Aastha Thakur
Published on: 25 September 2022 at 21:43 IST
According to the Supreme Court, failing to present the accused before the Court when the request for an extension of time for the inquiry is being considered constitutes a breach of a basic right protected by Article 21 of the Constitution.
“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.” Bench of Justices Ajay Rastogi and Abhay S. Oka stated.
The appeal was filed by accused against whom FIR lodged under Gujarat Control of Terrorism and Organised Crime Act, 2015. The state here pleads to extend the investigation time up to 180 days as allowed by the Special Court. The appellant’s petitions challenging this order given by Special Court was dismissed by the Gujarat HC.
The appellant submits that on the application submitted by Public Prosecutors when the Special Court passed the orders of extension of time to complete the investigation procedure, none of the accused was present either physically or virtually through video conference. Further, they were not informed about any such reports.
The State, in its defends contends that it is necessary only when his detention in police custody is sought, otherwise there is no mandate to procure accused before the Court.
It was argued that the order extending the time would not be invalidated by the accused’s simple failure to appear on the day the Special Court reviewed the request for the extension of time.
The issue brought before the Apex Court concerned the legal repercussions of the Special Court failing to secure the presence of the accused at the time it considered the reports submitted by the Public Prosecutor for a grant of an extension of time to finish the investigation and the impact of failing to notify the accused of the reports submitted by the Public Prosecutor. This was done in accordance with the 2015 Act.
The court examined that Clause (b) of subsection (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage.
“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.”, the court said.
The bench further observed that in these situations, the bias in these circumstances is inherent and does not to be proved by the accused.
“An attempt was made to argue that the failure to produce the accused will not cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail.”
“It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Article 21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused”
The Court rejected the arguments presented by the State that the accused has no right to raise any objection to the application for extension. It said:
“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 subsection (2) of Section 20 of the 2015 Act to subsection (2) of Section 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.”
In light of the prosecution’s failure to physically or virtually present the accused before the Special Court when the Public Prosecutor’s request for an extension was being reviewed, the court concluded that the Special Court’s orders extending the term of inquiry are invalid.
As a result, default bail was granted to the accused-appellants with several restrictions.