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6. The learned senior counsel submitted that the decision of this Court in the case of Hitendra Vishnu Thakur1 was modified by the Constitution Bench in the case of Sanjay Dutt2 on a very limited aspect. She submitted that the requirement of law laid down in the case of Hitendra Vishnu Thakur1 regarding procuring the presence of the accused at the time of considering the report seeking extension of time and requirement of putting the accused to the notice of the filing of such a report has not been disturbed in the case of Sanjay Dutt2. On the contrary, the decision of the Constitution Bench in the case of Sanjay Dutt2 reiterates the mandatory requirement of production of the accused before the Court at the time of consideration of the report submitted by the Public Prosecutor. The only modification made by the Constitution Bench in the decision of Hitendra Vishnu Thakur1 is by holding that the mode of giving notice to the accused is by informing him about the filing of such a report by producing him before the Special Court and a written Crl.A.@SLP(Crl.)No.7696 of 2021 etc. notice is not required. Her submission is that as this Court in the case of Sanjay Dutt2 has laid down the requirement of informing the accused about the filing of a report seeking extension of time up to 180 days, it is obvious that the accused on receiving the intimation is entitled to object to the prayer made by the Public Prosecutor for grant of extension of time. However, it is not necessary for the Special Court to supply a copy of the report submitted by the Public Prosecutor to the accused. Her submission is that the proviso added by sub­section (2) of Section 20 of the 2015 Act is pari materia with the proviso added by clause (bb) of sub­ section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short ‘TADA Act”) to sub­ section (2) of Section 167 of CrPC. Therefore, the decisions of this Court in the case of Hitendra Vishnu Thakur1 and Sanjay Dutt2 will squarely apply to the facts of the case. She pointed out that the decision of this Court in the case of Sanjay Dutt2 was consistently followed in many decisions by this Court. In the case of Ateef Nasir Mulla v. State of Maharashtra3, this Court followed the law laid down by this 3 (2005) 7 SCC 29 Crl.A.@SLP(Crl.)No.7696 of 2021 etc. Court in both the aforesaid decisions while dealing with the similar provisions under clause (b) of sub­section (2) of Section 49 of Prevention of Terrorism Act, 2002 (for short ‘POTA’). She submitted that while dealing with a similar provision in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), in the case of Sanjay Kumar Kedia Alias Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and Another4, this Court followed the decision in the case of Hitendra Vishnu Thakur1. The learned senior counsel also invited our attention to a decision of this Court in the case of S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District5. She also invited our attention to another decision in the case of Bikramjit Singh v. State of Punjab6. She urged that in both the aforesaid decisions, this Court held that the right to get default bail under sub­section (2) of Section 167 of CrPC is not merely a statutory right but a fundamental right guaranteed to an accused. She also referred to another decision of this Court in the case of M. 4 (2009)17 SCC 631 5 2020 SCC OnLine SC 529 6 (2020) 10 SCC 616 Crl.A.@SLP(Crl.)No.7696 of 2021 etc. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence7 which holds that sub­section (2) of Section 167 of CrPC is integrally linked to the constitutional commitment under Article 21 of the Constitution of India promising protection of life and personal liberty against unlawful and arbitrary detention. Therefore, the provision of sub­section (2) of Section 167 should be interpreted in a manner that serves this object. She also relied upon a decision of the Karnataka High Court in the case of Muzammil Pasha & Ors. Etc. v. National Investigating Agency etc.8.

Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

18. As can be seen from sub­section (2) of Section 20 of the 2015 Act, the provisions of Section 167 of CrPC and in particular sub­section (2) thereof containing entitlement of the accused to default bail will apply to the 2015 Act with the modification that the reference to the period of “fifteen days” and “sixty days” provided in sub­section (2) of Section 167 of CrPC is required to be construed as a reference to “thirty days” and “ninety days” respectively. The proviso to sub­section (2) of Section 20 of the 2015 Act enables the Special Court to extend the period provided in sub­section (2) of Section 167 of CrPC up to 180 days.

Crl.A.@SLP(Crl.)No.7696 of 2021 etc.

(iii) The timelines provided under sub­section (2) of Section 167, CrPC ensure that investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This provision ensures that the Court takes cognizance of the case without undue delay after investigation is completed within the time provided in sub­ section (2) of Section 167, CrPC;

27. In the case of Sanjay Kumar Kedia4, this Court considered a similar provision under the NDPS Act. However, this Court did not consider the binding precedent in the case of Sanjay Dutt2. Therefore, this decision will not be a binding precedent.

28. Clause (b) of sub­section (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. Crl.A.@SLP(Crl.)No.7696 of 2021 etc. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to sub­section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of sub­section (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 Dutt2 holds so. The requirement of the report under proviso added by sub­section (2) of Section 20 of the 2015 Act to clause (b) of sub­section (2) of Section 167 of CrPC is two­fold. 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 Crl.A.@SLP(Crl.)No.7696 of 2021 etc. 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.