The Bench of Justice Ajay Rastogi and Abhay S. Oka while considering a petition filed under Section 167(2) of the CRPC for grant of default Bail held that the failure of the respondents to produce the accused before the Special Court either physically or virtually when the prayer for grant of extension made by the Public Prosecutor was considered, is illegal and violative of Article 14 and 16 of the Constitution of India.

The bench also held that the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail.

In this case, the appellants are the accused in FIR registered 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. The Court further held "By virtue of sub­section (2) of Section 20 of the 2015 Act, a proviso has been added in addition to the existing proviso to sub­section (2) of Section 167 of CrPC which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete the investigation up to 180 days. The Special Court is empowered to extend the period up to 180 days on a report of the Public Prosecutor setting out the progress of the investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days."

The FIR was registered on 15th October 2020. The accused were arrested on different dates. Reports were submitted by the Public Prosecutor seeking extension of time up to 180 days to complete the investigation. In three cases, the reports were submitted on 8th January 2021, and in one case, it was submitted on 21st January 2021.  The prayer for extending the time up to 180 days was allowed by the Special Court on the very day on which the applications were filed. Being aggrieved by the said orders of the Special Court, separate applications under Section 482 of CrPC were preferred by the appellants.  By the impugned common Judgment dated 15th  September 2021, the learned Single Judge of Gujarat High Court rejected the applications made by the appellants under Section 482 of CrPC. 

The Court held "Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub­section (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the accused will be entitled to default bail. When the Special Court exercises the power under the proviso added to sub­section (2) of Section 167 of CrPC and extends the time up to 180 days, the accused will be entitled to default bail only if the charge sheet is not filed within the extended period."

The Court further held "Clause (b) of sub­section (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand. When   the   Special   Court   exercises   the   power   of   granting extension under the proviso to sub­section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days."

Case Details:-

CRIMINAL APPEAL NO.1656   OF 2022
Jigar  @  Jimmy Pravinchandra  Adatiya  …  Appellant
versus
State of Gujarat                               …  Respondent

Read the complete judgment:-

https://main.sci.gov.in/supremecourt/2021/23563/23563_2021_3_1501_38491_Judgement_23-Sep-2022.pdf