IMPORTANT POINT
Default bail – While considering application by Investigating Agency for extension of time for completing investigation beyond period prescribed under Section 167(2) of Cr.P.C. accused is to be given notice and/or is to be kept present before Court so that accused had knowledge that extension is sought and granted.

JUDGMENT :

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.09.2022 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 1215/2022 and 1216/2022, by which, the Division Bench of the High Court has dismissed the said appeals and has refused to release the appellant – accused on statutory bail (default bail) under Section 167(2) of the Cr.PC, the original accused has preferred the present appeals.

3. The facts leading to the present appeals in a nutshell are as under:-

3.1 That the accused came to be arrested on 29.01.2022. The 90 days period as provided under Section 167 of the Cr.PC, therefore, was to expire on 29.04.2022. However, on 22.04.2022, the Investigating Officer prayed for extension of time to complete the investigation which came to be granted by the learned Trial Court by granting extension of 30 days period. The accused came to be informed about the extension on 23.04.2022 itself. On 22.05.2022, the Investigating Officer again prayed for further extension which came to be allowed by the learned Trial Court on 22.05.2022. At this stage, it is required to be noted that on 22.05.2022, the second extension was granted in the presence of the accused. In the meantime, the accused submitted the default bail application on 10.05.2022 on the ground that at the time when the first extension was granted on 22.04.2022, the same was not in the presence of the accused and the accused was not kept present and therefore, first extension was bad in law and therefore, the accused acquired right to get the default bail on 10.05.2022. The learned Trial Court rejected the said application(s). The Division Bench of the High Court by the impugned judgment and order has dismissed the appeals. Hence, the present appeals at the instance of the original accused.

4. Shri Mehmood Pracha, learned counsel has appeared on behalf of the appellant and Shri Tushar Mehta, learned Solicitor General has appeared on behalf of the respondent – State of Gujarat.

4.1 Shri Pracha, learned counsel appearing on behalf of the accused has vehemently submitted that as such the judgment and order which has been relied upon by the Division Bench of the High Court has been subsequently set aside by this Court in the case of Jigar alias Jimmy Pravinchandra Adatiya Vs. State of Gujarat 2022 SCC OnLine SC 1290.

4.2 It is further submitted by Shri Pracha, learned counsel appearing on behalf of the accused that it is admitted by the prosecution that the appellant was not produced before the learned Trial Court at the time of consideration of application for first extension of period of investigation. It is submitted that in the case of Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors. (1994) 4 SCC 602 and in the case of Sanjay Dutt Vs. State through CBI, Bombay (II) (1994) 5 SCC 410, notice to the accused at the time of consideration of application for extension of period of investigation has been held to be mandatory. It is submitted that in the case of Sanjay Dutt (supra), this Court has further interpreted to mean that a written notice is not mandatory but the presence of the accused suffices. It is submitted that therefore, even as per the law laiddown by this Court in the case of Sanjay Dutt (supra) at the time of consideration of application for extension of period of investigation, the presence of the accused is must. It is submitted that therefore, in the present case when the first extension was granted on 22.04.2022 admittedly the accused was not produced before the learned Trial Court, the first extension before itself is illegal and not an extension in the eye of law and therefore, thereafter when the accused filed the application(s) under Section 167(2) of the Cr.PC for default bail/statutory bail, the accused had acquired a indefeasible right for release on statutory bail as by the time 90 days period was over and the first extension is to be ignored.

4.3 It is f