Failure to produce accused before Special Court while considering extension application under Section 167 CrPC a gross illegality: SC

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that under Section 167 of the Code of Criminal Procedure, 1973 (CrPC), 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 Court observed,

“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.”

Background

Accused were charged 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 and were arrested on different dates. Reports were submitted by the Public Prosecutor seeking extension of time up to 180 days to complete the investigation. The prayer for extending the time up to 180 days was allowed by the Special Court on the very day on which the applications were filed.

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 15.09.2021, the Gujarat High Court rejected the said applications.

It is the case of the appellants that 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.

Law in question – Explained

Section 167 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 and the specific reasons for continuing detention of the accused beyond the period of 90 days.

In a case involving the offences punishable under the 2015 Act, the Special Court is authorized to detain the accused person in custody for a period not exceeding 90 days. The proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-Section (2) of Section 167 of CrPC enables the Special Court to extend the said period to a total of 180 days on the basis of a report of the Public Prosecutor setting out the progress of the investigation and incorporating the specific reasons for the detention of the accused beyond the period of 90 days.

Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub-section (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the accused will be entitled to default bail. When the Special Court exercises the power under the proviso added to sub-section (2) of Section 167 of 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.

Failure to produce accused before Special Court at the time of considering extension application – Effect of

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 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.

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.

On the submission that the accused has no say in the matter, the Court observed that accepting the same would make the requirement of giving notice by producing the accused 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.

“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.”

Hence, 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.

Ruling on facts

In the case at hand, 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.

In such circumstances, the Court held that 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. Hence, in the facts of the present case, the grant of extension of time without complying with the requirements laid down by the Constitution Bench had deprived the accused of their right to seek default bail and had resulted in the failure of justice.

The Court, hence, held that the orders passed by the Special Court of extending the period of investigation to be 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. Consequently, the Court directed the accused to be enlarged on default bail.

[Jigar v. State of Gujarat, 2022 SCC OnLine SC 1290, decided on 23.09.2022]


*Judgment by: Justice Abhay S. Oka


For appellants: Senior Advocate Nitya Ramakrishnan

For Respondent: SG Tushar Mehta and ASG Aman Lekhi

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