Gujarat High Court
Nilesh Mansukhlal Tolia vs State Of Gujarat on 15 September, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4901 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 4902 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 4904 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 4928 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NILESH MANSUKHLAL TOLIA
Versus
STATE OF GUJARAT
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Appearance:
IN CR.M.A. No.4901 OF 2021:
MR ANURAG R RATHOR (9315) for the Applicant(s) No. 1
MR ASHISH M DAGLI (2203) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR PRANAV TRIVEDI,
APP (2) for the Respondent(s) No. 1
IN CR.M.A. No.4902 OF 2021:
MR Y.S. LAKHANI, SR. ADVOCATE WITH MR RAHUL DHOLAKIA for the
Applicant(s) No. 1
Page 1 of 35
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R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR PRANAV
TRIVEDI, APP (2) for the Respondent(s) No. 1
IN CR.M.A. No.4904 OF 2021:
MR ASHISH M DAGLI for the Applicant(s) No. 1 & 2
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR PRANAV
TRIVEDI, APP (2) for the Respondent(s) No. 1
IN CR.M.A. No.4928 OF 2021:
MR Y.S. LAKHANI, SR. ADVOCATE WITH MR RAHUL DHOLAKIA for the
Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR PRANAV TRIVEDI, APP
(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/09/2021
CAV JUDGMENT
1. These four applications arise out of one and the same First Information Report and involve identical questions on law and facts. Hence, they are decided by this common judgment.
2. Challenge in these four applications filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") is to the orders dated 08.01.2021 and 21.01.2021 passed below application filed under Section 20(2)(b) of The Gujarat Control of Terrorism and Organized Crime Act, 2015 (hereinafter referred to as "the GUJCTOC") by the Court of learned Principal District and Sessions Judge, Special Court (GUJCTOC) at Rajkot in the case of Jamnagar City "A" Division Police Station FIR No.11202008202186 whereby, the said application was allowed and an additional period of 90 days was granted for concluding the investigation.
2.1 Prior to these captioned applications, Criminal Appeal Page 2 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 Nos.212/2021, 214/2021, 215/2021 and 315/2021 were preferred to challenge the impugned orders. It was jointly stated by learned Public Prosecutor Mr. Mitesh Amin appearing with learned APP Mr. Pranav Trivedi that the impugned orders were not appealable as per Section 13 of the GUJCTOC and thus, permission was granted vide common order on 09.03.2021 to convert the same under Section 482 of the Code.
3. The facts, in a nutshell, giving rise to the filing of the present applications are as under:-
The Office of the Superintendent of Police, Jamnagar received a secret information that one Jaysukh Muljibhai Ranpariya @ Jayesh Patel (accused No.1) is involved in running and operating an organized crime syndicate in Jamnagar involving extortion, land grabbing, contract killing, money laundering, etc. with the use or threat of violence and criminal intimidation. Such secret information was recorded vide Entry No.03 of 2020 dated 30.09.2020 in the Register maintained for such purpose. The information revealed that the crime syndicate operated by Jaysukh Muljibhai Ranpariya targeted businessmen especially land owners and realtors / developers by intimidating / threatening them with physical injury and / or threat to life with the object of deriving monetary gains. The information further revealed that the accused used voice calls and mobile applications like Whatsapp as well as other VOIP applications to make calls to target their victims. The secret information also revealed the names of some alleged members of the syndicate. On the basis of the secret information so received, the Police Inspector, City 'A' Division Police Station, Jamnagar registered the impugned complaint being FIR No.11202008202186 for offences punishable under Sections 3(1), 3(2), 3(3), 3(4), 3(5) & 4 of GUJCTOC and Sections 120B, 386, 387, 506(1) Page 3 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 and 506(2) of Indian Penal Code on 15.10.2021 against fourteen accused. Six amongst them came to be arrested while the remaining are absconding. By order dated 29.10.2020 passed by the Special Court constituted under the GUJCTOC, the six arrested accused were sent to different Jails at Vadodara, Sabarmati-Ahmedabad and Lajpore-Surat.
4. On arrest of the applicants-accused persons, the Special Court granted their remand and on conclusion of the remand period, they were sent to judicial custody. The applicants had preferred bail applications under Section 439 of Cr.P.C. before the Special Court; however, the same were rejected. Before the expiry of ninety days from the date of arrest, the Public Prosecutor before the Special Court preferred applications under Section 20(2)(b) of the GUJCTOC in each case seeking extension of the period of investigation by ninety days. The particulars in each case, which are relevant for our purpose, are shown hereunder in a tabular form:-
Sr. Particulars Date of Arrest Date of filing application No. under Section 20(2)(b) of GUJCTOC 1 Criminal Misc. 16.10.2020 08.01.2021 Application No.4901 of 2021 2 Criminal Misc. 01.11.2020 21.01.2021 Application No.4902 of 2021 3 Criminal Misc. 28.10.2020 08.01.2021 Application No.4904 of 2021 4 Criminal Misc. 16.10.2020 08.01.2021 Application No.4928 of 2021 Page 4 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
5. On the very same day when the applications under Section 20(2)(b) of GUJCTOC were preferred, the Special Court allowed the applications and extended the period of investigation by ninety more days in each case. Being aggrieved by the said orders passed by the Special Court, the applicants have preferred the present applications. For the sake of convenience, the relevant portion of the reliefs prayed in Criminal Misc.
Application No.4901 of 2021 are reproduced herein below:
"(A) That this Hon'ble Court may be pleased to admit this Criminal Misc. Application.
(B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the judgment and order passed by the learned Special Judge, Rajkot dated 08.01.2021 at Annexure-D application filed under Section 20(2)(b) and also be pleased to grant consequential relief of not filing of charge sheet in time.
(C) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the order dated 08.01.2021 and also be pleased to grant all consequential relief available in the event of quashing and setting aside the order impugned.
(D) & (E) ....."
6. Mr. Y.S. Lakhani, learned Senior Advocate appearing with advocate Rahul Dholakia and advocate Mr. A.M. Dagli for the applicants-accused in all the four matters, submitted that the applications under Section 20(2)(b) of the GUJCTOC was moved before the Court below and the orders were passed thereon without issuance of any notice to the applicants-accused. Moreover, the Court below also did not deem it necessary to insist for the production of the accused in the Court or by Video Conferencing or to inform the applicants-accused about the filing of said applications by the concerned Public Prosecutor so as to grant an opportunity to the applicants-accused to present their case. However, Page 5 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 without affording any opportunity to the applicants-accused to present their case, the Court below straightaway passed the impugned orders allowing the said applications by passing a one line non-speaking order, which is violative of the principles of natural justice as it has affected the indefeasible right of the applicants-accused to be released on bail in accordance with Section 167(2) of the Code read with Section 20(2)(b) of the GUJCTOC.
6.1 The attention of the Court was drawn to the language of Section 20(2)(b) of the GUJCTOC to submit that the proviso to the Section itself provides that "on the report of Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of ninety days", the Special Court shall extend the said period upto one hundred and eighty days. It was contended that here no such report was produced by the Public Prosecutor concerned indicating the progress of investigation and the specific reasons for detention of the accused beyond the said period of ninety days. The applications preferred by the Public Prosecutor does not specify any ground or reasons, as required under Section 20(2)(b) of the GUJCTOC. The applications does not make any mention as to whether any enquiry was left or pending as far as the applicants were concerned or that the judicial custody of the applicants was necessary beyond the period of ninety days. Thus, the impugned orders has been passed without proper application of mind and infringes the right of liberty of the applicants.
6.2 The learned advocates also took the Court to the language of the provisions of Section 21(2)(b) of the Maharashtra Control of Organized Crime Act, 1999, Section 20(4)(bb) of the Terrorist and Disruptive (Prevention) Act, 1987 and Section 40(2)(b) of the Prevention of Terrorism Act, 2002 to submit that the provision as also the language in the aforesaid three Acts are similar. While attempting to derive the intent Page 6 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 of the Legislature from the above Acts, the learned Senior Advocate submitted that no inference of probable knowledge of the accused may be drawn of such report of the Public Prosecutor as the expression "is being considered" used in the case of Sanjay Dutt v. State, Through C.B.I., Bombay (II), (1994) 5 SCC 410 suggests present tense, which requires that the information to the accused should be "during the course of consideration" of such report / application and not subsequent thereto.
6.3 Reliance is placed on the observations of the Apex Court in case of Sanjay Dutt v. State, Through C.B.I., Bombay (II) (supra) wherein, it has been held that:
"Section 20(4)(bb) of the TADA Act only requires production of the accused before the Court in accordance with Section 167(1) of the Code and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub- section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of the Supreme Court in Hitendra Vishnu Thakur's case. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose."
6.4 Reliance is also placed on the observations made by the Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 to explain the scope and ambit of the provisions of Section 20(2)(b) of the GUJCTOC.
6.5 Reliance was also placed on the observations made in paragraphs - 14 to 16 of the judgment rendered by the Apex Court in Devinderpal Page 7 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 Singh v. Govt. of National Capital Territory of Delhi, (1996) 1 SCC 44, which reads thus:
"14. In Hitendra Vishnu Thakur's case (supra) it was also opined that no extension can be granted by the Designated Court under Clause (bb) unless the accused is put on notice and permitted to have his say so as to be able to object to the grant of extension.
15. The Constitution Bench in Sanjay Dutt's case (supra) did not express any contrary opinion in so far as the requirement of the report of the public prosecutor for grant of extension is concerned or on the effect of the absence of such a report under clause (bb) of Section 20(4), but observed that the 'notice' contemplated in the decision in Hitendra Vishnu Thakur's case before granting extension for completion of investigation is not to be construed as a "written notice" to the accused and that only the production of the accused at the time of consideration of the report of the public prosecutor for grant of extension of the period for completing the investigation was being considered would be sufficient notice to the accused.
16. The validity of an order granting extension under Clause (bb) of Section 20(4) of TADA is to be considered with reference to the facts as existing on the date of the order. Mr. Sodhi is right in his contention that the order passed by the Designated Court on 12th July, 1995, without any report of the public prosecutor and without even the appellant being produced and informed by the Designated Court that question of grant of extension of the period for completing investigation was under consideration, renders the order granting extension by the Designated Court erroneous and it cannot be sustained."
6.6 Learned advocates for the applicants also referred to the following decisions :
(a) Mohammad Allimuddin v. State of Maharashtra passed in Criminal Appeal No.522 of 2002 dated 17.10.2002.
(b) Kamlakar S/o. Lachhayya Ollala v. State of Maharashtra Page 8 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 passed in Criminal Appeal No.597 of 2002 in Criminal Appeal No.676 of 2002 dated 28.04.2003.
(c) Sharmistha Chowdhury and another v. State of West Bengal and others passed in C.R.R. No. 602 of 2017 with C.R.R. No.1341 of 2017 dated 27.07.2017.
(d) Ateef Nasir Mulla v. State of Maharashtra, 2005 (7) SCC 29.
(e) Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616.
(f) M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2021 (2) SCC 485.
7. Learned advocate Mr. Ashish Dagli further submitted that the report given by the Public Prosecutor is not valid. The satisfaction of the trial Court has not been demonstrated in the order. Mr. Dagli stated that the report of the Public Prosecutor ought to have been supported by the request of the Investigating Officer. The report of 21.01.2021 does not show any significant progress made by the Investigating Officer after 08.01.2021. The subsequent report is verbatim same. Accordingly, it was urged that the impugned order passed by the Court below may be quashed and set aside and the applicants may be granted the benefit of default bail.
7.1 Learned advocate Mr. Dagli submitted that the impugned orders dated 08.01.2021 and 21.01.2021 passed by the Court below are cryptic. No reason/s have been assigned in the order while extending the period of investigation by another ninety days. Hence, only on the ground that the impugned orders are non-speaking orders, they deserve to be quashed and set aside.
7.2 Learned advocate Mr. Dagli placed reliance upon the following decisions to submit about the necessity of a reasoned order:
Page 9 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
(a) Chaman Lal v. State of U.P. and another, AIR 2004 SC 4267.
(b) Sonu v. Sonu Yadav and another, AIR 2021 SC 1950.
(c) Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336.
(d) Reliance was also placed on an unreported decision rendered by the Division Bench of this Court in Special Criminal Application No.4023 of 2020 decided on 21.09.2020.
8. Learned PP Mr. Mitesh Amin appearing along with learned APP Mr. Pranav Trivedi submitted that the expression 'report' and 'shall' used in the proviso of Section 20 of the GUJCTOC explains the probable scope of participation of the accused in the process. He submitted that the right to audience and the right to notice is what has been explained in Hitendra Thakur's case (supra) while Sanjay Dutt's case (supra) has ruled out the issuance of notice and the participation process. He submitted that in Sanjay Dutt's case (supra) the requirement is about production of accused. Mr. Amin argued that before the Court what requires consideration is whether the accused had the knowledge of the report for the enlargement of the period. He submitted that the purpose is merely to inform the accused of the report so as to protect the indefeasible right of the accused. Considering the ninety days period for filing of chargesheet, none of the applicants have moved for default bail, which itself suggests that they were in knowledge of the report presented by the Public Prosecutor. Elucidating it further, learned PP Mr. Amin submitted that had the accused been oblivious of the fact, then default bail application would have been moved on the 91 st day. The purpose of production is to inform and taking the facts and circumstances on record, the accused Page 10 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 were informed and had knowledge of the production of report by the Public Prosecutor. Mr. Amin further submitted that the satisfaction of the Court below would be arrived at after perusal of the report. The Court below is not required to elaborate on the report of the Public Prosecutor, lest that may prejudice the accused. It is contended that the Investigating Officer is not required to divulge the method of investigation and the law provides for the report of the Public Prosecutor to indicate "the progress of investigation and the specific reasons" for the detention of the accused beyond the said period of ninety days. Detailed reasoning by the trial Court is not contemplated by the provisions made under Section 20, which would be stretching the proviso beyond the scope.
8.1 Learned PP Mr. Amin further submitted that in the month of January 2021, the Court at Rajkot had no physical functioning. By Suo Motu Writ Petition No.1 of 2020, the Apex Court had directed to stop the physical production of the accused and in Suo Motu Writ Petition No.3 of 2020, the limitation was extended. He further stated that all the petitioners are in different jails. He submitted that failure of production of the accused has not led to failure of justice. There is no prejudice to the present petitioners since they had the knowledge of the presentation of the report by the Public Prosecutor. He stated that charge-sheet runs into 3000 pages and was filed on 09.04.2021 against twelve arrested accused; two accused have left India; one accused - Jayesh Patel has been arrested on the basis of Red Corner Notice issued by INTERPOL and is in jail at U.K. and the process of his extradition is under way. These facts suggests the scope and length of investigation. The trial Court has considered the averments of the Public Prosecutor for its satisfaction to consider the prayer for extension of time limit for filing of chargesheet.
Page 11 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 8.2 In support of his submissions, learned PP Mr. Amin placed reliance upon the observations made in the following judgments:
(a) In Rambeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405, the Apex Court held as under:
"22. After having analysed the facts and events as unfolded from 28th February, 2017 until 8th March, 2017, it is indisputable that on 28th February, 2017, the Additional Public Prosecutor had filed report for extension of time to file charge-sheet against the appellant until 15th March, 2017. The same was filed within time, before the expiry of 90 days from the date of initial arrest of the appellant in connection with the subject FIR. Realising this position, the appellant did not pursue his first application for statutory bail dated 28th February, 2017. Instead, he was advised to file a fresh statutory bail application on 2 nd March, 2017. Admittedly, on 2nd March, 2017 the report submitted by the Additional Public Prosecutor dated 28th February, 2017 was still undecided. Therefore, no right can be said to have accrued to the appellant for grant of bail on the ground of default. In law, only upon rejection of the prayer for extension of time sought by the Additional Public Prosecutor, right in favour of the appellant for grant of statutory bail could have ignited. The mere fact that 90 days period from the date of initial arrest of the appellant in connection with the subject FIR had lapsed on 2nd March, 2017, could not ineluctably entail in grant of statutory bail to the appellant. More so, when no decision was taken by the Court on the report/application submitted by the Additional Public Prosecutor until 8th March, 2017, on which date the supplementary charge-sheet against the appellant was filed in Court. Considering the effect of filing of the supplementary chargesheet against the appellant, coupled with the fact that his judicial custody was extended by the Court of competent jurisdiction until the pendency of consideration of the report/application for extension of time to file the charge-sheet, in law, it is unfathomable as to how the appellant could claim to have any accrued right to be released on bail on the ground of default or for that matter, Page 12 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 such a right having become indefeasible.
23. The legal position has been expounded by the Constitution Bench of the Supreme Court in the case of Sanjay Dutt (supra), in particular, in paragraph 48 as under:
"48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according Page 13 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, Ram Narayan Singh v. State (UT of Delhi) and A.K. Gopalan v. Union of India)."
(b) In case of Ateef Nasir Mulla v. State of Maharashtra, 2005 (7) SCC 29, the Apex Court held that term of 90 days may not be sufficient for investigation of a widespread terrorist conspiracy and that there is no statutory requirement to give any notice to the appellant in any particular term.
9. In Criminal Misc. Application No.4901 of 2021, the period of Ninety days for the filing of charge-sheet would have expired on 13.01.2021 while in Criminal Misc. Application No.4902 of 2021, the said period would have expired on 28.01.2021. In Criminal Misc. Application Nos.4904 / 2021 and 4928 / 2021, the period of Ninety days would have expired on 25.01.2021 and 13.01.2021 respectively. In both Criminal Misc. Application Nos.4904 / 2021 and 4928 / 2021, the accused had applied for default bail on 03.02.2021. When the report for extension of time for filing of charge-sheet was put for consideration before the Special Court on 08.01.2021 by the Public Prosecutor concerned in relation to accused of Criminal Misc. Application No.4901 of 2021, 4904/2021 and 4928/2021, the accused of Criminal Misc. Application No.61/2021 had filed an application for regular bail being Cr.M.A. No. 21 of 2021 before the Special Court on the very same day, i.e. on 08.01.2021. While rejecting the said application for regular bail, Page 14 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 the Special Court has made observation of the report of the Public Prosecutor dated 08.01.2021 and has noted the argument of the Public Prosecutor who stated about the report that all the necessary facts as regards investigation were stated by him whereby he prayed to extend the time limit to file charge-sheet. It appears that at this relevant time, the accused had not raised any objection to the report dated 08.01.2021 filed by the Public Prosecutor though it was open for the accused to do so. After the rejection of the application seeking regular bail, the accused preferred Cr.M.A. No.2826 of 2021 before this Court, which came to be withdrawn whereby, liberty was granted to file fresh bail application after the filing of charge-sheet. Prior to that Cr.M.A. No.922 of 2021 was filed on 13.05.2021 seeking regular bail on the filing of charge-sheet before the Special Court, which was rejected on 03.06.2021. The application for default bail was preferred on 04.02.2021. The accused in Criminal Misc. Application No.4902 of 2021 is a practising advocate by profession. He was arrested on 01.11.2020. He preferred his first application seeking regular bail on 06.11.2021. Ninety days for filing of the charge-sheet in his case would be 28.01.2021. He preferred default bail plea on 02.02.2021. Another bail application after the filing of charge-sheet was filed on 10.05.2021.
9.1 The Public Prosecutor concerned before the Special Court had filed the application under Section 20(2)(b) of the GUJCTOC. For ready reference, the said provision is reproduced hereunder:
"20. Modified application of certain provisions of Code.
(1) ........
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the Page 15 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 modifications that in subsection (2) -
(a) the reference to "fifteen days" and "sixty days", wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively;
(b) after the existing proviso, the following proviso shall be inserted, namely:-
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of ninety days.""
9.2 As is clear from the heading of Section 20 of GUJCTOC, it relates to the modified application of certain provisions of the Code. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period and therefore, sub- section (2) to Section 167 was introduced, which prescribed the outer limit within which the investigation must be completed. The proviso to sub-section (2) of Section 167 fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate concerned shall release him on bail and such release shall be deemed to be grant of bail under the Code.
9.3 A conjoint reading of the provisions of Section 167 of the Code and Section 20(2)(b) of the GUJCTOC would imply that the provision deals with the maximum period during which a person accused of an Page 16 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 offence may be kept in custody and detention so as to enable the investigating agency to complete the investigation and file the charge- sheet, if necessary, in the Court. In other words, the proviso to Section 167(2) of the Code read with Section 20(2)(b) of the GUJCTOC creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. However, the relevant factor in such case is the expiry of the prescribed period under the concerned enactment. Under the provisions of the GUJCTOC, the accused would become entitled for 'default' bail if the investigating agency fails to complete investigation within the period of Ninety days, as prescribed under sub-Section (2) of Section 20. In other words, if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 of the Code, an indefeasible right gets accrued in favour of the accused to be enlarged on bail. In the present cases, before the expiry of Ninety days period, the Public Prosecutor preferred an application under Section 20(2)(b) of the GUJCTOC seeking extension of the period of investigation by a further period of Ninety days. On such application, the Special Court passed the impugned order extending the period of investigation by a further period of Ninety days. It be noted that the application under Section 20(2)(b) of the GUJCTOC seeking extension of the period of investigation was filed by the Public Prosecutor concerned before the expiry of Ninety days.
10. A contention was raised that the report of the Public Prosecutor is not a valid report and that the orders passed by the Special Court are non- speaking orders. The whole of the report of the Public Prosecutor is reproduced hereunder: (In Criminal Misc. Application No.4901 of 2021) Page 17 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 "The Special Public Prosecutor for the case humbly submits that:
1. On the basis of the information given by Shri K.G. Chaudhary, Police Inspector, Crime Branch, Jamnagar the aforesaid F.I.R. came to be lodged and the investigation of the same is being carried out by Shri Nitesh Pandey, Assistant Superintendent of Police, Crime Branch, Jamnagar.
2. The Investigating Officer in the present F.I.R. has addressed a report in which it has been stated that the investigation of the present F.I.R. cannot be completed in 90 days and perusing the details and perusing the details and contents of the report of the Investigating Officer it is clear that looking to the investigation which is so far completed and also considering the scope of investigation it can be said that the investigation cannot be completed in 90 days.
It may kindly be noted that:
3. The Jamnagar City "A" Division Police Station had registered the F.I.R. being CR No. 11202008202186/2020, dated 15/10/2020, for offences punishable under. Sections 3(1), 32) 3(3), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organized Crime (GCTOC) Act, 2015 and under Sections 120B, 386, 387, 506(1) and 506(2) of The Indian Penal Code, 1860.
4. That fourteen (14) accused persons are named in the F.I.R.
out of which as of now, eleven (11) are arrested. That the accused persons being Nileshbhai Mansukhbhai Tolia, Atulbhai Vitthalbhai Bhander, Pravinbhai Parshottambhai Chovatia, Anil Manjibhai Parmar, Vashrambhai Govindbhal Miyatra, Prafulbhai Jetilalbhai Popat, Mukeshbhai Vellabhbhai Abhangi an Jigar @ Jimmy Pravinbhai Adatiya were arrested on 16/10/2020 and produced before this Hon'ble Court on 17/10/2020. That the accused being Yashpalsinh Mahendrasinh Jadeja and Jashpalsinh Mahendrasinh Jadeja were arrested on 29/10/2020 and the Vasantlal Liladhar Mansata was arrested on 01/11/2020. Thus, for the accused persons being: Nileshbhai Mansukhbhai Tolia, Atulbhai Vitthalbhai Bhanderi, Pravinbhai Parshottambhai Chovatia, Anil Manjibhai Parmar, Vashrambhai Govindbhai Miyatra, Prafulbhai Page 18 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 Jetilalbhai Popat, Mukeshbhai Vallabhbhai Abhangi and Jigar @ Jimmy Pravinbhai Adatiya, the period of 90 days ends on 13/01/2021.
5. That three (3) accused persons being Muljibhai Ranpariya @ Jayesh Patel, Rameshbhai Vallabhbhai Abhangi and Sunil Gokaldas Changaniare yet to be arrested.
6. That as intimated by the Investigating Officer, the investigation is not likely to be completed before 13/01/2021 and thus chargesheet cannot be presented within the said time. I am also intimated about the stage of the investigation as well as the reasons for continuation of investigation for 90 more days as prescribed by the law. I am in agreement with the grounds mentioned by the Investigating Officer to continue the investigation and extend the custody of accused. I therefore present this report mentioning the grounds on which investigation by Investigating Officer and custody of accused are required to be extended for 90 more days, calculated from 13/01/2021, which is as under:
a. That the main accused Jayesh Patel since the year 1999 is actively involved in criminal activities. There are total 45 of criminal antecedents against him (in and outside the State of Gujarat) which includes murder of an Advocate, attempt to murder through firing, extortion, forgery of documents with an intention to usurp land with high values, land grabbing by means of threat; making/using fake passports, angadia cheating, theft etc. The modus operandi is that of making telephone calls vide VOIP | WhatsApp etc. to builders, land owners, farmers, and businessmen and threaten them and demand huge amount of extortion monies from them and/or to grab their land. He has moved out from Jamnagar to some foreign country and is running crime syndicate which works as an organized crime network by following his instructions. He is so threatens and intimidates his targets by sending goons and other musclemen and also by firing incidents. There are 14 other offences against the other accused.
b. That the investigation is going on and it is important to conduct investigation on some more crucial areas and thus additional period of 90 days is required for the same.
c. With the investigation conducted till date, it has come to the knowledge of the Investigating Officer that there are other persons Page 19 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 also, who have played an active role in commission of crimes in the syndicate. These persons are also required to be arraigned as accused, so that the Investigating Officer can present the correct and exact details of crime committed by all the accused persons of the syndicate.
d. The accused persons currently arrested and the potential accused persons have got large number of properties in their names or in the names of their relatives / acquaintances. That records pertaining to around 1000 properties being purchased and/or sold by the arrested accused persons, not arrested accused persons and their relatives or related persons are collected and the same is to be studied properly. That the bank account details, transactions and statements have also been collected and the related money transfer angle is also to be studied and verified. That a Forensic Audit is also to be conducted by a Chartered Accountant in order to identify/segregate proceeds of crime. That a Property Evaluator/assessor is also to be appointed to evaluate the properties accumulated/grabbed by the accused persons. This is particularly required because attachment of such properties is provided for in the GCTOC Act.
e. During the investigation done so far, it has transpired that the main accused Jayesh Patel has amassed and / or transferred crores of Rupees even while being absconding since last two years. All these monies are ill-gotten monies amassed through proceeds of crimes. This amassing and transferring of huge amount are done intra-country as well as inter-country. Some amount has been recovered but a large part of this money trail is yet to be traced and for this purpose, the Investigating Officer has initiated appropriate proceedings whichare multi-agency in nature, this requires more investigation.
f. That several victims (protected witnesses) have been made to transfer their land / property under threat by the accused persons. A thorough investigation needs to be carried out to ascertain the names in which the properties have been taken and the way in which the transactions have happened and for this, the information related to land records, agents, witnesses and bank transactions are being examined.
g. There are many more witnesses who are victims at the hands of these accused. These witnesses are still afraid of giving Page 20 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 statement as they are extremely fearful of these accused. There are also certain witnesses whose testimony would be very much relevant and essential to reach to the tight conclusion of this case and do justice as they can provide very important incriminating evidence related to others yet to be identified co-accused, money trail, properties, modus operandi relating to the syndicate. There are fair chances that they may be joined as witness using the provisions of Section 17 of the act. Efforts are being made to identity and examine such witnesses.
h. The Call Detail Record (CDR) of the present accused persons have been obtained, showing the conversation between them, as well as between their relatives, friends and/or potential accused who will later be arrested. In order to present the complete chain of events showing the commission of crime in the syndicate and to show the way and manner in which the nefarious activities were carried on it is necessary that all the related details are properly studied and presented with the chargesheet.
i. The seized mobile phones of the arrested accused persons were sent to the F.S.L., Gandhinagar and back up files of the data around 2 T.B. (Terabyte) is received, that the same is being studied in depth and crucial information is extracted, more study of the data is to be done so that the communication pattern of the accused persons can be put up accordingly.
j. That some mobile phones of the recently arrested accused persons are sent to the F.S.L., Gandhinagar and the data is yet to be received from F.S.L., Gandhinagar and the data so obtained also requires a detailed study.
k. As some of the accused have left the country, and for tracing them efforts are being made by communicating and coordinating with other respective governmental institutions.
l. That statements under Section 164 of the Code of Criminal Procedure, 1973 of some of the witnesses are also to be recorded. More particularly, if the investigation time and custody is not extended, then these witnesses may become vulnerable to the threat, coercion and intimidation tactics of the accused persons.
m. That investigation is also underway for tracking the benami properties of the accused persons and for this information from Page 21 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 Revenue department, Income Tax Departments and Banks is being sought and further investigation is on.
n. That information related to all the criminal antecedents and offences within the State of Gujarat and outside Gujarat are also to be collected to understand the scope and spread of the criminal activities of the accused persons.
o. There are several victims who have fallen as prey to nefarious activities of the accused and the related crime syndicate and thus the investigation is being conducted and aimed to collect ail the relevant material. That a thorough investigation is in process and required to be done so as to unearth the dreadful criminal activities of the accused persons and also to gather the deals of the extortion money and recovery of the same along with details of properties and related attachments needs to be done.
p. That perusing the report of the Investigating Officer, investigation regarding certain important issues is to be done and related evidences are to be collected and thus additional period of 90 days would be required for the same That looking to the seriousness of the offence and as per the Section 20(2)(b) of the Gujarat Control of Terrorism and Organized Crime, Act (GCTOC), 2015 it would be in the interest of justice to extend the period of investigation by 90 days.
Thus, I most humbly pray that as per Section 20(2)(b) of the Gujarat Control of Terrorism and Organized Crime Act (GCTOC), 2015; the investigation period and custody of accused arrested on 16.10.2020 may kindly be extended for 90 more days in the interest of justice and oblige."
11. On the said application, the Special Court passed the following order on 08.01.2021:
"Considering the averments of the application, extension of 90 more days is granted as prayed for."Page 22 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022
R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
12. In connection with the report of the Public Prosecutor, it has been observed in Hitendra Vishnu Thakur's case (supra) as under:
"23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before Submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or Page 23 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court 'shall' release hi on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case.
Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the Justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the 'default' of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub-section (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the public prosecutor 'presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor.
Page 24 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report falls in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his Indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. 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."
12.1 Section 20 of the GUJCTOC, by way of the proviso, contemplates a report of the Public Prosecutor, who has to indicate the progress of Page 25 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 investigation and specify the reasons for detention of the accused beyond the period of Ninety days. The purpose of such provision is for the Public Prosecutor to apply his mind independently. He is not expected to merely follow the investigating officer. The report of the Public Prosecutor must disclose that he is satisfied with the progress of investigation and considers grant of further time to complete investigation. Thus, the report of the Public Prosecutor plays a very vital role for the extension of time period to file charge-sheet. A Public Prosecutor is an independent statutory authority and therefore, the report produced by him should not be a mere formality, as the consequence of its acceptance affects the liberty of the accused.
12.2 Here, in this case, the report of the Public Prosecutor has explained the progress of investigation. The reasons for further detention of the accused has been disclosed in the report. The law does not mandate the report to be accompanied with the application of the investigating officer nor it should merely reproduce the report of the investigating officer. The report should demonstrate the application of mind of Public Prosecutor and recording his own satisfaction. The Special Court has to consider the report of the Public Prosecutor, if the requirements of the report to be considered as valid are fulfilled, the Special Court cannot ignore it, so long as the report demonstrates on the face of it that the Public Prosecutor has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension.
13. The next point that was raised is that the order of the Special Court is a non-speaking order or an unreasoned order. An order may be of one line or ten lines or may be of ten paragraphs. The idea that can be put up in ten paragraphs may be concluded in ten lines or some lines; even ten Page 26 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 words can disclose the reasons of the order. The order of the Special Court cannot be considered as an unreasoned order. The Special Court is required to see whether the report of the Public Prosecutor is a valid report or not; whether the Public Prosecutor has independently applied his mind to the request of the investigating agency before submitting the report to the Court for extension of time with a view to enable the investigating agency to complete the investigation. The Special Court is not required to reproduce the reasons given by the Public Prosecutor in its order nor there is any scope to elaborate the reasons given by the Public Prosecutor. The application of the Public Prosecutor has to demonstrate his application of mind. The Special Court shall extend the time on such valid report. The expression 'shall' in the proviso of Section 20 of the GUJCTOC obligates the Special Court to extend the time limit on a report, which fulfills the requirement in accordance with the provisions of Section 20. The Special Court has considered the averments in the application of the Public Prosecutor and has extended the time. The order granting extension of time, thus, would not be considered to be against the provisions of law.
14. In Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Apex Court has held as under:
"The expression "if already not availed of" used by the Supreme Court in Sanjay Dutt, (1994) 5 SCC 410, must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the maximum stipulated period under Section 167(2) first proviso CrPC if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail and the accused has not furnished the Page 27 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 same.
It has also been held that right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge-sheet is filed. Thereafter, this indefeasible right, firstly, cannot be defeated by filing of charge-sheet. Secondly, it cannot be defeated whether there is non-disposal or wrong disposal of the application for default bail, before or after filing of charge-sheet and Thirdly, filing of a subsequent application for default bail will not defeat the indefeasible right already standing accrued to accused based on the first application."
14.1 The right to default bail under Section 167(2) of the Code is held to be a fundamental right and not a statutory right. It is a part of the procedure established by law under Article 21 of the Constitution. Thus, once the condition of the first proviso to Section 167(2) is fulfilled, the right of the accused to be released on default bail becomes fundamental right. The judgment further holds that for exercising the right, no particular form of application is necessary. The application need not be in writing and that an oral prayer may also suffice to submit before the Special Court for default bail.
14.2 In Bikramjit Singh's case (supra), in paragraphs - 27 to 29, it has been observed as under:
"An accused is required to make an application if he wishes to be released on bail on account of the "default" of the investigating / prosecuting agency and once such an application is made, the court should issue a notice to the Public Prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under relevant provision or that the challan has been filed in the Designated Court before the expiry of the prescribed period or Page 28 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of "default". The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the "default" clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's "default". No other condition like the gravity of the case, seriousness of the offence or character of the offender, etc. can weigh with the court at that stage to refuse the grant of bail to an accused. (Para 27) The right to default bail is enforceable after expiry of the maximum prescribed period and prior to the filing of the charge- sheet and it does not survive or remain enforceable on the challan or charge-sheet being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of CrPC. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. (Para 28) On the expiry of the period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate." (Para 29)
15. In Bikramjit Singh's case (supra), the application for default bail was made after Ninety days of custody, which expired on 21.02.2019. The application was dismissed on the ground that by order dated 13.02.2019, already the time was extended from 90 days to 180 days under Section 167 of the Code. The Apex Court thereby observed for Page 29 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 issuance of notice to the Public Prosecutor to avoid the possibility of an accused obtaining an order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts, therefore, Notice to the Public Prosecutor was found required to be issued to avoid multiplicity of proceedings. It was, therefore, observed that ends of justice would be served, if both sides are heard on petition for grant of bail on account of prosecution's default. It is further observed that this right to 'default' bail is enforceable after expiry of the maximum prescribed period and prior to the filing of the charge-sheet and it does not survive or remain enforceable on the charge-sheet being filed, if already not availed of. Thus, once the charge-sheet is filed, the custody of the accused shall not be governed by Section 167 of the Code but by different provisions of the Code. The indefeasible right to pray for 'default' bail accrues in favour of the accused once the period of 90 days expires. It has been expressed that on expiry of the maximum stipulated period under Section 167(2) first proviso of the Code, if the accused files an application for bail and also offers to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right.
16. This view expressed in Bikramjit Singh's case (supra) is well supported by the observation of the Apex Court in Hitendra Vishnu Thakur's case (supra) in paragraph-21. The very paragraph-21 in Hitendra Vishnu Thakur's (supra) starts with the observations - "Thus, we find that once the period for filing the charge-sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 of TADA read with Section 167 of the Code Page 30 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 and the Designated Court shall release him on bail, if the accused seeks to be released and furnishes the bail...".
17. Here, in the matters at hand, the Public Prosecutor had moved the report on 08.01.2021 and 21.01.2021 i.e. before the completion of 90 days of filing of charge-sheet, praying for extension of time. The "indefeasible right" of the accused to be released on default bail is summarised in Sanjay Dutt's case (supra) in conclusion paragraph-53 at 2(b), which is as under:
"(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing on the challan, notwithstanding the default in filing it within the time allowed, as governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at the stage."
17.1 The indefeasible right, thus, enures in default of completion of investigation within the time allowed. That right becomes enforceable by the accused only from the time of default, till filing of the challan. Thus, if the accused applies for bail on the expiry of 90 days or extended period, as the case may be, then he has to be released on bail. Here, in these cases, the application for default bail were preferred by accused in Page 31 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 Cr. Misc. Application No.4904/2021 and 4928/2021 on 03.02.2021 while Ninety days in their case expired on 25.01.2021 and 13.01.2021 respectively. The accused of Cr. Misc. Application No.4901/2021 filed default bail application on 04.02.2021 while the accused of Cr. Misc. Application No.4902/2021 moved the default bail application on 02.02.2021. In their case, the Ninety days period expired on 13.01.2021 and 28.01.2021 respectively. The accused failed to exercise the right on 91st day, of course, law does not curtail their right subsequent thereto till there is default in filing the charge-sheet. What has been canvassed by the learned advocates for the applicants is that on 08.01.2021 and 21.01.2021 when the reports were moved by the Public Prosecutor, the Special Court ought to have asked for the production of the accused in the Court, and as the Court was not having physical functioning, through Video Conferencing, could have informed the accused that the question of extension of the period for completing the investigation is being considered. While learned PP Mr. Amin posed a question that at a stage when the application for extension of time beyond 90 days extending to 180 days prior to the completion of 90 days is being considered, whether law provides for the audience of the accused and his participation in the process of consideration of the report for extension of time. The proviso to Section 20 of GUJCTOC deals with the powers of Special Court to extend the period to 180 days, the proviso does not on the face of it discloses any right to the accused of having opportunity of being heard. Sanjay Dutt's case (supra) states that the accused is to be informed that the extension of the period for completing the investigation is being considered.
18. In the case of present petitioners, when the report of the Public Prosecutor were considered the physical production of the accused was Page 32 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 not permissible due to Covid-19 pandemic and since all the accused were in different jails the feasibility of Video Conferencing would have been slow. In Ateef Nasir Mulls's case (supra), it was held that there is no statutory requirement to give any notice to the accused in any particular terms. Here, in the present matters, the applicant in Cr. Misc. Application No.4901 of 2021 had filed regular bail application as Cr. Misc. application No.61 of 2021 on the very same day before the Special Court, the bail application came to be rejected on 19.01.2021, and in the order of the Special Court, the mention is there of the report of the Public Prosecutor dated 08.01.2021. It is submitted that other accused too had the knowledge, as their advocates on record had prayed for the certified copies of the order below the report prior to the filing of the default bail application. So, when the right accrued and when the accused actually availed their right for default bail, they had sufficient knowledge of the order of extension of time to 180 days for filing charge-sheet. The purpose of production of the accused and information is to protect his right to avail the benefit of default bail and it is quite obvious that no bail can be given unless the prayer to extend time is rejected. Unless the period of 90 days is extended for a further period of 90 days, the Special Court is not empowered to remand the accused to custody even though the investigation is incomplete. So, as observed in Rambeer Shokeen's case (supra), "in law, only upon rejection of the prayer for extension of time sought by the Additional Public Prosecutor, right in favour of the appellant for grant of statutory bail could have ignited".
19. This question was examined in Sanjay Dutt's case (supra) where it has been laid down that the right to be released on bail for failure to complete the investigation within the prescribed time is not automatic and even if 'indefeasible', it has to be 'availed of' by the accused at the Page 33 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022 R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021 appropriate stage. In Devinderpal Singh's case (supra), in paragraph-17, it has been observed as under:
"17. This now takes us to the question of grant of bail to the appellant. Learned counsel for the parties state that challan has since been filed on 30.9.95. Learned counsel are at variance about the effect of filing the challan on the right of the appellant to be released on bail. This question was examined in Sanjay Dutt's case (supra), where it has been laid down that the right to be released on bail for failure to complete the investigation within the prescribed time is not automatic and even if 'infeasible' it has to be 'availed of' by the accused at the appropriate stage and that:-
"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive of remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by the Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply"."
20. In M. Ravindran's case (supra), in paragraph-18.3, it has been observed as under:
"18.3 However, where the accused fails to apply for default bail when the right accrues to him and subsequently a charge- sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished."Page 34 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022
R/CR.MA/4901/2021 CAV JUDGMENT DATED: 15/09/2021
21. Thus, in the light of the above observation to the facts and circumstances of the case, the prayer of the petitioners to grant consequential relief cannot be granted, as on the report of the Public Prosecutor dated 08.01.2021 and 21.01.2021, the Special Court has extended the period for filing of charge-sheet against the applicants and these were good grounds to allow the prayer of the Public Prosecutor.
22. In the result, all the petitions are dismissed. Rule is discharged.
(GITA GOPI, J) PRAVIN KARUNAN Page 35 of 35 Downloaded on : Sun Jan 16 15:08:51 IST 2022