partially struck

down by the Bombay High Court in the case of Bharat

Shanti Lal Shah & Ors. v. State of Maharashtra11. She

pointed out that this Court in the case of State of

Maharashtra v. Bharat Shanti Lal Shah & Ors. 12 has

affirmed the said view. This Court, for reasons recorded,

held that the expression “or under any other Act” as

appearing in sub­section (5) of Section 21 of the MCOCA was

arbitrary and discriminatory.

RESPONSE OF THE SOLICITOR GENERAL OF INDIA

14. Shri Tushar Mehta, learned Solicitor General of India

submitted that in view of the pronouncement of law by this

Court in the case of Bharat Shanti Lal Shah12, sub­section

(5) of Section 20 of the 2015 Act will not by itself be an

impediment in the way of the appellants getting default bail.

With the permission of the Court, he made additional

submissions. He relied upon Section 461 of CrPC which

11 2003 All MR (Crl.) 1061 12 (2008) 13 SCC 5 16 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

contains an exhaustive list of irregularities that vitiate

proceedings. He urged that the irregularity alleged in this

case is not a part of the list of irregularities contained in the

said provision. He also invited our attention to sub­section

(2) of Section 465 of CrPC. His submission is that as held by

this Court in the case of Sanjay Dutt2, the accused is not

entitled to a written notice of the application made by the

Public Prosecutor for extension of the period provided to

carry out the investigation and only his presence is to be

procured when the application is heard by the Special Court.

He submitted that the accused is not entitled to receive a

copy of the application/ report made under the proviso to

sub­section (2) of Section 20 of the 2015 Act and, therefore,

he is not entitled to make any submissions on the report of

the Public Prosecutor. He submitted that there is no

prejudice caused to the appellants as a result of the failure of

the investigating agency to produce them before the Special

Court when applications for extension were heard. He

submitted that the failure to produce the appellants on the

date on which extension applications were heard, is a mere

irregularity in the proceedings which will have no effect on 17 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

further stages such as cognizance, trial, etc. On this aspect,

he relied upon a decision of this Court in the case of Fertico

Marketing & Investment Private Limited & Ors. v. Central

Bureau of Investigation & Anr.13. He also relied upon

another decision of this Court in the case of Securities and

Exchange Board of India etc. v. Gaurav Varshney & Anr.

etc.14. He urged that the applications for availing of default

bail were filed by the appellants after the time was extended

by the Special Court. He would, therefore, submit that the

appellants are not entitled to default bail. He also submitted

that the allegations against the appellants are of a very

serious nature. Even this aspect needs to be taken into

consideration.

CONSIDERATION OF SUBMISSIONS

15. We have carefully considered the submissions. The

entire issue revolves around the interpretation of the proviso

added by the 2015 Act to sub­section (2) of Section 167 of

CrPC. For that purpose, we must refer to Section 20 of the

2015 Act. The Section reads thus:­

13 (2021) 2 SCC 525 14 (2016) 14 SCC 430.

18 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

“20. Modified Application of Certain provisions of Code:

(1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act shall be deemed to be a 'cognizable offence' within the meaning of clause (c) of section 2 of the Code and 'cognizable case' as defined in that clause and shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that in sub­ section (2), ­

(a) the reference to "fifteen days" and "sixty days", wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively;

(b) after the existing 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 ninety days, the Special Court shall extend the said period upto one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of ninety days.".

(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

19 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless –

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Special Court is satisfied that there are reasonable grounds for believing that accused is not guilty of committing such offence and that he is not likely to commit any offence while on bail.

(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Special Court that he was on bail in an offence under this Act, or under any other Act on the date of the offence in question.

(6) The restriction on granting of bail specified in sub­sections (4) and (5) are in addition to the restriction under the Code or any other law for the time being in force on the granting of bail.

(7) The police officer seeking the custody of any person for pre­indictment or pre­trial interrogation from the judicial custody shall file a written statement explaining the reasons for seeking such custody and also for the delay, if any, in seeking the police custody.” [emphasis added]

We also reproduce sub­sections (1) and (2) of Section 167

of CrPC which read thus:­ 20 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

“167. Procedure when investigation cannot be completed in twenty­four hours.

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty­four hours fixed by section 57, and there are grounds for believing that the accusation or information is well­ founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub­inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) 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 fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

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 21 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub­section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.­­For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.­­If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.” [emphasis added] 22 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

16. Thus, in a case involving the offences punishable

under the 2015 Act, the Special Court is authorized to

detain the accused person in custody for a period not

exceeding 90 days. The proviso added by sub­section (2) of

Section 20 of the 2015 Act to sub­Section (2) of Section 167

of CrPC enables the Special Court to extend the said period

to a total of 180 days on the basis of a report of the Public

Prosecutor setting out the progress of the investigation and

incorporating the specific reasons for the detention of the

accused beyond the period of 90 days.

17. Thus, unless the Special Court exercises the power

under the proviso added by the 2015 Act to sub­section (2)

of Section 167 of CrPC, on the expiry of the period of 90

days, the accused will be entitled to default bail. When the

Special Court exercises the power under the proviso added

to sub­section (2) of Section 167 of CrPC and extends the

time up to 180 days, the accused will be entitled to default

bail only if the charge sheet is not filed within the extended

period.

23 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

18. As can be seen from sub­section (2) of Section 20 of

the 2015 Act, the provisions of Section 167 of CrPC and in

particular sub­section (2) thereof containing entitlement of

the accused to default bail will apply to the 2015 Act with

the modification that the reference to the period of “fifteen

days” and “sixty days” provided in sub­section (2) of Section

167 of CrPC is required to be construed as a reference to

“thirty days” and “ninety days” respectively. The proviso to

sub­section (2) of Section 20 of the 2015 Act enables the

Special Court to extend the period provided in sub­section

(2) of Section 167 of CrPC up to 180 days.

GENERAL PRINCIPLES GOVERNING DEFAULT BAIL

19. Before we go to the main controversy concerning the

legality of the order of extension passed in exercise of the

power under the proviso to sub­section (2) of Section 20 of

the 2015 Act, it is necessary to recapitulate the settled law

relating to default bail. Three decisions of the Benches of

three Hon’ble Judges of this Court have laid down the law

on this aspect.

24 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

19.(a) The first decision is in the case of Uday Mohanlal

Acharya v. State of Maharashtra15. In paragraph 13

thereof, the majority view has been summarised which

reads thus :

“…. …. …. ….

On the aforesaid premises, we would record our conclusions as follows:

1. Under sub­section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.

2. Under the proviso to the aforesaid sub­section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for 15 (2001) 5 SCC 453 25 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

the period of 90 days or 60 days, as specified and no charge­sheet has been filed by the investigating agency.

Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub­section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge­sheet is filed then the so­called indefeasible right of the accused would stand extinguished.

6. The expression “if not already availed of” used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 :

1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub­section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

With the aforesaid interpretation of the expression “availed of” if the charge­sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub­section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher 26 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

forum and while the matter remains pending before the higher forum for consideration a charge­sheet is filed, the so­called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge­ sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri) 202] .”

[emphasis added]

19(b) The second decision is in the case of M.

Ravindran7. The conclusions in the said decision can be

summarised as under :

(i) Majority view in the case of Uday Mohanlal

Acharya15 is correct;

(ii) Sub­section (2) of Section 167 of CrPC was enacted

for providing an outer time limit to the period of

remand of the accused proportionate to the

seriousness of the offence alleged. On the failure to

complete the investigation within the defined outer

limit, the accused acquires an indefeasible right to

get default bail;

27 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

(iii) The timelines provided under sub­section (2) of

Section 167, CrPC ensure that investigating officers

are compelled to act swiftly and efficiently without

misusing the prospect of further remand. This

provision ensures that the Court takes cognizance

of the case without undue delay after investigation

is completed within the time provided in sub­

section (2) of Section 167, CrPC;

(iv) The Legislature has enacted sub­section (2) of

Section 167 for balancing the need to provide

sufficient time to complete the investigation with

the need to protect civil liberties of the accused

which is given paramount importance in our

Constitution;

(v) Sub­section (2) of Section 167 is integrally linked to

the constitutional commitment under Article 21 of

the Constitution of India promising protection of the

personal liberty against unlawful and arbitrary

detention;

(vi) The decision of this Court in the case of S. Kasi5

was quoted with the approval which holds that the

indefeasible right to default bail is an integral part 28 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

of the right to personal liberty under Article 21 and

the said right cannot be suspended even during the

pandemic situation; and

(vii) It is well settled that in case of any ambiguity in the

construction of a penal statute, the Court must

favour the interpretation which leans towards

protecting the rights of the accused. This principle

is applicable even in the case of a procedure

providing for curtailment of liberty of the accused.

19.(c) The third decision is in the case of Rakesh

Kumar Paul v. State of Assam16. This decision holds that

it is the duty of the learned Magistrate to inform the

accused, of the availability of indefeasible right under sub­

section (2) of Section 167 of CrPC once it accrues to him. It

was held that this will ensure that dilatory tactics of the

prosecution are thwarted and obligations under Article 21 of

the Constitution are upheld.

20. The issue involved in these appeals will have to be

decided in the context of the legal position that the

indefeasible right to default bail under sub­section (2) of 16 (2017) 15 SCC 67 29 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

Section 167, CrPC is an integral part of the fundamental

right to personal liberty under Article 21 of the Constitution

of India.

IMPEDIMENT OF SUB­SECTION (5) OF SECTION 20 OF THE 2015 ACT

21. Sub­section (5) of Section 20 reads thus :

“20. Modified application of certain provisions of Code.

…………… (5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Special Court that he was on bail in an offence under this Act, or under any other Act on the date of the offence in question.”

Sub­section (5) of Section 21 of the MCOCA contained

identical provision. In the case of Bharat Shanti Lal

Shah12, this Court, for the reasons recorded in paragraphs

62 to 65, concurred with the view of Bombay High Court

that the expression “or under any other Act” appearing in

sub­section (5) of Section 21 of the MCOCA was violative of

Articles 14 and 21 of the Constitution and, therefore, it

must be struck down. Hence, the same expression used in

sub­section (5) of Section 20 of the 2015 Act infringes

Articles 14 and 21 of the Constitution. In the facts of the 30 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

case, none of the appellants were on bail for any offence

under the 2015 Act and hence, no impediment has been

created by sub­section (5) of Section 20 in the facts of these

cases for considering the prayer for default bail.

THE EFFECT OF THE FAILURE OF THE RESPONDENTS TO PRODUCE THE APPELLANTS BEFORE THE SPECIAL COURT AT THE TIME OF CONSIDERATION OF THE EXTENSION APPLICATION

22. The question before us is about the legal consequences

of the failure of the Special Court under the 2015 Act to

procure the presence of the accused at the time of the

consideration of the reports submitted by the Public

Prosecutor for a grant of extension of time to complete the

investigation. In addition, we will have to consider the effect

of the failure to give notice to the accused of the reports

submitted by the Public Prosecutor.

23. Under Clause (bb) of sub­Section (4) of Section 20 of

TADA, there is a pari materia proviso that empowers the

Designated Court to extend the period provided in clause (a)

of Sub­Section (2) of Section 167 of CrPC. Clause (bb) reads

thus :

31

Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

“(bb) in sub­section (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’ ”

The said proviso came up for consideration before this

Court in the case of Hitendra Vishnu Thakur1. In

paragraph 23 this Court held thus:

“23. We may at this stage, also on a plain reading of clause (bb) of sub­section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for 32 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression “on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the 33 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

detention of the accused beyond the said period” as occurring in clause (bb) in sub­ section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court ‘shall’ release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation.

34 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the ‘default’ of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub­section (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr. Madhava Reddy or the Additional Solicitor General Mr. Tulsi that even if the public prosecutor ‘presents’ the request of the investigating officer to the court or ‘forwards’ the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a ‘post office’ of the investigating agency nor its ‘forwarding agency’ but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub­section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as 35 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension.”

[emphasis added]

24. The same issue came up for consideration before the

Constitution Bench in this Court in the case of Sanjay Dutt2.

A specific submission was made before the Constitution

Bench that the notice to the accused of the application for 36 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

the extension as contemplated by the decision in the case of

Hitendra Vishnu Thakur1 is not a written notice. The

argument was that when the report of the Public Prosecutor

is considered by the Special Court, it is enough that the

presence of the accused is procured before the Special Court

and the accused is informed that such a report has been

submitted by the Public Prosecutor. By accepting the said

submission, the Constitution Bench summarised its

conclusions as under:­

“53. (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 clause (bb) of Sub­section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in 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 question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.”

[emphasis added] 37 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

25. In the case of Devinderpal Singh v. Government of

National Capital Territory of Delhi17, this Court in

paragraphs 14 and 15 held thus :

“14. In Hitendra Vishnu Thakur case [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] it was also opined that no extension can be granted by the Designated Court under clause (bb) unless the accused is put on notice and permitted to have his say so as to be able to object to the grant of extension.

15. The Constitution Bench in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] did not express any contrary opinion insofar 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 clause (bb) of Section 20(4), but observed that the ‘notice’ contemplated in the decision in Hitendra Vishnu Thakur case [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] 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 of extension of the period for completing the investigation was being considered would be sufficient notice to the accused.”

[emphasis added]

26. In the case of Ateef Nasir Mulla3, this Court

considered a similar provision under POTA. In the said

decision, the law laid down in the case of Sanjay Dutt2 was

17 (1996) 1 SCC 44 38 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

followed. In the facts of the case, it was found that the

accused along with his Advocate were present when the

request for extension of time to carry on the investigation was

considered by the Court and, in fact, a copy of the report

praying for the extension was provided to the accused to

enable him to file a reply.

27. In the case of Sanjay Kumar Kedia4, this Court

considered a similar provision under the NDPS Act. However,

this Court did not consider the binding precedent in the case

of Sanjay Dutt2. Therefore, this decision will not be a

binding precedent.

28. Clause (b) of sub­section (2) of Section 167 of CrPC

lays down that no Magistrate shall authorise the detention of

the accused in the custody of the police unless the accused is

produced before him in person. It also provides that judicial

custody can be extended on the production of the accused

either in person or through the medium of electronic video

linkage. Thus, the requirement of the law is that while

extending the remand to judicial custody, the presence of the

accused has to be procured either physically or virtually. 39 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

This is the mandatory requirement of law. This requirement

is sine qua non for the exercise of the power to extend the

judicial custody remand. The reason is that the accused has

a right to oppose the prayer for the extension of the remand.

When the Special Court exercises the power of granting

extension under the proviso to sub­section (2) of Section 20

of the 2015 Act, it will necessarily lead to the extension of the

judicial custody beyond the period of 90 days up to 180 days.

Therefore, even in terms of the requirement of clause (b) of

sub­section (2) of Section 167 of CrPC, it is mandatory to

procure the presence of the accused before the Special Court

when a prayer of the prosecution for the extension of time to

complete investigation is considered. In fact, the Constitution

Bench of this Court in the first part of paragraph 53(2)(a) in

its decision in the case of Sanjay Dutt2 holds so. The

requirement of the report under proviso added by sub­section

(2) of Section 20 of the 2015 Act to clause (b) of sub­section

(2) of Section 167 of CrPC is two­fold. Firstly, in the report of

the Public Prosecutor, the progress of the investigation

should be set out and secondly, the report must disclose

specific reasons for continuing the detention of the accused 40 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

beyond the said period of 90 days. Therefore, the extension

of time is not an empty formality. The Public Prosecutor has

to apply his mind before he submits a report/ an application

for extension. The prosecution has to make out a case in

terms of both the aforesaid requirements and the Court must

apply its mind to the contents of the report before accepting

the prayer for grant of extension.

29. As noted earlier, the only modification made by the

larger Bench in the case of Sanjay Dutt2 to the decision in

the case of Hitendra Vishnu Thakur1 is about the mode of

service of notice of the application for extension. In so many

words, in paragraph 53(2)(a) of the Judgment, this Court in

the case of Sanjay Dutt2 held that it is mandatory to produce

the accused at the time when the Court considers the

application for extension and that the accused must be

informed that the question of extension of the period of

investigation is being considered. The accused may not be

entitled to get a copy of the report as a matter of right as it

may contain details of the investigation carried out. But, if

we accept the submission of the respondents that the 41 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

accused has no say in the matter, the requirement of giving

notice by producing the accused will become an empty and

meaningless formality. Moreover, it will be against the

mandate of clause (b) of the proviso to sub­section (2) of

section 167 of CrPC. It cannot be accepted that the accused

is not entitled to raise any objection to the application for

extension. The scope of the objections may be limited. The

accused can always point out to the Court that the prayer

has to be made by the Public Prosecutor and not by the

investigating agency. Secondly, the accused can always

point out the twin requirements of the report in terms of

proviso added by sub­section (2) of Section 20 of the 2015

Act to sub­section (2) of Section 167 of CrPC. The accused

can always point out to the Court that unless it is satisfied

that full compliance is made with the twin requirements, the

extension cannot be granted.

30. The logical and legal consequence of the grant of

extension of time is the deprivation of the indefeasible right

available to the accused to claim a default bail. If we accept

the argument that the failure of the prosecution to produce 42 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

the accused before the Court and to inform him that the

application of extension is being considered by the Court is a

mere procedural irregularity, it will negate the proviso added

by sub­section (2) of Section 20 of the 2015 Act and that may

amount to violation of rights conferred by Article 21 of the

Constitution. The reason is the grant of the extension of time

takes away the right of the accused to get default bail which

is intrinsically connected with the fundamental rights

guaranteed under Article 21 of the Constitution. The

procedure contemplated by Article 21 of the Constitution

which is required to be followed before the liberty of a person

is taken away has to be a fair and reasonable procedure. In

fact, procedural safeguards play an important role in

protecting the liberty guaranteed by Article 21. The failure to

procure the presence of the accused either physically or

virtually before the Court and the failure to inform him that

the application made by the Public Prosecutor for the

extension of time is being considered, is not a mere

procedural irregularity. It is gross illegality that violates the

rights of the accused under Article 21.

43 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

31. An attempt was made to argue that the failure to

produce the accused will not cause any prejudice to him. As

noted earlier, the grant of extension of time to complete the

investigation takes away the indefeasible right of the accused

to apply for default bail. It takes away the right of the

accused to raise a limited objection to the prayer for the

extension. The failure to produce the accused before the

Court at the time of consideration of the application for

extension of time will amount to a violation of the right

guaranteed under Article 21 of the Constitution. Thus,

prejudice is inherent and need not be established by the

accused.

32. The learned Additional Solicitor General relied upon

the decision of this Court in the case of Narender G. Goel9.

The issue involved in that case was not of extension of time

for completion of the investigation. The issue generally

discussed therein is about the right of hearing of the accused

at the stage of the investigation. His reliance on the decision

of this Court in the case of Surendra Pundlik Gadling10 will

not help him at all. This was a case where the accused was 44 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

not only produced before the Court but he was provided a

copy of the application for extension of time. The grievance

of the accused was that time of only one day was granted to

contest the application. This contention was rejected.

33. In the facts of the cases in hand, when the Special

Court considered the reports submitted by the Public

Prosecutor for grant of extension of time, the presence of the

appellants was admittedly not procured before the Special

Court either personally or through video conference. It is also

an admitted position that information about the filing of such

reports by the Public Prosecutor was not provided to the

accused. It is mentioned in the impugned judgment that due

to COVID – 19, it was not permissible to physically produce

the accused before the Special Court. Moreover, the accused

were in different prisons and, therefore, the production

through video conference would have been very slow.

Assuming that the process of production would have been

slow, that is no excuse for not procuring the presence of the

accused through video conference. Nothing is placed on

record either before this Court or High Court to show that as 45 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

per the Standard Operating Procedure applicable to the

concerned Court in January 2021 when the impugned orders

were passed granting the extension, it was not permissible to

physically produce the accused before the Special Court.

There is no material placed on record to show that technical

reasons/difficulties prevented the prosecution from

producing the accused before the Special Court through

video conference. It is not possible to accept that in January

2021 in the Court at Rajkot in the State of Gujarat, there was

any connectivity issue. In fact, admittedly, no such case

was pleaded before the High Court in the pleadings of the

respondents.

34. We must note here that the reports were submitted by

the Public Prosecutor nearly a week before the expiry of the

period of 90 days. In every case, period of seven days or

more was available for completion of the period of ninety

days. The orders were passed by the Special Court on the

reports of the Public Prosecutor on the very day on which

reports were submitted. There was no reason for such hurry.

The Special Court could have always granted time of a couple 46 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

of days to the prosecution to procure the presence of the

accused either physically or through video conference. The

accused may not be entitled to know the contents of the

report but he is entitled to oppose the grant of extension of

time on the grounds available to him in law. In the facts of

the present case, the grant of extension of time without

complying with the requirements laid down by the

Constitution Bench has deprived the accused of their right to

seek default bail. It has resulted in the failure of justice.

35. The orders passed by the Special Court of extending

the period of investigation are rendered illegal on account of

the failure of the respondents to produce the accused before

the Special Court either physically or virtually when the

prayer for grant of extension made by the Public Prosecutor

was considered. It was the duty of the Special Court to

ensure that this important procedural safeguard was

followed. Moreover, the oral notice, as contemplated by this

Court in the case of Sanjay Dutt2, was also not given to the

accused.

47 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

36. Once we hold that the orders granting extension to

complete investigation are illegal and stand vitiated, it follows

that the appellants are entitled to default bail.

37. When they applied for bail, the appellants had no

notice of the extension of time granted by the Court.

Moreover, the applications were made before the filing of

charge sheet. Hence, the appellants are entitled to default

bail. At this stage, we may note here that in the case of

Sanjay Dutt2 as well as in the case of Bikramjit Singh6, this

Court held that grant of default bail does not prevent re­

arrest of the petitioners on cogent grounds after filing of

charge­sheet. Thereafter, the accused can always apply for

regular bail. However, as held by this Court in the case of

Mohamed Iqbal Madar Sheikh & Ors. v. State of

Maharashtra18, re­arrest cannot be made only on the ground

of filing of charge sheet. It all depends on the facts of each

case.

38. Accordingly, the impugned orders passed by the

Special Court granting extension to complete investigation

and impugned judgment of the High Court are hereby 18 (1996) 1 SCC 722 48 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

quashed and set aside. The appellants shall be enlarged on

default bail under sub­section (2) of Section 167 of CrPC on

following conditions :

(a) The appellants shall furnish a bail bond of Rs.2,00,000/­ with appropriate sureties as may be decided by the Special Court;

(b) The appellants shall surrender their passports to the Special Court at the time of furnishing security;

(c) The appellants shall not interfere in any manner with the further investigation, if any and shall not make any effort to influence the prosecution witnesses; and

(d) The appellants shall mark regular attendance with such police station and at such periodical intervals, as may be determined by the Special Court; and

(e) The appellants shall cooperate with the Special Court for early conclusion of the trial.

39. The appeals are allowed on the above terms.

………..…………………J. [AJAY RASTOGI]

………..…………………J. [ABHAY S. OKA] New Delhi;

September 23, 2022.

49 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

ITEM NO.1501 COURT NO.3 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 7696/2021

(Arising out of impugned final judgment and order dated 15-09-2021 in CRLMA No. 4928/2021 passed by the High Court Of Gujarat At Ahmedabad)

JIGAR @ JIMMY PRAVINCHANDRA ADATIYA Petitioner(s)

VERSUS

STATE OF GUJARAT Respondent(s)

([HEARD BY: HON. AJAY RASTOGI AND HON. ABHAY S. OKA. JJ].............FOR ADMISSION and I.R. and IA No.129630/2021- EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.129632/2021-EXEMPTION FROM FILING O.T. )

WITH SLP(Crl) No. 7609/2021 (II-B) (FOR ADMISSION and I.R. and IA No.128171/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.128172/2021-EXEMPTION FROM FILING O.T.)

SLP(Crl) No. 7678-7679/2021 (II-B) (FOR ADMISSION and I.R. and IA No.129241/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.129242/2021-EXEMPTION FROM FILING O.T.)

SLP(Crl) No. 7758/2021 (II-B)

Date : 23-09-2022 These appeals were called on for pronouncement of judgment today.

For Petitioner(s) Ms. Nitya Ramakrishnan, Sr. Adv.

Mr. Pradhuman Gohil, Adv.

Mrs. Taruna Singh Gohil, AOR Ms. Ranu Purohit, Adv.

Mr. Alapati Sahithya Krishna, Adv.

Mr. Nikhil Goel, AOR

For Respondent(s) Mr. Rajat Nair, Adv.

Ms. Deepanwita Priyanka, AOR 50 Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

The Court pronounced the following J U D G M E N T

Leave granted.

Hon'ble Mr. Justice Abhay S. Oka pronounced

the judgment for the Bench comprising Hon'ble Mr.

Justice Ajay Rastogi and His Lordship.

The appellants are enlarged on default bail in

terms of the signed reportable judgment.

The appeals are allowed.

Pending application(s) stand(s) disposed of.

(ASHA SUNDRIYAL) (POONAM VAID) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

[Signed reportable judgment is placed on the file]