Gujarat High Court
Mohsin @ Holehole Firojbhai Malek vs State Of Gujarat on 15 April, 2025
NEUTRAL CITATION
R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025
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Reserved On : 02/04/2025
Pronounced On : 15/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 80 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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MOHSIN @ HOLEHOLE FIROJBHAI MALEK & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MR. HARDIK DAVE, LD. PUBLIC PROSECUTOR, for the Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. The challenge in the present application filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") is to the order dated 10.08.2022 passed by the learned Special Judge, Special Court (G.C.T.O.C.) below Exh.42 application filed under Section 20(2)
(b) of The Gujarat Control of Terrorism and Organized Crime Act, 2015 (hereinafter referred to as "the GUJCTOC") vide Exh.42 in the case of Junagadh 'C' Division Police Station FIR No.11203004220251/2022 whereby, the said application Page 1 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined preferred by the State was allowed and an additional period of 90 days was granted for concluding the investigation.
2. In nutshell, the facts leading to the filing of the present application are that an FIR came to be filed by one Afrozbhai Ahmedbhai Malkani, inter alia, alleging therein that the applicants herein, in collusion with the other co-accused, in order to fulfill their common object, hatched a criminal conspiracy, and kidnapped the complainant during the wee hours of 16.05.2022 and demanded Rs.10,00,000/- from the complainant to get himself released. It is alleged that at that time, the applicants were having deadly weapons like sharp knife etc., and threatened to kill the complainant on the edge of the knife if he would not fulfill their demand. It is also alleged that during his illegal detention by the applicants, the applicants also hurled abuses and gave fisticuffs to him. With this sort of allegations the FIR came to be filed under the penal provisions.
2.1 Thereafter, the applicant No.1 came to be arrested on 16.05.2022 and the applicant No.2 came to be arrested on 24.05.2022, and then both were sent to the judicial custody, and since then they are in judicial custody.
2.2 Thereafter, on 20.07.2022, an application was preferred by the Police Sub-Inspector, 'C' Division Police Station, Junagadh for addition of Section Sections 3(1)(ii) and 3(4) of the GUJCTOC Act, which came to be allowed by the learned Magistrate whereby the aforesaid sections were ordered to be added.
Page 2 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined 2.3 Thereafter, on 10.08.2022, the learned Public Prosecutor, filed an application under Section 167 of the Cr.P.C. read with Section 20(2)(b) of the GUJCTOC Act to extend the custody of the present petitioner for a further period of 90 days, which was allowed by the concerned court and extended the custody of the applicants for a period of 90 days without issuing notice to the applicants or even without informing them.
2.4 Thereafter, the applicants preferred applications for default bail being Criminal Misc. Application No.2868 of 2022 and Criminal Misc. Application No.2869 of 2022 respectively before the learned Special Court, and the learned Special Court vide order dated 04.11.2022, was pleased to reject the said applications.
2.5 Hence, the applicants are here before this Court with the present application.
3. Learned advocate Mr. Ashish Dagli appearing for the applicants submits that the learned trial court has committed a grave error in passing the impugned order without considering the settled principle of law and without appreciating the evidence on record. He submits that initially the FIR came to be lodged under the penal provisions, however, subsequently, during the course of investigation, on the basis of the application preferred by the concerned investigator, sections of GUJCTOC came to be added. Learned advocate Mr. Dagli also submits that the application under Section 20(2)(b) of the GUJCTOC was moved before the Court below and the order was Page 3 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined passed thereunder without issuance of any notice to the applicants-accused and even without informing them, as it is an admitted position of fact that at the time of passing the impugned order, the applicants were in judicial custody and not present in the court. Moreover, the court below also did not deem it necessary to insist for the production of the accused in the court or by Video Conferencing or to inform the applicants-accused about the filing of the said application by the concerned Public Prosecutor so as to grant an opportunity to the applicants-accused to present their case. However, without affording any opportunity to the applicants-accused to present their case, the court below straightaway passed the impugned order allowing the said application by passing a non- speaking order, which is violative of the principles of natural justice as it has affected the indefeasible right of the applicants-accused to be released on bail in accordance with Section 167(2) of the Code read with Section 20(2)(b) of the GUJCTOC. Learned advocate Mr. Dagli submits that the court below has failed to appreciate that the applicants were in custody since 16.05.2022 and 24.05.2022 respectively, and thus, the investigating officer got sufficient opportunity to conclude the investigation as per the provisions of Section 167 of the Cr.P.C., and as such, the court below ought not to have extended the period of custody of the applicants.
4. Learned advocate Mr. Dagli submits that as the charge- sheet was not filed within the time bound manner as provided under Section 167 of the Cr.P.C., the applicants applied for default bail, however, the said application of the applicants Page 4 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined were rejected, and at that time, for the first time, the applicants came to be know about the application preferred by the investigating officer for extension of the investigation and the order passed thereunder, which is impugned in the present application, and prior to that, the applicants were unknown to the fact of any such application being filed by the investigator. Learned advocate Mr. Dagli submits that the court below has shown undue haste in passing the impugned order on the same day, as it could have issued notice to the applicants for being heard before passing any such order as held by the Hon'ble Apex Court in the case of Hitendra Vishnu Thakur vs. State of Maharashtra & Anr., reported in (1994) 4 SCC 602.
5. Learned advocate Mr. Dagli further submits that the impugned order dated 10.08.2022 passed by the court below is cryptic. No reasons have been assigned in the order while extending the period of investigation by another ninety days. Hence, only on the ground that the impugned order is a non- speaking order, the same deserve to be quashed and set aside. In support of his submissions, learned advocate Mr. Dagli has relied upon the following case laws;
(i) In the case of Qamar Ghani Usmani vs. The State of Gujarat, reported in (2023) 3 SC 16;
(ii) In the case of Sudheesh vs. State of Kerala, Crl. MC 109 of 2023;
(iii) In the case of Nabam Anna Modi Wife of Shri Philip Modi vs. The State of A.P. & Anr., reported in 2024 0 SC (Gau) 128;
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(iv) In the case of Aakif Ateeque Nachan s/o Shri Ateeque Nachan vs. NIA, reported in SC (Online) (RAJ) 2969;
6. Per contra, learned Public Prosecutor Mr. Hardik Dave appearing for the State has opposed the present application and submits that before entering into the controversy involved in the present matter, he would like to draw the attention of this Court to certain sequence of events, which ultimately led the investigating officer to submit an application for extension of time. He submits that, in fact, on the basis of one FIR registered against the applicants, they got arrested and taken to the judicial custody, and during the course of investigation, the concerned investigating officer came to know that the applicants herein are the headstrong persons indulged in many illegal activities being a part of organized syndicate crime, and there are number of cases registered against them, and therefore, an application was preferred by the investigating officer to add sections of the GUJCTOC Act, which came to be ultimately, added. Thus, on the basis of the aforesaid development took place in the matter, the investigation was entrusted to the high rank officer who had taken over the investigation and carried out the investigation in a proper manner, and during the course of investigation, the said officer paid visit to the jail to get certain information from them, however, they were totally non-cooperative , which is evident from the documents produced on record. Not only that, during the course of investigation, certain incriminating and eyeopening facts have come on record, and as there was non- cooperation on the part of the applicants, further time was Page 6 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined required for the investigating officer to conclude the investigation, and as such, an application was preferred before the court below for extension of the time, however, due to paucity of time, as there were incoming holidays, the said application came to be decided on the very same day, which is not prejudicial to the accused in any manner. Learned Public Prosecutor Mr. Dave submits that thereafter the applicants also preferred applications for default bail on the ground of non- filing of charge-sheet within the stipulated time period, however, the court concerned, after hearing both the sides at length, thought it fit to dismiss the said application, and the said order is still unchallenged, and now at this stage, granting the prayer as prayed for by the applicants, would be an exercise in futile as the trial has already been proceeded with and is now at the progressive stage. He submits that the trial Court has considered the averments of the Public Prosecutor for its satisfaction to consider the prayer for extension of time limit for filing of charge-sheet, and as such, the impugned order passed by the Special Court does not require any interference being just, legal and proper, and as such, the present application is required to be rejected.
7. Heard the learned advocates for the respective parties and perused the record.
8. The facts in the present application are not in dispute and I need not go into them in any great detail since I am only concerned with the fact whether the applicant should be granted respite of default bail/statutory bail due to the lapses Page 7 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined on the part of the prosecuting agency as well as the Court of law?
9. The reality is that the personal liberty of a person cannot be compromised at the altar of what the State might perceive as justice - justice for one might be perceived as injustice for another. I am therefore unable to agree with learned APP for the State that the applicant is not entitled to his liberty as provided under the statute itself through what is commonly referred to as 'default bail/statutory bail'.
10. Few relevant facts;
10.1 A first information report came to be filed on 16.05.2022 and the applicant No.1 came to be arrested on 16.05.2022, i.e, on the very same day, whereas the applicant No.2 came to be arrested on 24.05.2022. Later, the applicants were sent to judicial custody pending further investigation.
11. To crystallize the position, I may quote Section 167(2) of the Cr.P.C., which reads as under;
"167(2): The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :
Provided that -
1(a) the Magistrate may authorise the detention of the Page 8 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - [Substituted by Act 45 of 1978, Section 13, for paragraph (a) (w.e.f. 18-12-1978).
(I) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.] [Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 14 (a) (i), for Cl. (b). Prior to its substitution, Cl (b) read as under.-[(b) no Magistrate shall authorise detention in any custody under this Section unless the accused is produced before him;].
(c) xxx xxx xxx"
12. Now as per clause (b) of sub-section (2) of Section 167 of the Cr.P.C., no Magistrate shall authorize the detention of the accused in custody of the police unless the accused is produced before it in person. Here in the case on hand, it is apparent on the face of the record that at the time of making Page 9 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined an application for extension of the period of investigation and passing of order thereunder, neither the applicants were produced before the concerned Magistrate nor they were served with any notice about the same, and without following the mandatory procedure as prescribed in the statute by means of the aforesaid provisions, straightway the concerned Magistrate was proceeded to pass an ex-parte order, granting extension of the period of investigation/custody, which is contrary to law as well as the settled legal proposition.
13. At this stage, it is worth noting that even though the applicants would not have applied for 'default bail', still they are entitled to 'default bail' as provided in the statute itself through Section 167 of the Cr.P.C. since neither the applicants were served with any notice by the concerned Magistrate regarding filing of an application for extension of investigation/ custody by the prosecuting agency nor were produced before the concerned Magistrate at the time of hearing of the said application, which is mandatory requirement as per clause (b) of sub-section (2) of Section 167. Here in the case on hand, the applicants had already applied for default bail after being kept in custody for 136 and 129 days respectively as they were completely unaware about the extension granted to the prosecuting agency because they were not served with any notice, thereby deprived of their legitimate rights of being heard. The default bail is also known as statutory bail, which is a right granted under Section 167(2) of the CrPC to an accused person when the investigating machinery or the court of law failed to comply with the provisions as enshrined under the Page 10 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined statute. The word 'statutory' itself would mean, to be provided by law or under the law, and law is 'above everyone' and should be uniformly applicable to one and all, including government officials and powerful individuals. In the given case, the issue arises due to non-compliance of the statutory provisions by the court of law. The Magistrate should be mindful of the provisions of law, and before passing the impugned order, notice ought to have been served to the applicants so that they could put their defense.
14. To substantiate my aforesaid view, I would like to refer to and rely upon the decision in the case of Union of India v.
Nirala Yadav, reported in AIR 2014 SC 3036, wherein after making reference to the decision in the case of Uday Mohanlal Acharya v. State of Maharashtra, AIR 2001 SC 1910 and the conclusions arrived at in that decision, it has been held as under:
"(3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate."
15. Apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. In this regard, I would like to refer to and rely upon the decision in the case of Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) SCC 722, wherein it was observed that some courts keep the Page 11 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined application for 'default bail' pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for 'default bail' during the interregnum when the statutory period for filing the charge sheet or challan expires and the submission of the charge sheet or challan in court.
16. In the case of Hitendra Vishnu Thakur and Others vs. State of Maharashtra and Others, (1994) 4 SCC 602, it was held in para 30 that:
"In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under Clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under Clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by Clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail...." [Emphasis supplied]
17. Moreover, the judgments cited by the applicants' counsel Page 12 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined are indeed applicable to the case at hand, as it establishes legal precedent and principles that govern the issue on hand.
18. In the instant case, it is an un-controverted fact that the applicants applied for default bail as the charge-sheet as provided under Section 167 of the Cr.P..C was not filed within the time bound manner. Not only that, it is also an admitted position of fact, and there is no justifiable reason put forth by the prosecution that why the applicants were not produced before the court concerned and informed about any application being made by the prosecuting agency for extension of the time period of investigation and why no notice was given to the accused as contemplated under the statute.
19. Even if two views are possible, then I have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly. When any human right; a Constitutional fundamental right of a person is curtailed, then the statute which curtails such right must be read strictly. The right to get default bail due to non-filing of the charge-sheet in a time bound manner, or for any other disobedience of the mandatory provisions, is an indefeasible right of the accused and this right must be exercised by the accused by offering to furnish bail, and in the present case, such right has already been availed by the applicants, and therefore, in my view, the applicants should not be deprived of the same.
20. For fore going reasons, the present application is allowed. The order dated 10.08.2022 passed by the learned Special Judge, Special Court (G.C.T.O.C.) at Exh.42 is hereby quashed Page 13 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025 NEUTRAL CITATION R/SCR.A/80/2023 CAV JUDGMENT DATED: 15/04/2025 undefined and set aside. Consequently, the applicants are held entitled to the grant of 'default bail' on the facts and in the circumstances of this case. The Trial Judge shall release the applicants on 'default bail' on such terms and conditions as may be reasonable. It is made clear that the observations made herein above are only for the limited purpose for deciding the present application. The trial Court uninfluenced with the observations made herein above, to proceed with the trial against the applicants on its own merits during the trial.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 14 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:12:17 IST 2025