Jigar @ Jimmy Pravinchandra Adatiya vs State of Gujarat

90 days up to 180 days – Therefore, even in terms of s.167(2)(b), it is mandatory to procure the presence of the accused before the Special Court when the prayer of the prosecution for the extension of time to complete investigation is considered – Thus, 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 is being considered, is not a mere procedural irregularity – It is gross illegality that violates the rights of the accused u/Art.21 – Thus, prejudice is inherent and need not be established by the accused – In the present case, 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 – Admittedly, information about the filing of such reports by the Public Prosecutor was not provided to the accused – Orders passed by the Special Court extending the period of investigation are 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 – Thus, the appellants are entitled to default bail – Impugned orders passed by the Special Court granting extension to complete investigation and impugned judgment of the High Court are set aside – Appellants enlarged on default bail u/s.167(2) on the conditions as directed – Constitution of India – Art.21.

Code of Criminal Procedure, 1973 – s.167(2) – The Gujarat Control of Terrorism and Organised Crime Act, 2015 – s.20(2) – Requirement of the report under proviso added by sub-section (2) of s.20 of the 2015 Act to clause (b) of sub-section (2) of s.167 of CrPC – Held: Is two-fold – 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 beyond the said period of 90 days – Therefore, the extension of time is not an empty formality – Public Prosecutor has to apply his mind before he submits a report/an application for extension – 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.

Code of Criminal Procedure, 1973 – s.167(2) – Default bail – Held: The indefeasible right to default bail u/sub-section (2) of s.167 is an integral part of the fundamental right to personal liberty u/Article 21 – Constitution of India – Article 21.

Words & Phrases – “or under any other Act” – Gujarat Control of Terrorism and Organised Crime Act, 2015 – s.20(5) – Held: State of Maharashtra v. Bharat Shanti Lal Shah reported as [2008]

12 SCR 1083 held that the expression “or under any other Act” appearing in sub-sec.(5) of s.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 sub-section (5) of s.20 of the 2015 Act infringes Articles 14 and 21 of the Constitution – Constitution of India – Articles 14, 21.

Allowing the appeals, the Court

HELD: 1. The entire issue revolves around the

interpretation of the proviso added by the 2015 Act to sub-section

(2) of Section 167 of CrPC. 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 sub-section (2) of Section 20 of the 2015 Act to sub-section (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. Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub-section (2) of s.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 sub-section (2) of s.167, 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. As can be seen from sub-section (2) of Section

20 of the 2015 Act, the provisions of Section 167 of CrPC and in particular sub-section (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 sub-section (2) of Section 167 of CRPC is required to be construed as a reference to “thirty days” and “ninety days” respectively. The proviso to sub-section (2) of Section 20 of the 2015 Act enables the Special Court to extend the period provided in sub-section (2) of Section 167 of CrPC up to 180 days. [Paras 15-18][384-B; 387-D-H; 388-A]

2. Sub-section (5) of Section 21 of the MCOCA contained identical provision as sub-section (5) of Section 20 of the 2015 Act. In the case of Bharat Shanti Lal Shah, 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 sub-section (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 sub-section (5) of Section 20 of the 2015 Act infringes Articles 14 and 21 of the Constitution. In the facts of the 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. [Para 21][332-B-D] State of Maharashtra v. Bharat Shanti Lal Shah & Ors. (2008) 13 SCC 5 : [2008] 12 SCR 1083 – relied on.

Bharat Shanti Lal Shah & Ors. v. State of Maharashtra 2003 All MR (Crl.) 1061 – referred to.

3.1 The issue involved in these appeals will be decided in the context of the legal position that the indefeasible right to default bail under sub-section (2) of Section 167, CrPC is an integral part of the fundamental right to personal liberty under Article 21 of the Constitution of India. The question before the Court 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, this Court will have to consider the effect of the failure to give notice to the accused of the reports submitted by the Public Prosecutor. [Paras 20, 22][391-F; 392F]

3.2 Clause (b) of sub-section (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. 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 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. Therefore, 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. 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 holds so. The requirement of the report under proviso added by sub-section (2) of Section 20 of the 2015 Act to clause (b) of sub-section (2) of Section 167 of CrPC is two-fold. 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 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.[Para 28][398-C-H; 399-A-B]

Sanjay Dutt v. State through CBI, Bombay (II) (1994) 5 SCC 410 : [1994] 3 Suppl. SCR 263 – followed.

3.3 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 the submission of the respondents is accepted that the 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 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. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-section

(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. 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 the argument that the failure of the prosecution to produce 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 is accepted, it will negate the proviso added by sub-section (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. 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. [Paras 29-31][399-C-H; 400-A-B]

Hitendra Vishnu Thakur and Others v. State of

Maharashtra and Others (1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360 – referred to.

3.4 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 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. The accused were arrested on different dates. 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 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. 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, was also not given to the accused. Once it is held that the orders granting extension to complete investigation are illegal and stand vitiated, it follows that the appellants are entitled to default bail. The impugned orders passed by the Special Court granting extension to complete investigation and impugned judgment of the High Court are hereby quashed and set aside. The appellants shall be enlarged on default bail under sub-section (2) of Section 167 of CrPC on the conditions as directed. [Paras 33-36 and 39][400-GH; 401-A-H; 402-A, D] State of Maharashtra v. Surendra Pundlik Gadling and Ors. (2019) 5 SCC 178 : [2019] 3 SCR 310 – held inapplicable.

Uday Mohanlal Acharya v. State of Maharashtra (2001)

5 SCC 453 : [2001] 2 SCR 878; M. Ravindran v.

Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485 : 2020 (10) JT 383; Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785 – relied on.

Sanjay Kumar Kedia Alias Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and Another (2009)

17 SCC 631 : [ 2010] 1 SCR 555 – held not a binding precedent.

Ateef Nasir Mulla v. State of Maharashtra (2005) 7 SCC

29 : [2005] 2 Suppl. SCR 919; S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District 2020 SCC OnLine SC 529; Bikramjit Singh v. State of Punjab (2020) 10 SCC 616 : [2020]

10 JT 53; Muzammil Pasha & Ors. Etc. v. National Investigating Agency Etc. 2021 SCC OnLine Kar

12688; Narender G. Goel v. State of Maharashtra and Anr. (2009) 6 SCC 65 : [2009] 8 SCR 1004; Fertico Marketing & Investment Private Limited & Ors. v. Central Bureau of Investigation & Anr. (2021) 2 SCC

525 : 2020 (11 ) JT 10; Securities and Exchange Board of India Etc. v. Gaurav Varshney & Anr. Etc. (2016) 14 SCC 430 : [2016] 7 SCR 1; Devinderpal Singh v. Government of National Capital Territory of Delhi (1996) 1 SCC 44 : [1995] 5 Suppl. SCR 199; Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183 – referred to.