# JIGAR @ JIMMY PRAVINCHANDRA ADATIYA v. STATE OF GUJARAT

- **Citation:** [2022] 13 S.C.R. 367
- **Court:** Supreme Court of India
- **Decided:** 2022-09-23
- **Case number:** Criminal Appeal No. 1656 of 2022
- **Bench:** Ajay Rastogi, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jigar-jimmy-pravinchandra-adatiya-v-state-of-gujarat-35383
- **Pages:** 36

## Headnote

Code of Criminal Procedure, 1973 - s.167(2) - The Gujarat
Control of Terrorism and Organised Crime Act, 2015 - s.20(2) -
Proviso added by the 2015 Act to sub-section (2) of s.167, CrPC -
Interpretation of.
Code of Criminal Procedure, 1973 - s.167(2) - Default bail
- The Gujarat Control of Terrorism and Organised Crime Act, 2015
- s.20(2) - Order of extension passed in exercise of power under
the proviso to sub-section (2) of s.20 of the 2015 Act - Legality of -
Appellants are accused in FIR registered for offences under various
provisions of the 2015 Act - Reports were submitted by the Public
Prosecutor seeking extension of time up to 180 days to complete
the investigation - Prayer for extending the time up to 180 days
was allowed by the Special Court - Appellants filed separate
applications u/s.482, CrPC, rejected by High Court - On appeal,
held: 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 - It is sine qua non for the
exercise of the power to extend the judicial custody remand - When
the Special Court exercises the power of granting extension under
the proviso to sub-section (2) of s.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 s.167(2)(b), it
is mandatory to procure the presence of the accused before the
Special Court when the prayer of the prosecution for the extension
of time to complete investigation is considered - Thus, 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 is being considered, is not a mere
procedural irregularity - It is gross illegality that violates the rights
of the accused u/Art.21 - Thus, prejudice is inherent and need not
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be established by the accused - In the present case, 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 - Admittedly, information about the filing of
such reports by the Public Prosecutor was not provided to the
accused - Orders passed by the Special Court extending the period
of investigation are 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 - Thus, the appellants are
entitled to default bail - Impugned orders passed by the Special
Court granting extension to complete investigation and impugned
judgment of the High Court are set aside - Appellants enlarged on
default bail u/s.167(2) on the conditions as directed - Constitution
of India - Art.21.
Code of Criminal Procedure, 1973 - s.167(2) - The Gujarat
Control of Terrorism and Organised Crime Act, 2015 - s.20(2) -
Requirement of the report under proviso added by sub-section (2)
of s.20 of the 2015 Act to clause (b) of sub-section (2) of s.167 of
CrPC - Held: 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 - Public
Prosecutor has to apply his mind before he submits a report/an
application for extension - 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.
Code of Criminal Procedure, 1973 - s.167(2) - Default bail
- Held: The indefeasible right to default bail u/sub-section (2) of
s.167 is an integral part of th

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JIGAR @ JIMMY PRAVINCHANDRA ADATIYA
v.
STATE OF GUJARAT
(Criminal Appeal No. 1656 of 2022)
SEPTEMBER 23, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Code of Criminal Procedure, 1973 - s.167(2) - The Gujarat
Control of Terrorism and Organised Crime Act, 2015 - s.20(2) -
Proviso added by the 2015 Act to sub-section (2) of s.167, CrPC -
Interpretation of.
Code of Criminal Procedure, 1973 - s.167(2) - Default bail
- The Gujarat Control of Terrorism and Organised Crime Act, 2015
- s.20(2) - Order of extension passed in exercise of power under
the proviso to sub-section (2) of s.20 of the 2015 Act - Legality of -
Appellants are accused in FIR registered for offences under various
provisions of the 2015 Act - Reports were submitted by the Public
Prosecutor seeking extension of time up to 180 days to complete
the investigation - Prayer for extending the time up to 180 days
was allowed by the Special Court - Appellants filed separate
applications u/s.482, CrPC, rejected by High Court - On appeal,
held: 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 - It is sine qua non for the
exercise of the power to extend the judicial custody remand - When
the Special Court exercises the power of granting extension under
the proviso to sub-section (2) of s.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 s.167(2)(b), it
is mandatory to procure the presence of the accused before the
Special Court when the prayer of the prosecution for the extension
of time to complete investigation is considered - Thus, 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 is being considered, is not a mere
procedural irregularity - It is gross illegality that violates the rights
of the accused u/Art.21 - Thus, prejudice is inherent and need not
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367
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be established by the accused - In the present case, 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 - Admittedly, information about the filing of
such reports by the Public Prosecutor was not provided to the
accused - Orders passed by the Special Court extending the period
of investigation are 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 - Thus, the appellants are
entitled to default bail - Impugned orders passed by the Special
Court granting extension to complete investigation and impugned
judgment of the High Court are set aside - Appellants enlarged on
default bail u/s.167(2) on the conditions as directed - Constitution
of India - Art.21.
Code of Criminal Procedure, 1973 - s.167(2) - The Gujarat
Control of Terrorism and Organised Crime Act, 2015 - s.20(2) -
Requirement of the report under proviso added by sub-section (2)
of s.20 of the 2015 Act to clause (b) of sub-section (2) of s.167 of
CrPC - Held: 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 - Public
Prosecutor has to apply his mind before he submits a report/an
application for extension - 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.
Code of Criminal Procedure, 1973 - s.167(2) - Default bail
- Held: The indefeasible right to default bail u/sub-section (2) of
s.167 is an integral part of the fundamental right to personal liberty
u/Article 21 - Constitution of India - Article 21.
Words & Phrases - "or under any other Act" - Gujarat
Control of Terrorism and Organised Crime Act, 2015 - s.20(5) -
Held: State of Maharashtra v. Bharat Shanti Lal Shah reported as [2008]
12 SCR 1083 held that the expression "or under any other Act"
appearing in sub-sec.(5) of s.21 of the MCOCA was violative of
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Articles 14 and 21 of the Constitution and, therefore, it must be
struck down - Hence, the same expression used in sub-section (5)
of s.20 of the 2015 Act infringes Articles 14 and 21 of the
Constitution - Constitution of India - Articles 14, 21.
Allowing the appeals, the Court
HELD: 1. The entire issue revolves around the
interpretation of the proviso added by the 2015 Act to sub-section
(2) of Section 167 of CrPC. In a case involving the offences
punishable under the 2015 Act, the Special Court is authorized
to detain the accused person in custody for a period not exceeding
90 days. The proviso added by sub-section (2) of Section 20 of
the 2015 Act to sub-section (2) of Section 167 of CRPC enables
the Special Court to extend the said period to a total of 180 days
on the basis of a report of the Public Prosecutor setting out the
progress of the investigation and incorporating the specific
reasons for the detention of the accused beyond the period of 90
days. Thus, unless the Special Court exercises the power under
the proviso added by the 2015 Act to sub-section (2) of s.167 of
CrPC, on the expiry of the period of 90 days, the accused will be
entitled to default bail. When the Special Court exercises the
power under the proviso added to sub-section (2) of s.167, CrPc
and extends the time up to 180 days, the accused will be entitled
to default bail only if the charge sheet is not filed within the
extended period. As can be seen from sub-section (2) of Section
20 of the 2015 Act, the provisions of Section 167 of CrPC and in
particular sub-section (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 sub-section (2) of Section 167 of
CRPC is required to be construed as a reference to "thirty days"
and "ninety days" respectively. The proviso to sub-section (2) of
Section 20 of the 2015 Act enables the Special Court to extend
the period provided in sub-section (2) of Section 167 of CrPC up
to 180 days. [Paras 15-18][384-B; 387-D-H; 388-A]
2. Sub-section (5) of Section 21 of the MCOCA contained
identical provision as sub-section (5) of Section 20 of the 2015
Act. In the case of Bharat Shanti Lal Shah, this Court, for the
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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 subsection (5) of Section 20 in the facts of these cases for considering
the prayer for default bail. [Para 21][332-B-D]
State of Maharashtra v. Bharat Shanti Lal Shah &
Ors. (2008) 13 SCC 5 : [2008] 12 SCR 1083 - relied
on.
Bharat Shanti Lal Shah & Ors. v. State of Maharashtra
2003 All MR (Crl.) 1061 - referred to.
3.1 The issue involved in these appeals will 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. The question before the
Court 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, this Court will have to consider
the effect of the failure to give notice to the accused of the reports
submitted by the Public Prosecutor. [Paras 20, 22][391-F; 392F]
3.2 Clause (b) of sub-section (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
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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.[Para 28][398-C-H;
399-A-B]
Sanjay Dutt v. State through CBI, Bombay (II) (1994) 5
SCC 410 : [1994] 3 Suppl. SCR 263 - followed.
3.3 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 the
submission of the respondents is accepted that the accused has
no say in the matter, the requirement of giving notice by
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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 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.
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 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 is accepted, 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. 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
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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. [Paras 29-31][399-C-H; 400-A-B]
Hitendra Vishnu Thakur and Others v. State of
Maharashtra and Others (1994) 4 SCC 602 : [1994] 1
Suppl. SCR 360 - referred to.
3.4 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 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 of
2021 etc. 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. The accused were arrested on
different dates. The reports were submitted by the Public
Prosecutor nearly a week before the expiry of the period of 90
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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 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. 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. Once it is held that the orders granting
extension to complete investigation are illegal and stand vitiated,
it follows that the appellants are entitled to default bail. The
impugned orders passed by the Special Court granting extension
to complete investigation and impugned judgment of the High
Court are hereby quashed and set aside. The appellants shall be
enlarged on default bail under sub-section (2) of Section 167 of
CrPC on the conditions as directed. [Paras 33-36 and 39][400-GH; 401-A-H; 402-A, D]
State of Maharashtra v. Surendra Pundlik Gadling and
Ors. (2019) 5 SCC 178 : [2019] 3 SCR 310 - held
inapplicable.
Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; M. Ravindran v.
Intelligence Officer, Directorate of Revenue Intelligence
(2021) 2 SCC 485 : 2020 (10) JT 383; Rakesh Kumar
Paul v. State of Assam (2017) 15 SCC 67 : [2017] 8
SCR 785 - relied on.
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Sanjay Kumar Kedia Alias Sanjay Kedia v. Intelligence
Officer, Narcotics Control Bureau and Another (2009)
17 SCC 631 : [ 2010] 1 SCR 555 - held not a binding
precedent.
Ateef Nasir Mulla v. State of Maharashtra (2005) 7 SCC
29 : [2005] 2 Suppl. SCR 919; S. Kasi v. State through
the Inspector of Police Samaynallur Police Station
Madurai District 2020 SCC OnLine SC 529; Bikramjit
Singh v. State of Punjab (2020) 10 SCC 616 : [2020]
10 JT 53; Muzammil Pasha & Ors. Etc. v. National
Investigating Agency Etc. 2021 SCC OnLine Kar
12688; Narender G. Goel v. State of Maharashtra and
Anr. (2009) 6 SCC 65 : [2009] 8 SCR 1004; Fertico
Marketing & Investment Private Limited & Ors. v.
Central Bureau of Investigation & Anr. (2021) 2 SCC
525 : 2020 (11 ) JT 10; Securities and Exchange Board
of India Etc. v. Gaurav Varshney & Anr. Etc. (2016) 14
SCC 430 : [2016] 7 SCR 1; Devinderpal Singh v.
Government of National Capital Territory of Delhi
(1996) 1 SCC 44 : [1995] 5 Suppl. SCR 199; Mohamed
Iqbal Madar Sheikh & Ors. v. State of Maharashtra
(1996) 1 SCC 722 : [1996] 1 SCR 183 - referred to.
Case Law Reference
[1994] 1 Suppl. SCR 360
referred to
Para 5
[1994] 3 Suppl. SCR 263
followed
Para 5
[2005] 2 Suppl. SCR 919
referred to
Para 6
[2010] 1 SCR 555
held not a
Para 6
binding precedent
[2009] 8 SCR 1004
referred to
Para 8
[2019] 3 SCR 310
held inapplicable
Para 9
[2008] 12 SCR 1083
relied on
Para 13
[2016] 7 SCR 1
referred to
Para 14
[2001] 2 SCR 878
relied on
Para 19(a)
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[2017] 8 SCR 785
relied on
Para 19(c)
[1995] 5 Suppl. SCR 199
referred to
Para 25
[1996] 1 SCR 183
referred to
Para 37
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1656 of 2022.
From the Judgment and Order dated 15.09.2021 of the High Court
of Gujarat at Ahmedabad in Criminal Misc. Application No. 4928 of
2021.
With
Criminal Appeal Nos. 1657, 1658-1659, 1660 of 2022.
Ms. Nitya Ramakrishnan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna
Singh Gohil, Ms. Ranu Purohit, R. Vishnu Kumar, Alapati Sahithya
Krishna, Bhargav Mansatta, Raghav Tankha, Anurag Radhor, Nikhil Goel,
Advs. for the Appellant.
Tushar Mehta, SG, Rajat Nair, Ms. Deepanwita Priyanka, Advs.
for the Respondent.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
Leave granted.
FACTUAL ASPECTS
2.The appellants are the accused in FIR No.112020082021862020
registered with Jamnagar City 'A' Division Police Station in Gujarat for
the offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of The
Gujarat Control of Terrorism and Organised Crime Act, 2015 (for short
'the 2015 Act'). Section 167 of the Code of Criminal Procedure, 1973
(for short 'CrPC') has been amended in relation to the cases involving
offences punishable under the 2015 Act. By virtue of sub-section (2) of
Section 20 of the 2015 Act, a proviso has been added in addition to the
existing proviso to sub-section (2) of Section 167 of CrPC which permits
the Special Court established under the 2015 Act to extend the period of
90 days provided to complete the investigation up to 180 days. The
Special Court is empowered to extend the period up to 180 days on a
report of the Public Prosecutor setting out the progress of the investigation
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and the specific reasons for continuing detention of the accused beyond
the period of 90 days.
3. The aforesaid First Information Report was registered on
15th October 2020. The accused were arrested on different dates. Reports
were submitted by the Public Prosecutor seeking extension of time up to
180 days to complete the investigation. In three cases, the reports were
submitted on 8th January 2021, and in one case, it was submitted on
21st January 2021. The prayer for extending the time up to 180 days was
allowed by the Special Court on the very day on which the applications
were filed. Being aggrieved by the said orders of the Special Court,
separate applications under Section 482 of CrPC were preferred by the
appellants. By the impugned common Judgment dated 15th September
2021, the learned Single Judge of Gujarat High Court rejected the
applications made by the appellants under Section 482 of CrPC. The
details such as the respective dates of arrest and the dates of making
applications are as under:-
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 4. The main ground urged in support of the appeals is that when
the Special Court passed orders on the reports submitted by the learned
Public Prosecutor by which time to complete investigation was extended
up to 180 days, the presence of none of the accused was procured
either physically or through video conference and that they were not
even informed about the reports submitted by the Public Prosecutor.
SUBMISSIONS OF THE APPELLANTS
5.Ms. Nitya Ramakrishnan, the learned senior counsel appearing
for the appellants has made detailed submissions. Reliance has been
placed on the decisions of this Court in the case of Hitendra Vishnu
Thakur and others v. State of Maharashtra and others1 and Sanjay
Dutt v. State through CBI, Bombay (II)2. Her submission is that when
the Special Court exercised the power under the proviso added by subsection (2) of Section 20 of the 2015 Act to sub-section (2) of Section
167 of CrPC, the presence of the appellants was admittedly not procured
even through video conference. Admittedly, before the reports submitted
by the Public Prosecutor seeking extension of time up to 180 days were
considered, the Special Court did not inform the appellants about such
reports being filed by the Public Prosecutor. Her submission is that in the
case of Sanjay Dutt2, the Constitution Bench of this Court has clearly
laid down that the production of the accused before the Special Court
on the date on which such a report is considered is mandatory and that
by producing the accused before the Court, he must be informed about
such a report submitted by the Public Prosecutor. Thus, there is a violation
of the mandate of law laid down by the Constitution Bench of this Court.
She pointed out that the appellants moved applications for grant of default
bail as they were not aware of the filing of the reports by the Public
Prosecutor and the orders of the Special Court extending the period for
investigation. In view of the extension of time granted by the Special
Court, the case of the appellants for grant of default bail under sub-section
(2) of Section 167 of CrPC was not considered by the Special Court. On
9th April 2021, a charge sheet was filed by the police. Her submission is
that the order granting extension to complete investigation is completely
illegal as the same has been passed without following the mandate laid
down in the case of Sanjay Dutt2. Her submission is that the order
granting extension passed by the Special Court deserves to be set aside.
1 (1994) 4 SCC 602
2 (1994) 5 SCC 410
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As the applications for default bail were made by the appellants after
the expiry of the statutory period of 90 days but before filing the charge
sheet, the appellants are entitled to default bail.
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 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 sub-section (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 Court in
both the aforesaid decisions while dealing with the similar provisions under
clause (b) of sub-section (2) of Section 49 of Prevention of Terrorism
3 (2005) 7 SCC 29
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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 sub-section (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. Ravindran v.
Intelligence Officer, Directorate of Revenue Intelligence7 which
holds that sub-section (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 sub-section (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.
7. Her submission is that in violation of the law laid down by the
Constitution Bench in the case of Sanjay Dutt2, the time to carry out the
investigation was extended by the Special Court. Therefore, the said
order is completely illegal as it infringes the right of the appellants to get
default bail which is held to be a fundamental right guaranteed by Article
21 of the Constitution of India.
SUBMISSIONS OF THE RESPONDENT
8. Shri Aman Lekhi, the learned Additional Solicitor General of
India (ASG) submitted that the accused is not entitled to a written notice
of the reports submitted by the Public Prosecutor for seeking extension
4 (2009)17 SCC 631
5 2020 SCC OnLine SC 529
6 (2020) 10 SCC 616
7 (2021) 2 SCC 485
8 2021 SCC OnLine Kar 12688
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of time. He submitted that the report of the Public Prosecutor is considered
by the Special Court at a stage when the investigation is in progress. His
submission is that accused has no say in the matter of grant of extension
of time as he has no right of being heard at the stage of the investigation.
He relied upon a decision of this Court in the case of Narender G.
Goel v. State of Maharashtra and Anr.9.
9. Learned ASG further submitted that the inquiry at the time of
consideration of the report submitted by the Public Prosecutor for extension
of time is very limited. He relied upon a decision of this Court in the case
of State of Maharashtra v. Surendra Pundlik Gadling and Ors.10.
He submitted that if a report is submitted by the Public Prosecutor
indicating the progress of the investigation and the specific reasons for
continuing the detention of the accused beyond a period of 90 days, the
Special Court is empowered to grant the extension. He submitted that in
the present case, the reports submitted by the Public Prosecutor indicate
that there was an application of mind by the Public Prosecutor and all
details as required were submitted. He urged that the decision of this
Court in the case of Sanjay Kumar Kedia4 is per incuriam as the
binding precedent in the case of Sanjay Dutt2 was not considered by
this Court.
10. His submission is that the obligation to produce the accused
before the Court is mandatory only when his detention in police custody
is sought. He submitted that mere non-production of the accused on the
day on which the Special Court considered the request for the grant of
extension of time will not vitiate the order extending the time. His
submission is that in view of Section 460 of CrPC, the order will not
stand vitiated. His submission is that in any case, no prejudice has been
caused to the appellants due to their non-production and there has been
no failure of justice. Learned ASG submitted that physical production of
the accused was not feasible due to Covid-19 conditions and that inadequate
bandwidth prevented the virtual production of the accused persons. He
submitted that the reasons given by the High Court are cogent and correct.
REJOINDER OF THE APPELLANTS
11. By way of rejoinder, the learned senior counsel appearing for
the appellant submitted that without disturbing the law laid down in the
9 (2009) 6 SCC 65
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case of Hitendra Vishnu Thakur1, the Constitution Bench in the case
of Sanjay Dutt2 has held that service of written notice to the accused is
not necessary and it would suffice if the accused was present in the
Court and was informed that the request for extension of time to complete
the investigation is being considered. She submitted that there is no
material placed on record to show that in January 2021 when the reports
submitted by the Public Prosecutor were considered by the Special Court,
either the Standard Operating Procedure prevailing at that time prohibited
the physical production of the accused or there was no proper connectivity
which prevented the production even virtually. Her submission is that the
said plea has no foundation at all.
FURTHER SUBMISSIONS
12. On 09th February 2022, submissions were concluded.
Thereafter, we noticed that sub-section (5) of Section 20 of the 2015
Act was not brought to our notice during the course of submissions.
Therefore, on 10th March 2022, the appeals were again listed on Board
for further hearing, and time was granted to the learned counsel appearing
for the parties to make further submissions on the limited issue of the
applicability of sub-section (5) of Section 20 of the 2015 Act. Thereafter,
the appeals could not be listed immediately due to the change of the
constitution of the Bench. Ultimately, further submissions were heard on
23rd August 2022.
13. Ms. Nitya Ramakrishnan, learned senior counsel appearing
for the appellants pointed out that though sub- section (5) of Section 20,
which overrides the provisions of CrPC, provides that the accused shall
not be granted bail if it is noticed by the Special Court that he was on bail
in an offence under the 2015 Act or under any other Act on the date of
the offence in question, the same will not come in the way of the appellants
getting default bail. She pointed out that an identical provision in the
form of sub-section (5) of Section 21 of the Maharashtra Control of
Organised Crime Act, 1999 (for short, 'the MCOCA') has been partially
struck down by the Bombay High Court in the case of Bharat Shanti
Lal Shah & Ors. v. State of Maharashtra11. She pointed out that this
Court in the case of State of Maharashtra v. Bharat Shanti Lal Shah
& Ors.12 has affirmed the said view. This Court, for reasons recorded,
11 2003 All MR (Crl.) 1061
12 (2008) 13 SCC 5
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held that the expression "or under any other Act" as appearing in
sub-section (5) of Section 21 of the MCOCA was arbitrary and
discriminatory.
RESPONSE OF THE SOLICITOR GENERAL OF INDIA
14.Shri Tushar Mehta, learned Solicitor General of India submitted
that in view of the pronouncement of law by this Court in the case of
Bharat Shanti Lal Shah12, sub-section (5) of Section 20 of the 2015
Act will not by itself be an impediment in the way of the appellants
getting default bail. With the permission of the Court, he made additional
submissions. He relied upon Section 461 of CrPC which contains an
exhaustive list of irregularities that vitiate proceedings. He urged that
the irregularity alleged in this case is not a part of the list of irregularities
contained in the said provision. He also invited our attention to sub-section
(2) of Section 465 of CrPC. His submission is that as held by this
Court in the case of Sanjay Dutt2, the accused is not entitled to a written
notice of the application made by the Public Prosecutor for extension of
the period provided to carry out the investigation and only his presence
is to be procured when the application is heard by the Special Court. He
submitted that the accused is not entitled to receive a copy of the
application/ report made under the proviso to sub-section (2) of Section
20 of the 2015 Act and, therefore, he is not entitled to make any
submissions on the report of the Public Prosecutor. He submitted that
there is no prejudice caused to the appellants as a result of the failure
of the investigating agency to produce them before the Special Court
when applications for extension were heard. He submitted that the failure
to produce the appellants on the date on which extension applications
were heard, is a mere irregularity in the proceedings which will have no
effect on further stages such as cognizance, trial, etc. On this aspect, he
relied upon a decision of this Court in the case of Fertico Marketing
& Investment Private Limited & Ors. v. Central Bureau of
Investigation & Anr.13. He also relied upon another decision of this
Court in the case of Securities and Exchange Board of India etc. v.
Gaurav Varshney & Anr. etc.14. He urged that the applications for
availing of default bail were filed by the appellants after the time was
extended by the Special Court. He would, therefore, submit that the
appellants are not entitled to default bail. He also submitted that the
13 (2021) 2 SCC 525
14 (2016) 14 SCC 430
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allegations against the appellants are of a very serious nature. Even this
aspect needs to be taken into consideration.
CONSIDERATION OF SUBMISSIONS
15.We have carefully considered the submissions. The entire issue
revolves around the interpretation of the proviso added by the 2015 Act
to sub-section (2) of Section 167 of CrPC. For that purpose, we must
refer to Section 20 of the 2015 Act. The Section reads thus:-
"20.