Gujarat High Court
Joravarsinh @ Bhano Vikramsinh Solanki vs State Of Gujarat on 28 September, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19334 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 19397 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JORAVARSINH @ BHANO VIKRAMSINH SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR TEJAS M BAROT(2964), Learned Advocate for the Applicants
MR MITESH AMIN, Ld. Public Prosecutor assisted by MR MANAN MAHETA,
LD. APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 28/09/2022
COMMON ORAL JUDGMENT
1. Both the bail applications arising out of one and same FIR Page 1 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 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, Dist: 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(II) reported in (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 Page 2 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 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 rendered in Criminal Appeal No.1656 of 2022 (arising out of 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.
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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 of Jigar @ Jimmy Pravinchandra (supra).
11. The applicants have been charged for the offence punishable under the provisions of GUJCTOC. The Apex Court in the case of Jigar @ Jimmy Pravinchandra supra) examined the Section 20 of the GUJCTOC, along with the Section 167 of the Cr.P.C. Section 20 reads thus:
"20. (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act shall be deemed to be a cognizable offence' within the meaning of clause (c) of section2 of the Code and cognizable case as defined in that clause and shall be construed accordingly.Page 4 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022
R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 (2)Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the 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 !e 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 up to 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.".
(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.
(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond. unless -
(a) the Public Prosecutor has been 'given an opportunity to oppose the application of such release; and
(b) where the Public Prosecutor opposes the application,. the Special Court is satisfied that there are reasonable grounds for believing that accused is not guilty of committing such offence and that he is not likely to commit any offence while on bail' (5) Notwithstanding anything contained in the Code, the accused shall not . be granted bail if it is noticed by the Special Court that he was on bail in an offence under this Act, or under any other Act on the date of the offence in question.
(6) The restriction on granting of bail specified in sub-sections (4) and (5) are in addition to the restriction under the Code or any other law for the time being in force on the granting of bail"
(7) The police officer seeking the custody of any person for pre-
indictment or pre-trial interrogation from the judicial custody shall file a written statement explaining the reasons for seeking such custody and also for the delay if any, in seeking the police custody."
Page 5 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 So as to clear the interpretation of sub-section(5) of Section-20 of GUJCTOC, it is relevant to refer paragraph nos.20 to 37 of the judgment of Apex Court delivered in case of Jigar @ Jimmy (supra):
"20. 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) of Section 167, CrPC is an integral part of the fundamental right to personal liberty under Article 21 of the Constitution of India.
IMPEDIMENT OF SUB-SECTION (5) OF SECTION 20 OF THE 2015 ACT
21. Sub-section (5) of Section 20 reads thus :
"20. Modified application of certain provisions of Code. ...............
(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Special Court that he was on bail in an offence under this Act, or under any other Act on the date of the offence in question."
Sub-section (5) of Section 21 of the MCOCA contained identical provision. In the case of Bharat Shanti Lal Shah, this Court, for the reasons recorded in paragraphs 62 to 65, concurred with the view of Bombay High Court that the expression "or under any other Act" appearing in sub-section (5) of Section 21 of the MCOCA was violative of Articles 14 and 21 of the Constitution and, therefore, it must be struck down. Hence, the same expression used in sub-section (5) of Section 20 of the 2015 Act infringes Articles 14 and 21 of the Constitution. In the facts of the case, none of the appellants were on bail for any offence under the 2015 Act and hence, no impediment has been created by sub-section (5) of Section 20 in the facts of these cases for considering the prayer for default bail.
THE EFFECT OF THE FAILURE OF THE RESPONDENTS TO PRODUCE THE APPELLANTS BEFORE THE SPECIAL COURT AT THE TIME OF CONSIDERATION OF THE EXTENSION APPLICATION
22. The question before us is about 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, we will have to consider the effect of the failure to give notice to the accused of the reports submitted by the Public Prosecutor.
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23. Under Clause (bb) of sub-Section (4) of Section 20 ofTADA, there is a pari materia proviso that empowers the Designated Court to extend the period provided in clause (a) of Sub-Section (2) of Section 167 of CrPC. Clause (bb) reads thus :
"(bb) in sub-section (2), after the 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 one hundred and eighty days, the Designated Court shall extend the said period up to one year, 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 of one hundred and eighty days; and' "
The said proviso came up for consideration before this Court in the case of Hitendra Vishnu Thakur . In paragraph 23 this Court held thus:
"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 Page 7 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 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 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 subsection (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 him 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. 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 Page 8 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 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 fails 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."
[emphasis added]
24. The same issue came up for consideration before the Constitution Bench in this Court in the case of Sanjay Dutt . 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. The argument was that when the report of the Public Prosecutor is considered by the Special Court, it is enough that the presence of the accused is procured before the Special Court and the accused is informed that such a report has been submitted by the Public Prosecutor. By accepting the said submission, the Constitution Bench summarised its conclusions as under:-
"53. (2)(a) 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 of Criminal Procedure 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 Page 9 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. 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."
[emphasis added]
25. In the case of Devinderpal Singh v. Government of National Capital Territory of Delhi , this Court in paragraphs 14 and 15 held thus :
"14. In Hitendra Vishnu Thakur case [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] 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 case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] did not express any contrary opinion insofar 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 case [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] 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 and informing him that the question of extension of the period for completing the investigation was being considered would be sufficient notice to the accused."
[emphasis added]
26. In the case of Ateef Nasir Mulla , this Court considered a similar provision under POTA. In the said decision, the law laid down in the case of Sanjay Dutt was followed. In the facts of the case, it was found that the accused along with his Advocate were present when the request for extension of time to carry on the investigation was considered by the Court and, in fact, a copy of the report praying for the extension was provided to the accused to enable him to file a reply.
27. In the case of Sanjay Kumar Kedia , this Court considered a similar provision under the NDPS Act. However, this Court did not consider the binding precedent in the case of Sanjay Dutt . Therefore, this decision will not be a binding precedent.
28. Clause (b) of sub-section (2) of Section 167 of CrPC lays down that no Page 10 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 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 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. In fact, the Constitution Bench of this Court in the first part of paragraph 53(2)(a) in its decision in the case of Sanjay Dutt holds so. The requirement of the report under proviso added by sub-section (2) of Section 20 of the 2015 Act to clause (b) of sub-section (2) of Section 167 of CrPC is two-fold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.
29. As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt to the decision in the case of Hitendra Vishnu Thakur is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. 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. Moreover, it will be against the mandate of clause
(b) of the proviso to sub-section (2) of section 167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms Page 11 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 of proviso added by sub-section (2) of Section 20 of the 2015 Act to sub- section (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.
30. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by sub-section (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. 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. It is gross illegality that violates the rights of the accused under Article 21.
31. An attempt was made to argue that the failure to produce the accused will not cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail. It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Article 21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused.
32. The learned Additional Solicitor General relied upon the decision of this Court in the case of Narender G. Goel . The issue involved in that case was not of extension of time for completion of the investigation. The issue generally discussed therein is about the right of hearing of the accused at the stage of the investigation. His reliance on the decision of this Court in the case of Surendra Pundlik Gadling will not help him at all. This was a case where the accused was not only produced before the Court but he was provided a copy of the application for extension of time. The grievance of the accused was that time of only one day was granted to contest the application. This contention was rejected.
33. In the facts of the cases in hand, when the Special Court considered the reports submitted by the Public Prosecutor for grant of extension of time, the presence of the appellants was admittedly not procured before the Page 12 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 Special Court either personally or through video conference. It is also an admitted position that information about the filing of such reports by the Public Prosecutor was not provided to the accused. It is mentioned in the impugned judgment that due to COVID - 19, it was not permissible to physically produce the accused before the Special Court. Moreover, the accused were in different prisons and, therefore, the production through video conference would have been very slow. Assuming that the process of production would have been slow, that is no excuse for not procuring the presence of the accused through video conference. Nothing is placed on record either before this Court or High Court to show that as per the Standard Operating Procedure applicable to the concerned Court in January 2021 when the impugned orders were passed granting the extension, it was not permissible to physically produce the accused before the Special Court. There is no material placed on record to show that technical reasons/difficulties prevented the prosecution from producing the accused before the Special Court through video conference. It is not possible to accept that in January 2021 in the Court at Rajkot in the State of Gujarat, there was any connectivity issue. In fact, admittedly, no such case was pleaded before the High Court in the pleadings of the respondents.
34. We must note here that the reports were submitted by the Public Prosecutor nearly a week before the expiry of the period of 90 days. In every case, period of seven days or more was available for completion of the period of ninety days. The orders were passed by the Special Court on the reports of the Public Prosecutor on the very day on which reports were submitted. There was no reason for such hurry. The Special Court could have always granted time of a couple of days to the prosecution to procure the presence of the accused either physically or through video conference. 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.
35. The orders passed by the Special Court of extending the period of investigation are 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. It was the duty of the Special Court to ensure that this important procedural safeguard was followed. Moreover, the oral notice, as contemplated by this Court in the case of Sanjay Dutt , was also not given to the accused.
36. Once we hold that the orders granting extension to complete investigation are illegal and stand vitiated, it follows that the appellants are entitled to default bail.
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37. When they applied for bail, the appellants had no notice of the extension of time granted by the Court. Moreover, the applications were made before the filing of charge sheet. Hence, the appellants are entitled to default bail. At this stage, we may note here that in the case of Sanjay Dutt as well as in the case of Bikramjit Singh , this Court held that grant of default bail does not prevent rearrest of the petitioners on cogent grounds after filing of charge-sheet. Thereafter, the accused can always apply for regular bail. However, as held by this Court in the case of Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra , re-arrest cannot be made only on the ground of filing of charge sheet. It all depends on the facts of each case."
12. Having heard learned counsel for the respective parties and upon examination of the material placed on record and upon perusal of the findings recorded by the Special Court in the extension orders, this Court is of the considered view that the law laid down in case of Jigar @ Jimmy Pravinchandra supra, is applicable to the facts of the present case. Record indicates that, none of the applicants were produced either physically or virtually before the Special Court when prayer for grant of extension considered by the Special Court and no notice as directed in the case of Sanjay Dutt (supra) was served upon the accused.
13. In light of the law laid down by the Apex Court and considering the facts and circumstances of the present case, the applicants are entitled for default bail under sub- section(2) of Section 167 of the Cr.P.C.
14. Hence, present applications are allowed and the applicants are ordered to be released on default bail in connection with the FIR being II-C.R. No.42/2021 [(Part- B) C.R. No.11206061210131 of 2021] registered with Santhal Police Station, Dist: Mahesana, on executing a Page 14 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 personal bond of Rs.10,000/- (Rupees Ten thousand only) each, with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that they shall;
No. Conditions
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injuries to the interest of the prosecution;
(c) surrender passport, if any, to the lower court
within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
15. The Authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with Page 15 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022 R/CR.MA/19334/2021 JUDGMENT DATED: 28/09/2022 law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(ILESH J. VORA,J) TAUSIF SAIYED Page 16 of 16 Downloaded on : Sat Oct 01 20:12:56 IST 2022