As per the case facts, the appellants, accused under a terrorism and organized crime act, challenged the Special Court's extensions for investigation beyond the usual 90 days, up to 180 ...
No Acts & Articles mentioned in this case
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Crl.A.@SLP(Crl.)No.7696 of 2021 etc.
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]
J U D G M E N T
Abhay S. Oka, J.
Leave granted.
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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.
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3. The aforesaid First Information Report was registered
on 15
th
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
8
th
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 15
th
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.
No.
Name of the
accused
ParticularsDate of
Arrest
Date of
filing
application
under
Section
20(2)(b) of
GUJCTOC
Date of
filing
application
for default
bail
1 Nileshbhai
Mansukhbhai
Tolia
Criminal
Misc.
Application
No.4901 of
16.10.2020 08.01.2021
Allowed on
the same
04.02.2021
4
Crl.A.@SLP(Crl.)No.7696 of 2021 etc.
2021 (SLP
(Crl.)
No.7758/
2021)
day
2 Vasantbhai @
Vasantrai
Liladharbhai
Mansata
Criminal
Misc.
Application
No.4902 of
2021 (SLP
(Crl.)
No.7609/
2021)
01.11.2020 21.01.2021
Allowed on
the same
day
02.02.2021
3 Yashpalsinh
Mahendrasinh
Jadeja and
Jashpalsinh
Mahendrasinh
Jadeja
Criminal
Misc.
Application
No.4904 of
2021
(SLP (Crl.)
No.
767879/
2021)
28/
29.10.2020
08.01.2021
Allowed on
the same
day
03.02.2021
4 Jigar @ Jimmy
Pravinchandra
Adatiya
Criminal
Misc.
Application
No.4928 of
2021 (SLP
(Crl.)
No.7696/
2021)
16.10.2020 08.01.2021
Allowed on
the same
day
03.02.2021
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
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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 others
1
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 Dutt
2
, the
Constitution Bench of this Court has clearly laid down that
1 (1994) 4 SCC 602
2 (1994) 5 SCC 410
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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 9
th
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 Dutt
2
. 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
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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 Thakur
1
was
modified by the Constitution Bench in the case of Sanjay
Dutt
2
on a very limited aspect. She submitted that the
requirement of law laid down in the case of Hitendra Vishnu
Thakur
1
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 Dutt
2
. On the contrary, the decision of the
Constitution Bench in the case of Sanjay Dutt
2
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
Thakur
1
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
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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 Dutt
2
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 Thakur
1
and
Sanjay Dutt
2
will squarely apply to the facts of the case. She
pointed out that the decision of this Court in the case of
Sanjay Dutt
2
was consistently followed in many decisions by
this Court. In the case of Ateef Nasir Mulla v. State of
Maharashtra
3
, this Court followed the law laid down by this
3 (2005) 7 SCC 29
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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 Another
4
, this Court followed the
decision in the case of Hitendra Vishnu Thakur
1
. 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
District
5
. She also invited our attention to another decision
in the case of Bikramjit Singh v. State of Punjab
6
. 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
Intelligence
7
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 Dutt
2
, 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
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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 Kedia
4
is per incuriam as the binding precedent in the
case of Sanjay Dutt
2
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 Thakur
1
,
the Constitution Bench in the case of Sanjay Dutt
2
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
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FURTHER SUBMISSIONS
12.On 09
th
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 10
th
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 23
rd
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
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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 Maharashtra
11
. 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 Shah
12
, 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
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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 Dutt
2
, 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
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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.
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“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.
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(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:
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“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
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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]
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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.
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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.
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19.(a)The first decision is in the case of Uday Mohanlal
Acharya v. State of Maharashtra
15
. 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.
Ravindran
7
. The conclusions in the said decision can be
summarised as under :
(i)Majority view in the case of Uday Mohanlal
Acharya
15
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. Kasi
5
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 Assam
16
. 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
Shah
12
, 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 Thakur
1
. 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 Dutt
2
.
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 Thakur
1
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 Delhi
17
, 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 Mulla
3
, this Court
considered a similar provision under POTA. In the said
decision, the law laid down in the case of Sanjay Dutt
2
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 Kedia
4
, this Court
considered a similar provision under the NDPS Act. However,
this Court did not consider the binding precedent in the case
of Sanjay Dutt
2
. 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 Dutt
2
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 Dutt
2
to the decision in
the case of Hitendra Vishnu Thakur
1
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 Dutt
2
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. Goel
9
.
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 Gadling
10
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 Dutt
2
, 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 Dutt
2
as well as in the case of Bikramjit Singh
6
, 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
Maharashtra
18
, 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]
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