Qamar Ghani Usmani vs The State Of Gujarat

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1045­1046/2023 SLP (CRL) NOS. 011196 ­ 011197 / 2022

Qamar Ghani Usmani ...Appellant(s)

Versus

The State of Gujarat …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the

impugned judgment and order dated

23.09.2022 passed by the High Court of Signature Not Verified Digitally signed by R

Gujarat at Ahmedabad in Criminal Appeal Natarajan Date: 2023.04.10 16:38:21 IST Reason: Page 1 of 28 Nos. 1215/2022 and 1216/2022, by which,

the Division Bench of the High Court has

dismissed the said appeals and has refused

to release the appellant – accused on

statutory bail (default bail) under Section

167(2) of the Cr.PC, the original accused has

preferred the present appeals.

3. The facts leading to the present appeals in a

nutshell are as under: ­

3.1 That the accused came to be arrested on

29.01.2022. The 90 days period as provided

under Section 167 of the Cr.PC, therefore,

was to expire on 29.04.2022. However, on

22.04.2022, the Investigating Officer prayed

for extension of time to complete the

investigation which came to be granted by

the learned Trial Court by granting

extension of 30 days period. The accused

Page 2 of 28 came to be informed about the extension on

23.04.2022 itself. On 22.05.2022, the

Investigating Officer again prayed for further

extension which came to be allowed by the

learned Trial Court on 22.05.2022. At this

stage, it is required to be noted that on

22.05.2022, the second extension was

granted in the presence of the accused. In

the meantime, the accused submitted the

default bail application on 10.05.2022 on

the ground that at the time when the first

extension was granted on 22.04.2022, the

same was not in the presence of the accused

and the accused was not kept present and

therefore, first extension was bad in law and

therefore, the accused acquired right to get

the default bail on 10.05.2022. The learned

Trial Court rejected the said application(s).

Page 3 of 28 The Division Bench of the High Court by the

impugned judgment and order has

dismissed the appeals. Hence, the present

appeals at the instance of the original

accused.

4. Shri Mehmood Pracha, learned counsel has

appeared on behalf of the appellant and Shri

Tushar Mehta, learned Solicitor General has

appeared on behalf of the respondent – State

of Gujarat.

4.1 Shri Pracha, learned counsel appearing on

behalf of the accused has vehemently

submitted that as such the judgment and

order which has been relied upon by the

Division Bench of the High Court has been

subsequently set aside by this Court in the

case of Jigar alias Jimmy Pravinchandra

Page 4 of 28 Adatiya Vs. State of Gujarat 2022 SCC

OnLine SC 1290.

4.2 It is further submitted by Shri Pracha,

learned counsel appearing on behalf of the

accused that it is admitted by the

prosecution that the appellant was not

produced before the learned Trial Court at

the time of consideration of application for

first extension of period of investigation. It is

submitted that in the case of Hitendra

Vishnu Thakur and Ors. Vs. State of

Maharashtra and Ors. (1994) 4 SCC 602

and in the case of Sanjay Dutt Vs. State

through CBI, Bombay (II) (1994) 5 SCC

410, notice to the accused at the time of

consideration of application for extension of

period of investigation has been held to be

Page 5 of 28 mandatory. It is submitted that in the case

of Sanjay Dutt (supra), this Court has

further interpreted to mean that a written

notice is not mandatory but the presence of

the accused suffices. It is submitted that

therefore, even as per the law laid­down by

this Court in the case of Sanjay Dutt

(supra) at the time of consideration of

application for extension of period of

investigation, the presence of the accused is

must. It is submitted that therefore, in the

present case when the first extension was

granted on 22.04.2022 admittedly the

accused was not produced before the

learned Trial Court, the first extension

before itself is illegal and not an extension in

the eye of law and therefore, thereafter when

Page 6 of 28 the accused filed the application(s) under

Section 167(2) of the Cr.PC for default

bail/statutory bail, the accused had

acquired a indefeasible right for release on

statutory bail as by the time 90 days period

was over and the first extension is to be

ignored.

4.3 It is further submitted by learned counsel

appearing on behalf of the accused that as

observed and held by this Court in the case

of Sayed Mohd. Ahmed Kazmi Vs. State

(2012) 12 SCC 1 extension of period of

investigation from retrospective effect, after

the initial order has been set aside, is not

permissible.

4.4 It is further submitted by learned counsel

appearing on behalf of the accused that

Page 7 of 28 recently in the case of Jigar (supra) this

Court after taking into consideration the

decisions of this Court in the cases of

Hitendra Vishnu Thakur (supra) and

Sanjay Dutt (supra), has specifically

reiterated the proposition that failure to

produce the accused at the time of extension

of period of investigation renders such

extension bad in law and entitles the

accused to statutory bail.

4.5 Making the above submissions and heavily

relying upon the decisions of this Court in

the cases of Hitendra Vishnu Thakur

(supra); Sayed Mohd. Ahmed Kazmi

(supra); Sanjay Dutt (supra) and Jigar

(supra), it is prayed to allow the present

Page 8 of 28 appeals and direct the respondent to release

the appellant – accused on statutory bail.

5. While opposing the present appeals, Shri

Tushar Mehta, learned Solicitor General

appearing on behalf of the State has

vehemently submitted that as such the

decision of this Court in the case of

Hitendra Vishnu Thakur (supra) has been

subsequently watered down by this Court in

the case of Sanjay Dutt (supra). It is

submitted that the view taken by this Court

in the case of Hitendra Vishnu Thakur

(supra) that at the time of extension of time

for investigation, a notice to the accused is

required to be given by the Designated Court

before it grants any extension is no longer a

good law in view of the subsequent decision

Page 9 of 28 of this Court in the case of Sanjay Dutt

(supra). It is submitted that in the case of

Sanjay Dutt (supra) this Court has

explained the decision in the case of

Hitendra Vishnu Thakur (supra) and has

observed and held that the only requirement

is the production of the accused before the

Court in accordance with Section 167(1) of

the Cr.PC and that the accused is not

entitled to written notice giving reasons for

the extension.

5.1 Now so far as the reliance placed upon the

decision of this Court in the case of Jigar

(supra) is concerned, it is vehemently

submitted that as such the said decision

requires reconsideration by the Larger

Bench as in the said decision this Court has

Page 10 of 28 not taken into consideration Section 465 of

the Cr.PC. It is submitted that this Court

has failed to consider the law laid­down by

this Court in the case of Rambeer Shokeen

Vs. State (2018) 4 SCC 405, in which it

was categorically held that the accused

persons are entitled to the right of the

default bail only after rejection of the

application for extension of time period for

investigation or when the chargesheet is not

filed within the prescribed time. 5.2 It is further submitted that even otherwise

as observed and held by this Court in the

case of Narender G. Goel Vs. State of

Maharashtra (2009) 6 SCC 65 the accused

has no right to be heard at the stage of

investigation and more particularly, at the

Page 11 of 28 stage of extension of period for investigation.

It is submitted that as observed and held by

this Court, the accused is not entitled to

have the reasonings for extension of period

of investigation because accused has no

right to be heard at the stage of

investigation.

5.3 It is further submitted by Shri Tushar

Mehta, learned Solicitor General appearing

on behalf of the State that even otherwise, in

the facts and circumstances of the case, the

appellant is not entitled to any relief(s) as

prayed, more particularly, the statutory bail.

It is submitted that the first extension was

granted by the learned Trial Court on

22.04.2022. The accused was informed

about extension of time for investigation

immediately on the very next day i.e.,

Page 12 of 28 23.04.2022. It is submitted that nothing

was done by the accused even on

29.04.2022 (when the 90 days period was

over). It is submitted that though the

accused was informed about the extension

of time for investigation on 23.04.2022, till

10.05.2022 he did not challenge the

extension of time for investigation for a

further period of 30 days granted on

22.04.2022. It is submitted that even

thereafter when the second extension was

sought and granted on 22.05.2022 on which

date the accused was present and in whose

presence the extension was granted, no

grievance was made by the accused on the

legality and validity of earlier order dated

22.04.2022 granting the extension for a

further period of 30 days. It is submitted

Page 13 of 28 that therefore, once the accused failed to

challenge the first order of extension dated

22.04.2022 on whatever grounds available

and allowed the period of extension and

thereafter at the time when the second

extension was granted the accused was

present and he did not make any grievance

with respect to the first extension granted

on 22.04.2022, thereafter, it is not open for

the accused to make any grievance on the

grant of first extension granted on

22.04.2022.

5.4 It is submitted that therefore, at the time

when the accused preferred application(s)

for statutory/default bail on 10.05.2022,

there was already an extension of time for

investigation by the learned Trial Court vide

order dated 22.04.2022, which was not

Page 14 of 28 challenged by the accused and therefore, the

application(s) for default/statutory bail

during the period of extension would not be

maintainable at all as the said application(s)

were made during the period of extension for

investigation. It is submitted by Shri Mehta,

learned Solicitor General that even in the

application(s) for default/statutory bail

preferred on 10.05.2022, the accused did

not even disclose that the learned Trial

Court had granted the extension for

investigation vide order dated 22.04.2022

which as such was communicated to the

accused on 23.04.2022. It is submitted that

therefore, in view of the above facts, none of

the decisions of this Court relied upon on

behalf of the accused shall be applicable to

the facts of the case on hand. It is submitted

Page 15 of 28 that so far as the reliance placed upon the

decision of this Court in the case of Sayed

Mohd. Ahmed Kazmi (supra) is concerned,

it is submitted by learned Solicitor General

that on facts the said decision shall not be

applicable to the facts of the case on hand.

It is submitted that in the case before this

Court, in fact the extension was challenged

before the Sessions Court and the extension

was held to be bad in law.

5.5 Making the above submissions, it is prayed

to dismiss the present appeals.

6. We have heard Shri Mehmood Pracha,

learned counsel appearing on behalf of the

accused – appellant and Shri Tushar Mehta,

learned Solicitor General appearing on

behalf of the State of Gujarat.

Page 16 of 28 6.1 The short question which is posed for the

consideration of this Court is whether in the

facts and circumstances of the case, the

appellant shall be entitled to the

statutory/default bail under Section 167(2)

of the Cr.PC on the ground that at the time

when the extension of time for completing

the investigation was prayed by the

investigating agency and granted by the

Trial Court the accused was not kept

present?

6.2 Learned counsel appearing on behalf of the

appellant – accused has heavily relied upon

the decisions of this Court in the cases of

Hitendra Vishnu Thakur (supra); Sanjay

Dutt (supra); Sayed Mohd. Ahmed Kazmi Page 17 of 28 (supra) and on the recent decision of this

Court in the case of Jigar (supra). 6.2.1 In the case of Hitendra Vishnu Thakur

(supra), this Court observed and held that

when a report is submitted by the Public

Prosecutor to the Designated Court for grant

of extension, its notice should be issued to

the accused before granting such an

extension so that the accused may have an

opportunity to oppose the extension on all

legitimate and legal grounds available to

him.

6.2.2 However, thereafter, the decision of this

Court in the case of Hitendra Vishnu

Thakur (supra) fell for consideration before

this Court in the case of Sanjay Dutt Page 18 of 28 (supra) and the view taken by this Court in

the case of Hitendra Vishnu Thakur

(supra) as above, has not been accepted by

the Constitution Bench of this Court and it

is observed and held in the case of Sanjay

Dutt (supra) that a notice to the accused is

not required to be given by the Designated

Court before it grants any extension for

completing the investigation. Meaning

thereby, the accused is to be kept present

before the Court when it grants any

extension for completing the investigation. The view taken by this Court in the case of

Hitendra Vishnu Thakur (supra) that a

notice is to be given to the accused so that

he can oppose the extension has not been

accepted by the Constitution Bench of this

Page 19 of 28 Court in the case of Sanjay Dutt (supra). As

such under the Scheme of Cr.PC and on the

report submitted by the Investigating

Agency, prayer for extension of time for

completing investigation is subject to the

satisfaction of the concerned Court whether

to grant further extension or not. The Court

is to be satisfied on the grounds on which

the extension is sought.

6.2.3 Now so far as the reliance placed upon the

decision of this Court in the case of Sayed

Mohd. Ahmed Kazmi (supra) by learned

counsel appearing on behalf of the appellant

is concerned, at the outset, it is required to

be noted that the said decision shall not be

applicable to the facts of the case on hand.

In the case before this Court, in fact, the

Page 20 of 28 extension granted by the learned Chief

Metropolitan Magistrate was challenged on

the ground that the learned Chief

Metropolitan Magistrate had no competence

to extend the judicial custody of the

accused. The learned Additional Sessions

Judge accepted the same. However,

thereafter, a fresh extension was sought

which was beyond the period prescribed

under Section 167 of the Cr.PC and

therefore, this Court observed and held that

extension for period of investigation from

retrospective effect shall not be permissible. 6.3 Similarly, even the decision of this Court in

the case of Rambeer Shokeen (supra) relied

upon by learned Solicitor General shall also

not be applicable to the facts of the case on

Page 21 of 28 hand. In the case of Rambeer Shokeen

(supra) pending application by the

Investigating Agency for extension of time

for completing the investigation, the accused

made an application for statutory/default

bail and to that this Court observed and

held that the application filed by the

Investigating Agency for extension of time

for completing the investigation which was

prayed in time kept pending ought to be

decided first by the Court.

6.4 Thus, sum and substance of law laid­down

by this Court in the cases of Sanjay Dutt

(supra) and Jigar (supra) are that while

considering the application by the

Investigating Agency for extension of time

for completing the investigation beyond the

Page 22 of 28 period prescribed under Section 167(2) of

the Cr.PC the accused is to be given notice

and/or is to be kept present before the

Court, so that, the accused had knowledge

that the extension is sought and granted.

6.5 However, in the facts and circumstances of

the case, we are of the view that the

appellant is not entitled to the relief of

statutory/default bail. In the present case

the facts are glaring which are as under: ­

……The accused was arrested on

29.01.2022. The 90 days provided

under Section 167 Cr.PC thus

would expire on 29.04.2022.

Within the period of 90 days i.e.,

on 22.04.2022, the IO submitted

the report and prayed for extension

of time for completing the

Page 23 of 28 investigation which came to be

allowed by the learned Trial Court

by granting extension of 30 days

period. It is true that for whatever

reason, the accused was not kept

present at the time when the

learned Trial Court considered the

report submitted by the IO for

extension of time for completing

the investigation. However, the

accused came to be informed

about the extension on the very

next day i.e., 23.04.2022. The

accused did not challenge the

extension on any ground which

may be available to him and/or did

not make any grievance that such

an extension is illegal and/or

Page 24 of 28 contrary to law. On 10.05.2022, he

made the present application for

default bail/statutory bail on the

ground that the chargesheet has

not been filed within the period of

90 days. At this stage, it is

required to be noted that at the

time when the present application

for default/statutory bail was

made on 10.05.2022, there was

already an extension of time by the

learned Trial Court which as such

was in existence and the extension

was up to 22.05.2022. At this

stage, it is required to be noted

that though informed on

23.04.2022 about the extension of

time for completing the

Page 25 of 28 investigation, the accused did not

disclose the same in the

application for default

bail/statutory bail submitted on

10.05.2022. That thereafter, on

22.05.2022, IO again submitted

the report for further extension of

time for completing the

investigation which came to be

allowed/granted by the learned

Trial Court which as such was in

the presence of the accused and at

that time, the accused remained

present. Neither the first extension

nor the second extension came to

be challenged by the accused.”

7. Therefore, in the aforesaid peculiar facts and

circumstances of the case, when two

Page 26 of 28 extensions granted by the Court which are

not challenged and at the time when the

default bail application was made on

10.05.2022 there was already an extension

and even thereafter, also there was a second

extension which was in presence of the

accused and thereafter, when the

chargesheet has been filed within the period

of extension, the accused is not entitled to

be released on statutory/default bail as

prayed. Therefore, in the facts and

circumstances of the case, we are in

agreement with the ultimate conclusion

reached by the High Court denying the

statutory/default bail to the accused.

8. In view of the above and for the reasons

stated above and, in the facts, and

circumstances of the case narrated

Page 27 of 28 hereinabove, the appellant is not entitled to

the benefit of statutory/default bail. Under

the circumstances, the present appeals

deserve to be dismissed and are accordingly

dismissed. However, it will be open for the

accused to prayer for regular bail which may

be considered in accordance with law and

on its own merits. Present appeals stand

dismissed accordingly.

………………………………….J. [M.R. SHAH]

………………………………….J. [C.T. RAVIKUMAR] NEW DELHI;

APRIL 10, 2023

Page 28 of 28