The Supreme Court said on Friday the extension of time granted to probe agencies to file charge sheets in criminal cases is not an ”empty formality” because it deprives the accused of their ”indefeasible right” to seek default bail due to non-completion of investigation during the stipulated period.
The top court, in a significant verdict, set aside the Gujarat high court judgment by which it had upheld a local court's decision to extend the time to conclude probe from 90 to 180 days behind the back of the accused in a criminal case and ordered the release of the undertrials on default bail.
Section 167 of the Code of Criminal Procedure Code provides for the grant of default bail to an accused if the probe agency fails to conclude the investigation and file a charge sheet within a stipulated period of either 60 or 90 days in a court of competent jurisdiction.
Some special legislations like the Gujarat Control of Terrorism and Organised Crime Act, 2015, permit the prosecuting agencies to seek extension of time to file charge sheet up to a period of 180 days to deny default bail to the accused in heinous offence cases.
”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.
"If we accept the argument that the failure of the prosecution to produce the accused before the court and to inform him that the application of extension is being considered by the court is a mere procedural irregularity, it will negate the proviso added by sub-section (2) of Section 20 of the 2015 (Gujarat) Act and that may amount to violation of rights conferred by Article 21 (right to life) of the Constitution,” said a bench of Ajay Rastogi and Abhay S Oka.
The reason is the grant of extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21, the verdict said, adding that the liberty of a person can be taken away by following a ”fair and reasonable procedure".
”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 Article 21,” Justice Rastogi, writing the judgment, said.
The top court was dealing with the question about the legal consequences of the failure of a trial court to procure the presence of the accused at the time of considering the plea of the public prosecutor for grant of extension of time to complete the investigation.
Setting aside the verdicts of the high court and the trial court, it said, ”The extension of time is not an empty formality. The public prosecutor has to apply his mind before he submits a report/ an application for extension.”
It allowed the plea of one Jigar alias Jimmy Pravinchandra and other co-accused in criminal cases lodged with Jamnagar City ’A' division police station in Gujarat for offences under the Gujarat Control of Terrorism and Organised Crime Act.
The FIR was registered on October 15, 2020, and the accused were arrested on different dates.
Reports were submitted by the public prosecutor seeking extension of time up to 180 days to complete the investigation and the prayer for extending the time up to 180 days was allowed by the special court on the very day on which the applications were filed.
The order was upheld by the high court disregarding the claim that it was passed behind the back of the jailed accused.
”The orders passed by the special court of extending the period of investigations are rendered 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,” it held.
