1215/2022 and 1216/2022, by which, the Division Bench of the High Court has dismissed the said appeals and has refused to release the appellant – accused on statutory bail (default bail) under Section 167(2) of the Cr.PC, the original accused has preferred the present appeals.
Also Read: https://newslaw.in/case-type/civil/c-a-no-001144-001146-2011/
In the meantime, the accused submitted the default bail application on 10.05.2022 on the ground that at the time when the first extension was granted on 22.04.2022, the same was not in the presence of the accused and the accused was not kept present and therefore, first extension was bad in law and therefore, the accused acquired right to get the default bail on 10.05.2022. 2
It is further submitted by Shri Pracha, learned counsel appearing on behalf of the accused that it is admitted by the prosecution that the appellant was not produced before the learned Trial Court at the time of consideration of application for first extension of period of investigation. It is submitted that therefore, even as per the law laid-down by this Court in the case of Sanjay Dutt (supra) at the time of consideration of application for extension of period of investigation, the presence of the accused is must. 4
It is further submitted by learned counsel appearing on behalf of the accused that recently in the case of Jigar (supra) this Court after taking into consideration the decisions of this Court in the cases of Hitendra Vishnu Thakur (supra) and Sanjay Dutt (supra), has specifically reiterated the proposition that failure to produce the accused at the time of extension of period of investigation renders such extension bad in law and entitles the accused to statutory bail.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
It is submitted that the view taken by this Court in the case of Hitendra Vishnu Thakur (supra) that at the time of extension of time for investigation, a notice to the accused is required to be given by the Designated Court before it grants any extension is no longer a good law in view of the subsequent decision of this Court in the case of Sanjay Dutt (supra).
It is submitted that in the case of Sanjay Dutt (supra) this Court has explained the decision in the case of Hitendra Vishnu Thakur (supra) and has observed and held that the only requirement is the production of the accused before the Court in accordance with Section 167(1) of the Cr.PC and that the accused is not entitled to written notice giving reasons for the extension. It is submitted that as observed and held by this Court, the accused is not entitled to have the reasonings for extension of period of investigation because accused has no right to be heard at the stage of investigation. It is submitted that therefore, once the accused failed to challenge the first order of extension dated 22.04.2022 on whatever grounds available and allowed the period of extension and thereafter at the time when the second extension was granted the accused was present and he did not make any grievance with respect to the first extension granted on 22.04.2022, thereafter, it is not open for the accused to make any grievance on the grant of first extension granted on 22.04.2022.
It is submitted by Shri Mehta, learned Solicitor General that even in the application(s) for default/statutory bail preferred on 10.05.2022, the accused did not even disclose that the learned Trial Court had granted the extension for investigation vide order dated 22.04.2022 which as such was communicated to the accused on 23.04.2022. 1
The short question which is posed for the consideration of this Court is whether in the facts and circumstances of the case, the appellant shall be entitled to the statutory/default bail under Section 167(2) of the Cr.PC on the ground that at the time when the extension of time for completing the investigation was prayed by the investigating agency and granted by the Trial Court the accused was not kept present?
Also Read: https://newslaw.in/case-type/civil/c-a-no-003481-003481-2022/
2.2 However, thereafter, the decision of this Court in the case of Hitendra Vishnu Thakur (supra) fell for consideration before this Court in the case of Sanjay Dutt (supra) and the view taken by this Court in the case of Hitendra Vishnu Thakur (supra) as above, has not been accepted by the Constitution Bench of this Court and it is observed and held in the case of Sanjay Dutt (supra) that a notice to the accused is not required to be given by the Designated Court before it grants any extension for completing the investigation.
The view taken by this Court in the case of Hitendra Vishnu Thakur (supra) that a notice is to be given to the accused so that he can oppose the extension has not been accepted by the Constitution Bench of this Court in the case of Sanjay Dutt (supra). In the case of Rambeer Shokeen (supra) pending application by the Investigating Agency for extension of time for completing the investigation, the accused made an application for statutory/default bail and to that this Court observed and held that the application filed by the Investigating Agency for extension of time for completing the investigation which was prayed in time kept pending ought to be decided first by the Court. Within the period of 90 days i.e., on 22.04.2022, the IO submitted the report and prayed for extension of time for completing the investigation which came to be allowed by the learned Trial Court by granting extension of 30 days period. At this stage, it is required to be noted that at the time when the present application for default/statutory bail was made on 10.05.2022, there was already an extension of time by the learned Trial Court which as such was in existence and the extension was up to 22.05.2022.
Neither the first extension nor the second extension came to be challenged by the accused.”
Case Title: QAMAR GHANI USMANI Vs. THE STATE OF GUJARAT (2023 INSC 337)
Case Number: Crl.A. No.-001045-001046 / 2023
