Kerala High Court
Justin T.J vs State Of Kerala on 27 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
CRL.MC NO. 4508 OF 2023
PETITIONER/ACCUSED NO.1:
JUSTIN T.J
AGED 27 YEARS
S/O JOSEPH T.J, DOOR NO.1/148, MANVAYAL DESOM,
SREE MADURAI, NILGIRI, TAMIL NADU- 643 212,
PIN - 643212.
BY ADVS.
V.VINAY
M.S.ANEER
NISSAM NAZZAR
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM- 682031 (CRIME NO.26/2022 OF EXCISE RANGE
OFFICE, KALIKAVU, MALAPPURAM)
2 EXCISE CIRCLE INSPECTOR-II
EXCISE CRIME BRANCH (NORTH ZONE) KOZHIKODE - 673 020.
3 SUPERINTENDENT
DISTRICT JAIL, PALLIKKUNNU P.O, KANNUR, PIN - 670004
SRI. M.P.PRASANTH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C No. 4508 of 2023 :2:
"CR"
ORDER
This petition is filed under Section 482 of the Code of Criminal
Procedure ("the Code" for the sake of brevity) challenging the order dated
24.05.2023 in C.M.P.No.1361/2023 on the file of the Special Court for
SC/ST(POA) Act & NDPS Act Cases, Manjeri. By the order impugned, the
learned Additional Sessions Judge allowed the application filed by the learned
Public Prosecutor under Section 36A(4) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ("NDPS Act" for brevity) and allowed the detention of
the accused for a further period of 90 days.
2. Before adverting to the contentions of the petitioner to assail the
order passed by the learned Sessions Judge, I shall narrate the undisputed
facts.
a. The petitioner herein is arrayed as the 1st accused in Crime No.26/2022
of the Excise Range Office, Kallikavu. The aforesaid crime was
registered on the allegation that on 24/11/2022 at 9:10 am, the
petitioner had transported 66.85 kilograms of Ganja in a car bearing
registration No.TN-43-Z-8264. The petitioner was arrested, and the
contraband was seized consequent to the registration of the crime.
Records reveal that the petitioner was produced before the
jurisdictional court, and he was remanded to judicial custody on
24.11.2022.
b. On 9.5.2023, an application for regular bail was filed by the petitioner
as CMP No.1353/2023. However, no orders were passed on the said
application.
c. In the case on hand, the 180th day from the date of initial remand fell
on 23.05.2023. Seeking an extension of detention of the accused for a
further period of three months, an application was filed by the learned
Public Prosecutor as early as 12.5.2023. The accused was put on
notice, and he submitted an application on 19.5.2023 seeking an
adjournment by a day to file his objection.
d. The petitioner stated that an oral application for statutory bail was filed
by the petitioner on 23.05.2023. Immediately thereafter, on the same
day itself, CMP No.1533/2023 was filed seeking statutory bail. No orders
were passed on the same.
e. On 24.5.2023, the application was filed under Section 36A (4) of the
Act, which was allowed by the learned Sessions Judge.
f. On 26.05.2023, CMP No.1353/2023 for regular bail was rejected, and
on 2.06.2023, the application for statutory bail was rejected.
3. Sri. Vinay, the learned counsel, submitted that the order passed
by the learned Sessions Judge cannot be sustained under law. Relying on the
law laid down by the Apex Court in Sanjay Dutt v State through the C.B.I.
Bombay1 and Jigar alias Jimmy Pravinchandra Adatiya v. State of
Gujarat2, it was submitted by the learned counsel that it is mandatory for the
Court of Sessions to inform the accused with regards to the filing of an
application under Section 36A(4) of the NDPS Act, for extension of period and
also to insist for the presence of the accused at the time when the Court
considers the application for extension submitted by the learned Public
Prosecutor. He pointed out that except for giving the notice of the application,
the court did not secure the presence of the accused either virtually or
physically on the date on which the application was heard. Relying on the law
laid down by the Apex Court in Uday Mohanlal Acharya v. State of
Maharashtra3 and in M. Ravindran v. Directorate of Revenue
Intelligence,4 it was submitted by the learned counsel that the learned
Sessions Judge is bound to consider the application for default bail along with
(1994) 5 SCC 410.
2022 SCC Online SC 1290.
2001(5) SCC 453.
(2021) 2 SCC 485
the application for extension of time and pass orders together. In the case on
hand, the application for default bail was filed on 23.5.2023, and the same
was rejected only on 2.6.2023, whereas the application for extension was
allowed for granting 3 months on 24.5.2023. The learned counsel would then
refer to the law laid down in Judgebir Singh alias Jasbir Singh Samra
alias Jasbir and Ors. v. National Investigation Agency5 and it was urged
that the right to be released on default bail continues to remain enforceable if
the accused has applied for such bail, notwithstanding the pendency of the
bail application or subsequent filing of the charge sheet or a report seeking
extension of time, and the court could not have said that since the extension
application is pending, it shall pass orders on the default bail application only
after the extension application was decided.
4. The learned Public Prosecutor has vehemently opposed the
submissions advanced by the learned counsel appearing for the petitioner. It
was submitted by the learned Public Prosecutor by referring to the order itself
that the information as to the filing of the application by the Public Prosecutor
was made known to the accused and he had filed an application seeking time
to file an objection. Referring to the principles of law in Jigar (supra), it is
submitted that the application for extension filed by the Public Prosecutor has
2023 SCC OnLine SC 543
to be made known to the accused and nothing more. In the instant case, the
said mandate has been complied with, contends the learned Public Prosecutor.
It was further submitted that as notice was given to the accused and he was
represented by a counsel, there was no need to secure his presence at the
time of the hearing. It was also submitted that all procedural formalities have
been complied with in its letter and spirit, and hence, there is no reason to
interfere with the well-considered passed by the learned Sessions Judge.
5. I have considered the submissions advanced and have gone
through the entire records.
6. Section 167 of the Cr.P.C. details the procedure to be followed
when an investigation cannot be completed. The said provision reads thus:
167. Procedure when investigation cannot be completed in
twenty-four hours.--(1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by Section 57,
and there are grounds for believing that the accusation or information
is well-founded, the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of
sub-inspector, shall forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time forward the accused
to such Magistrate.
(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--
(a) the Magistrate may authorize the detention of the 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,--
(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;
(c) no Magistrate of the second class, not specially empowered in this
behalf by the High Court, shall authorise detention in the custody
of the police.
Explanation I.--For the avoidance of doubts, it is hereby declared
that, notwithstanding the expiry of the period specified in paragraph
(a), the accused shall be detained in custody so long as he does not
furnish bail.
xxxxx xxxxx xxxxx
7. Section 167 (2) (b) says in unmistakable terms that no Magistrate
shall authorize the detention of the accused in the custody of the police under
the above provision 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 the production of the accused either in person or through
the medium of electronic video linkage.
8. It can be seen that Section 167 of the Code does not envisage an
extension of the period of detention of an accused in custody beyond the specified
period. The legislature, however, thought in its wisdom that certain special categories
or situations required that the investigating agencies should be given more time to
investigate a matter and to file their complaint or charge sheets, and such provisions
have been made under special statutes. The NDPS Act, 1985 is one such legislation.
9. Section 36-A(4) of the Act insofar as it is relevant, reads as under:
36-A. Offences triable by Special Courts.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974),
xxxxx xxxxx xxxxx
(4) In respect of persons accused of an offence punishable under
Section 19 or Section 24 or Section 27-A or for offences involving
commercial quantity the references in sub-section (2) of Section 167 of
the Code of Criminal Procedure, 1973 (2 of 1974), thereof to 'ninety
days', where they occur, shall be construed as reference to 'one
hundred and eighty days':
Provided that, if it is not possible to complete the investigation within
the said period of one hundred and eighty days, the Special Court may
extend the said period up to one year on the report of the Public
Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of one
hundred and eighty days.
xxxx xxxxxxx xxxxxxxx
10. Section 36-A of the NDPS Act prescribes a modified application of
the Cr.P.C. as indicated therein. The effect of sub-section (4) of Section 36-A,
NDPS Act, is to require that investigation into certain offenses under the NDPS
Act be completed within a period of 180 days instead of 90 days as provided
under Section 167(2) Cr.P.C. Hence the benefit of an additional time limit is
given for investigating a more serious category of offenses. This is augmented
by a further proviso that the Special Court may extend the time prescribed for
investigation up to one year if the Public Prosecutor submits a report indicating
the progress of the investigation and giving specific reasons for requiring the
detention of the accused beyond the prescribed period of 180 days. (See M.
Ravindran v. Directorate of Revenue Intelligence).
11. For clarity, the conditions that should be satisfied while
considering the application for extension under Section 36A(4) are:
(1) a report of the Public Prosecutor,
(2) which indicates the progress of the investigation, and
(3) specifies the compelling reasons for seeking the detention of the
accused beyond the period of 180 days, and
(4) after notice to the accused. (See Sanjay Kumar Kedia v
Intelligence Officer, Narcotics Control Bureau and
Another6).
12. What is discernible in this case is that the 180th day of the initial
remand expired on 23.5.2023 and that on the same day itself, the petitioner
herein had filed an application for statutory bail as C.M.P.No. 1533/2023. It is
also discernible that the application for regular bail preferred by the petitioner
as C.M.P.No.1353/2023 was pending before the learned Sessions Judge since
9.5.2023 without orders. The application for extension of remand filed by the
Public Prosecutor as C.M.P.No.1361/2023 was pending since 15.5.2023.
Clearly, on the date on which the detention was extended by a period of 90
days, the presence of the petitioner was not secured either in person or
virtually. This Court had directed the Registry to get a report from the learned
Sessions Judge as to whether the presence of the petitioner was secured at
the time of consideration of the application. The learned Sessions Judge, in his
report dated 14.6.2023, has reported that the accused was not produced
physically or by video conference before the learned Sessions Judge in the
petition as a notice in writing was given to the accused and his counsel.
13. In this context, it would be relevant to note that Hitendra
Vishnu Thakur and Ors. v. State of Maharashtra and Ors.7, the Hon'ble
(2009) 17 SCC 631
[(1994) 4 SCC 602]
Apex Court had held that that the Designated Court would have no jurisdiction
to deny to an accused his indefeasible right to be released on bail on account
of the default of the prosecution to file the challan within the prescribed time if
an accused seeks and is prepared to furnish the bail bond as directed by the
court. It was also held that a 'notice' to the accused is required to be given by
the Designated Court before it grants any extension under the further proviso
beyond the prescribed period of 180 days for completing the investigation.
Subsequently, the question of the proper construction of Section 20(4)(bb)
was referred to a Constitution Bench of the Apex Court in Sanjay Dutt
(supra). Reservation was expressed before the Apex Court that the decision in
Hitendra (supra) should not be held as conferring an indefeasible right on the
accused to be released on default bail even after the final report or challan has
been filed. To settle this point, observations in Hitendra (supra) were clarified
in Sanjay Dutt (supra), and it was held as follows in paragraphs Nos.48 and
49 of the judgment:
48. We have no doubt that the common stance before us of the nature
of indefeasible right of the accused to be released on bail by virtue of
Section 20(4)(bb) is based on a correct reading of the principle indicated
in that decision. The indefeasible right accruing to the accused in such a
situation is enforceable only prior to the filing of the challan and it does
not survive or remain enforceable on the challan being filed, if already
not availed of. Once the challan has been filed, the question of grant of
bail has to be considered and decided only with reference to the merits
of the case under the provisions relating to grant of bail to an accused
after the filing of the challan. The custody of the accused after the
challan has been filed is not governed by Section 167 but different
provisions of the Code of Criminal Procedure. If that right had accrued to
the accused but it remained unenforced till the filing of the challan, then
there is no question of its enforcement thereafter since it is extinguished
the moment challan is filed because Section 167 CrPC ceases to apply.
The Division Bench also indicated that if there be such an application of
the accused for release on bail and also a prayer for extension of time to
complete the investigation according to the proviso in Section 20(4)(bb),
both of them should be considered together. It is obvious that no bail
can be given even in asuch case unless the prayer for extension of the
period is rejected. In short, the grant of bail in such a situation is also
subject to refusal of the prayer for extension of time, if such a prayer is
made. If the accused applies for bail under this provision on expiry of
the period of 180 days or the extended period, as the case may be, then
he has to be released on bail forthwith. The accused, so released on bail
may be arrested and committed to custody according to the provisions
of the Code of Criminal Procedure. It is settled by Constitution Bench
decisions that a petition seeking the writ of habeas corpus on the ground
of absence of a valid order of remand or detention of the accused, has
to be dismissed, if on the date of return of the rule, the custody or
detention is on the basis of a valid order. (See Naranjan Singh Nathawan
v. State of Punjab [(1952) 1 SCC 118]; Ram Narayan Singh v. State of
Delhi [AIR 1953 SC 277] and A.K. Gopalan v. Government of India [AIR
1966 SC 816 ])
49. This is the nature and extent of the right of the accused to
be released on bail under Section 20(4)(bb) of the TADA Act
read with Section 167 CrPC in such a situation. We clarify the
decision of the Division Bench in Hitendra Vishnu Thakur
[(1994) 4 SCC 602], accordingly, and if it gives a different
indication because of the final order made therein, we regret
our inability to subscribe to that view.
14. Answer to the question posed before the Apex Court has been
articulated in paragraph No. 53 of the judgment.
"CONCLUSIONS
53. As a result of the above discussion, our answers to the three questions
of law referred for our decision are as under: -
(1) xxxx xxxxx
(2)(a) Section 20(4)(bb) of the TADA Act only requires production of the
accused before the court in accordance with Section 167(1) of the
Code of Criminal Procedure and this is how the requirement of
notice to the accused before granting extension beyond the
prescribed period of 180 days in accordance with the further proviso
to clause (bb) of sub-section (4) of Section 20 of the TADA Act has
to be understood in the Judgment of the Division Bench of this
Court in Hitendra Vishnu Thakur. The requirement of such notice to
the accused before granting the extension for completing the
investigation is not a written notice to the accused giving reasons
therein. Production of the accused at that time in the court
informing him that the question of extension of the period for
completing the investigation is being considered, is alone sufficient
for the purpose.
(2)(b) The 'indefeasible right' of the accused to be released on bail in
accordance with Section 20(4)(bb) of the TADA Act read with
Section 167(2) of the Code of Criminal Procedure in default of
completion of the investigation and filing of the challan within the
time allowed, as held in Hitendra Vishnu Thakur is a right which
ensures to, and is enforceable by the accused only from the time of
default till the filing of the challan and it does not survive or remain
enforceable on the challan being filed. If the accused applies for bail
under this provision on expiry of the period of 180 days or the
extended period, as the case may be, then he has to be released on
bail forthwith. The accused, so released on bail may be arrested and
committed to custody according to-the provisions of the Code of
Criminal Procedure. The right of the accused to be released on bail
after filing on the challan, notwithstanding the default in filing it
within the time allowed, as governed from the time of filing of the
challan only by the provisions relating to the grant of bail applicable
at the stage."
15. The Apex Court in Sanjay Dutt (supra) clarified the position that
the right of an accused to be released on bail under Section 20(4)(bb) of the
TADA Act read with Section 167 Cr.P.C. is indefeasible prior to the filing of the
chargesheet. This right, however, is extinguished once the chargesheet is filed
if such right was not availed of previously. After the chargesheet is filed, the
grant of bail is contingent upon the merits of the case under provisions of the
Code relating to the grant of bail and the special provisions for the grant of
bail in other enactments like the NDPS Act. The custody of the accused is then
governed by different provisions of the Code of Criminal Procedure and not
under Section 167 of the Code. If an accused applies for bail upon the expiry
of 180 days (or the extended period), he must be released on bail
immediately. If that right had accrued to the accused, but no request was
made, then there is no question of its enforcement thereafter since it is
extinguished the moment challan is filed because Section 167 of the Code
would cease to apply. If the accused has filed an application for bail and the
public prosecutor has filed an application for an extension of time to complete
the investigation, both applications are to be considered together. The grant
of bail in such a situation is subject to the rejection of the prayer for the
extension of time if such a prayer is made.
16. In Rambeer Shokeen v State (NCT of Delhi)8, the Apex
Court, while expatiating further on the principles laid down in Sanjay Dutt
(supra), went on to hold that the consideration of an application for grant of
statutory bail was dependent on the rejection of prayer of the Public
Prosecutor for extension of time. When such prayer is made, it is the duty of
the Court to consider the report/application for the extension of the period for
filing of the chargesheet in the first instance. Only if it was to be rejected could
the prayer for the grant of statutory bail be considered. It was held that in no
case shall the hearing on statutory bail application precede the consideration
of prayer for an extension of the period for filing of the chargesheet made by
(2018) 4 SCC 405)
the Public Prosecutor.
17. In M. Ravindran (supra), the Apex Court had occassion to
consider the earlier precedents and had elucidated the principles with regard
to the right of the prosecutor under Section 167(2) of the Code read with
Section 36(A)(4) of the NDPS Act. It was held as follows in paragraph 20.1 of
the judgment.
20.1 The observations made in Hitendra Vishnu Thakur and Sanjay
Dutt to the effect that the application for default bail and any application
for extension of time made by the Public Prosecutor must be considered
together are, in our opinion, only applicable in situations where the Public
Prosecutor files a report seeking extension of time prior to the filing of the
application for default bail by the accused. In such a situation,
notwithstanding the fact that the period for completion of investigation has
expired, both applications would have to be considered together. However,
where the accused has already applied for default bail, the Prosecutor
cannot defeat the enforcement of his indefeasible right by subsequently
filing a final report, additional complaint or report seeking extension of
time.
20.2. It must also be added and it is well settled that issuance of notice to
the State on the application for default bail filed under the Proviso to
S.167(2) is only so that the Public Prosecutor can satisfy the Court that the
prosecution has already obtained an order of extension of time from the
Court; or that the challan has been filed in the designated Court before the
expiry of the prescribed period; or that the prescribed period has actually
not expired. The prosecution can accordingly urge the Court to refuse
granting bail on the alleged ground of default. Such issuance of notice
would avoid the possibility of the accused obtaining default bail by
deliberate or inadvertent suppression of certain facts and also guard
against multiplicity of proceedings.
20.3. However, Public Prosecutors cannot be permitted to misuse the
limited notice issued to them by the court on bail applications filed under
Section 167(2) by dragging on proceedings and filing subsequent
applications/reports for the purpose of "buying extra time" and facilitating
filling up of lacunae in the investigation by the investigating agency.
18. It was held that the position that applications for default bail and
any applications for extension of time by the Public Prosecutor must be
considered simultaneously would only be applicable if the Prosecutor files a
report seeking extension of time prior to the accused filing for default bail. If
the accused has already applied for default bail, the Prosecutor cannot
circumvent the enforcement of this indefeasible right by later filing a final
report or report seeking time extension. Notice to the State on an application
for default bail under Proviso to S.167(2) is issued so that the Public
Prosecutor can confirm to the court that either time extension has already
been obtained, the charge sheet has been filed before the expiry of the
prescribed period, or the prescribed period hasn't expired. The issuance of
notice prevents the accused from obtaining default bail through omission of
facts and guards against multiple proceedings. However, Public Prosecutors are
not allowed to misuse the limited notice issued to them by the court on bail
applications filed under Section 167(2) by prolonging proceedings and filing
subsequent applications/reports to 'buy extra time' or to fill gaps in the
investigation.
19. In Bikramjit Singh v. State of Punjab9 dealing with a
question that arose in an application for default bail under the UAPA, the
Hon'ble Supreme Court has observed thus:
36. A conspectus of the aforesaid decisions would show that so long as an
application for grant of default bail is made on expiry of the period of 90
days (which application need not even be in writing) before a charge-sheet
is filed, the right to default bail becomes complete. It is of no moment that
the criminal court in question either does not dispose of such application
before the charge-sheet is filed or disposes of such application wrongly
before such charge-sheet is filed. So long as an application has been made
for default bail on expiry of the stated period before time is further extended
to the maximum period of 180 days, default bail, being an indefeasible right
of the accused under the first proviso to Section 167(2), kicks in and must
be granted.
It was held by the Supreme Court that the rigorous powers conferred under
special statutes for curtailing the liberty of the accused are not exercised in an
arbitrary manner.
[(2020) 10 SCC 616]
20. In Jigar (supra), the question urged before the Hon'ble Apex
Court was that whether it can be regarded as an error in procedure when the
Special Court passed orders on the reports submitted by the learned Public
Prosecutor by which time to complete the 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. After considering the entire law on
the subject, it was held as follows by the Hon'ble Supreme Court:
35. As noted earlier, the only modification made by the larger Bench in
the case of Sanjay Dutt, [1994 (5) SCC 410] to the decision in the case
of Hitendra Vishnu Thakur, [1994 (4) SCC 602] is about the mode of
service of notice of the application for extension. In so many words, in
paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay
Dutt, 1994 (5) SCC 410 held that it is mandatory to produce the accused
at the time when the Court considers the application for extension and
that the accused must be informed that the question of extension of the
period of investigation is being considered. The accused may not be
entitled to get a copy of the report as a matter of right as it may contain
details of the investigation carried out. But, if we accept the submission
of the respondents that the accused has no say in the matter, the
requirement of giving notice by producing the accused will become an
empty and meaningless formality. Moreover, it will be against the
mandate of clause (b) of the proviso to sub-section (2) of S.167 of CrPC.
It cannot be accepted that the accused is not entitled to raise any
objection to the application for extension. 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 sub-section
(2) of S.20 of the 2015 Act to sub-section (2) of S.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.
36. The logical and legal consequence of the grant of extension of time
is the deprivation of the indefeasible right available to the accused to
claim a default bail. The reason is the grant of the extension of time
takes away the right of the accused to get default bail which is
intrinsically connected with the fundamental rights guaranteed under
Art.21 of the Constitution. The procedure contemplated by Art.21 of the
Constitution which is required to be followed before the liberty of a
person is taken away has to be a fair and reasonable procedure. In fact,
procedural safeguards play an important role in protecting the liberty
guaranteed by Art.21. 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 Art.21.
21. In a recent judgment rendered by the Apex Court in Judgebir
Singh (supra), the Apex Court had occasion to refer to the law laid down in
Jigar (supra) and Sayed Mohd. Ahmad Kazmi v. State (Government of
NCT of Delhi)10 and issued the following directions as an eye-opener
[(2012) 12 SCC 1]
litigation for the NIA /State Police. Reference to paragraphs No. 76 and 77
would be apposite.
76. As is evident from the chronology of dates and events referred to in the
earlier part of our judgment, the final report under Section 173(2) of the
CrPC was filed in the Court of SDJM, Ajnala on 15.11.2019. 15.11.2019 was
the 161st day from the date of arrest of two of the appellants before us,
namely, Jasbir Singh and Varinder Singh. They were the first to be arrested
on 08.06.2019. The Punjab Police applied to the Court of the Additional
Sessions Judge, Amritsar, for extension of time to complete the investigation
invoking the proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When
this application for extension of time was filed only two days were left for 90
days to expire. This is suggestive of the fact that the 91st day would have
fallen on 07.09.2019. What is important to highlight is that the Additional
Sessions Judge, Amritsar, looked into the extension application dated
04.09.2019 filed by the Punjab Police and ultimately, extended the time limit
vide its order dated 17.09.2019 i.e., on the 101st day. By the time, the
Additional Sessions Judge, Amritsar, passed an order extending the time, the
period of 90 days had already expired. Indisputably, there was no
chargesheet before the Court on the 91st day i.e., on 07.09.2019. The reason
why we say that this is a grey area is because what would have happened if
the appellants Jasbir Singh and Varinder Singh had preferred an application
seeking statutory/default bail under Section 167(2) of the CrPC on the 91st
day i.e., on 07.09.2019. The application seeking extension of time was very
much pending. The Additional Sessions Judge could not have even allowed
such application promptly i.e., on or before the 90th day without giving notice
to the accused persons. The law is now well settled in view of the decision of
this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of
Gujarat reported in 2022 SCC OnLine SC 1290 that an opportunity of hearing
has to be given to the accused persons before the time is extended up to 180
days to complete the investigation. The only error or lapse on the part of the
appellants Jasbir and Varinder Singh was that they failed to prefer an
appropriate application seeking statutory/default bail on the 91st day. If such
application would have been filed, the court would have had no option but to
release them on statutory/default bail. The Court could not have said that
since the extension application was pending, it shall pass an appropriate
order only after the extension application was decided. That again would
have been something contrary to the well settled position of law. This
litigation is an eye opener for the NIA as well as the State investigating
agency that if they want to seek extension, they must be careful that such
extension is not prayed for at the last moment. (emphasis supplied)
77. The right to be released on default bail continues to remain enforceable
if the accused has applied for such bail, notwithstanding pendency of the
bail application or subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the court. However, where the
accused fails to apply for default bail when the right accrues to him, and
subsequently a chargesheet, or a report seeking extension of time is
preferred before the Magistrate or any other competent court, the right to
default bail would be extinguished. The court would be at liberty to take
cognizance of the case or grant further time for completion of the
investigation, as the case may be, though the accused may still be released
on bail under other provisions of the CrPC.
22. The Apex Court had held that the mere fact that the extension
application is pending is no reason for the court to refuse to consider the
application for statutory bail, which was pending on the 180th day of remand.
23. Guided by the principles above, I shall detail the chronological list
of the relevant events for the sake of clarity.
24.11.2022 Remand of the accused
15.05.2023 CMP No 1361/2023 filed by the public prosecutor
under Section 36A(4) of the NDPS Act
22.5.2023 180th day of remand completed
23.05.2023 CMP No 1533/23 filed by accused seeking statutory
bail
24.05.23 CMP No 1361/23 seeking extension of detention
allowed
2.06.23 Request for statutory bail rejected.
24. The accused was remanded on 24.11.2022. The 180th day fell on
22.5.2023. The application for an extension of time under Section 36A(4) was
filed on 15.5.2023. No orders were passed on the same. On 23.05.2023, the
petitioner filed an application for statutory bail on the 181st day. In terms of
the law laid down in Ravindran (supra), as the application for extension of
detention was filed well in advance and before the filing of the application for
statutory bail, the learned Sessions Judge was bound to consider both
applications simultaneously. Orders had to be passed in accordance with the
law and in terms of the mandate under Section 36A(4) of the NDPS Act. If the
application for extension is allowed, then the statutory bail application will
necessarily have to be dismissed. On the other hand, if the application for the
extension of detention is rejected, then prompt orders have to be passed on
the statutory bail application. In the case on hand, the extension application
was allowed only on the 182nd day, whereas the statutory bail application was
filed and was pending on 23.05.2023, i.e., on the 181st day. In view of the law
laid down in Judgebir (supra), the learned Sessions Judge had no option but
to allow the application for the grant of statutory bail. Furthermore, admittedly
the presence of the petitioner was not procured at the time of consideration of
the application for the extension of the remand. As held in Jigar, it is
mandatory to produce the accused at the time when the Court considers the
application for extension and also furnish the information to the accused that
the question of extension of the period of detention is being considered.
Though the accused has been informed about the filing of the application for
extension, his presence was admittedly not procured. The learned Sessions
Judge, in his report, has also reported that the presence of the accused was
not procured.
25. Sri.Prasanth, the learned Public Prosecutor, urged that the
observations in Jigar were made because no notice was given to the accused
with regard to the filing of the application for extension in the said case.
According to the learned counsel, the presence of the accused is not to be
insisted on when notice has been issued to him informing him about the filing
of the application for the extension of detention. I am unable to agree. In the
instant case, the initial period of custody of 180 days was to expire on
22.5.2023. If the court were to extend the period of detention of the accused
for a further period, then the court is bound to ensure the presence of the
accused either physically or virtually. As held by the Apex Court in Jigar
(supra), when the application for the period of detention is extended for a
further period based on an application filed by the learned Public Prosecutor
under Section 36A(4), it legally strips the accused of their indefeasible right to
claim default bail. This is because the extension of time curtails the right of the
accused to default bail, a right intimately linked with the fundamental
freedoms safeguarded under Article 21 of the Constitution. Article 21 demands
a fair and reasonable procedure before curbing the liberty of a person. These
procedural safeguards are indeed instrumental in preserving the liberties
enshrined in Article 21. Failing to ensure the presence of the accused, either
physically or virtually, in the court and not informing him about the application
filed by the learned Public Prosecutor for the time extension goes beyond a
simple procedural violation. It is a significant illegality that infringes upon the
rights of the accused under Article 21. In the case at hand, although notice
was served, the presence of the accused was not secured. Furthermore, not
ensuring the presence of the accused on the day when the period of extension
of detention is being considered would be against the mandate of clause (b) of
the proviso to sub-section (2) of Section 167 of the Code of Criminal
Procedure.
26. In view of the discussion above, I hold as under.
a) The failure of the learned Sessions Judge in not insisting upon
the presence of the accused while considering the application for
detention beyond a period of 180 days is illegal and against the
law laid down by the Apex Court in Jigar. The order passed by
the learned Sessions Judge extending the period of detention for
a further period of three months, therefore, is illegal.
b) The application for extension of detention was filed on
15.05.2023, much prior to the expiry of the period of 180 days,
which falls on 22.5.2023. As the application for statutory bail was
filed by the accused on the 181st day, i.e., on 24.5.2023, the
learned Sessions Judge was bound to consider both the
applications together as held in Sanjay Dutt and reiterated in
Ravindran.
c) In view of the law laid down in Judgebir, as no orders were
passed on the application for extension of detention on the 181st
day, and as the accused had filed an application for statutory bail
as CMP No 1533/2023 on 23.05.2023, the learned Sessions
Judge had no other option but to grant statutory bail. On that
ground as well, the petitioner is entitled to succeed.
27. Resultantly, this petition will stand allowed. The order dated
24.5.2023 in Crl.M.P. No.1361/2023 and the Order dated 2.6.2023 in Crl.M.P.
No.1533/2023 refusing statutory bail will stand quashed. Crl.M.P.
No.1533/2023 will stand allowed. The petitioner shall be enlarged on default
bail under sub-section (2) of Section 167 of Code on the following conditions:
(a) The petitioner shall furnish a bail bond of Rs.2,00,000/-
(Rupees Two lakhs only) with appropriate sureties as may be
decided by the learned Additional Sessions Judge.
(b) The petitioner shall not enter the limits of Malappuram District
except to appear before the Investigating Officer or the
jurisdictional Court. If any variation of the condition is
required, he may move the court having jurisdiction.
(c) The petitioner shall surrender his passport, if any, before the
learned Additional Sessions Judge. If he is not holding a
passport, or if the same has been surrendered in any
proceeding, an affidavit to that effect shall be filed.
(d) The petitioner shall not interfere in any manner with the
investigation and shall not make any effort to influence the
prosecution witnesses;
(e) The petitioner shall appear before the Investigating Officer as
and when ordered.
(f) The petitioner shall not involve in any crime while on bail.
Violation of any of the conditions above will entitle the investigating officer to
move an application for cancellation of bail before the learned Additional
Sessions Judge, which shall be considered, and appropriate orders shall be
passed on its merits.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
PS/27/6/2023
APPENDIX OF CRL.MC 4508/2023
PETITIONER'S ANNEXURES:
Annexure I THE TRUE COPY OF THE CRIME & OCCURRENCE
REPORT NO.26/2022 OF KALIKAVU EXCISE RANGE.
Annexure-II THE TRUE COPY OF THE ONLINE REGULAR BAIL
FILING RECEIPT DATED 08.05.2023.
Annexure-III THE TRUE COPY OF THE REPORT DATED 12.05.2023
SUBMITTED BY THE PUBLIC PROSECUTOR IN CRIME
NO.26/2022 OF KALIKAVU EXCISE RANGE.
Annexure-IV THE TRUE COPY OF THE CMP NO.1478/2023 DATED
19.05.2023 SEEKING TIME FOR FILING OBJECTION
TO S.36A(4) REPORT.
Annexure-V THE TRUE COPY OF THE CMP NO.1533/2023 FILED
SEEKING STATUTORY BAIL WITH ONLINE FILING
RECEIPT.
Annexure-VI THE CERTIFIED COPY OF THE ORDER DATED
24.05.2023 IN CMP NO.1361/2023 OF THE
SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT
CASES, MANJERI.
Annexure-VII THE TRUE COPY OF THE E-COURT STATUS OF CMP
NO.1533/2023 DISMISSING IT ON 02.06.2023.
Annexure-VIII TRUE COPY OF THE CMP NO.107/2023 FILED
SEEKING CONTEMPORANEOUS DOCUMENTS IN CRIME
NO.26/2022 OF KALIKAVU EXCISE RANGE.
Annexure-IX THE TRUE COPY OF THE ORDER DATED 26.05.2023
IN CMP NO.1353/2023 OF THE SPECIAL COURT FOR
SC/ST (POA) ACT & NDPS ACT CASES, MANJERI.
Annexure-X THE TRUE COPY OF THE ORDER DATED 02.06.2023
IN CMP NO.1533/2023 OF THE SPECIAL COURT FOR
SC/ST (POA) ACT & NDPS ACT CASES, MANJERI.
