JIGAR @ JIMMY PRAVINCHANDRA ADATIYA versus STATE OF GUJARAT

JIGAR @ JIMMY PRAVINCHANDRA ADATIYA

STATE OF GUJARAT

(Criminal Appeal No. 1656 of 2022)

SEPTEMBER 23, 2022

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Code of Criminal Procedure, 1973 – s.167(2) – The GujaratControl of Terrorism and Organised Crime Act, 2015 – s.20(2) –Proviso added by the 2015 Act to sub-section (2) of s.167, CrPC –Interpretation of.

Code of Criminal Procedure, 1973 – s.167(2) – Default bail– The Gujarat Control of Terrorism and Organised Crime Act, 2015– s.20(2) – Order of extension passed in exercise of power underthe proviso to sub-section (2) of s.20 of the 2015 Act – Legality of –Appellants are accused in FIR registered for offences under variousprovisions of the 2015 Act – Reports were submitted by the PublicProsecutor seeking extension of time up to 180 days to completethe investigation – Prayer for extending the time up to 180 dayswas allowed by the Special Court – Appellants filed separateapplications u/s.482, CrPC, rejected by High Court – On appeal,held: While extending the remand to judicial custody, the presenceof the accused has to be procured either physically or virtually –This is the mandatory requirement of law – It is sine qua non for theexercise of the power to extend the judicial custody remand – Whenthe Special Court exercises the power of granting extension underthe proviso to sub-section (2) of s.20 of the 2015 Act, it will necessarilylead to the extension of the judicial custody beyond the period of90 days up to 180 days – Therefore, even in terms of s.167(2)(b), itis mandatory to procure the presence of the accused before theSpecial Court when the prayer of the prosecution for the extensionof time to complete investigation is considered – Thus, the failure toprocure the presence of the accused either physically or virtuallybefore the Court and the failure to inform him that the applicationmade by the Public Prosecutor is being considered, is not mereprocedural irregularity – It is gross illegality that violates the rightsof the accused u/Art.21 – Thus, prejudice is inherent and need not

Abe established by the accused – In the present case, orders werepassed by the Special Court on the reports of the Public Prosecutoron the very day on which reports were submitted – There was noreason for such hurry – Admittedly, information about the filing ofsuch reports by the Public Prosecutor was not provided to theaccused – Orders passed by the Special Court extending the periodBof investigation are illegal on account of the failure of therespondents to produce the accused before the Special Court eitherphysically or virtually when the prayer for grant of extension madeby the Public Prosecutor was considered – Thus, the appellants areentitled to default bail – Impugned orders passed by the SpecialCCourt granting extension to complete investigation and impugnedjudgment of the High Court are set aside – Appellants enlarged ondefault bail u/s.167(2) on the conditions as directed – Constitutionof India – Art.21.

Code of Criminal Procedure, 1973 – s.167(2) – The GujaratDControl 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 ofCrPC – Held: Is two-fold – Firstly, in the report of the PublicProsecutor, the progress of the investigation should be set out andsecondly, the report must disclose specific reasons for continuingEthe detention of the accused beyond the said period of 90 days –Therefore, the extension of time is not an empty formality – PublicProsecutor has to apply his mind before he submits report/anapplication for extension – Prosecution has to make out case interms of both the aforesaid requirements and the Court must apply

Fits mind to the contents of the report before accepting the prayerfor grant of extension.

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

Words & Phrases – “or under any other Act” – GujaratControl 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”Happearing in sub-sec.(5) of s.21 of the MCOCA was violative of

JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OFGUJARAT

Articles 14 and 21 of the Constitution and, therefore, it must bestruck down – Hence, the same expression used in sub-section (5)of s.20 of the 2015 Act infringes Articles 14 and 21 of theConstitution – Constitution of India – Articles 14, 21.

Allowing the appeals, the Court

HELD: 1. The entire issue revolves around theinterpretation of the proviso added by the 2015 Act to sub-section(2) of Section 167 of CrPC. In case involving the offencespunishable under the 2015 Act, the Special Court is authorizedto detain the accused person in custody for period not exceeding90 days. The proviso added by sub-section (2) of Section 20 ofthe 2015 Act to sub-section (2) of Section 167 of CRPC enablesthe Special Court to extend the said period to total of 180 dayson the basis of report of the Public Prosecutor setting out theprogress of the investigation and incorporating the specificreasons for the detention of the accused beyond the period of 90days. Thus, unless the Special Court exercises the power underthe proviso added by the 2015 Act to sub-section (2) of s.167 ofCrPC, on the expiry of the period of 90 days, the accused will beentitled to default bail. When the Special Court exercises thepower under the proviso added to sub-section (2) of s.167, CrPcand extends the time up to 180 days, the accused will be entitledto default bail only if the charge sheet is not filed within theextended period. As can be seen from sub-section (2) of Section20 of the 2015 Act, the provisions of Section 167 of CrPC and inparticular sub-section (2) thereof containing entitlement of theaccused to default bail will apply to the 2015 Act with themodification that the reference to the period of “fifteen days”and “sixty days” provided in sub-section (2) of Section 167 ofCRPC is required to be construed as reference to “thirty days”and “ninety days” respectively. The proviso to sub-section (2) ofSection 20 of the 2015 Act enables the Special Court to extendthe period provided in sub-section (2) of Section 167 of CrPC upto 180 days. [Paras 15-18][384-B; 387-D-H; 388-A]

2. Sub-section (5) of Section 21 of the MCOCA containedidentical provision as sub-section (5) of Section 20 of the 2015Act. In the case of Bharat Shanti Lal Shah, this Court, for the

Areasons recorded in paragraphs 62 to 65, concurred with the viewof Bombay High Court that the expression “or under any otherAct” appearing in sub-section (5) of Section 21 of the MCOCAwas violative of Articles 14 and 21 of the Constitution and,therefore, it must be struck down. Hence, the same expressionused in sub-section (5) of Section 20 of the 2015 Act infringesBArticles 14 and 21 of the Constitution. In the facts of the case,none of the appellants were on bail for any offence under the2015 Act and hence, no impediment has been created by sub-section (5) of Section 20 in the facts of these cases for considering

the prayer for default bail. [Para 21][332-B-D]CState of Maharashtra v. Bharat Shanti Lal Shah &Ors. (2008) 13 SCC 5 : [2008] 12 SCR 1083 – reliedon.

Bharat Shanti Lal Shah & Ors. v. State of Maharashtra2003 All MR (Crl.) 1061 – referred to.D

3.1 The issue involved in these appeals will be decided inthe context of the legal position that the indefeasible right todefault bail under sub-section (2) of Section 167, CrPC is anintegral part of the fundamental right to personal liberty underArticle 21 of the Constitution of India. The question before theECourt is about the legal consequences of the failure of the SpecialCourt under the 2015 Act to procure the presence of the accusedat the time of the consideration of the reports submitted by thePublic Prosecutor for grant of extension of time to completethe investigation. In addition, this Court will have to considerFthe effect of the failure to give notice to the accused of the reportssubmitted by the Public Prosecutor. [Paras 20, 22][391-F; 392-F]

3.2 Clause (b) of sub-section (2) of Section 167 of CrPClays down that no Magistrate shall authorise the detention of theGaccused in the custody of the police unless the accused isproduced before him in person. It also provides that judicialcustody can be extended on the production of the accused eitherin person or through the medium of electronic video linkage.Thus, the requirement of the law is that while extending theremand to judicial custody, the presence of the accused has to beH

procured either physically or virtually. This is the mandatoryrequirement of law. This requirement is sine qua non for theexercise of the power to extend the judicial custody remand. Thereason is that the accused has right to oppose the prayer forthe extension of the remand. When the Special Court exercisesthe power of granting extension under the proviso to sub-section(2) of Section 20 of the 2015 Act, it will necessarily lead to theextension of the judicial custody beyond the period of 90 days upto 180 days. Therefore, even in terms of the requirement of clause(b) of sub-section (2) of Section 167 of CrPC, it is mandatory toprocure the presence of the accused before the Special Courtwhen prayer of the prosecution for the extension of time tocomplete investigation is considered. In fact, the ConstitutionBench of this Court in the first part of paragraph 53(2)(a) in itsdecision in the case of Sanjay Dutt holds so. The requirement ofthe report under proviso added by sub-section (2) of Section 20of the 2015 Act to clause (b) of sub-section (2) of Section 167 ofCrPC 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 thedetention of the accused beyond the said period of 90 days.Therefore, the extension of time is not an empty formality. ThePublic Prosecutor has to apply his mind before he submits areport/ an application for extension. The prosecution has to makeout case in terms of both the aforesaid requirements and theCourt must apply its mind to the contents of the report beforeaccepting the prayer for grant of extension.[Para 28][398-C-H;399-A-B]

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

3.3 It is mandatory to produce the accused at the time whenthe Court considers the application for extension and that theaccused must be informed that the question of extension of theperiod of investigation is being considered. The accused maynot be entitled to get copy of the report as matter of right asit may contain details of the investigation carried out. But, if thesubmission of the respondents is accepted that the accused hasno say in the matter, the requirement of giving notice by

Aproducing the accused will become an empty and meaninglessformality. Moreover, it will be against the mandate of clause (b)of the proviso to sub--section (2) of section 167 of CrPc. It cannotbe accepted that the accused is not entitled to raise any objectionto the application for extension. The scope of the objections maybe limited. The accused can always point out to the Court thatBthe prayer has to be made by the Public Prosecutor and not bythe investigating agency. Secondly, the accused can always pointout the twin requirements of the report in terms of proviso addedby 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 toCthe Court that unless it is satisfied that full compliance is madewith the twin requirements, the extension cannot be granted.The logical and legal consequence of the grant of extension oftime is the deprivation of the indefeasible right available to theaccused to claim default bail. If the argument that the failure ofthe prosecution to produce the accused before the Court and toDinform him that the application of extension is being consideredby the Court is mere procedural irregularity is accepted, it willnegate the proviso added by sub-section (2) of Section 20 of the2015 Act and that may amount to violation of rights conferred byArticle 21 of the Constitution. The reason is the grant of theEextension of time takes away the right of the accused to get defaultbail which is intrinsically connected with the fundamental rightsguaranteed under Article 21 of the Constitution. The procedurecontemplated by Article 21 of the Constitution which is requiredto be followed before the liberty of person is taken away has tobe fair and reasonable procedure. In fact, procedural safeguardsFplay an important role in protecting the liberty guaranteed byArticle 21. The failure to procure the presence of the accusedeither physically or virtually before the Court and the failure toinform him that the application made by the Public Prosecutorfor the extension of time is being considered, is not mereGprocedural irregularity. It is gross illegality that violates the rightsof the accused under Article 21. An attempt was made to arguethat the failure to produce the accused will not cause any prejudiceto him. As noted earlier, the grant of extension of time to completethe investigation takes away the indefeasible right of the accusedto apply for default bail. It takes away the right of the accused toH

raise limited objection to the prayer for the extension. Thefailure to produce the accused before the Court at the time ofconsideration of the application for extension of time will amountto violation of the right guaranteed under Article 21 of theConstitution. Thus, prejudice is inherent and need not beestablished by the accused. [Paras 29-31][399-C-H; 400-A-B]

Hitendra Vishnu Thakur and Others v. State ofMaharashtra and Others (1994) 4 SCC 602 : [1994] 1Suppl. SCR 360 – referred to.

3.4 In the facts of the cases in hand, when the Special Courtconsidered the reports submitted by the Public Prosecutor forgrant of extension of time, the presence of the appellants wasadmittedly not procured before the Special Court either personallyor through video conference. It is also an admitted position thatinformation about the filing of such reports by the PublicProsecutor was not provided to the accused. It is mentioned inthe impugned judgment that due to COVID – 19, it was notpermissible to physically produce the accused before the SpecialCourt. Moreover, the accused were in different prisons and,therefore, the production through video conference would havebeen very slow. Assuming that the process of production wouldhave been slow, that is no excuse for not procuring the presenceof the accused through video conference. Nothing is placed onrecord either before this Court or High Court to show that as of2021 etc. per the Standard Operating Procedure applicable tothe concerned Court in January 2021 when the impugned orderswere passed granting the extension, it was not permissible tophysically produce the accused before the Special Court. Thereis no material placed on record to show that technical reasons/difficulties prevented the prosecution from producing the accusedbefore the Special Court through video conference. It is notpossible to accept that in January 2021 in the Court at Rajkot inthe State of Gujarat, there was any connectivity issue. In fact,admittedly, no such case was pleaded before the High Court inthe pleadings of the respondents. The accused were arrested ondifferent dates. The reports were submitted by the PublicProsecutor nearly week before the expiry of the period of 90

Adays. In every case, period of seven days or more was availablefor completion of the period of ninety days. The orders werepassed by the Special Court on the reports of the PublicProsecutor on the very day on which reports were submitted.There was no reason for such hurry. The accused may not beentitled to know the contents of the report but he is entitled toBoppose the grant of extension of time on the grounds available tohim in law. In the facts of the present case, the grant of extensionof time without complying with the requirements laid down bythe Constitution Bench has deprived the accused of their rightto seek default bail. It has resulted in the failure of justice. TheCorders passed by the Special Court of extending the period ofinvestigation are rendered illegal on account of the failure of therespondents to produce the accused before the Special Courteither physically or virtually when the prayer for grant of extensionmade by the Public Prosecutor was considered. It was the duty ofthe Special Court to ensure that this important proceduralDsafeguard was followed. Moreover, the oral notice, ascontemplated by this Court in the case of Sanjay Dutt, was alsonot given to the accused. Once it is held that the orders grantingextension to complete investigation are illegal and stand vitiated,it follows that the appellants are entitled to default bail. TheEimpugned orders passed by the Special Court granting extensionto complete investigation and impugned judgment of the HighCourt are hereby quashed and set aside. The appellants shall beenlarged on default bail under sub-section (2) of Section 167 ofCrPC on the conditions as directed. [Paras 33-36 and 39][400-G-H; 401-A-H; 402-A, D]F

State of Maharashtra v. Surendra Pundlik Gadling andOrs. (2019) 5 SCC 178 : [2019] 3 SCR 310 – heldinapplicable.

Uday Mohanlal Acharya v. State of Maharashtra (2001)G5 SCC 453 : [2001] 2 SCR 878; M. Ravindran v.Intelligence Officer, Directorate of Revenue Intelligence(2021) 2 SCC 485 : 2020 (10) JT 383; Rakesh KumarPaul v. State of Assam (2017) 15 SCC 67 : [2017] 8SCR 785 – relied on.

JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OFGUJARAT

Sanjay Kumar Kedia Alias Sanjay Kedia v. IntelligenceOfficer, Narcotics Control Bureau and Another (2009)17 SCC 631 : [ 2010] 1 SCR 555 – held not bindingprecedent.

Ateef Nasir Mulla v. State of Maharashtra (2005) 7 SCC29 : [2005] 2 Suppl. SCR 919; S. Kasi v. State throughthe Inspector of Police Samaynallur Police StationMadurai District 2020 SCC OnLine SC 529; BikramjitSingh v. State of Punjab (2020) 10 SCC 616 : [2020]10 JT 53; Muzammil Pasha & Ors. Etc. v. NationalInvestigating Agency Etc. 2021 SCC OnLine Kar12688; Narender G. Goel v. State of Maharashtra andAnr. (2009) 6 SCC 65 : [2009] 8 SCR 1004; FerticoMarketing & Investment Private Limited & Ors. v.Central Bureau of Investigation & Anr. (2021) 2 SCC525 : 2020 (11 ) JT 10; Securities and Exchange Boardof India Etc. v. Gaurav Varshney & Anr. Etc. (2016) 14SCC 430 : [2016] 7 SCR 1; Devinderpal Singh v.Government of National Capital Territory of Delhi(1996) 1 SCC 44 : [1995] 5 Suppl. SCR 199; MohamedIqbal Madar Sheikh & Ors. v. State of Maharashtra(1996) 1 SCC 722 : [1996] 1 SCR 183 – referred to.

[2022] 13 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.B1656 of 2022.

From the Judgment and Order dated 15.09.2021 of the High Courtof Gujarat at Ahmedabad in Criminal Misc. Application No. 4928 of2021.

WithCCriminal Appeal Nos. 1657, 1658-1659, 1660 of 2022.

Ms. Nitya Ramakrishnan, Sr. Adv., Pradhuman Gohil, Mrs. TarunaSingh Gohil, Ms. Ranu Purohit, R. Vishnu Kumar, Alapati SahithyaKrishna, Bhargav Mansatta, Raghav Tankha, Anurag Radhor, Nikhil Goel,Advs. for the Appellant.D

Tushar Mehta, SG, Rajat Nair, Ms. Deepanwita Priyanka, Advs.for the Respondent.

The Judgment of the Court was delivered by

ABHAY S. OKA, J.E

Leave granted.

FACTUALASPECTS

2.The appellants are the accused in FIR No.112020082021862020registered with Jamnagar City ‘A’ Division Police Station in Gujarat forFthe offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of TheGujarat 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 involvingoffences punishable under the 2015 Act. By virtue of sub-section (2) ofSection 20 of the 2015 Act, proviso has been added in addition to theGexisting proviso to sub-section (2) of Section 167 of CrPC which permitsthe Special Court established under the 2015 Act to extend the period of90 days provided to complete the investigation up to 180 days. TheSpecial Court is empowered to extend the period up to 180 days on areport of the Public Prosecutor setting out the progress of the investigationH

and the specific reasons for continuing detention of the accused beyondthe period of 90 days.

3. The aforesaid First Information Report was registered on15[th] October 2020. The accused were arrested on different dates. Reportswere submitted by the Public Prosecutor seeking extension of time up to180 days to complete the investigation. In three cases, the reports weresubmitted on 8[th] January 2021, and in one case, it was submitted on21[st] January 2021. The prayer for extending the time up to 180 days wasallowed by the Special Court on the very day on which the applicationswere filed. Being aggrieved by the said orders of the Special Court,separate applications under Section 482 of CrPC were preferred by theappellants. By the impugned common Judgment dated 15[th] September2021, the learned Single Judge of Gujarat High Court rejected theapplications made by the appellants under Section 482 of CrPC. Thedetails such as the respective dates of arrest and the dates of makingapplications are as under:-

4. The main ground urged in support of the appeals is that whenthe Special Court passed orders on the reports submitted by the learnedPublic Prosecutor by which time to complete investigation was extendedup to 180 days, the presence of none of the accused was procuredeither physically or through video conference and that they were noteven informed about the reports submitted by the Public Prosecutor.B

SUBMISSIONSOFTHEAPPELLANTS

5.Ms. Nitya Ramakrishnan, the learned senior counsel appearingfor the appellants has made detailed submissions. Reliance has beenplaced on the decisions of this Court in the case of Hitendra VishnuCThakur and others v. State of Maharashtra and others[1]and SanjayDutt v. State through CBI, Bombay (II)[2]. Her submission is that whenthe 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 Section167 of CrPC, the presence of the appellants was admittedly not procuredeven through video conference. Admittedly, before the reports submittedDby the Public Prosecutor seeking extension of time up to 180 days wereconsidered, the Special Court did not inform the appellants about suchreports being filed by the Public Prosecutor. Her submission is that in thecase of Sanjay Dutt[2], the Constitution Bench of this Court has clearlylaid down that the production of the accused before the Special CourtEon the date on which such report is considered is mandatory and thatby producing the accused before the Court, he must be informed aboutsuch report submitted by the Public Prosecutor. Thus, there is violationof the mandate of law laid down by the Constitution Bench of this Court.She pointed out that the appellants moved applications for grant of defaultbail as they were not aware of the filing of the reports by the PublicFProsecutor and the orders of the Special Court extending the period forinvestigation. In view of the extension of time granted by the SpecialCourt, 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. On9[th] April 2021, charge sheet was filed by the police. Her submission isGthat the order granting extension to complete investigation is completelyillegal as the same has been passed without following the mandate laiddown in the case of Sanjay Dutt[2]. Her submission is that the ordergranting extension passed by the Special Court deserves to be set aside.

1 (1994) 4 SCC 602H2 (1994) 5 SCC 410

As the applications for default bail were made by the appellants afterthe expiry of the statutory period of 90 days but before filing the chargesheet, the appellants are entitled to default bail.

6. The learned senior counsel submitted that the decision of thisCourt in the case of Hitendra Vishnu Thakur[1]was modified by theConstitution Bench in the case of Sanjay Dutt[2]on very limited aspect.She submitted that the requirement of law laid down in the case ofHitendra Vishnu Thakur[1]regarding procuring the presence of theaccused at the time of considering the report seeking extension of timeand requirement of putting the accused to the notice of the filing of sucha report has not been disturbed in the case of Sanjay Dutt[2]. On thecontrary, the decision of the Constitution Bench in the case of SanjayDutt[2]reiterates the mandatory requirement of production of the accusedbefore the Court at the time of consideration of the report submitted bythe Public Prosecutor. The only modification made by the ConstitutionBench in the decision of Hitendra Vishnu Thakur[1]is by holding thatthe mode of giving notice to the accused is by informing him about thefiling of such report by producing him before the Special Court and awritten notice is not required. Her submission is that as this Court in thecase of Sanjay Dutt[2]has laid down the requirement of informing theaccused about the filing of report seeking extension of time up to 180days, it is obvious that the accused on receiving the intimation is entitledto object to the prayer made by the Public Prosecutor for grant ofextension of time. However, it is not necessary for the Special Court tosupply copy of the report submitted by the Public Prosecutor to theaccused. Her submission is that the proviso added by sub-section (2)of Section 20 of the 2015 Act is pari materia with the proviso added byclause (bb) of sub- section (4) of Section 20 of the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (for short ‘TADA Act”) to sub- section(2) of Section 167 of CrPC. Therefore, the decisions of this Court inthe case of Hitendra Vishnu Thakur[1] and Sanjay Dutt[2]will squarelyapply to the facts of the case. She pointed out that the decision of thisCourt in the case of Sanjay Dutt[2] was consistently followed in manydecisions by this Court. In the case of Ateef Nasir Mulla v. State ofMaharashtra[3], this Court followed the law laid down by this Court inboth the aforesaid decisions while dealing with the similar provisions underclause (b) of sub-section (2) of Section 49 of Prevention of Terrorism

AAct, 2002 (for short ‘POTA’). She submitted that while dealing with asimilar provision in the Narcotic Drugs and Psychotropic SubstancesAct, 1985 (for short ‘NDPS Act’), in the case of Sanjay Kumar KediaAlias Sanjay Kedia v. Intelligence Officer, Narcotics ControlBureau and Another[4], this Court followed the decision in the case ofHitendra Vishnu Thakur[1]. The learned senior counsel also invited ourBattention to decision of this Court in the case of S. Kasi v. Statethrough the Inspector of Police Samaynallur Police StationMadurai District[5]. She also invited our attention to another decision inthe case of Bikramjit Singh v. State of Punjab[6]. She urged that inboth the aforesaid decisions, this Court held that the right to get defaultCbail under sub-section (2) of Section 167 of CrPC is not merely statutoryright but fundamental right guaranteed to an accused. She also referredto another decision of this Court in the case of M. Ravindran v.Intelligence Officer, Directorate of Revenue Intelligence[7]whichholds that sub-section (2) of Section 167 of CrPC is integrally linked tothe constitutional commitment under Article 21 of the Constitution ofDIndia promising protection of life and personal liberty against unlawfuland arbitrary detention. Therefore, the provision of sub-section (2) ofSection 167 should be interpreted in manner that serves this object.She also relied upon decision of the Karnataka High Court in the caseof Muzammil Pasha & Ors. Etc. v. National Investigating AgencyEetc.[8].

7. Her submission is that in violation of the law laid down by theConstitution Bench in the case of Sanjay Dutt[2], the time to carry out theinvestigation was extended by the Special Court. Therefore, the saidorder is completely illegal as it infringes the right of the appellants to getFdefault bail which is held to be fundamental right guaranteed by Article21 of the Constitution of India.

SUBMISSIONSOFTHERESPONDENT

8. Shri Aman Lekhi, the learned Additional Solicitor General ofIndia (ASG) submitted that the accused is not entitled to written noticeGof the reports submitted by the Public Prosecutor for seeking extension

4 (2009)17 SCC 6315 2020 SCC OnLine SC 5296 (2020) 10 SCC 6167 (2021) 2 SCC 485H8 2021 SCC OnLine Kar 12688

of time. He submitted that the report of the Public Prosecutor is consideredby the Special Court at stage when the investigation is in progress. Hissubmission is that accused has no say in the matter of grant of extensionof time as he has no right of being heard at the stage of the investigation.He relied upon 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 ofconsideration of the report submitted by the Public Prosecutor for extensionof time is very limited. He relied upon decision of this Court in the caseof State of Maharashtra v. Surendra Pundlik Gadling and Ors.[10].He submitted that if report is submitted by the Public Prosecutorindicating the progress of the investigation and the specific reasons forcontinuing the detention of the accused beyond period of 90 days, theSpecial Court is empowered to grant the extension. He submitted that inthe present case, the reports submitted by the Public Prosecutor indicatethat there was an application of mind by the Public Prosecutor and alldetails as required were submitted. He urged that the decision of thisCourt in the case of Sanjay Kumar Kedia[4]is per incuriam as thebinding precedent in the case of Sanjay Dutt[2]was not considered bythis Court.10. His submission is that the obligation to produce the accusedbefore the Court is mandatory only when his detention in police custodyis sought. He submitted that mere non-production of the accused on theday on which the Special Court considered the request for the grant ofextension of time will not vitiate the order extending the time. Hissubmission is that in view of Section 460 of CrPC, the order will notstand vitiated. His submission is that in any case, no prejudice has beencaused to the appellants due to their non-production and there has beenno failure of justice. Learned ASG submitted that physical production ofthe accused was not feasible due to Covid-19 conditions and that inadequatebandwidth prevented the virtual production of the accused persons. Hesubmitted that the reasons given by the High Court are cogent and correct.

REJOINDEROFTHEAPPELLANTS

11. By way of rejoinder, the learned senior counsel appearing forthe appellant submitted that without disturbing the law laid down in the

9 (2009) 6 SCC 65

10 (2019) 5 SCC 178

Acase of Hitendra Vishnu Thakur[1], the Constitution Bench in the caseof Sanjay Dutt[2]has held that service of written notice to the accused isnot necessary and it would suffice if the accused was present in theCourt and was informed that the request for extension of time to completethe investigation is being considered. She submitted that there is nomaterial placed on record to show that in January 2021 when the reportsBsubmitted by the Public Prosecutor were considered by the Special Court,either the Standard Operating Procedure prevailing at that time prohibitedthe physical production of the accused or there was no proper connectivitywhich prevented the production even virtually. Her submission is that thesaid plea has no foundation at all.C

FURTHERSUBMISSIONS

12. On 09[th] February 2022, submissions were concluded.Thereafter, we noticed that sub-section (5) of Section 20 of the 2015Act was not brought to our notice during the course of submissions.Therefore, on 10[th] March 2022, the appeals were again listed on BoardDfor further hearing, and time was granted to the learned counsel appearingfor the parties to make further submissions on the limited issue of theapplicability of sub-section (5) of Section 20 of the 2015 Act. Thereafter,the appeals could not be listed immediately due to the change of theconstitution of the Bench. Ultimately, further submissions were heard onE23[rd] August 2022.

13. Ms. Nitya Ramakrishnan, learned senior counsel appearingfor the appellants pointed out that though sub- section (5) of Section 20,which overrides the provisions of CrPC, provides that the accused shallnot be granted bail if it is noticed by the Special Court that he was on bailFin an offence under the 2015 Act or under any other Act on the date ofthe offence in question, the same will not come in the way of the appellantsgetting default bail. She pointed out that an identical provision in theform of sub-section (5) of Section 21 of the Maharashtra Control ofOrganised Crime Act, 1999 (for short, ‘the MCOCA’) has been partiallystruck down by the Bombay High Court in the case of Bharat ShantiGLal Shah & Ors. v. State of Maharashtra[11]. She pointed out that thisCourt in the case of State of Maharashtra v. Bharat Shanti Lal Shah& Ors.[12]has affirmed the said view. This Court, for reasons recorded,

11 2003 All MR (Crl.) 1061H12 (2008) 13 SCC 5

held that the expression “or under any other Act” as appearing insub-section (5) of Section 21 of the MCOCA was arbitrary anddiscriminatory.

RESPONSEOFTHESOLICITORGENERALOFINDIA

14.Shri Tushar Mehta, learned Solicitor General of India submittedthat in view of the pronouncement of law by this Court in the case ofBharat Shanti Lal Shah[12], sub-section (5) of Section 20 of the 2015Act will not by itself be an impediment in the way of the appellantsgetting default bail. With the permission of the Court, he made additionalsubmissions. He relied upon Section 461 of CrPC which contains anexhaustive list of irregularities that vitiate proceedings. He urged thatthe irregularity alleged in this case is not part of the list of irregularitiescontained 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 thisCourt in the case of Sanjay Dutt[2], the accused is not entitled to writtennotice of the application made by the Public Prosecutor for extension ofthe period provided to carry out the investigation and only his presenceis to be procured when the application is heard by the Special Court. Hesubmitted that the accused is not entitled to receive copy of theapplication/ report made under the proviso to sub-section (2) of Section20 of the 2015 Act and, therefore, he is not entitled to make anysubmissions on the report of the Public Prosecutor. He submitted thatthere is no prejudice caused to the appellants as result of the failureof the investigating agency to produce them before the Special Courtwhen applications for extension were heard. He submitted that the failureto produce the appellants on the date on which extension applicationswere heard, is mere irregularity in the proceedings which will have noeffect on further stages such as cognizance, trial, etc. On this aspect, herelied upon decision of this Court in the case of Fertico Marketing& Investment Private Limited & Ors. v. Central Bureau ofInvestigation & Anr.[13]. He also relied upon another decision of thisCourt in the case of Securities and Exchange Board of India etc. v.Gaurav Varshney & Anr. etc.[14]. He urged that the applications foravailing of default bail were filed by the appellants after the time wasextended by the Special Court. He would, therefore, submit that theappellants are not entitled to default bail. He also submitted that the

13 (2021) 2 SCC 525

14 (2016) 14 SCC 430

DEF

[2022] 13 S.C.R.

Aallegations against the appellants are of very serious nature. Even thisaspect needs to be taken into consideration.

CONSIDERATIONOFSUBMISSIONS

15.We have carefully considered the submissions. The entire issuerevolves around the interpretation of the proviso added by the 2015 ActBto sub-section (2) of Section 167 of CrPC. For that purpose, we mustrefer 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 otherClaw, every offence punishable under this Act shall be deemed tobe ‘cognizable offence’ within the meaning of clause (c) ofsection 2 of the Code and ‘cognizable case’ as defined in thatclause and shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to case involvingDan offence punishable under this Act subject to the modificationsthat in sub- section (2), -

(a) the reference to “fifteen days” and “sixty days”, whereverthey occur, shall be construed as references to “thirty days”and “ninety days”, respectively;

E(b) after the existing proviso, the following proviso shall beinserted, namely: -

“Provided further that if it is not possible to completethe investigation within the said period of ninety days, theSpecial Court shall extend the said period upto one hundredFand eighty days on the report of the Public Prosecutorindicating the progress of the investigation and the specificreasons for detention of the accused beyond the said periodof ninety days.”.

(3) Nothing in section 438 of the Code shall apply in relation to anyGcase involving the arrest of any person accused of having committedan offence punishable under this Act.

(4) Notwithstanding anything contained in the Code, no personaccused of an offence punishable under this Act shall, if in custody, bereleased on bail or on his own bond, unless –

(a) the Public Prosecutor has been given an opportunity tooppose the application of such release; and

(b) where the Public Prosecutor opposes the application, theSpecial Court is satisfied that there are reasonable grounds forbelieving that accused is not guilty of committing such offenceand that he is not likely to commit any offence while on bail.

(5) Notwithstanding anything contained in the Code, theaccused shall not be granted bail if it is noticed by theSpecial Court that he was on bail in an offence under thisAct, or under any other Act on the date of the offence inquestion.

(6) The restriction on granting of bail specified in sub-sections (4)and (5) are in addition to the restriction under the Code or anyother law for the time being in force on the granting of bail.

(7) The police officer seeking the custody of any person forpre-indictment or pre-trial interrogation from the judicial custodyshall file written statement explaining the reasons for seekingsuch custody and also for the delay, if any, in seeking the policecustody.”

[emphasis added]

We also reproduce sub-sections (1) and (2) of Section 167 ofCrPC which read thus:-

“167. Procedure when investigation cannot be completedin twenty-four hours.

(1) Whenever any person is arrested and detained in custody, andit appears that the investigation cannot be completed within theperiod of twenty-four hours fixed by section 57, and there aregrounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the policeofficer making the investigation, if he is not below the rank ofsub-inspector, shall forthwith transmit to the nearest JudicialMagistrate copy of the entries in the diary hereinafter prescribedrelating to the case, and shall at the same time forward the accusedto such Magistrate.

A(2) The Magistrate to whom an accused person is forwarded underthis section may, whether he has or has not jurisdiction to try thecase, from time to time, authorise the detention of the accused insuch custody as such Magistrate thinks fit, for term not exceedingfifteen days in the whole; and if he has no jurisdiction to try thecase or commit it for trial, and considers further detentionBunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyond theperiod of fifteen days, if he is satisfied that adequate grounds existfor doing so, but no Magistrate shall authorise the detention of theaccused person in custody under this paragraph for total periodexceeding-

(i) ninety days, where the investigation relates to an offencepunishable with death, imprisonment for life or imprisonment fora 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 bailif he is prepared to and does furnish bail, and every person releasedon bail under this sub-section shall be deemed to be so releasedunder the provisions of Chapter XXXIII for the purposes of thatChapter;

F(b) no Magistrate shall authorise detention of the accusedin custody of the police under this section unless theaccused is produced before him in person for the first timeand subsequently every time till the accused remains inthe custody of the police, but the Magistrate may extendfurther detention in judicial custody on production of theGaccused either in person or through the medium ofelectronic video linkage;

(c) no Magistrate of the second class, not specially empowered inthis behalf by the High Court, shall authorise detention in the custodyof the police.

Explanation I.-For the avoidance of doubts, it is herebydeclared that, notwithstanding the expiry of the period specified inparagraph (a), the accused shall be detained in custody so long ashe does not furnish bail.

Explanation II.-If any question arises whether an accusedperson was produced before the Magistrate as required underclause (b), the production of the accused person may be provedby his signature on the order authorising detention or by the ordercertified by the Magistrate as to production of the accused personthrough the medium of electronic video linkage, as the case maybe.

Provided further that in case of woman under eighteenyears of age, the detention shall be authorised to be in the custodyof remand home or recognised social institution.”

[emphasis added]

16. Thus, in case involving the offences punishable under the2015 Act, the Special Court is authorized to detain the accused personin custody for period not exceeding 90 days. The proviso added bysub-section (2) of Section 20 of the 2015 Act to sub-Section (2) ofSection 167 of CrPC enables the Special Court to extend the said periodto total of 180 days on the basis of report of the Public Prosecutorsetting out the progress of the investigation and incorporating the specificreasons for the detention of the accused beyond the period of 90 days.

17. Thus, unless the Special Court exercises the power under theproviso added by the 2015 Act to sub-section (2) of Section 167 ofCrPC, on the expiry of the period of 90 days, the accused will be entitledto default bail. When the Special Court exercises the power under theproviso added to sub-section (2) of Section 167 of CrPC and extendsthe time up to 180 days, the accused will be entitled to default bail only ifthe charge sheet is not filed within the extended period.

18. As can be seen from sub-section (2) of Section 20 of the2015 Act, the provisions of Section 167 of CrPC and in particularsub-section (2) thereof containing entitlement of the accused to defaultbail will apply to the 2015 Act with the modification that the reference tothe period of “fifteen days” and “sixty days” provided in sub-section (2)of Section 167 of CrPC is required to be construed as reference to

A“thirty days” and “ninety days” respectively. The proviso to sub-section(2) of Section 20 of the 2015 Act enables the Special Court to extendthe period provided in sub-section (2) of Section 167 of CrPC up to180 days.

GENERALPRINCIPLESGOVERNINGDEFAULTBAIL

19. Before we go to the main controversy concerning the legalityof the order of extension passed in exercise of the power under theproviso to sub-section (2) of Section 20 of the 2015 Act, it is necessaryto recapitulate the settled law relating to default bail. Three decisions ofthe Benches of three Hon’ble Judges of this Court have laid down theClaw on this aspect.

19.(a) The first decision is in the case of Uday Mohanlal Acharyav. State of Maharashtra[15]. In paragraph 13 thereof, the majority viewhas been summarised which reads thus :

“…. …. …. ….D

On the aforesaid premises, we would record our conclusions asfollows:

1. Under sub-section (2) of Section 167, Magistrate beforewhom an accused is produced while the police is investigating intothe offence can authorise detention of the accused in such custodyEas the Magistrate thinks fit for term not exceeding 15 days onthe whole.

2. Under the proviso to the aforesaid sub-section (2) ofSection 167, the Magistrate may authorise detention of the accusedotherwise than in the custody of police for total period notFexceeding 90 days where the investigation relates to offencepunishable with death, imprisonment for life or imprisonment for aterm of not less than 10 years, and 60 days where the investigationrelates to any other offence.

3. On the expiry of the said period of 90 days or 60days, as the case may be, an indefeasible right accrues infavour of the accused for being released on bail on accountof default by the investigating agency in the completion ofthe investigation within the period prescribed and the

accused is entitled to be released on bail, if he is preparedto and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused forenforcement of his indefeasible right alleged to have been accruedin his favour on account of default on the part of the investigatingagency in completion of the investigation within the specified period,the Magistrate/court must dispose of it forthwith, on being satisfiedthat in fact the accused has been in custody for the period of 90days or 60 days, as specified and no charge-sheet has been filedby the investigating agency. Such prompt action on the part of theMagistrate/court will not enable the prosecution to frustrate theobject of the Act and the legislative mandate of an accused beingreleased on bail on account of the default on the part of theinvestigating agency in completing the investigation within the periodstipulated.

5. If the accused is unable to furnish the bail as directed bythe Magistrate, then on conjoint reading of Explanation I and theproviso to sub-section (2) of Section 167, the continued custody ofthe accused even beyond the specified period in para (a) will notbe unauthorised, and therefore, if during that period the investigationis complete and the charge-sheet is filed then the so-calledindefeasible right of the accused would stand extinguished.

6. The expression “if not already availed of” used bythis Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994SCC (Cri) 1433] must be understood to mean when theaccused files an application and is prepared to offer bail onbeing directed. In other words, on expiry of the periodspecified in para (a) of the proviso to sub-section (2) ofSection 167 if the accused files an application for bail andoffers also to furnish the bail on being directed, then it hasto be held that the accused has availed of his indefeasibleright even though the court has not considered the saidapplication and has not indicated the terms and conditionsof bail, and the accused has not furnished the same.With the aforesaid interpretation of the expression “availedof” if the charge-sheet is filed subsequent to the availing ofthe indefeasible right by the accused then that right would

Anot stand frustrated or extinguished, necessarily therefore,if an accused entitled to be released on bail by applicationof the proviso to sub-section (2) of Section 167, makes theapplication before the Magistrate, but the Magistrateerroneously refuses the same and rejects the applicationand then the accused moves the higher forum and whileBthe matter remains pending before the higher forum forconsideration charge-sheet is filed, the so-calledindefeasible right of the accused would not standextinguished thereby, and on the other hand, the accusedhas to be released on bail. Such an accused, who thus is entitledCto be released on bail in enforcement of his indefeasible right will,however, have to be produced before the Magistrate on charge-sheet being filed in accordance with Section 209 and the Magistratemust deal with him in the matter of remand to custody subject tothe provisions of the Code relating to bail and subject to theprovisions of cancellation of bail, already granted in accordanceDwith the law laid down by this Court in the case of Mohd. Iqbalv. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri)202] .”

[emphasis added]

E19(b) The second decision is in the case of M. Ravindran[7]. Theconclusions in the said decision can be summarised as under :

(i)Majority view in the case of Uday Mohanlal Acharya[15]iscorrect;

(ii) Sub-section (2) of Section 167 of CrPC was enacted forFproviding an outer time limit to the period of remand of theaccused proportionate to the seriousness of the offencealleged. On the failure to complete the investigation withinthe defined outer limit, the accused acquires an indefeasibleright to get default bail;

G(iii) The timelines provided under sub-section (2) of Section 167,CrPC ensure that investigating officers are compelled to actswiftly and efficiently without misusing the prospect of furtherremand. This provision ensures that the Court takescognizance of the case without undue delay after investigationis completed within the time provided in sub-section (2) ofHSection 167, CrPC;

(iv) The Legislature has enacted sub-section (2) of Section 167for balancing the need to provide sufficient time to completethe investigation with the need to protect civil liberties of theaccused which is given paramount importance in ourConstitution;

(v) Sub-section (2) of Section 167 is integrally linked to theconstitutional commitment under Article 21 of the Constitutionof India promising protection of the personal liberty againstunlawful and arbitrary detention;

(vi) The decision of this Court in the case of S. Kasi[5]was quotedwith the approval which holds that the indefeasible right todefault bail is an integral part of the right to personal libertyunder Article 21 and the said right cannot be suspended evenduring the pandemic situation; and

(vii) It is well settled that in case of any ambiguity in the constructionof penal statute, the Court must favour the interpretationwhich leans towards protecting the rights of the accused. Thisprinciple is applicable even in the case of procedure providingfor curtailment of liberty of the accused.

19.(c) The third decision is in the case of Rakesh Kumar Paulv. State of Assam[16]. This decision holds that it is the duty of the learnedMagistrate to inform the accused, of the availability of indefeasible rightunder sub-section (2) of Section 167 of CrPC once it accrues to him. Itwas held that this will ensure that dilatory tactics of the prosecution arethwarted and obligations under Article 21 of the Constitution are upheld.

20. The issue involved in these appeals will have to be decided inthe context of the legal position that the indefeasible right to default bailunder sub-section (2) of Section 167, CrPC is an integral part of thefundamental right to personal liberty under Article 21 of the Constitutionof India.

IMPEDIMENTOFSUB-SECTION(5)OF SECTION20OFTHE2015ACT

21. Sub-section (5) of Section 20 reads thus :

16 (2017) 15 SCC 67

[2022] 13 S.C.R.

A“20. Modified application of certain provisions of Code.

… … … … …

(5) Notwithstanding anything contained in the Code, the accusedshall not be granted bail if it is noticed by the Special Court thathe was on bail in an offence under this Act, or under any otherBAct on the date of the offence in question.”

Sub-section (5) of Section 21 of the MCOCA contained identicalprovision. In the case of Bharat Shanti Lal Shah[12], this Court, for thereasons recorded in paragraphs 62 to 65, concurred with the view ofBombay High Court that the expression “or under any other Act”Cappearing in sub-section (5) of Section 21 of the MCOCA was violativeof Articles 14 and 21 of the Constitution and, therefore, it must be struckdown. Hence, the same expression used in sub-section (5) of Section 20of the 2015 Act infringes Articles 14 and 21 of the Constitution. In thefacts of the case, none of the appellants were on bail for any offenceDunder the 2015 Act and hence, no impediment has been created bysub-section (5) of Section 20 in the facts of these cases for consideringthe prayer for default bail.

22. The question before us is about the legal consequences of thefailure of the Special Court under the 2015 Act to procure the presenceof the accused at the time of the consideration of the reports submittedFby the Public Prosecutor for grant of extension of time to complete theinvestigation. In addition, we will have to consider the effect of the failureto give notice to the accused of the reports submitted by the PublicProsecutor.

23. Under Clause (bb) of sub-Section (4) of Section 20 of TADA,there is pari materia proviso that empowers the Designated Court toGextend the period provided in clause (a) of Sub-Section (2) of Section167 of CrPC. Clause (bb) reads thus :

“(bb) in sub-section (2), after the proviso, the following provisoshall be inserted, namely:—

‘Provided further that, if it is not possible to complete theinvestigation within the said period of one hundred and eightydays, the Designated Court shall extend the said period up toone year, on the report of the Public Prosecutor indicating theprogress of the investigation and the specific reasons for thedetention of the accused beyond the said period of one hundredand eighty days; and’ ’’

The said proviso came up for consideration before this Court inthe case of Hitendra Vishnu Thakur[1]. In paragraph 23 this Court heldthus:

“23. We may at this stage, also on plain reading of clause (bb)of sub-section (4) of Section 20, point out that the Legislature hasprovided for seeking extension of time for completion ofinvestigation on report of the public prosecutor. The Legislaturedid not purposely leave it to an investigating officer to makean application for seeking extension of time from the court.This provision is in tune with the legislative intent to havethe investigations completed expeditiously and not to allowan accused to be kept in continued detention duringunnecessary prolonged investigation at the whims of thepolice. The Legislature expects that the investigation mustbe completed with utmost promptitude but where it becomesnecessary to seek some more time for completion of theinvestigation, the investigating agency must submit itselfto the scrutiny of the public prosecutor in the first instanceand satisfy him about the progress of the investigation andfurnish reasons for seeking further custody of an accused.A public prosecutor is an important officer of the State Governmentand is appointed by the State under the Code of Criminal Procedure.He is not part of the investigating agency. He is an independentstatutory authority. The public prosecutor is expected toindependently apply his mind to the request of the investigatingagency before submitting report to the court for extension oftime with view to enable the investigating agency to completethe investigation. He is not merely post office or forwardingagency. public prosecutor may or may not agree with the reasonsgiven by the investigating officer for seeking extension of timeand may find that the investigation had not progressed in the proper

Amanner or that there has been unnecessary, deliberate or avoidabledelay in completing the investigation. In that event, he may notsubmit any report to the court under clause (bb) to seek extensionof time. Thus, for seeking extension of time under clause (bb), thepublic prosecutor after an independent application of his mind tothe request of the investigating agency is required to make reportBto the Designated Court indicating therein the progress of theinvestigation and disclosing justification for keeping the accusedin further custody to enable the investigating agency to completethe investigation. The public prosecutor may attach the requestof the investigating officer along with his request orCapplication and report, but his report, as envisaged underclause (bb), must disclose on the face of it that he has appliedhis mind and was satisfied with the progress of theinvestigation and considered grant of further time tocomplete the investigation necessary. The use of theexpression “on the report of the public prosecutor indicatingDthe progress of the investigation and the specific reasonsfor the detention of the accused beyond the said period” asoccurring in clause (bb) in sub- section (2) of Section 167 asamended by Section 20(4) are important and indicative ofthe legislative intent not to keep an accused in custodyEunreasonably and to grant extension only on the report ofthe public prosecutor. The report of the public prosecutor,therefore, is not merely formality but very vital report,because the consequence of its acceptance affects the libertyof an accused and it must, therefore, strictly comply withthe requirements as contained in clause (bb). The request ofFan investigating officer for extension of time is no substitute forthe report of the public prosecutor. Where either no report as isenvisaged by clause (bb) is filed or the report filed by the publicprosecutor is not accepted by the Designated Court, since thegrant of extension of time under clause (bb) is neither formalityGnor automatic, the necessary corollary would be that an accusedwould be entitled to seek bail and the court ‘shall’ release him onbail if he furnishes bail as required by the Designated Court. It isnot merely the question of form in which the request for extensionunder clause (bb) is made but one of substance. The contentsof the report to be submitted by the public prosecutor, after

proper application of his mind, are designed to assist theDesignated Court to independently decide whether or notextension should be granted in given case. Keeping inview the consequences of the grant of extension i.e. keepingan accused in further custody, the Designated Court mustbe satisfied for the justification, from the report of the publicprosecutor, to grant extension of time to complete theinvestigation.

Where the Designated Court declines to grant such anextension, the right to be released on bail on account ofthe ‘default’ of the prosecution becomes indefeasible andcannot be defeated by reasons other than thosecontemplated by sub-section (4) of Section 20 as discussedin the earlier part of this judgment. We are unable to agreewith Mr. Madhava Reddy or the Additional Solicitor General Mr.Tulsi that even if the public prosecutor ‘presents’ the request ofthe investigating officer to the court or ‘forwards’ the request ofthe investigating officer to the court, it should be construed to bethe report of the public prosecutor. There is no scope for such aconstruction when we are dealing with the liberty of citizen.The courts are expected to zealously safeguard his liberty. Clause(bb) has to be read and interpreted on its plain language withoutaddition or substitution of any expression in it. We have alreadydealt with the importance of the report of the publicprosecutor and emphasised that he is neither ‘post office’of the investigating agency nor its ‘forwarding agency’ butis charged with statutory duty. He must apply his mind tothe facts and circumstances of the case and his report mustdisclose on the face of it that he had applied his mind to thetwin conditions contained in clause (bb) of sub-section (4) ofSection 20. Since the law requires him to submit the reportas envisaged by the section, he must act in the manner asprovided by the section and in no other manner. ADesignated Court which overlooks and ignores therequirements of valid report fails in the performance ofone of its essential duties and renders its order under clause(bb) vulnerable. Whether the public prosecutor labels his reportas report or as an application for extension, would not be ofmuch consequence so long as it demonstrates on the face of it

Athat he has applied his mind and is satisfied with the progress ofthe investigation and the genuineness of the reasons for grant ofextension to keep an accused in further custody as envisaged byclause (bb) (supra). Even the mere reproduction of the applicationor request of the investigating officer by the public prosecutor inhis report, without demonstration of the application of his mindBand recording his own satisfaction, would not render his report asthe one envisaged by clause (bb) and it would not be properreport to seek extension of time. In the absence of an appropriatereport the Designated Court would have no jurisdiction to denyto an accused his indefeasible right to be released on bail onCaccount of the default of the prosecution to file the challan withinthe prescribed time if an accused seeks and is prepared to furnishthe bail bonds as directed by the court. Moreover, no extensioncan be granted to keep an accused in custody beyond theprescribed period except to enable the investigation to becompleted and as already stated before any extension isDgranted under clause (bb), the accused must be put onnotice and permitted to have his say so as to be able toobject to the grant of extension.”

[emphasis added]

E24. The same issue came up for consideration before theConstitution Bench in this Court in the case of Sanjay Dutt[2]. specificsubmission was made before the Constitution Bench that the notice tothe accused of the application for the extension as contemplated by thedecision in the case of Hitendra Vishnu Thakur[1]is not written notice.The argument was that when the report of the Public Prosecutor isFconsidered by the Special Court, it is enough that the presence of theaccused is procured before the Special Court and the accused is informedthat such report has been submitted by the Public Prosecutor. Byaccepting the said submission, the Constitution Bench summarised itsconclusions as under:-G

“53. (2)(a) Section 20(4) (bb) of the TADA Act only requiresproduction of the accused before the court in accordancewith Section 167(1) of the Code of Criminal Procedure andthis is how the requirement of notice to the accused beforegranting extension beyond the prescribed period of 180 daysHin accordance with the further proviso to clause (bb) of

Sub-section (4) of Section 20 of the TADA Act has to beunderstood in the judgment of the Division Bench of thisCourt in Hitendra Vishnu Thakur. The requirement of suchnotice to the accused before granting the extension forcompleting the investigation is not written notice to theaccused giving reasons therein. Production of the accusedat that time in the court informing him that the question ofextension of the period for completing the investigation isbeing considered, is alone sufficient for the purpose.”

[emphasis added]

25. In the case of Devinderpal Singh v. Government ofNational Capital Territory of Delhi[17], this Court in paragraphs 14 and15 held thus :

“14. In Hitendra Vishnu Thakur case [(1994) 4 SCC 602 : 1994SCC (Cri) 1087] it was also opined that no extension can be grantedby the Designated Court under clause (bb) unless the accused isput on notice and permitted to have his say so as to be able toobject to the grant of extension.

15. The Constitution Bench in Sanjay Dutt case [(1994) 5SCC 410 : 1994 SCC (Cri) 1433] did not express anycontrary opinion insofar as the requirement of the report ofthe Public Prosecutor for grant of extension is concernedor on the effect of the absence of such 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 grantingextension for completion of investigation is not to beconstrued as “written notice” to the accused and thatonly the production of the accused at the time ofconsideration of the report of the Public Prosecutor for grantof extension and informing him that the question ofextension of the period for completing the investigationwas being considered would be sufficient notice to theaccused.”

[emphasis added]

A26. In the case of Ateef Nasir Mulla[3], this Court considered asimilar provision under POTA. In the said decision, the law laid down inthe case of Sanjay Dutt[2]was followed. In the facts of the case, it wasfound that the accused along with his Advocate were present when therequest for extension of time to carry on the investigation was consideredby the Court and, in fact, copy of the report praying for the extensionBwas provided to the accused to enable him to file reply.

27.In the case of Sanjay Kumar Kedia[4], this Court considered asimilar provision under the NDPS Act. However, this Court did notconsider the binding precedent in the case of Sanjay Dutt[2]. Therefore,this decision will not be binding precedent.C

28. Clause (b) of sub-section (2) of Section 167 of CrPC laysdown that no Magistrate shall authorise the detention of the accused inthe custody of the police unless the accused is produced before him inperson. It also provides that judicial custody can be extended on theproduction of the accused either in person or through the medium ofDelectronic video linkage. Thus, the requirement of the law is that whileextending the remand to judicial custody, the presence of the accusedhas to be procured either physically or virtually.

This is the mandatory requirement of law. This requirement issine qua non for the exercise of the power to extend the judicial custodyEremand. The reason is that the accused has right to oppose the prayerfor the extension of the remand. When the Special Court exercises thepower of granting extension under the proviso to sub-section (2) of Section20 of the 2015 Act, it will necessarily lead to the extension of the judicialcustody beyond the period of 90 days up to 180 days. Therefore, even interms of the requirement of clause (b) of sub-section (2) of Section 167Fof CrPC, it is mandatory to procure the presence of the accused beforethe Special Court when prayer of the prosecution for the extension oftime to complete investigation is considered. In fact, the ConstitutionBench of this Court in the first part of paragraph 53(2)(a) in its decisionin the case of Sanjay Dutt[2]holds so. The requirement of the reportGunder proviso added by sub-section (2) of Section 20 of the 2015 Actto 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 theinvestigation should be set out and secondly, the report must disclosespecific reasons for continuing the detention of the accused beyond thesaid period of 90 days. Therefore, the extension of time is not an emptyH

formality. The Public Prosecutor has to apply his mind before he submitsa report/ an application for extension. The prosecution has to make outa case in terms of both the aforesaid requirements and the Court mustapply its mind to the contents of the report before accepting the prayerfor grant of extension.

29.As noted earlier, the only modification made by the larger Benchin the case of Sanjay Dutt[2]to the decision in the case of HitendraVishnu Thakur[1] is about the mode of service of notice of the applicationfor 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 producethe accused at the time when the Court considers the application forextension and that the accused must be informed that the question ofextension of the period of investigation is being considered. The accusedmay not be entitled to get copy of the report as matter of right as itmay contain details of the investigation carried out. But, if we acceptthe submission of the respondents that the accused has no say in thematter, the requirement of giving notice by producing the accused willbecome an empty and meaningless formality. Moreover, it will be againstthe mandate of clause (b) of the proviso to sub-section (2) of section 167of CrPC. It cannot be accepted that the accused is not entitled to raiseany objection to the application for extension. The scope of the objectionsmay be limited. The accused can always point out to the Court that theprayer has to be made by the Public Prosecutor and not by the investigatingagency. Secondly, the accused can always point out the twin requirementsof the report in terms of proviso added by sub-section (2) of Section 20of the 2015 Act to sub-section (2) of Section 167 of CrPC. The accusedcan always point out to the Court that unless it is satisfied that fullcompliance is made with the twin requirements, the extension cannot begranted.30.The logical and legal consequence of the grant of extension oftime is the deprivation of the indefeasible right available to the accusedto claim default bail. If we accept the argument that the failure of theprosecution to produce the accused before the Court and to inform himthat the application of extension is being considered by the Court is amere procedural irregularity, it will negate the proviso added bysub-section (2) of Section 20 of the 2015 Act and that may amount toviolation of rights conferred by Article 21 of the Constitution. The reasonis the grant of the extension of time takes away the right of the accused

Ato get default bail which is intrinsically connected with the fundamentalrights guaranteed under Article 21 of the Constitution. The procedurecontemplated by Article 21 of the Constitution which is required to befollowed before the liberty of person is taken away has to be fairand reasonable procedure. In fact, procedural safeguards play animportant role in protecting the liberty guaranteed by Article 21. TheBfailure to procure the presence of the accused either physically or virtuallybefore the Court and the failure to inform him that the application madeby the Public Prosecutor for the extension of time is being considered, isnot mere procedural irregularity. It is gross illegality that violates therights of the accused under Article 21.C31. An attempt was made to argue that the failure to produce theaccused will not cause any prejudice to him. As noted earlier, the grantof extension of time to complete the investigation takes away theindefeasible right of the accused to apply for default bail. It takes awaythe right of the accused to raise limited objection to the prayer for theDextension. The failure to produce the accused before the Court at thetime of consideration of the application for extension of time will amountto 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 decisionEof this Court in the case of Narender G. Goel[9]. The issue involved inthat case was not of extension of time for completion of the investigation.The issue generally discussed therein is about the right of hearing of theaccused at the stage of the investigation. His reliance on the decision ofthis Court in the case of Surendra Pundlik Gadling[10]will not help himat all. This was case where the accused was not only produced beforeFthe Court but he was provided copy of the application for extension oftime. The grievance of the accused was that time of only one day wasgranted to contest the application. This contention was rejected.

33. In the facts of the cases in hand, when the Special Courtconsidered the reports submitted by the Public Prosecutor for grant ofGextension of time, the presence of the appellants was admittedly notprocured before the Special Court either personally or through videoconference. It is also an admitted position that information about thefiling of such reports by the Public Prosecutor was not provided to theaccused. It is mentioned in the impugned judgment that due to COVIDH– 19, it was not permissible to physically produce the accused before theSpecial Court. Moreover, the accused were in different prisons and,therefore, the production through video conference would have beenvery slow. Assuming that the process of production would have beenslow, that is no excuse for not procuring the presence of the accusedthrough video conference. Nothing is placed on record either beforethis Court or High Court to show that as per the Standard OperatingProcedure applicable to the concerned Court in January 2021 when theimpugned orders were passed granting the extension, it was notpermissible 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 beforethe Special Court through video conference. It is not possible to acceptthat in January 2021 in the Court at Rajkot in the State of Gujarat, therewas any connectivity issue. In fact, admittedly, no such case was pleadedbefore the High Court in the pleadings of the respondents.

34. We must note here that the reports were submitted by thePublic Prosecutor nearly week before the expiry of the period of 90days. In every case, period of seven days or more was available forcompletion of the period of ninety days. The orders were passed by theSpecial Court on the reports of the Public Prosecutor on the very day onwhich reports were submitted. There was no reason for such hurry. TheSpecial Court could have always granted time of couple of days tothe prosecution to procure the presence of the accused either physicallyor through video conference. The accused may not be entitled to knowthe contents of the report but he is entitled to oppose the grant of extensionof time on the grounds available to him in law. In the facts of the presentcase, the grant of extension of time without complying with therequirements laid down by the Constitution Bench has deprived theaccused of their right to seek default bail. It has resulted in the failureof justice.

35.The orders passed by the Special Court of extending the periodof investigation are rendered illegal on account of the failure of therespondents to produce the accused before the Special Court eitherphysically or virtually when the prayer for grant of extension made bythe Public Prosecutor was considered. It was the duty of the SpecialCourt to ensure that this important procedural safeguard was followed.Moreover, the oral notice, as contemplated by this Court in the case ofSanjay Dutt[2], was also not given to the accused.

A36. Once we hold that the orders granting extension to completeinvestigation are illegal and stand vitiated, it follows that the appellantsare entitled to default bail.

37.When they applied for bail, the appellants had no notice of theextension of time granted by the Court. Moreover, the applications wereBmade before the filing of charge sheet. Hence, the appellants are entitledto default bail. At this stage, we may note here that in the case of SanjayDutt[2]as well as in the case of Bikramjit Singh[6], this Court held thatgrant of default bail does not prevent re- arrest of the petitioners oncogent grounds after filing of charge-sheet. Thereafter, the accused canalways apply for regular bail. However, as held by this Court in theCcase of Mohamed Iqbal Madar Sheikh & Ors. v. State ofMaharashtra[18], re-arrest cannot be made only on the ground of filingof charge sheet. It all depends on the facts of each case.

38.Accordingly, the impugned orders passed by the Special Courtgranting extension to complete investigation and impugned judgment ofDthe High Court are hereby quashed and set aside. The appellants shallbe enlarged on default bail under sub-section (2) of Section 167 of CrPCon following conditions :

(a) The appellants shall furnish bail bond of Rs.2,00,000/- withappropriate sureties as may be decided by the Special Court;

(b) The appellants shall surrender their passports to the SpecialCourt at the time of furnishing security;

(c) The appellants shall not interfere in any manner with the furtherinvestigation, if any and shall not make any effort to influencethe prosecution witnesses; andF

(d) The appellants shall mark regular attendance with such policestation and at such periodical intervals, as may be determinedby the Special Court; and

(e) The appellants shall cooperate with the Special Court for earlyconclusion of the trial.G

39. The appeals are allowed on the above terms.

Divya Pandey(Assisted by : Shubhanshu Das, LCRA)

Appeals allowed.

H18 (1996) 1 SCC 722