2022 Supreme(SC) 973

SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
Jigar @ Jimmy Pravinchandra Adatiya – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No.1656 to 1660 of 2022 [Arising out of SLP (Crl.) No. 7696, 7609, 7678-7679, 7758 of 2021]
Decided on : 23-09-2022.

IMPORTANT POINTS
(1) Default bail – Indefeasible right to default bail is an integral part of right to personal liberty under Article 21 and said right cannot be suspended even during pandemic situation.
(2) Default bail – Extension of period of investigation – Accused has right to oppose prayer for extension of remand – Extension of time is not an empty formality.
(3) Default bail – If accused is unable to furnish bail as directed by Magistrate, then continued custody of accused even beyond specified period will not be unauthorised and if during that period investigation is complete and charge-sheet is filed then indefeasible right of accused would stand extinguished.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 167(2) – Gujarat Control of Terrorism and Organised Crime Act, 2015 – Section 20(2) – Default bail – Extension of period of investigation – FIR registered for offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of Gujarat Control of Terrorism and Organised Crime Act, 2015 – Unless Special Court exercises power under the proviso added by 2015 Act to sub-section (2) of Section 167 of Cr.P.C., on expiry of period of 90 days, accused will be entitled to default bail – When Special Court exercises power under proviso added to sub-section (2) of Section 167 of Cr.P.C. and extends time up to 180 days, accused will be entitled to default bail only if charge-sheet is not filed within extended period. (Para 17)

(B) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Indefeasible right to default bail is an integral part of right to personal liberty under Article 21 and said right cannot be suspended even during pandemic situation – On expiry of period of 90 days or 60 days, as the case may be, indefeasible right accrues in favour of accused for being released on bail on account of default by investigating agency in completion of investigation within period prescribed and accused is entitled to be released on bail, if he is prepared to and furnishes bail as directed by Magistrate – If accused is unable to furnish bail as directed by Magistrate, then continued custody of accused even beyond specified period will not be unauthorised and if during that period investigation is complete and charge-sheet is filed then indefeasible right of accused would stand extinguished. (Paras 19(a) and 19(b))

(C) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Extension of period of investigation – Requirement of law is that while extending remand to judicial custody, presence of accused has to be procured either physically or virtually – This is mandatory requirement of law – This requirement is sine qua non for exercise of power to extend judicial custody remand – Accused has right to oppose prayer for extension of remand – Extension of time is not an empty formality – Public Prosecutor has to apply his mind before he submits a report/ application for extension – Logical and legal consequence of grant of extension of time is deprivation of indefeasible right available to accused to claim a default bail – Failure to procure presence of accused either physically or virtually before Court is not a mere procedural irregularity – It is gross illegality that violates rights of accused under Article 21 – Prejudice is inherent and need not be established by accused. (Paras 28, 29, 30 and 31)

(D) Criminal Procedure Code, 1973 – Section 167(2) – Gujarat Control of Terrorism and Organised Crime Act, 2015 – Section 20(2) – Default bail – Extension of period of investigation – Orders passed by Special Court of extending period of investigation are rendered illegal on account of failure of respondents to produce the accused before Special Court either physically or virtually when prayer for grant of extension made by Public Prosecutor was considered – It was duty of Special Court to ensure that this important procedural safeguard was followed – Assuming that due to COVID-19 process of production would have been slow, that is no excuse for not procuring presence of accused through video conference – Once it is held that orders granting extension to complete investigation are illegal and stand vitiated, appellants become entitled to default bail – Grant of default bail does not prevent re-arrest of petitioners on cogent grounds after filing of charge-sheet – Thereafter, accused can always apply for regular bail – Re-arrest cannot be made only on the ground of filing of charge sheet – It all depends on facts of each case – Impugned orders passed by Special Court granting extension to complete investigation and impugned judgment of High Court quashed and set aside and default bail granted. (Paras 33, 35, 36, 37 and 38)

Facts of the case:

Appellants are accused in FIR 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. Section 167 of the Code of Criminal Procedure, 1973 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 2015 Act, a proviso has been added in addition to existing proviso to sub-section (2) of Section 167 of Cr.P.C. which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete investigation up to 180 days. Special Court is empowered to extend the period up to 180 days on a report of Public Prosecutor setting out the progress of investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days.

Findings of Court:

Accused may not be entitled to know the contents of 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 present case, grant of extension of time without complying with the requirements laid down by Constitution Bench has deprived the accused of their right to seek default bail. It has resulted in the failure of justice.

Result : Appeals allowed.