Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat
ABHAY S. OKA, J.
Leave granted.
FACTUALASPECTS
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 sub-section (2) of
Section 20 of the 2015 Act, a proviso has been added in addition to the
existing proviso to sub-section (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. T he
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
377
and the specific reasons for continuing detention of the accused beyond
the period of 90 days.
3. The aforesaid First Information Report was registe red on
15th October 2020. The accused were arrested on different dates. Reports
were submitted by the Public Prosecutor seeking extension of time up to
180 days to complete the investigation. In three cases, the reports were
submitted on 8 th January 2021, and in one case, it was submitted on
21st 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 Spec ial 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 reje cted the
applications made by the appellants under Section 482 of CrP C. The
details such as the respective dates of arrest and the dates of making
applications are as under:-
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
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 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. Relianc e has been
placed on the decisions of this Court in the case of Hitendra Vishnu
Thakur and others v. State of Maharashtra and others1and 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 sub-section (2) of Sec tion
167 of CrPC, the presence of the appellants was admittedly not procured
even through video conference. Admittedly, before the reports submitted
by the Public Prosecutor seeking extension of time up to 180 days were
considered, the Special Court did not inform the appellants about such
reports being filed by the Public Prosecutor. Her submission is that in the
case of Sanjay Dutt2, the Constitution Bench of this Court has clearly
laid down that the production of the accused before the Special C ourt
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 sub-section
(2) of Section 167 of CrPC was not considered by the Special Court. On
9th April 2021, a charge sheet was filed by the police. Her submission is
that the order granting extension to complete investigation is completely
illegal as the same has been passed without following the mandate laid
down in the case of Sanjay Dutt2. Her submission is that the order
granting extension passed by the Special Court deserves to be set aside.
1 (1994) 4 SCC 602
2 (1994) 5 SCC 410
379
As the applications for default bail were made by the a ppellants after
the expiry of the statutory period of 90 days but before filing the charge
sheet, the appellants are entitled to default bail.
6.The learned senior counsel submitted that the decision of t his
Court in the case of Hitendra Vishnu Thakur1 was modified by the
Constitution Bench in the case of Sanjay Dutt2on a very limited aspect.
She submitted that the requirement of law laid down in the c ase 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 Dutt2. On the
contrary, the decision of the Constitution Bench in the case of Sanjay
Dutt2reiterates 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 Thakur1is 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 notice is not required. Her submission is that as this Court in the
case of Sanjay Dutt2 has laid down the requirement of informing the
accused about the filing of a report seeking extension of time up to 180
days, it is obvious that the accused on receiving the intimation is entitled
to object to the prayer made by the Public Prosecutor for grant of
extension of time. However, it is not necessary for the Special Court to
supply a copy of the report submitted by the Public Prosec utor to the
accused. Her submission is that the proviso added by sub-sec tion (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 Cou rt in
the case of Hitendra Vishnu Thakur1 and Sanjay Dutt2will squarely
apply to the facts of the case. She pointed out that the dec ision of this
Court in the case of Sanjay Dutt2 was consistently followed in many
decisions by this Court. In the case of Ateef Nasir Mulla v. State of
Maharashtra3, this Court followed the law laid down by this Court in
both the aforesaid decisions while dealing with the similar provisions under
clause (b) of sub-section (2) of Section 49 of Prevention of T errorism
3 (2005) 7 SCC 29
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
Act, 2002 (for short ‘POTA’). She submitted that while dealing with a
similar provision in the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short ‘NDPS Act’), in the case of Sanjay Kumar Kedia
Alias Sanjay Kedia v. Intelligence Officer, Narcotics Control
Bureau and Another4, this Court followed the decision in the case of
Hitendra Vishnu Thakur1. The learned senior counsel also invited our
attention to a decision of this Court in the case of S. Kasi v. State
through the Inspector of Police Samaynallur Police Station
Madurai District5. She also invited our attention to another decision in
the case of Bikramjit Singh v. State of Punjab 6. She urged that in
both the aforesaid decisions, this Court held that the right to get default
bail under sub-section (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. Ravindran v.
Intelligence Officer, Directorate of Revenue Intelli gence7 which
holds that sub-section (2) of Section 167 of CrPC is integrally linked to
the constitutional commitment under Article 21 of the Const itution of
India promising protection of life and personal liberty against unlawful
and arbitrary detention. Therefore, the provision of sub-secti on (2) of
Section 167 should be interpreted in a manner that serves this object.
She also relied upon a decision of the Karnataka High Court in the case
of Muzammil Pasha & Ors. Etc. v. National Investigating Agency
etc.8.
7.Her submission is that in violation of the law laid down by the
Constitution Bench in the case of Sanjay Dutt2, the time to carry out the
investigation was extended by the Special Court. Therefore, the said
order is completely illegal as it infringes the right of the appellants to get
default bail which is held to be a fundamental right guaranteed by Article
21 of the Constitution of India.
SUBMISSIONS OF THE RESPONDENT
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
4 (2009)17 SCC 631
5 2020 SCC OnLine SC 529
6 (2020) 10 SCC 616
7 (2021) 2 SCC 485
8 2021 SCC OnLine Kar 12688
381
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 ti me 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 Pub lic Prosecutor
indicating the progress of the investigation and the specific reasons for
continuing the detention of the 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 decis ion of this
Court in the case of Sanjay Kumar Kedia 4 is per incuriam as the
binding precedent in the case of Sanjay Dutt2 was not considered by
this Court.
10.His submission is that the obligation to produce the accused
before the Court is mandatory only when his detention in police custody
is sought. He submitted that mere non-production 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 non-production and there has been
no failure of justice. Learned ASG submitted that physical production of
the accused was not feasible due to Covid-19 conditions and that 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
9 (2009) 6 SCC 65
10 (2019) 5 SCC 178
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
case of Hitendra Vishnu Thakur1, the Constitution Bench in the case
of Sanjay Dutt2has held that service of written notice to the accused is
not necessary and it would suffice if the accused was p resent 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.
FURTHER SUBMISSIONS
12. On 09 th February 2022, submissions were concluded.
Thereafter, we noticed that sub-section (5) of Section 20 o f the 2015
Act was not brought to our notice during the course of submis sions.
Therefore, on 10th March 2022, the appeals were again listed on Board
for further hearing, and time was granted to the learned counsel appearing
for the parties to make further submissions on the limited i ssue of the
applicability of sub-section (5) of Section 20 of the 2015 Act. Thereafter,
the appeals could not be listed immediately due to the c hange of the
constitution of the Bench. Ultimately, further submissions were heard on
23rd August 2022.
13. Ms. Nitya Ramakrishnan, learned senior counsel appearing
for the appellants pointed out that though sub- section (5) of Section 20,
which overrides the provisions of CrPC, provides that the accused shall
not be granted bail if it is noticed by the Special Court that he was on bail
in an offence under the 2015 Act or under any other Act on the date of
the offence in question, the same will not come in the way of the appellants
getting default bail. She pointed out that an identical prov ision in the
form of sub-section (5) of Section 21 of the Maharashtra Control of
Organised Crime Act, 1999 (for short, ‘the MCOCA’) has been partially
struck down by the Bombay High Court in the case of Bharat Shanti
Lal Shah & Ors. v. State of Maharashtra11. She pointed out that this
Court in the case of State of Maharashtra v. Bharat Shanti Lal Shah
& Ors.12has affirmed the said view. This Court, for reasons recorded,
11 2003 All MR (Crl.) 1061
12 (2008) 13 SCC 5
383
held that the expression “or under any other Act” as appea ring in
sub-section (5) of Section 21 of the MCOCA was arbi trary and
discriminatory.
RESPONSE OF THE SOLICITOR GENERALOF INDIA
14.Shri Tushar Mehta, learned Solicitor General of India submitted
that in view of the pronouncement of law by this Court in t he case of
Bharat Shanti Lal Shah 12, sub-section (5) of Section 20 of the 2015
Act will not by itself be an impediment in the way of the a ppellants
getting default bail. With the permission of the Court, he made additional
submissions. He relied upon Section 461 of CrPC which 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 sub-section
(2) of Section 465 of CrPC. His submission is that as held by this
Court in the case of Sanjay Dutt2, the accused is not entitled to a written
notice of the application made by the Public Prosecutor for extension of
the period provided to carry out the investigation and only his presence
is to be procured when the application is heard by the Special Court. He
submitted that the accused is not entitled to receive a c opy of the
application/ report made under the proviso to sub-section (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 sub mitted that
there is no prejudice caused to the appellants as a result of the failure
of the investigating agency to produce them before the Speci al Court
when applications for extension were heard. He submitted that the failure
to produce the appellants on the date on which extension applicat ions
were heard, is a mere irregularity in the proceedings which will have no
effect on 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 afte r the time was
extended by the Special Court. He would, therefore, submit that the
appellants are not entitled to default bail. He also subm itted that the
13 (2021) 2 SCC 525
14 (2016) 14 SCC 430
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
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 sub-section (2) of Section 167 of CrPC. For that purpose , we must
refer to Section 20 of the 2015 Act. The Section reads thus: -
“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 tha t
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 Prosecu tor
indicating the progress of the investigation and the spe cific
reasons for detention of the accused beyond the said peri od
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.
(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 –
385
(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 sub-sections (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
pre-indictment or pre-trial interrogation from the judicial custody
shall file a written statement explaining the reasons fo r seeking
such custody and also for the delay, if any, in seeking the police
custody.”
[emphasis added]
We also reproduce sub-sections (1) and (2) of Section 167 of
CrPC which read thus:-
“167. Procedure when investigation cannot be completed
in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and
it appears that the investigation cannot be completed within t he
period of twenty-four 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 pol ice
officer making the investigation, if he is not below the rank of
sub-inspector, shall forthwith transmit to the neare st 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.
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
(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 a ccused
person, otherwise than in the custody of the police, beyond t he
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 offenc e
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 accused person shall be released on b ail
if he is prepared to and does furnish bail, and every person released
on bail under this sub-section shall be deemed to be so rel eased
under the provisions of Chapter XXXIII for the purposes of that
Chapter;
(b) no Magistrate shall authorise detention of the ac cused
in custody of the police under this section unless the
accused is produced before him in person for the fir st time
and subsequently every time till the accused remains in
the custody of the police, but the Magistrate may exten d
further detention in judicial custody on production of t he
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.
387
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 unde r
clause (b), the production of the accused person may be prove d
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]
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 a dded by
sub-section (2) of Section 20 of the 2015 Act to sub-Secti on (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 Pub lic 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 sub-section (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 pow er under the
proviso added to sub-section (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.
18. As can be seen from sub-section (2) of Section 20 of the
2015 Act, the provisions of Section 167 of CrPC and in p articular
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 refe rence to
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
“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.
GENERAL PRINCIPLES GOVERNING DEFAULTBAIL
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 sub-section (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 lai d down the
law on this aspect.
19.(a) The first decision is in the case of Uday Mohanlal Acharya
v. State of Maharashtra15. In paragraph 13 thereof, the majority view
has been summarised which reads thus :
“…. …. …. ….
On the aforesaid premises, we would record our conclusions a s
follows:
1. Under sub-section (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 sub-section (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
15 (2001) 5 SCC 453
389
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 the per iod of 90
days or 60 days, as specified and no charge-sheet has been filed
by the investigating agency. Such prompt action on the part of the
Magistrate/court will not enable the prosecution to frustrat e 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 sub-section (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 charge-sheet is filed then the so -called
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 per iod
specified in para ( a) of the proviso to sub-section (2) of
Section 167 if the accused files an application for bai l and
offers also to furnish the bail on being directed, then i t has
to be held that the accused has availed of his indefeas ible
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 charge-sheet is filed subsequent to the avai ling of
the indefeasible right by the accused then that righ t would
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not stand frustrated or extinguished, necessarily therefore ,
if an accused entitled to be released on bail by applicati on
of the proviso to sub-section (2) of Section 167, makes the
application before the Magistrate, but the Magistra te
erroneously refuses the same and rejects the applica tion
and then the accused moves the higher forum and while
the matter remains pending before the higher forum for
consideration a charge-sheet is filed, the so-calle d
indefeasible right of the accused would not stand
extinguished thereby, and on the other hand, the accus ed
has to be released on bail. Such an accused, who thus is entitled
to be released on bail in enforcement of his indefeasible right will,
however, have to be produced before the Magistrate on a charge-
sheet being filed in accordance with Section 209 and the Magistrate
must deal with him in the matter of remand to custody subject to
the provisions of the Code relating to bail and subject to the
provisions of cancellation of bail, already granted in accordance
with the law laid down by this Court in the case of Mohd. Iqbal
v. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri)
202] .”
[emphasis added]
19(b) The second decision is in the case of M. Ravindran7. The
conclusions in the said decision can be summarised as under :
(i) Majority view in the case of Uday Mohanlal Acharya15 is
correct;
(ii) Sub-section (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 off ence
alleged. On the failure to complete the investigation within
the defined outer limit, the accused acquires an indefeasible
right to get default bail;
(iii) The timelines provided under sub-section (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;
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(iv) The Legislature has enacted sub-section (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) Sub-section (2) of Section 167 is integrally linked to t he
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. Kasi5was quoted
with the approval which holds that the indefeasible right to
default bail is an integral part 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 interpretati on
which leans towards protecting the rights of the accused. This
principle is applicable even in the case of a procedure providing
for curtailment of liberty of the accused.
19.(c) The third decision is in the case of Rakesh Kumar Paul
v. State of Assam16. This decision holds that it is the duty of the learned
Magistrate to inform the accused, of the availability of indefeasible right
under sub-section (2) of Section 167 of CrPC once it accrues to him. It
was held that this will ensure that dilatory tactics of the prosecution are
thwarted and obligations under Article 21 of the Constitution are upheld.
20.The issue involved in these appeals will have to be decided in
the context of the legal position that the indefeasible right to default bail
under sub-section (2) of Section 167, CrPC is an integral pa rt of the
fundamental right to personal liberty under Article 21 of the Constitution
of India.
IMPEDIMENT OF SUB-SECTION (5) OF SECTION 20
OF THE 2015 ACT
21.Sub-section (5) of Section 20 reads thus :
16 (2017) 15 SCC 67
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
“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.”
Sub-section (5) of Section 21 of the MCOCA contained identical
provision. In the case of Bharat Shanti Lal Shah12, this Court, for the
reasons recorded in paragraphs 62 to 65, concurred with the view of
Bombay High Court that the expression “or under any oth er 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 b y
sub-section (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
CONSIDERATIONOFTHEEXTENSIONAPPLICATION
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 sub-Section (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 Sub-Section (2) of Section
167 of CrPC. Clause (bb) reads thus :
“(bb) in sub-section (2), after the proviso, the following proviso
shall be inserted, namely:—
393
‘Provided further that, if it is not possible to complete t he
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 f or 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 Cour t in
the case of Hitendra Vishnu Thakur1. In paragraph 23 this Court held
thus:
“23. We may at this stage, also on a plain reading of clause (bb)
of sub-section (4) of Section 20, point out that the Legislature has
provided for seeking extension of time for completi on 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 t he
police. The Legislature expects that the investigation m ust
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 investigatio n and
furnish reasons for 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 expec ted to
independently apply his mind to the request of the investigating
agency before submitting a report to the court for extensi on 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
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
GUJARAT [ABHAY S. OKA, J.]
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 th e
expression “on the report of the public prosecutor indicating
the progress of the investigation and the specific reas ons
for the 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 cu stody
unreasonably and to grant extension only on the report of
the public prosecutor. The report of the public prosecu tor,
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 t he
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
395
proper application of his mind, are designed to assis t the
Designated Court to independently decide whether or not
extension should be granted in a given case. Keepin g in
view the consequences of the grant of extension i.e. ke eping
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.
Where the Designated Court declines to grant such an
extension, the right to be released on bail on accou nt of
the ‘default’ of the prosecution becomes indefeasible an d
cannot be defeated by reasons other than those
contemplated by sub-section (4) of Section 20 as discus sed
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 cit izen.
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 of fice’
of the investigating agency nor its ‘forwarding agency’ b ut
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 sub-section (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 a report or as an application for extension, would not be of
much consequence so long as it demonstrates on the face of i t
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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 ba il on
account of the default of the prosecution to file the challan within
the prescribed time if an accused seeks and is prepared to furnish
the bail bonds as directed by the court. Moreover, no extension
can be granted to keep an accused in custody beyond the
prescribed period except to enable the investigation to be
completed and as already stated before any extension is
granted under clause ( bb), the accused must be put on
notice and permitted to have his say so as to be able to
object to the grant of extension.”
[emphasis added]
24. The same issue came up for consideration before the
Constitution Bench in this Court in the case of Sanjay Dutt2. A specific
submission was made before the Constitution Bench that the notice to
the accused of the application for the extension as contemplated by the
decision in the case of Hitendra Vishnu Thakur1is not a written notice.
The argument was that when the report of the Public Prose cutor is
considered by the Special Court, it is enough that the prese nce of the
accused is procured before the Special Court and the accused is informed
that such a report has been submitted by the Public Prosecut or. 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 accordanc e
with Section 167(1) of the Code of Criminal Procedure a nd
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
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Sub-section (4) of Section 20 of the TADA Act has t o 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 t he
accused giving reasons therein. Production of the accuse d
at that time in the court informing him that the questi on of
extension of the period for completing the investigati on is
being considered, is alone sufficient for the purpose. ”
[emphasis added]
25. In the case of Devinderpal Singh v. Government of
National Capital Territory of Delhi17, this Court in paragraphs 14 and
15 held thus :
“14. In Hitendra Vishnu Thakur case [(1994) 4 SCC 602 : 1994
SCC (Cri) 1087] it was also opined that no extension can be granted
by the Designated Court under clause (bb) unless the accused is
put on notice and permitted to have his say so as to be ab le 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 concer ned
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 th at
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 investiga tion
was being considered would be sufficient notice to the
accused.”
[emphasis added]
17 (1996) 1 SCC 44
JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF
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26. In the case of Ateef Nasir Mulla3, this Court considered a
similar provision under POTA. In the said decision, the law laid down in
the case of Sanjay Dutt2 was followed. In the facts of the case, it was
found that the accused along with his Advocate were present when the
request for extension of time to carry on the investigation was considered
by the Court and, in fact, a copy of the report praying for the extension
was provided to the accused to enable him to file a reply.
27.In the case of Sanjay Kumar Kedia4, this Court considered a
similar provision under the NDPS Act. However, this Court d id not
consider the binding precedent in the case of Sanjay Dutt2. Therefore,
this decision will not be a binding precedent.
28. Clause (b) of sub-section (2) of Section 167 of CrPC la ys
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 t he accused
has to be procured either physically or virtually.
This is the mandatory requirement of law. This requirement i s
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, t he Constitution
Bench of this Court in the first part of paragraph 53(2)(a) in its decision
in the case of Sanjay Dutt2 holds so. The requirement of the report
under proviso added by sub-section (2) of Section 20 of th e 2015 Act
to clause (b) of sub-section (2) of Section 167 of CrPC is t wo-fold.
Firstly, in the report of the Public Prosecutor, th e 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
399
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 Cour t must
apply its mind to the contents of the report before accepting the prayer
for grant of extension.
29.As noted earlier, the only modification made by the larger Bench
in the case of Sanjay Dutt2 to the decision in the case of Hitendra
Vishnu Thakur1 is about the mode of service of notice of the application
for extension. In so many words, in paragraph 53(2)(a) of the Judgment,
this Court in the case of Sanjay Dutt2held that it is mandatory to produce
the accused at the time when the Court considers the appli cation for
extension and that the accused must be informed that the questi on 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 accused has no say i n 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 entit led 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 satisfie d 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 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 provi so added by
sub-section (2) of Section 20 of the 2015 Act and that may amoun t 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
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to get default bail which is intrinsically connected with the fundamental
rights guaranteed under Article 21 of the Constitution. The pr ocedure
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 safegu ards play an
important role in protecting the liberty guaranteed by Ar ticle 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.
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 C ourt at the
time of consideration of the application for extension of time will amount
to a violation of the right guaranteed under Article 21 of the Constitution.
Thus, prejudice is inherent and need not be established by the accused.
32.The learned Additional Solicitor General relied upon the decision
of this Court in the case of Narender G. Goel9. The issue involved in
that case was not of extension of time for completion of the investigation.
The issue generally discussed therein is about the right of hearing of the
accused at the stage of the investigation. His reliance on the decision of
this Court in the case of Surendra Pundlik Gadling10will not help him
at all. This was a case where the accused was 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 reject ed.
33. In the facts of the cases in hand, when the Special C ourt
considered the reports submitted by the Public Prosecutor for grant of
extension of time, the presence of the appellants was ad mittedly not
procured before the Special Court either personally or t hrough video
conference. It is also an admitted position that information ab out 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
401
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 ac cused
through video conference. Nothing is placed on record either bef ore
this Court or High Court to show that as per the Standard Op erating
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 ava ilable 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 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 comply ing with the
requirements laid down by the Constitution Bench has deprived the
accused of their right to seek default bail. It has resulted i n 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 failu re of the
respondents to produce the accused before the Special Court ei ther
physically or virtually when the prayer for grant of extension made by
the Public Prosecutor was considered. It was the duty of the Special
Court to ensure that this important procedural safeguard was followed.
Moreover, the oral notice, as contemplated by this Court in the case of
Sanjay Dutt2, was also not given to the accused.
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36.Once we hold that the orders granting extension to complete
investigation are illegal and stand vitiated, it follows that the appellants
are entitled to default bail.
37.When they applied for bail, the appellants had no notice of the
extension of time granted by the Court. Moreover, the applications were
made before the filing of charge sheet. Hence, the appellants are entitled
to default bail. At this stage, we may note here that in the case of Sanjay
Dutt2 as well as in the case of Bikramjit Singh6, this Court held that
grant of default bail does not prevent re- arrest of the p etitioners on
cogent grounds after filing of charge-sheet. Thereafter, the accused can
always apply for regular bail. However, as held by this Cour t in the
case of Mohamed Iqbal Madar Sheikh & Ors. v. State of
Maharashtra18, re-arrest 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 quashed and set aside. The appellant s shall
be enlarged on default bail under sub-section (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.
Divya Pandey Appeals allowed.
(Assisted by : Shubhanshu Das, LCRA)
18 (1996) 1 SCC 722