JIGAR @ JIMMY PRAVINCHANDRA ADATIYA versus STATE OF GUJARAT

Citation: [2022] 13 S.C.R. 367 · Decided: 23-09-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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JIGAR @ JIMMY PRAVINCHANDRA ADATIYA
v.
STATE OF GUJARAT
(Criminal Appeal No. 1656 of 2022)
SEPTEMBER 23, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Code of Criminal Procedure, 1973 – s.167(2) – The Gujarat
Control of Terrorism and Organised Crime Act, 2015 – s.20(2) –
Proviso added by the 2015 Act to sub-section (2) of s.167, CrPC –
Interpretation of.
Code of Criminal Procedure, 1973 – s.167(2) – Default bail
– The Gujarat Control of Terrorism and Organised Crime Act, 2015
– s.20(2) – Order of extension passed in exercise of power under
the proviso to sub-section (2) of s.20 of the 2015 Act – Legality of –
Appellants are accused in FIR registered for offences under various
provisions of the 2015 Act – Reports were submitted by the Public
Prosecutor seeking extension of time up to 180 days to complete
the investigation – Prayer for extending the time up to 180 days
was allowed by the Special Court – Appellants filed separate
applications u/s.482, CrPC, rejected by High Court – On appeal,
held: 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 – It is sine qua non for the
exercise of the power to extend the judicial custody remand – When
the Special Court exercises the power of granting extension under
the proviso to sub-section (2) of s.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 s.167(2)(b), it
is mandatory to procure the presence of the accused before the
Special Court when the prayer of the prosecution for the extension
of time to complete investigation is considered – Thus, 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 is being considered, is not a mere
procedural irregularity – It is gross illegality that violates the rights
of the accused u/Art.21 – Thus, prejudice is inherent and need not
[2022] 13 S.C.R. 367
367
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
be established by the accused – In the present case, orders were
passed by the Special Court on the reports of the Public Prosecutor
on the very day on which reports were submitted – There was no
reason for such hurry – Admittedly, information about the filing of
such reports by the Public Prosecutor was not provided to the
accused – Orders passed by the Special Court extending the period
of investigation are 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 – Thus, the appellants are
entitled to default bail – Impugned orders passed by the Special
Court granting extension to complete investigation and impugned
judgment of the High Court are set aside – Appellants enlarged on
default bail u/s.167(2) on the conditions as directed – Constitution
of India – Art.21.
Code of Criminal Procedure, 1973 – s.167(2) – The Gujarat
Control of Terrorism and Organised Crime Act, 2015 – s.20(2) –
Requirement of the report under proviso added by sub-section (2)
of s.20 of the 2015 Act to clause (b) of sub-section (2) of s.167 of
CrPC – Held: 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 – Public
Prosecutor has to apply his mind before he submits a report/an
application for extension – 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.
Code of Criminal Procedure, 1973 – s.167(2) – Default bail
– Held: The indefeasible right to default bail u/sub-section (2) of
s.167 is an integral part of the fundamental right to personal liberty
u/Article 21 – Constitution of India – Article 21.
Words & Phrases – “or under any other Act” – Gujarat
Control of Terrorism and Organised Crime Act, 2015 – s.20(5) –
Held: State of Maharashtra v. Bharat Shanti Lal Shah reported as [2008]
12 SCR 1083 held that the expression “or under any othe

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