Failure To Produce Accused Before The Court While Considering Application For Extension Of Time For Investigation Amounts To Violation Of Fundamental Right: Supreme Court

The Supreme Court observed that the failure to produce the accused before the Court at the time of consideration of the application for extension of time for investigation amounts to a violation of fundamental right guaranteed under Article 21 of the Constitution.

"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.", the bench of Justices Ajay Rastogi and Abhay S. Oka observed.

The court was considering an appeal filed by accused against whom FIR was registered under Gujarat Control of Terrorism and Organised Crime Act, 2015. The prosecution 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. The Gujarat High Court rejected the petitions challenging these orders.

The appellants contended that when the Special Court passed orders on the reports submitted by the 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. The State, on the other hand, contended that the obligation to produce the accused before the Court is mandatory only when his detention in police custody is sought. Thus 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, it was contended.

Thus the issue raised before the Apex Court was regarding 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 and the effect of the failure to give notice to the accused of the reports submitted by the Public Prosecutor.

The court noted that Clause (b) of sub­section (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.

"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.", the court said.

The bench further observed that in these situtations, the prejudice is inherent and need not be established by the accused.

"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 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"

The court also rejected the contention that the accused is not entitled to raise any objection to the application for extension. It said:

"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 sub­section (2) of Section 20 of the 2015 Act to sub­section (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 court therefore held that the orders passed by the Special Court of extending the period of investigation are rendered illegal on account of the failure of the prosecution 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. The accused-appellants were thus granted default bail subject to certain conditions.

Case details

Jigar @ Jimmy Pravinchandra Adatiya vs State of Gujarat | 2022 LiveLaw (SC) 794 | CrA 1656 OF 2022 | 23 September 2022 | Justices Ajay Rastogi and Abhay S. Oka

Headnotes

Code of Criminal Procedure, 1973 ; Section 167(2) - 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- Prejudice is inherent and need not be established by the accused. (Para 30-31)

Gujarat Control of Terrorism and Organised Crime Act, 2015 ; Section 20(2) - Code of Criminal Procedure, 1973 ; Section 167(2) - Application for extension of time for investigation - 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 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 sub­section (2) of Section 20 of the 2015 Act to sub­section (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. (Para 28- 29)

Gujarat Control of Terrorism and Organised Crime Act, 2015 ; Section 20(5) - In  State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, it was held that the expression "or under any other Act" appearing in sub­section (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 sub­section (5) of Section 20 of the 2015 Act infringes Articles 14 and 21 of the Constitution. (Para 21)

Click here to Read/Download Judgment