Summary
The appellants were accused under the Gujarat Control of Terrorism and Organised Crime Act, 2015. On the Public Prosecutor's reports, the Special Court extended the investigation period from 90 to 180 days on the same day each report was filed. The accused were neither produced, physically or by video, nor told of the reports, and their default-bail pleas failed. The Supreme Court allowed their appeals. Under Hitendra Vishnu Thakur and Sanjay Dutt, an accused must be produced when an extension is considered, orally informed of it, and allowed limited objections. Failing to do so is a gross illegality under Article 21 with inherent prejudice, not a curable irregularity. The words 'or under any other Act' in Section 20(5) are invalid (Bharat Shanti Lal Shah). Default bail was granted on conditions.
Issues
- Whether an extension of the investigation period from 90 to 180 days under the proviso added by Section 20(2) of the GCTOC Act to Section 167(2) CrPC is valid when the accused were neither produced before the Special Court nor informed that the extension was being considered.
- Whether such a failure is a curable irregularity under Sections 460, 461 and 465 CrPC or a breach of Article 21 that entitles the accused to default bail.
- Whether Section 20(5) of the GCTOC Act barred default bail.
Provisions considered
- Section 20(2), Gujarat Control of Terrorism and Organised Crime Act, 2015Permits extension to 180 days only on a Public Prosecutor's report showing the progress of the investigation and specific reasons for continued detention. The report is a vital safeguard, and the court must apply its mind to it. (¶¶ 15, 16, 17, 28)
- Section 167(2) and proviso (b), Code of Criminal Procedure, 1973Extension of custody requires production of the accused, physically or by video. Because an extension prolongs judicial custody, producing the accused and orally informing them is mandatory (Sanjay Dutt, para 53(2)(a)). (¶¶ 24, 28, 29)
- Section 20(5), Gujarat Control of Terrorism and Organised Crime Act, 2015Following Bharat Shanti Lal Shah on the identical MCOCA provision, the words 'or under any other Act' infringe Articles 14 and 21. None of the appellants was on bail under the 2015 Act, so the provision was no bar. (¶ 21)
- Article 21, Constitution of IndiaThe right to default bail is part of personal liberty. Extending time without producing or informing the accused is not a mere irregularity but a gross illegality, and prejudice is inherent. (¶¶ 19, 20, 30, 31)
Held
- Default bail under Section 167(2) is an indefeasible right linked to Article 21 (Uday Mohanlal Acharya, M. Ravindran, Rakesh Kumar Paul). An extension is not an empty formality, and the Public Prosecutor's report must satisfy both statutory requirements. (¶¶ 19, 20, 23, 28)
- Sanjay Dutt modified Hitendra Vishnu Thakur only by dispensing with written notice. Producing the accused and telling them the extension is being considered remain mandatory. The accused need not get the report but may object on limited grounds. Sanjay Kumar Kedia, which did not consider Sanjay Dutt, is not binding. (¶¶ 24, 25, 27, 29)
- Failing to produce or inform the accused takes away the right to default bail. It is a gross illegality under Article 21, not an irregularity curable under Sections 460 to 465, and prejudice need not be shown. (¶¶ 30, 31)
- The State showed no COVID-19 rule or connectivity problem that prevented production, and the hurried same-day orders, made with a week of the 90 days still left, could have waited. The extensions were illegal, and the appellants, who had applied before the charge-sheet, were entitled to default bail, subject to the law on re-arrest. (¶¶ 33, 34, 35, 36, 37)
Result
Appeals allowed. The Special Court's extension orders and the High Court's judgment were set aside, and the appellants were granted default bail under Section 167(2) CrPC. Conditions included a Rs. 2 lakh bond, surrender of passports, no interference with witnesses, regular reporting and cooperation with the trial.