The main legal point established in the judgment is that the failure to produce the accused before the Special Court and to inform them about the application for extension of time rendered the orders granting extension illegal, entitling the applicants to default bail.

JUDGMENT :

ILESH J. VORA, J.

1. Both the bail applications arising out of one and same FIR and therefore, they were heard together and disposed of by this common judgment.

2. The applicants have filed these default bail applications under Section 167 (2) of Cr.P.C. and Section 20 (2) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (hereinafter referred to as “GUJCTOC” for short) in connection with FIR being II-C.R. No. 42/2021 [(Part-B) C.R. No. 11206061210131 of 2021] registered with Santhal Police Station, District Mahesana for the offences punishable under Sections 3 (1) (i), 3 (1) (ii), 3 (2), 3 (3), 3 (4) and 3 (5) of the GUJCTOC Act.

3. These default bail applications filed invoking Section 167 (2) of Cr.P.C. mainly on the premise that, when the Special Court passed orders on the report submitted by learned Public Prosecutor, by which, time to complete investigation was extended for a further period of 30 days, without informing them about the report submitted by the public prosecutor and at the time of passing the order, they were not called upon by issuing notice either physically or through video conference and therefore, order granting extension to complete investigation is illegal as the same has been passed without following the mandate laid down in the case of Sanjay Dutt vs. State through CBI, Bombay, (1994) 5 SCC 410.

4. In the facts of the present case, the applicants were arrested on 12.05.2021 and 24.05.2021 respectively. The date of FIR is 06.05.2021. On 06.08.2021, Special Public Prosecutor filed application, stating, inter-alia, that the custody of the applicants may be extended for a period of sixty days and accordingly, vide order dated 06.09.2021, the Special Judge extended thirty days time and again on 06.09.2021, the Special Prosecutor submitted an application, inter-alia, praying to extend sixty days time which was extended up to 06.10.2021. Thus, the prosecution was supposed to file charge-sheet on or before 06.10.2021.

5. In the aforesaid facts, the applicants have filed default bail applications, after expiry of statutory period of 90 days but before filing the charge-sheet, inter-alia, stating that, the applicants are entitled to default bail.

6. Heard Mr. Tejas Barot, learned counsel for the applicants and Mr. Mitesh Amin, learned Public Prosecutor assisted by Manan Maheta, learned APP for the respondent-state.

7. Mr. Tejas Barot, learned counsel for the applicant, vehemently submitted that, recently in the case of Jigar @ Jimmy Pravinchandra Adatiya vs. State of Gujarat, Criminal Appeal No. 1656 of 2022 and SLP (Crl) No. 7696 of 2021, decided on 23.09.2022, the Apex Court after examining the similar facts, held that, the orders passed by the Special Court extending the period of investigation are illegal on account of failure of the respondent-prosecution to produce the accused before the Special Court either physically or virtually when prayer for grant of extension made by the public prosecutor.

8. Learned counsel Mr. Barot for the applicants, relying on the aforesaid decision, submitted that, in the facts of the present case, none of the accused-applicants were produced before the Special Court either physically or virtually, when the orders were passed, considering the request of the Special Public Prosecutor.

9. On the other hand, Mr. Amin, learned Public Prosecutor submitted that, the Special Court is empowered to grant extension and the public prosecutor applied his mind while submitting the application as all the details as required were incorporated in the application and therefore, on the facts of the present case, the decision relied Jigar @ Jimmy Pravinchandra (supra) is not applicable.

10. Before adverting to the rival contentions of the respective parties, it is necessary to refer the legal provisions and the observations and law laid down by the Apex Court in the case