Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 10451046/2023
SLP (CRL) NOS. 011196 011197 / 2022
Qamar Ghani Usmani ...Appellant(s)
Versus
The State of Gujarat …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the
impugned judgment and order dated
23.09.2022 passed by the High Court of
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2023.04.10
16:38:21 IST
Reason:
Gujarat at Ahmedabad in Criminal Appeal
Page 1 of 28
Nos. 1215/2022 and 1216/2022, by which,
the Division Bench of the High Court has
dismissed the said appeals and has refused
to release the appellant – accused on
statutory bail (default bail) under Section
167(2) of the Cr.PC, the original accused has
preferred the present appeals.
3. The facts leading to the present appeals in a
nutshell are as under:
3.1 That the accused came to be arrested on
29.01.2022. The 90 days period as provided
under Section 167 of the Cr.PC, therefore,
was to expire on 29.04.2022. However, on
22.04.2022, the Investigating Officer prayed
for extension of time to complete the
investigation which came to be granted by
the learned Trial Court by granting
extension of 30 days period. The accused
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came to be informed about the extension on
23.04.2022 itself. On 22.05.2022, the
Investigating Officer again prayed for further
extension which came to be allowed by the
learned Trial Court on 22.05.2022. At this
stage, it is required to be noted that on
22.05.2022, the second extension was
granted in the presence of the accused. In
the meantime, the accused submitted the
default bail application on 10.05.2022 on
the ground that at the time when the first
extension was granted on 22.04.2022, the
same was not in the presence of the accused
and the accused was not kept present and
therefore, first extension was bad in law and
therefore, the accused acquired right to get
the default bail on 10.05.2022. The learned
Trial Court rejected the said application(s).
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The Division Bench of the High Court by the
impugned judgment and order has
dismissed the appeals. Hence, the present
appeals at the instance of the original
accused.
4. Shri Mehmood Pracha, learned counsel has
appeared on behalf of the appellant and Shri
Tushar Mehta, learned Solicitor General has
appeared on behalf of the respondent – State
of Gujarat.
4.1 Shri Pracha, learned counsel appearing on
behalf of the accused has vehemently
submitted that as such the judgment and
order which has been relied upon by the
Division Bench of the High Court has been
subsequently set aside by this Court in the
case of Jigar alias Jimmy Pravinchandra
Page 4 of 28
Adatiya Vs. State of Gujarat 2022 SCC
OnLine SC 1290.
4.2 It is further submitted by Shri Pracha,
learned counsel appearing on behalf of the
accused that it is admitted by the
prosecution that the appellant was not
produced before the learned Trial Court at
the time of consideration 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 the case of
Sanjay Dutt Vs. State
through CBI, Bombay (II) (1994) 5 SCC
410, notice to the accused at the time of
consideration of application for extension of
period of investigation has been held to be
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mandatory. It is submitted that in the case
of , this Court has
Sanjay Dutt (supra)
further interpreted to mean that a written
notice is not mandatory but the presence of
the accused suffices. It is submitted that
therefore, even as per the law laiddown by
this Court in the case of Sanjay Dutt
at the time of consideration of
(supra)
application for extension of period of
investigation, the presence of the accused is
must. It is submitted that therefore, in the
present case when the first extension was
granted on 22.04.2022 admittedly the
accused was not produced before the
learned Trial Court, the first extension
before itself is illegal and not an extension in
the eye of law and therefore, thereafter when
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the accused filed the application(s) under
Section 167(2) of the Cr.PC for default
bail/statutory bail, the accused had
acquired a indefeasible right for release on
statutory bail as by the time 90 days period
was over and the first extension is to be
ignored.
4.3 It is further submitted by learned counsel
appearing on behalf of the accused that as
observed and held by this Court in the case
of Sayed Mohd. Ahmed Kazmi Vs. State
extension of period of
(2012) 12 SCC 1
investigation from retrospective effect, after
the initial order has been set aside, is not
permissible.
4.4 It is further submitted by learned counsel
appearing on behalf of the accused that
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recently in the case of Jigar (supra) this
Court after taking into consideration the
decisions of this Court in the cases of
Hitendra Vishnu Thakur (supra) and
Sanjay Dutt (supra), has specifically
reiterated the proposition 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.
4.5 Making the above submissions and heavily
relying upon the decisions of this Court in
the cases of
Hitendra Vishnu Thakur
(supra) ; Sayed Mohd. Ahmed Kazmi
(supra); Sanjay Dutt (supra) and Jigar
, it is prayed to allow the present
(supra)
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appeals and direct the respondent to release
the appellant – accused on statutory bail.
5. While opposing the present appeals, Shri
Tushar Mehta, learned Solicitor General
appearing on behalf of the State has
vehemently submitted that as such the
decision of this Court in the case of
Hitendra Vishnu Thakur (supra) has been
subsequently watered down by this Court in
the case of Sanjay Dutt (supra) . It is
submitted that the view taken by this Court
in the case of Hitendra Vishnu Thakur
(supra) that at the time of extension of time
for investigation, a notice to the accused is
required to be given by the Designated Court
before it grants any extension is no longer a
good law in view of the subsequent decision
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of this Court in the case of Sanjay Dutt
(supra). It is submitted that in the case of
this Court has
Sanjay Dutt (supra)
explained the decision in the case of
Hitendra Vishnu Thakur (supra) and has
observed and held that the only requirement
is the production of the accused before the
Court in accordance with Section 167(1) of
the Cr.PC and that the accused is not
entitled to written notice giving reasons for
the extension.
5.1 Now so far as the reliance placed upon the
decision of this Court in the case of Jigar
(supra) is concerned, it is vehemently
submitted that as such the said decision
requires reconsideration by the Larger
Bench as in the said decision this Court has
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not taken into consideration Section 465 of
the Cr.PC. It is submitted that this Court
has failed to consider the law laiddown by
this Court in the case of Rambeer Shokeen
, in which it
Vs. State (2018) 4 SCC 405
was categorically held 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.
5.2 It is further submitted that even otherwise
as observed and held by this Court in the
case of Narender G. Goel Vs. State of
Maharashtra (2009) 6 SCC 65 the accused
has no right to be heard at the stage of
investigation and more particularly, at the
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stage of extension of period for investigation.
It is submitted that as observed and held by
this Court, the accused is not entitled to
have the reasonings for extension of period
of investigation because accused has no
right to be heard at the stage of
investigation.
5.3 It is further submitted by Shri Tushar
Mehta, learned Solicitor General appearing
on behalf of the State that even otherwise, in
the facts and circumstances of the case, the
appellant is not entitled to any relief(s) as
prayed, more particularly, the statutory bail.
It is submitted that the first extension was
granted by the learned Trial Court on
22.04.2022. The accused was informed
about extension of time for investigation
immediately on the very next day i.e.,
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23.04.2022. It is submitted that nothing
was done by the accused even on
29.04.2022 (when the 90 days period was
over). It is submitted that though the
accused was informed about the extension
of time for investigation on 23.04.2022, till
10.05.2022 he did not challenge the
extension of time for investigation for a
further period of 30 days granted on
22.04.2022. It is submitted that even
thereafter when the second extension was
sought and granted on 22.05.2022 on which
date the accused was present and in whose
presence the extension was granted, no
grievance was made by the accused on the
legality and validity of earlier order dated
22.04.2022 granting the extension for a
further period of 30 days. It is submitted
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that therefore, once the accused failed to
challenge the first order of extension dated
22.04.2022 on whatever grounds available
and allowed the period of extension and
thereafter at the time when the second
extension was granted the accused was
present and he did not make any grievance
with respect to the first extension granted
on 22.04.2022, thereafter, it is not open for
the accused to make any grievance on the
grant of first extension granted on
22.04.2022.
5.4 It is submitted that therefore, at the time
when the accused preferred application(s)
for statutory/default bail on 10.05.2022,
there was already an extension of time for
investigation by the learned Trial Court vide
order dated 22.04.2022, which was not
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challenged by the accused and therefore, the
application(s) for default/statutory bail
during the period of extension would not be
maintainable at all as the said application(s)
were made during the period of extension for
investigation. It is submitted by Shri Mehta,
learned Solicitor General that even in the
application(s) for default/statutory bail
preferred on 10.05.2022, the accused did
not even disclose that the learned Trial
Court had granted the extension for
investigation vide order dated 22.04.2022
which as such was communicated to the
accused on 23.04.2022. It is submitted that
therefore, in view of the above facts, none of
the decisions of this Court relied upon on
behalf of the accused shall be applicable to
the facts of the case on hand. It is submitted
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that so far as the reliance placed upon the
decision of this Court in the case of
Sayed
Mohd. Ahmed Kazmi (supra) is concerned,
it is submitted by learned Solicitor General
that on facts the said decision shall not be
applicable to the facts of the case on hand.
It is submitted that in the case before this
Court, in fact the extension was challenged
before the Sessions Court and the extension
was held to be bad in law.
5.5 Making the above submissions, it is prayed
to dismiss the present appeals.
6. We have heard Shri Mehmood Pracha,
learned counsel appearing on behalf of the
accused – appellant and Shri Tushar Mehta,
learned Solicitor General appearing on
behalf of the State of Gujarat.
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6.1 The short question which is posed for the
consideration of this Court is whether in the
facts and circumstances of the case, the
appellant shall be entitled to the
statutory/default bail under Section 167(2)
of the Cr.PC 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?
6.2 Learned counsel appearing on behalf of the
appellant – accused has heavily relied upon
the decisions of this Court in the cases of
Hitendra Vishnu Thakur (supra); Sanjay
Dutt (supra); Sayed Mohd. Ahmed Kazmi
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(supra) and on the recent decision of this
Court in the case of Jigar (supra).
6.2.1 In the case of Hitendra Vishnu Thakur
(supra) , this Court observed and held that
when a report is submitted by the Public
Prosecutor to the Designated Court for grant
of extension, its notice should be issued to
the accused before granting such an
extension so that the accused may have an
opportunity to oppose the extension on all
legitimate and legal grounds available to
him.
6.2.2 However, thereafter, the decision of this
Court in the case of
Hitendra Vishnu
Thakur (supra) fell for consideration before
this Court in the case of Sanjay Dutt
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(supra) and the view taken by this Court in
the case of Hitendra Vishnu Thakur
as above, has not been accepted by
(supra)
the Constitution Bench of this Court and it
is observed and held in the case of Sanjay
Dutt (supra) 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 view taken by this 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 has not been
accepted by the Constitution Bench of this
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Court in the case of Sanjay Dutt (supra) . As
such under the Scheme of Cr.PC and on the
report submitted by the Investigating
Agency, prayer for extension of time for
completing investigation is subject to the
satisfaction of the concerned Court whether
to grant further extension or not. The Court
is to be satisfied on the grounds on which
the extension is sought.
6.2.3 Now so far as the reliance placed upon the
decision of this Court in the case of
Sayed
Mohd. Ahmed Kazmi (supra) by learned
counsel 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 to the facts of the case on hand.
In the case before this Court, in fact, the
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extension granted by the learned Chief
Metropolitan Magistrate was challenged on
the ground that the learned Chief
Metropolitan Magistrate had no competence
to extend the judicial custody of the
accused. The learned Additional Sessions
Judge accepted the same. However,
thereafter, a fresh extension was sought
which was beyond the period prescribed
under Section 167 of the Cr.PC and
therefore, this Court observed and held that
extension for period of investigation from
retrospective effect shall not be permissible.
6.3 Similarly, even the decision of this Court in
the case of Rambeer Shokeen (supra) relied
upon by learned Solicitor General shall also
not be applicable to the facts of the case on
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hand. In the case of Rambeer Shokeen
(supra) pending application by the
Investigating Agency for extension of time
for completing the investigation, the accused
made an application for statutory/default
bail and to that this Court observed and
held that the application filed by the
Investigating Agency for extension of time
for completing the investigation which was
prayed in time kept pending ought to be
decided first by the Court.
6.4 Thus, sum and substance of law laiddown
by this Court in the cases of Sanjay Dutt
and are that while
(supra) Jigar (supra)
considering the application by the
Investigating Agency for extension of time
for completing the investigation beyond the
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period prescribed under Section 167(2) of
the Cr.PC 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.
6.5 However, in the facts and circumstances of
the case, we are 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 as under:
……The accused was arrested on
29.01.2022. The 90 days provided
under Section 167 Cr.PC thus
would expire on 29.04.2022.
Within the period of 90 days i.e.,
on 22.04.2022, the IO submitted
the report and prayed for extension
of time for completing the
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investigation which came to be
allowed by the learned Trial Court
by granting extension of 30 days
period. It is true that for whatever
reason, the accused was not kept
present at the time when the
learned Trial Court considered the
report submitted by the IO for
extension of time for completing
the investigation. However, the
accused came to be informed
about the extension on the very
next day i.e., 23.04.2022. The
accused 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
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contrary to law. On 10.05.2022, he
made the present application for
default bail/statutory bail on the
ground that the chargesheet has
not been filed within the period of
90 days. At this stage, it is
required to be noted that at the
time when the present application
for default/statutory bail was
made on 10.05.2022, there was
already an extension of time by the
learned Trial Court which as such
was in existence and the extension
was up to 22.05.2022. At this
stage, it is required to be noted
that though informed on
23.04.2022 about the extension of
time for completing the
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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.”
7. Therefore, in the aforesaid peculiar facts and
circumstances of the case, when two
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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. Therefore, in the facts and
circumstances of the case, we are in
agreement with the ultimate conclusion
reached by the High Court denying the
statutory/default bail to the accused.
8. In view of the above and for the reasons
stated above and, in the facts, and
circumstances of the case narrated
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hereinabove, the appellant is not entitled to
the benefit of statutory/default bail. Under
the circumstances, the present appeals
deserve to be dismissed and are accordingly
dismissed. However, it will be open for the
accused to prayer for regular bail which may
be considered in accordance with law and
on its own merits. Present appeals stand
dismissed accordingly.
………………………………….J.
[M.R. SHAH]
………………………………….J.
[C.T. RAVIKUMAR]
NEW DELHI;
APRIL 10, 2023
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