QAMAR GHANI USMANIversusTHE STATE OF GUJARAT

824                      [2023]REPORTS
               SUPREME COURT    2 S.C.R. 824              [2023] 2 S.C.R.


A                         QAMAR GHANI USMANI
                                       v.
                          THE STATE OF GUJARAT
                   (Criminal Appeal Nos. 1045-1046 of 2023)
B                               APRIL 10, 2023
               [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
             Code of Criminal Procedure, 1973 – s. 167(2) – Default bail
      – Appellant-accused was arrested on 29.01.2022 – 90 days period
      u/s. 167 was to expire on 29.04.2022 – On 22.04.2022, IO prayed
C
      for extension of time to complete the investigation, Trial Court
      extended time limit to investigate by 30 days in absence of accused
      – The accused came to be informed about the extension on
      23.04.2022 itself – On 22.05.2022, the IO again prayed for further
      extension, the same was allowed by 30 days – Second Extension
D     was granted in the presence of the accused – In the meantime,
      accused submitted the default bail application on 10.05.2022 on
      the ground that at the time when the first extension was granted, the
      same was not in the presence of the accused and the accused was
      not kept present thus first extension was bad in law and therefore,
      the accused acquired right to get the default bail – Application was
E
      rejected by Trial Court – Appeal dismissed by High Court – On
      appeal, held: At the time when the default bail application was made
      on 10.05.2022 there was already an extension and even thereafter,
      also there was a second extension which was in presence of the
      accused – Neither the first extension nor the second extension came
F     to be challenged by the accused – Chargesheet filed within the period
      of extension – Accused not entitled to default bail.
            Dismissing the appeals, the Court
            HELD : 1. Sum and substance of law laid-down by this Court
      in the cases of Sanjay Dutt and Jigar are that while considering
G     the application by the Investigating Agency for extension of time
      for completing the investigation beyond the period prescribed
      under Section 167(2) of the Cr.PC the accused is to be given
      notice and/or is to be kept present before the Court, so that, the
      accused had knowledge that the extension is sought and granted.
H     [Para 6.4][832-C-D]
                                      824
    QAMAR GHANI USMANI v. THE STATE OF GUJARAT                        825


       2. In the aforesaid peculiar facts and circumstances of the    A
case, when two extensions granted by the Court which are not
challenged and at the time when the default bail application was
made on 10.05.2022 there was already an extension and even
thereafter, also there was a second extension which was in
presence of the accused and thereafter, when the chargesheet
                                                                      B
has been filed within the period of extension, the accused is not
entitled to be released on statutory/default bail as prayed.
Therefore, in the facts and circumstances of the case, this court
was in agreement with the ultimate conclusion reached by the
High Court denying the statutory/default bail to the accused. In
view of the above and for the reasons stated above and, in the        C
facts, and circumstances of the case narrated hereinabove, the
appellant is not entitled to the benefit of statutory/default bail.
[Paras 7, 8][833-D-F]
      Jigar alias Jimmy Pravinchandra Adatiya Vs. State of
      Gujarat 2022 SCC OnLine SC 1290; Hitendra Vishnu                D
      Thakur and Ors. Vs. State of Maharashtra and Ors.
      (1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; Sanjay
      Dutt Vs. State through CBI, Bombay (II) (1994) 5 SCC
      410 : [1994] 3 Suppl. SCR 263; Narender G. Goel Vs.
      State of Maharashtra (2009) 6 SCC 65 : [2009] 8 SCR             E
      1004 – referred to.
      Sayed Mohd. Ahmed Kazmi Vs. State (2012) 12 SCC 1
      : [2012] 9 SCR 836; Rambeer Shokeen Vs. State (2018)
      4 SCC 405 : [2018] 1 SCR 373 – held inapplicable.
                                                                      F
                      Case Law Reference
[1994] 1 Suppl. SCR 360        referred to             Para 4.2
[1994] 3 Suppl. SCR 263        referred to             Para 4.2
[2012] 9 SCR 836               held inapplicable       Para 6.2.3     G
[2018] 1 SCR 373               held inapplicable       Para 6.3
[2009] 8 SCR 1004              referred to             Para 5.2


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826             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 1045-1046 of 2023.
            From the Judgment and Order dated 23.09.2022 of the High Court
      of Gujarat at Ahmedabad in CRLA Nos. 1215 and 1216 of 2022.

B          Mehmood Pracha, Ms. K. V. Bharathi Upadhyaya, Sanawar
      Choudhary, Jatin Bhatt, Dhruv Yadav, Advs. for the Appellant.
           Tushar Mehta, SG, Rajat Nair, Ms. Swati Ghildiyal, Madhav Sinhal,
      Ms. Devyani Bhatt, Advs. for the Respondent.
            The Judgment of the Court was delivered by
C
            M. R. SHAH, J.
            1. Leave granted.
             2. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 23.09.2022 passed by the High Court of Gujarat at
D     Ahmedabad in Criminal Appeal Nos. 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.
E           3. The facts leading to the present appeals in a nutshell are as
      under: -
             3.1 That the accused came to be arrested on 29.01.2022. The 90
      days period as provided under Section 167 of the Cr.PC, therefore, was
      to expire on 29.04.2022. However, on 22.04.2022, the Investigating
F
      Officer prayed for extension of time to complete the investigation which
      came to be granted by the learned Trial Court by granting extension of
      30 days period. The accused came to be informed about the extension
      on 23.04.2022 itself. On 22.05.2022, the Investigating Officer again
      prayed for further extension which came to be allowed by the learned
G     Trial Court on 22.05.2022. At this stage, it is required to be noted that on
      22.05.2022, the second extension was granted in the presence of the
      accused. 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
H
     QAMAR GHANI USMANI v. THE STATE OF GUJARAT                                  827
                  [M. R. SHAH, J.]

extension was bad in law and therefore, the accused acquired right to            A
get the default bail on 10.05.2022. The learned Trial Court rejected the
said application(s). The Division Bench of the High Court by the impugned
judgment and order has dismissed the appeals. Hence, the present appeals
at the instance of the original accused.
       4. Shri Mehmood Pracha, learned counsel has appeared on behalf            B
of the appellant and Shri Tushar Mehta, learned Solicitor General has
appeared on behalf of the respondent – State of Gujarat.
      4.1 Shri Pracha, learned counsel appearing on behalf of the
accused has vehemently submitted that as such the judgment and order
which has been relied upon by the Division Bench of the High Court has           C
been subsequently set aside by this Court in the case of Jigar alias
Jimmy Pravinchandra Adatiya Vs. State of Gujarat 2022 SCC
OnLine SC 1290.
        4.2 It is further submitted by Shri Pracha, learned counsel appearing
on behalf of the accused that it is admitted by the prosecution that the         D
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 in the case of Hitendra Vishnu Thakur and Ors.
Vs. State of Maharashtra and Ors. (1994) 4 SCC 602 and in the
case of Sanjay Dutt Vs. State through CBI, Bombay (II) (1994) 5                  E
SCC 410, notice to the accused at the time of consideration of application
for extension of period of investigation has been held to be mandatory. It
is submitted that in the case of Sanjay Dutt (supra), this Court has
further interpreted to mean that a written notice is not mandatory but the
presence of the accused suffices. It is submitted that therefore, even as
per the law laid-down by this Court in the case of Sanjay Dutt (supra)           F
at the time of consideration of application for extension of period of
investigation, the presence of the accused is must. It is submitted that
therefore, in the present case when the first extension was granted on
22.04.2022 admittedly the accused was not produced before the learned
Trial Court, the first extension before itself is illegal and not an extension   G
in the eye of law and therefore, thereafter when the accused filed the
application(s) under Section 167(2) of the Cr.PC for default bail/statutory
bail, the accused had acquired a indefeasible right for release on statutory
bail as by the time 90 days period was over and the first extension is to
be ignored.
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828             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A            4.3 It is further submitted by learned counsel appearing on behalf
      of the accused that as observed and held by this Court in the case of
      Sayed Mohd. Ahmed Kazmi Vs. State (2012) 12 SCC 1 extension
      of period of investigation from retrospective effect, after the initial order
      has been set aside, is not permissible.
B             4.4 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
C
      bad in law and entitles the accused to statutory bail.
             4.5 Making the above submissions and heavily relying upon the
      decisions of this Court in the cases of Hitendra Vishnu Thakur (supra);
      Sayed Mohd. Ahmed Kazmi (supra); Sanjay Dutt (supra) and Jigar
      (supra), it is prayed to allow the present appeals and direct the respondent
D
      to release the appellant – accused on statutory bail.
             5. While opposing the present appeals, Shri Tushar Mehta, learned
      Solicitor General appearing on behalf of the State has vehemently
      submitted that as such the decision of this Court in the case of Hitendra
      Vishnu Thakur (supra) has been subsequently watered down by this
E     Court in the case of Sanjay Dutt (supra). 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
F     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.
G
            5.1 Now so far as the reliance placed upon the decision of this
      Court in the case of Jigar (supra) is concerned, it is vehemently
      submitted that as such the said decision requires reconsideration by the
      Larger Bench as in the said decision this Court has not taken into
      consideration Section 465 of the Cr.PC. It is submitted that this Court
H
     QAMAR GHANI USMANI v. THE STATE OF GUJARAT                                  829
                  [M. R. SHAH, J.]

has failed to consider the law laid-down by this Court in the case of            A
Rambeer Shokeen Vs. State (2018) 4 SCC 405, in which it was
categorically held that the accused persons are entitled to the right of
the default bail only after rejection of the application for extension of
time period for investigation or when the chargesheet is not filed within
the prescribed time.
                                                                                 B
        5.2 It is further submitted that even otherwise as observed and
held by this Court in the case of Narender G. Goel Vs. State of
Maharashtra (2009) 6 SCC 65 the accused has no right to be heard
at the stage of investigation and more particularly, at the stage of extension
of period for investigation. It is submitted that as observed and held by
this Court, the accused is not entitled to have the reasonings for extension     C
of period of investigation because accused has no right to be heard at
the stage of investigation.
       5.3 It is further submitted by Shri Tushar Mehta, learned Solicitor
General appearing on behalf of the State that even otherwise, in the
facts and circumstances of the case, the appellant is not entitled to any        D
relief(s) as prayed, more particularly, the statutory bail. It is submitted
that the first extension was granted by the learned Trial Court on
22.04.2022. The accused was informed about extension of time for
investigation immediately on the very next day i.e., 23.04.2022. It is
submitted that nothing was done by the accused even on 29.04.2022                E
(when the 90 days period was over). It is submitted that though the
accused was informed about the extension of time for investigation on
23.04.2022, till 10.05.2022 he did not challenge the extension of time for
investigation for a further period of 30 days granted on 22.04.2022. It is
submitted that even thereafter when the second extension was sought
and granted on 22.05.2022 on which date the accused was present and              F
in whose presence the extension was granted, no grievance was made
by the accused on the legality and validity of earlier order dated
22.04.2022 granting the extension for a further period of 30 days. 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            G
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.
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830             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A             5.4 It is submitted that therefore, at the time when the accused
      preferred application(s) for statutory/default bail on 10.05.2022, there
      was already an extension of time for investigation by the learned Trial
      Court vide order dated 22.04.2022, which was not challenged by the
      accused and therefore, the application(s) for default/statutory bail during
      the period of extension would not be maintainable at all as the said
B
      application(s) were made during the period of extension for investigation.
      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
C     such was communicated to the accused on 23.04.2022. It is submitted
      that therefore, in view of the above facts, none of the decisions of this
      Court relied upon on behalf of the accused shall be applicable to the
      facts of the case on hand. It is submitted that so far as the reliance
      placed upon the decision of this Court in the case of Sayed Mohd.
      Ahmed Kazmi (supra) is concerned, it is submitted by learned Solicitor
D
      General that on facts the said decision shall not be applicable to the facts
      of the case on hand. It is submitted that in the case before this Court, in
      fact the extension was challenged before the Sessions Court and the
      extension was held to be bad in law.
            5.5 Making the above submissions, it is prayed to dismiss the
E     present appeals.
            6. We have heard Shri Mehmood Pracha, learned counsel
      appearing on behalf of the accused – appellant and Shri Tushar Mehta,
      learned Solicitor General appearing on behalf of the State of Gujarat.

F            6.1 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?
G
            6.2 Learned counsel appearing on behalf of the appellant – accused
      has heavily relied upon the decisions of this Court in the cases of Hitendra
      Vishnu Thakur (supra); Sanjay Dutt (supra); Sayed Mohd. Ahmed
      Kazmi (supra) and on the recent decision of this Court in the case of
      Jigar (supra).
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     QAMAR GHANI USMANI v. THE STATE OF GUJARAT                                831
                  [M. R. SHAH, J.]

       6.2.1 In the case of Hitendra Vishnu Thakur (supra), this Court         A
observed and held that when a report is submitted by the Public
Prosecutor to the Designated Court for grant of extension, its notice
should be issued to the accused before granting such an extension so
that the accused may have an opportunity to oppose the extension on all
legitimate and legal grounds available to him.
                                                                               B
       6.2.2 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            C
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. Meaning thereby,
the accused is to be kept present before the Court when 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           D
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). As such under the Scheme of Cr.PC and on the report
submitted by the Investigating Agency, prayer for extension of time for
completing investigation is subject to the satisfaction of the concerned       E
Court whether to grant further extension or not. The Court is to be
satisfied on the grounds on which the extension is sought.
        6.2.3 Now so far as the reliance placed upon the decision of this
Court in the case of Sayed Mohd. Ahmed Kazmi (supra) by learned
counsel appearing on behalf of the appellant is concerned, at the outset,      F
it is required to be noted that the said decision shall not be applicable to
the facts of the case on hand. In the case before this Court, in fact, the
extension granted by the learned Chief Metropolitan Magistrate was
challenged on the ground that the learned Chief Metropolitan Magistrate
had no competence to extend the judicial custody of the accused. The
                                                                               G
learned Additional Sessions Judge accepted the same. However,
thereafter, a fresh extension was sought which was beyond the period
prescribed under Section 167 of the Cr.PC and therefore, this Court
observed and held that extension for period of investigation from
retrospective effect shall not be permissible.
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832             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A            6.3 Similarly, even the decision of this Court in the case of
      Rambeer Shokeen (supra) relied upon by learned Solicitor General
      shall also not be applicable to the facts of the case on hand. 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
B
      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.
             6.4 Thus, sum and substance of law laid-down by this Court in the
      cases of Sanjay Dutt (supra) and Jigar (supra) are that while
C     considering the application by the Investigating Agency for extension of
      time for completing the investigation beyond the period prescribed under
      Section 167(2) of the Cr.PC the accused is to be given notice and/or is
      to be kept present before the Court, so that, the accused had knowledge
      that the extension is sought and granted.
D            6.5 However, in the facts and circumstances of the case, we
      are of the view that the appellant is not entitled to the relief of statutory/
      default bail. In the present case the facts are glaring which are as
      under: -
             ……The accused was arrested on 29.01.2022. The 90 days
E            provided under Section 167 Cr.PC thus would expire on
             29.04.2022. 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. It is
F            true that for whatever reason, the accused was not kept present
             at the time when the learned Trial Court considered the report
             submitted by the IO for extension of time for completing the
             investigation. However, the accused came to be informed about
             the extension on the very next day i.e., 23.04.2022. The accused
             did not challenge the extension on any ground which may be
G            available to him and/or did not make any grievance that such an
             extension is illegal and/or contrary to law. On 10.05.2022, he made
             the present application for default bail/statutory bail on the ground
             that the chargesheet has not been filed within the period of 90
             days. At this stage, it is required to be noted that at the time when
H            the present application for default/statutory bail was made on
     QAMAR GHANI USMANI v. THE STATE OF GUJARAT                                      833
                  [M. R. SHAH, J.]

       10.05.2022, there was already an extension of time by the learned             A
       Trial Court which as such was in existence and the extension was
       up to 22.05.2022. At this stage, it is required to be noted that
       though informed on 23.04.2022 about the extension of time for
       completing the investigation, the accused did not disclose the same
       in the application for default bail/statutory bail submitted on
                                                                                     B
       10.05.2022. That thereafter, on 22.05.2022, IO again submitted
       the report for further extension of time for completing the
       investigation which came to be allowed/granted by the learned
       Trial Court which as such was in the presence of the accused and
       at that time, the accused remained present. Neither the first
       extension nor the second extension came to be challenged by the               C
       accused.”
       7. Therefore, in the aforesaid peculiar facts and circumstances of
the case, when two extensions granted by the Court which are not
challenged and at the time when the default bail application was made
on 10.05.2022 there was already an extension and even thereafter, also               D
there was a second extension which was in presence of the accused
and thereafter, when the chargesheet has been filed within the period of
extension, the accused is not entitled to be released on statutory/default
bail as prayed. Therefore, in the facts and circumstances of the case,
we are in agreement with the ultimate conclusion reached by the High
Court denying the statutory/default bail to the accused.                             E

       8. In view of the above and for the reasons stated above and, in
the facts, and circumstances of the case narrated hereinabove, the
appellant is not entitled to the benefit of statutory/default bail. Under the
circumstances, the present appeals deserve to be dismissed and are
accordingly dismissed. However, it will be open for the accused to prayer            F
for regular bail which may be considered in accordance with law and on
its own merits. Present appeals stand dismissed accordingly.

Ankit Gyan                                                      Appeals dismissed.
(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)                        G




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