SUPREME COURT REITERATES THAT PRODUCING OF ACCUSED BEFORE SPECIAL COURT WHILE CONSIDERING APPLICATION FOR EXTENSION OF TIME FOR INVESTIGATION IS A MANDATE OF LAW
A Two Judge Bench of Supreme Court presided by Justice Ajay Rastogi and Justice Abhay S. Oka passed a Judgment dated 14.10.2022 in Jigar Adatiya v. State of Gujarat in Criminal Appeal No.1656 OF 2022 & Ors. and other connected Criminal Appeals and decided upon the question whether failure to produce accused before a Special Court while considering extension application under Section 167 of the Code of Criminal Procedure 1973 (CRPC) is a gross illegality.
An FIR was registered on 15.10.2020 against the Appellants with Jamnagar City ‘A’ Division Police Station in Gujarat for the offences under the Gujarat Control of Terrorism and Organized Crime Act, 2015 (‘the 2015 Act’). The Accused-Appellants were arrested on different dates. Reports were submitted by the Public Prosecutor before the Special Court constituted under the said 2015 Act seeking extension of time up to 180 days to complete the investigation.
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. Aggrieved by the said Orders of the Special Court, separate Application under Section 482 of CrPC (Saving Inherent Powers of High Court) was preferred by the Appellants. However, the learned Single Judge of Gujarat High Court rejected the Applications made by the Appellants under Section 482 of CrPC by passing the Impugned Judgment dated 15.09.2021.
Relevant Procedural Law
A Proviso has been added in addition to the existing Proviso to subsection (2) of Section 167 of CrPC which deals with the procedure when investigation cannot be completed in twenty four hours. Such an addition is by virtue of Section 20 (2) of the 2015 Act (Modified Application of Certain provisions of Code) 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. Such an extension can be granted upon the Public Prosecutor setting out the progress of the investigation and giving specific reasons for continuing detention of the Accused beyond the period of 90 days.
Section 167 sub-section (2) Clause (b) 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.
The Hon’ble Supreme Court passed a Judgment dated 14.10.2022 and while discussing the above Criminal Appeals in terms of the explanation to the procedural law, reiterated that in a case involving the offences punishable under the 2015 Act, the Special Court is authorized to detain the accused person in custody for a period not exceeding 90 days. The proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-Section (2) of Section 167 of CrPC enables the Special Court to extend the said period to a total of 180 days on the basis of a report of the Public Prosecutor setting out the progress of the investigation and incorporating the specific reasons for the detention of the accused beyond the period of 90 days. Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub-section (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the Accused will be entitled to default bail.
The Apex Court held that the issue involved in these Appeals will have to be decided in the context of the legal position that the indefeasible right to default bail under sub-section (2) Section 167, CrPC is an integral part of the fundamental right to personal liberty under Article 21 of the Constitution of India.
TO PRODUCE THE APPELLANTS BEFORE THE SPECIAL COURT AT THE TIME OF CONSIDERATION OF THE EXTENSION APPLICATION
The Supreme Court keeping in view the consequences of failure of procedural law considered the question of the legal consequences of the failure of the Special Court under the 2015 Act to procure the presence of the Accused at the time of the consideration of the reports submitted by the Public Prosecutor for a grant of extension of time to complete the investigation. In addition, it also considered the effect of the failure to give notice to the Accused of the reports submitted by the Public Prosecutor.
The Hon’ble Apex Court took into consideration few Judgments and observed that the said proviso came up for consideration before this Court in the case of Hitendra Vishnu Thakur and others v. State of Maharashtra and others, (1994) 4 SCC 602 and was held above:
“Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension.” The same issue came up for consideration before the Constitution Bench in this Court in the case of Sanjay Dutt v. State through CBI, Bombay, (1994) 5 SCC 410 . A specific submission was made before the Constitution Bench that the notice to the accused of the application for the extension as contemplated by the decision in the case of Hitendra Vishnu Thakur is not a written notice”.
On the basis of above Judgments, the Supreme Court held that, “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”.
The Supreme Court further held that when the Special Court exercises the power of granting extension under the proviso to sub-section (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. Therefore, even in terms of the requirement of clause (b) of sub-section (2) of Section 167 of CrPC, it is mandatory to procure the presence of the Accused before the Special Court when a prayer of the Prosecution for the extension of time to complete investigation is considered.
The Hon’ble Apex Court also emphasized that the Accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the Respondents that the Accused has no say in the matter, the requirement of giving notice by producing the Accused will become an empty and meaningless formality. The failure to procure the presence of the Accused either physically or virtually before the Court and the failure to inform him that the Application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity, but also amounts to a gross illegality that violates the rights of the Accused under Article 21.
It was further held by the Supreme Court that the Accused may not be entitled to know the contents of the 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 the present case, the grant of extension of time without complying with the requirements laid down by the Constitution Bench has deprived the Accused of their right to seek default bail. It has resulted in the failure of justice.
Thus, the Orders passed by the Special Court of extending the period of investigation were rendered illegal on account of 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 and further the Appellants were entitled to default bail.
Thus, based on the aforesaid grounds, the Supreme Court allowed the Appeals and quashed and set aside the Impugned Judgment passed by the Special Court granting extension to complete investigation and Impugned Judgment dated 15.09.2021 of the High Court .
The Indian Lawyer