QAMAR GHANI USMANI versus THE STATE OF GUJARAT on 10 April 2023

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 23.09.2022 passed by the High Court of Gujarat atDAhmedabad in Criminal Appeal Nos. 1215/2022 and 1216/2022, by which,the Division Bench of the High Court has dismissed the said appeals andhas refused to release the appellant – accused on statutory bail (defaultbail) under Section 167(2) of the Cr.PC, the original accused has preferredthe present appeals.

E3. The facts leading to the present appeals in a nutshell are asunder: - 3.1 That the accused came to be arrested on 29.01.2022. The 90days period as provided under Section 167 of the Cr.PC, therefore, wasto expire on 29.04.2022. However, on 22.04.2022, the InvestigatingFOfficer prayed for extension of time to complete the investigation whichcame to be granted by the learned Trial Court by granting extension of30 days period. The accused came to be informed about the extensionon 23.04.2022 itself. On 22.05.2022, the Investigating Officer againprayed for further extension which came to be allowed by the learnedGTrial Court on 22.05.2022. At this stage, it is required to be noted that on22.05.2022, the second extension was granted in the presence of theaccused. In the meantime, the accused submitted the default bailapplication on 10.05.2022 on the ground that at the time when the firstextension was granted on 22.04.2022, the same was not in the presenceof the accused and the accused was not kept present and therefore, firstH

extension was bad in law and therefore, the accused acquired right toget the default bail on 10.05.2022. The learned Trial Court rejected thesaid application(s). The Division Bench of the High Court by the impugnedjudgment and order has dismissed the appeals. Hence, the present appealsat the instance of the original accused.

4. Shri Mehmood Pracha, learned counsel has appeared on behalfof the appellant and Shri Tushar Mehta, learned Solicitor General hasappeared on behalf of the respondent – State of Gujarat.

4.1 Shri Pracha, learned counsel appearing on behalf of theaccused has vehemently submitted that as such the judgment and orderwhich has been relied upon by the Division Bench of the High Court hasbeen subsequently set aside by this Court in the case of Jigar aliasJimmy Pravinchandra Adatiya Vs. State of Gujarat 2022 SCCOnLine SC 1290.

4.2 It is further submitted by Shri Pracha, learned counsel appearingon behalf of the accused that it is admitted by the prosecution that theappellant was not produced before the learned Trial Court at the time ofconsideration of application for first extension of period of investigation.It is submitted that in the case of Hitendra Vishnu Thakur and Ors.Vs. State of Maharashtra and Ors. (1994) 4 SCC 602 and in thecase of Sanjay Dutt Vs. State through CBI, Bombay (II) (1994) 5SCC 410, notice to the accused at the time of consideration of applicationfor extension of period of investigation has been held to be mandatory. Itis submitted that in the case of Sanjay Dutt (supra), this Court hasfurther interpreted to mean that a written notice is not mandatory but thepresence of the accused suffices. It is submitted that therefore, even asper the law laid-down by this Court in the case of Sanjay Dutt (supra)at the time of consideration of application for extension of period ofinvestigation, the presence of the accused is must. It is submitted thattherefore, in the present case when the first extension was granted on22.04.2022 admittedly the accused was not produced before the learnedTrial Court, the first extension before itself is illegal and not an extensionin the eye of law and therefore, thereafter when the accused filed theapplication(s) under Section 167(2) of the Cr.PC for default bail/statutorybail, the accused had acquired a indefeasible right for release on statutorybail as by the time 90 days period was over and the first extension is tobe ignored.

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4.3 It is further submitted by learned counsel appearing on behalfof the accused that as observed and held by this Court in the case ofSayed Mohd. Ahmed Kazmi Vs. State (2012) 12 SCC 1 extensionof period of investigation from retrospective effect, after the initial orderhas been set aside, is not permissible.

B4.4 It is further submitted by learned counsel appearing on behalfof the accused that recently in the case of Jigar (supra) this Courtafter taking into consideration the decisions of this Court in the cases ofHitendra Vishnu Thakur (supra) and Sanjay Dutt (supra), hasspecifically reiterated the proposition that failure to produce the accusedat the time of extension of period of investigation renders such extensionCbad in law and entitles the accused to statutory bail.

4.5 Making the above submissions and heavily relying upon thedecisions of this Court in the cases of Hitendra Vishnu Thakur (supra);Sayed Mohd. Ahmed Kazmi (supra); Sanjay Dutt (supra) and Jigar(supra), it is prayed to allow the present appeals and direct the respondentDto release the appellant – accused on statutory bail.

5. While opposing the present appeals, Shri Tushar Mehta, learnedSolicitor General appearing on behalf of the State has vehementlysubmitted that as such the decision of this Court in the case of HitendraVishnu Thakur (supra) has been subsequently watered down by thisECourt in the case of Sanjay Dutt (supra). It is submitted that the viewtaken by this Court in the case of Hitendra Vishnu Thakur (supra)that at the time of extension of time for investigation, a notice to theaccused is required to be given by the Designated Court before it grantsany extension is no longer a good law in view of the subsequent decisionFof this Court in the case of Sanjay Dutt (supra). It is submitted that inthe case of Sanjay Dutt (supra) this Court has explained the decisionin the case of Hitendra Vishnu Thakur (supra) and has observed andheld that the only requirement is the production of the accused beforethe Court in accordance with Section 167(1) of the Cr.PC and that theaccused is not entitled to written notice giving reasons for the extension.G

5.1 Now so far as the reliance placed upon the decision of thisCourt in the case of Jigar (supra) is concerned, it is vehementlysubmitted that as such the said decision requires reconsideration by theLarger Bench as in the said decision this Court has not taken intoconsideration Section 465 of the Cr.PC. It is submitted that this CourtH

has failed to consider the law laid-down by this Court in the case ofRambeer Shokeen Vs. State (2018) 4 SCC 405, in which it wascategorically held that the accused persons are entitled to the right ofthe default bail only after rejection of the application for extension oftime period for investigation or when the chargesheet is not filed withinthe prescribed time.

5.2 It is further submitted that even otherwise as observed andheld by this Court in the case of Narender G. Goel Vs. State ofMaharashtra (2009) 6 SCC 65 the accused has no right to be heardat the stage of investigation and more particularly, at the stage of extensionof period for investigation. It is submitted that as observed and held bythis Court, the accused is not entitled to have the reasonings for extensionof period of investigation because accused has no right to be heard atthe stage of investigation.

5.3 It is further submitted by Shri Tushar Mehta, learned SolicitorGeneral appearing on behalf of the State that even otherwise, in thefacts and circumstances of the case, the appellant is not entitled to anyrelief(s) as prayed, more particularly, the statutory bail. It is submittedthat the first extension was granted by the learned Trial Court on22.04.2022. The accused was informed about extension of time forinvestigation immediately on the very next day i.e., 23.04.2022. It issubmitted that nothing was done by the accused even on 29.04.2022(when the 90 days period was over). It is submitted that though theaccused was informed about the extension of time for investigation on23.04.2022, till 10.05.2022 he did not challenge the extension of time forinvestigation for a further period of 30 days granted on 22.04.2022. It issubmitted that even thereafter when the second extension was soughtand granted on 22.05.2022 on which date the accused was present andin whose presence the extension was granted, no grievance was madeby the accused on the legality and validity of earlier order dated22.04.2022 granting the extension for a further period of 30 days. It issubmitted that therefore, once the accused failed to challenge the firstorder of extension dated 22.04.2022 on whatever grounds available andallowed the period of extension and thereafter at the time when thesecond extension was granted the accused was present and he did notmake any grievance with respect to the first extension granted on22.04.2022, thereafter, it is not open for the accused to make anygrievance on the grant of first extension granted on 22.04.2022.

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A5.4 It is submitted that therefore, at the time when the accusedpreferred application(s) for statutory/default bail on 10.05.2022, therewas already an extension of time for investigation by the learned TrialCourt vide order dated 22.04.2022, which was not challenged by theaccused and therefore, the application(s) for default/statutory bail duringthe period of extension would not be maintainable at all as the saidBapplication(s) were made during the period of extension for investigation.It is submitted by Shri Mehta, learned Solicitor General that even in theapplication(s) for default/statutory bail preferred on 10.05.2022, theaccused did not even disclose that the learned Trial Court had grantedthe extension for investigation vide order dated 22.04.2022 which asCsuch was communicated to the accused on 23.04.2022. It is submittedthat therefore, in view of the above facts, none of the decisions of thisCourt relied upon on behalf of the accused shall be applicable to thefacts of the case on hand. It is submitted that so far as the relianceplaced upon the decision of this Court in the case of Sayed Mohd.Ahmed Kazmi (supra) is concerned, it is submitted by learned SolicitorDGeneral that on facts the said decision shall not be applicable to the factsof the case on hand. It is submitted that in the case before this Court, infact the extension was challenged before the Sessions Court and theextension was held to be bad in law.

5.5 Making the above submissions, it is prayed to dismiss theEpresent appeals.

6. We have heard Shri Mehmood Pracha, learned counselappearing on behalf of the accused – appellant and Shri Tushar Mehta,learned Solicitor General appearing on behalf of the State of Gujarat.F6.1 The short question which is posed for the consideration of this F6.1 The short question which is posed for the consideration of thisCourt is whether in the facts and circumstances of the case, the appellantshall be entitled to the statutory/default bail under Section 167(2) of theCr.PC on the ground that at the time when the extension of time forcompleting the investigation was prayed by the investigating agency andgranted by the Trial Court the accused was not kept present?G

6.2 Learned counsel appearing on behalf of the appellant – accusedhas heavily relied upon the decisions of this Court in the cases of HitendraVishnu Thakur (supra); Sanjay Dutt (supra); Sayed Mohd. AhmedKazmi (supra) and on the recent decision of this Court in the case ofJigar (supra).H

6.2.1 In the case of Hitendra Vishnu Thakur (supra), this Courtobserved and held that when a report is submitted by the PublicProsecutor to the Designated Court for grant of extension, its noticeshould be issued to the accused before granting such an extension sothat the accused may have an opportunity to oppose the extension on alllegitimate and legal grounds available to him.

6.2.2 However, thereafter, the decision of this Court in the caseof Hitendra Vishnu Thakur (supra) fell for consideration before thisCourt in the case of Sanjay Dutt (supra) and the view taken by thisCourt in the case of Hitendra Vishnu Thakur (supra) as above, hasnot been accepted by the Constitution Bench of this Court and it isobserved and held in the case of Sanjay Dutt (supra) that a notice tothe accused is not required to be given by the Designated Court beforeit grants any extension for completing the investigation. Meaning thereby,the accused is to be kept present before the Court when it grants anyextension for completing the investigation. The view taken by this Courtin the case of Hitendra Vishnu Thakur (supra) that a notice is to begiven to the accused so that he can oppose the extension has not beenaccepted by the Constitution Bench of this Court in the case of SanjayDutt (supra). As such under the Scheme of Cr.PC and on the reportsubmitted by the Investigating Agency, prayer for extension of time forcompleting investigation is subject to the satisfaction of the concernedCourt whether to grant further extension or not. The Court is to besatisfied on the grounds on which the extension is sought.

6.2.3 Now so far as the reliance placed upon the decision of thisCourt in the case of Sayed Mohd. Ahmed Kazmi (supra) by learnedcounsel appearing on behalf of the appellant is concerned, at the outset,it is required to be noted that the said decision shall not be applicable tothe facts of the case on hand. In the case before this Court, in fact, theextension granted by the learned Chief Metropolitan Magistrate waschallenged on the ground that the learned Chief Metropolitan Magistratehad no competence to extend the judicial custody of the accused. Thelearned Additional Sessions Judge accepted the same. However,thereafter, a fresh extension was sought which was beyond the periodprescribed under Section 167 of the Cr.PC and therefore, this Courtobserved and held that extension for period of investigation fromretrospective effect shall not be permissible.

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A6.3 Similarly, even the decision of this Court in the case ofRambeer Shokeen (supra) relied upon by learned Solicitor Generalshall also not be applicable to the facts of the case on hand. In the caseof Rambeer Shokeen (supra) pending application by the InvestigatingAgency for extension of time for completing the investigation, the accusedmade an application for statutory/default bail and to that this CourtBobserved and held that the application filed by the Investigating Agencyfor extension of time for completing the investigation which was prayedin time kept pending ought to be decided first by the Court.

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6.4 Thus, sum and substance of law laid-down by this Court in thecases of Sanjay Dutt (supra) and Jigar (supra) are that whileCconsidering the application by the Investigating Agency for extension oftime for completing the investigation beyond the period prescribed underSection 167(2) of the Cr.PC the accused is to be given notice and/or isto be kept present before the Court, so that, the accused had knowledgethat the extension is sought and granted.D6.5 However, in the facts and circumstances of the case, weare of the view that the appellant is not entitled to the relief of statutory/default bail. In the present case the facts are glaring which are asunder: -

……The accused was arrested on 29.01.2022. The 90 daysEprovided under Section 167 Cr.PC thus would expire on29.04.2022. Within the period of 90 days i.e., on 22.04.2022, theIO submitted the report and prayed for extension of time forcompleting the investigation which came to be allowed by thelearned Trial Court by granting extension of 30 days period. It isFtrue that for whatever reason, the accused was not kept presentat the time when the learned Trial Court considered the reportsubmitted by the IO for extension of time for completing theinvestigation. However, the accused came to be informed aboutthe extension on the very next day i.e., 23.04.2022. The accuseddid not challenge the extension on any ground which may beGavailable to him and/or did not make any grievance that such anextension is illegal and/or contrary to law. On 10.05.2022, he madethe present application for default bail/statutory bail on the groundthat the chargesheet has not been filed within the period of 90days. At this stage, it is required to be noted that at the time whenHthe present application for default/statutory bail was made on 10.05.2022, there was already an extension of time by the learnedTrial Court which as such was in existence and the extension wasup to 22.05.2022. At this stage, it is required to be noted thatthough informed on 23.04.2022 about the extension of time forcompleting the investigation, the accused did not disclose the samein the application for default bail/statutory bail submitted on10.05.2022. That thereafter, on 22.05.2022, IO again submittedthe report for further extension of time for completing theinvestigation which came to be allowed/granted by the learnedTrial Court which as such was in the presence of the accused andat that time, the accused remained present. Neither the firstextension nor the second extension came to be challenged by theaccused.”

7. Therefore, in the aforesaid peculiar facts and circumstances ofthe case, when two extensions granted by the Court which are notchallenged and at the time when the default bail application was madeon 10.05.2022 there was already an extension and even thereafter, alsothere was a second extension which was in presence of the accusedand thereafter, when the chargesheet has been filed within the period ofextension, the accused is not entitled to be released on statutory/defaultbail as prayed. Therefore, in the facts and circumstances of the case,we are in agreement with the ultimate conclusion reached by the HighCourt denying the statutory/default bail to the accused.

8. In view of the above and for the reasons stated above and, inthe facts, and circumstances of the case narrated hereinabove, theappellant is not entitled to the benefit of statutory/default bail. Under thecircumstances, the present appeals deserve to be dismissed and areaccordingly dismissed. However, it will be open for the accused to prayerfor regular bail which may be considered in accordance with law and onits own merits. Present appeals stand dismissed accordingly.

Ankit Gyan

Appeals dismissed.

(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)

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