The Supreme Court ruled that the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail.
The appellants are the accused 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.
An 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.
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, the Single Judge of Gujarat High Court rejected the applications made by the appellants under Section 482 of CrPC.
Senior Advocate Nitya Ramakrishnan, appearing for the appellants submitted that when the Special Court exercised the power under the proviso added by subsection (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.
She contended that in the case of Sanjay Dutt, the Constitution Bench of the Court has clearly laid down that 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 the Court.
Aman Lekhi, the 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.
He contended that the 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.
The division bench of Justice Ajay Rastogi and Justice Abhay S. Oka observed that 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.
“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” the court said.
The bench further added that when the Special Court exercises the power of granting extension under the proviso to sub section (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.
The court therefore held that even in terms of the requirement of clause (b) of sub section (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.
It was stated that 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.
“It will be against the mandate of clause (b) of the proviso to sub section (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” the bench observed.
The court said that 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.
It was further added by the court that 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.
A division bench stated that 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.
“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” the court added.
The court quashed and set aside the impugned orders passed by the Special Court granting extension to complete investigation and impugned judgment of the High Court.
Court further released the appellants on default bail under sub section (2) of Section 167 of CrPC.
Case title: Jigar @ Jimmy Pravinchandra Adatiya v/s State of Gujarat
Citation: Criminal appeal no.1656 of 2022