Accused Not Entitled To Default Bail When First Extension(Passed In Absence Of Accused) Wasn't Challenged & Second Extension Was Passed In His Presence : Supreme Court

The Supreme Court held that an accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension.

The division bench of Justice M. R. Shah and Justice C. T. Ravikumar noted:

“Therefore, in the aforesaid peculiar facts and circumstances of the case, when two extensions granted by the Court which are not challenged and at the time when the default bail application was made on 10.05.2022 there was already an extension and even thereafter, also there was a second extension which was in presence of the accused and thereafter, when the chargesheet has been filed within the period of extension, the accused is not entitled to be released on statutory/default bail as prayed.”

Brief Facts

The accused was arrested on January 29, 2022. The Investigation Officer (IO) prayed for extension of time to complete the investigation beyond a period of 90 days as provided under Section 167 CrPC which was granted by the Trial Court by granting extension of 30 days on April 22, 2022. The accused was informed about the extension on April 23, 2022.

Again, the Investigating Officer again prayed for further extension which was allowed by the Trial Court on May 22, 2022 in the presence of the accused.

The accused submitted a bail application on May 10, 2022 before the Trial Court on the ground that at the time when the first extension was granted to the I.O., the same was not in the presence of the accused and therefore the accused acquired the right to get the default bail on May 10, 2022.

The Trial Court rejected the said bail application of the accused. The accused filed an appeal before the High Court which was dismissed vide judgment and order dated September 23, 2022. Hence, the accused approached the Supreme Court assailing the impugned judgment and order of the High Court.

Issue

The issue before the Court was whether the accused shall be entitled to the statutory/default bail under Section 167(2) of the CrPC on the ground that at the time when the extension of time for completing the investigation was prayed by the investigating agency and granted by the Trial Court the accused was not kept present?

Arguments

The Counsel appearing for the accused, Mehmood Pracha submitted before the Court that it was admitted by the prosecution that the appellant was not produced before the Trial Court at the time of consideration of application for first extension of period of investigation.

He put emphasis upon the judgments of the Supreme Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602 wherein, the notice to the accused at the time of consideration of application for extension of period of investigation was held to be mandatory.

He further relied upon the judgment of the Supreme Court in Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat 2022 LiveLaw (SC) 794 in which it was reiterated that failure to produce the accused at the time of extension of period of investigation renders such extension bad in law and entitles the accused to statutory bail.

Opposing the appeals, the Solicitor General, Tushar Mehta appearing for the State of Gujarat contended that in the case of Sanjay Dutt, the Supreme Court explained the decision laid down in the case of Hitendra Vishnu Thakur (supra) and held that the only requirement is the production of the accused before the Court in accordance with Section 167(1) of CrPC and the accused is not entitled to written notice giving reasons for the extension.

He further submitted that decision of the Apex Court in the case of Jigar (supra) requires reconsideration by the Larger Bench as in the said decision the Supreme Court has not taken into consideration Section 465 of the CrPC.

Solicitor General emphasised upon the judgment of the Supreme Court in Rambeer Shokeen v. State (2018) 4 SCC 405 wherein it was laid down that the accused persons are entitled to the right of the default bail only after rejection of the application for extension of time period for investigation or when the chargesheet is not filed within the prescribed time.

Verdict

The Apex Court relied upon its Constitution Bench judgement in Sanjay Dutt v. State through CBI, Bombay (II) (1994) 5 SCC 410 in which it was laid down that a notice to the accused is not required to be given by the Designated Court before it grants any extension for completing the investigation, meaning thereby the accused is to be kept present before the Court when it grants any extension for completing the investigation.

The Court noted that the view taken by the Supreme Court in the case of Hitendra Vishnu Thakur (supra) that a notice is to be given to the accused so that he can oppose the extension was not accepted by the Constitution Bench in the case of Sanjay Dutt (supra).

The Court observed:

“Thus, sum and substance of law laid down by this Court in the cases of Sanjay Dutt (supra) and Jigar (supra) are that while considering the application by the Investigating Agency for extension of time for completing the investigation beyond the period prescribed under Section 167(2) of the CrPC the accused is to be given notice and/or is to be kept present before the Court, so that, the accused had knowledge that the extension is sought and granted.”

The Court held that the appellant-accused is not entitled to the relief of statutory/default bail as when the information given to the accused the very next day after the grant of first extension, he did not challenge the extension on any ground which may be available to him and/or did not make any grievance that such an extension is illegal and/or contrary to law.

The Court averred:

“At this stage, it is required to be noted that though informed on 23.04.2022 about the extension of time for completing the investigation, the accused did not disclose the same in the application for default bail/statutory bail submitted on 10.05.2022. That thereafter, on 22.05.2022, IO again submitted the report for further extension of time for completing the investigation which came to be allowed/granted by the learned Trial Court which as such was in the presence of the accused and at that time, the accused remained present. Neither the first extension nor the second extension came to be challenged by the accused.”

Thus, the Court dismissed the appeals filed by the appellant-accused.

Case Title: Qamar Ghani Usmani v. The State of Gujarat

Citation : 2023 LiveLaw (SC) 297

Code of Criminal Procedure 1973- Section 167(2)- accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension.

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