SRI SATISH S & Ors. v. STATE OF GUJARAT1 is a comprehensive answer to the contentions of both

SRI SATISH S., S/O SHEKAR AGED ABOUT 35 YEARS R/O K.K.STREET MUNI YELLAPPA GARDEN 3RD CROSS, COX TOWN BENGALURU – 560 062.

SRI F.MELVIN JOHNSON S/O PEDRICK JOHNSON AGED ABOUT 22 YEARS RESIDING AT NO.103 5TH CROSS, IDC COLONY COX TOWN, JEEVANAHALLI BENGALURU – 560 062.

SRI SHEKAR S/O GOKUL AGED ABOUT 23 YEARS R/O NO.133, KHB COLONY NEAR OM SHAKTHI TEMPLE ’B’ BLOCK, KHB QUARTERS PSK NAIDU ROAD, DODDAGUNTE COX TOWN, BENGALURU – 560 062.

SRI DARSHAN S/O MANJU AGED ABOUT 20 YEARS RESIDING AT NO.12, ITC COLONY 3RD CROSS, CHINNAPPA LANE JEEVANAHALLI, BENGALURU – 560 062.

SRI KARTHIK S/O SRINIVASA AGED ABOUT 21 YEARS 4 RESIDING AT NO.9 KUNNAPPA GARDEN, HENNUR ROAD HENNUR, BENGALURU – 560 043. (BY SRI I.S.PRAMOD CHANDRA, ADVOCATE) AND: THE STATE OF KARNATAKA THE STATE BY BANASAWADI P. S., REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001. (BY SRI B.N.JAGADEESHA, ADDL. SPP) ... PETITIONERS ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO a). ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT BY QUASHING THE IMPUGNED ORDER DTD. 14.06.2024 VIDE ANNX-A IN CRIME NO. 224/2024, PASSED BY THE LD. PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-1) AND b). TO ALLOW THE APPLICATION FILED U/S 167(2) CR.P.C., FILED BY THE PETITIONERS BY SETTING ASIDE THE ORDER DATED 30.07.2024 VIDE ANNEXURE – A IN CRIME NO.224/2024, PASSED BY THE LEARNED PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-1). THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 5 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners/accused Nos. 1 to 12 in Crime No.224 of 2024 registered for offences punishable under Sections 143, 144, 149 and 302 of the IPC are knocking at the doors of this Court in the subject petition seeking quashment of an order dated 14-06-2024 granting extension of time to file the charge sheet, as also the order dated 30-07-2024 in rejecting the claim of the petitioners for statutory bail under Section 167(2) of the Cr.P.C. passed by the Principal City Civil and Sessions Judge, Bengaluru City.

Heard Sri I.S. Pramod Chandra, learned counsel appearing for the petitioners and Sri B.N. Jagadeesha, learned Additional State Public Prosecutor for the respondent.

Facts in brief, germane, are as follows:- A complaint comes to be registered on 27-03-2024 by the complainant alleging murder of her son by the accused/ petitioners. Based upon the said complaint, a crime is registered in Crime 6 No.224 of 2024 for the aforesaid offences. The petitioners are apprehended on 28-03-2024. The Police took the petitioners into custody and then they were remanded to judicial custody. On 15-05-2024 the respondent invokes Section 3 of the Karnataka Control of Organized Crimes Act, 2000 (‘the Act’ for short) and placed a requisition before the concerned Court to proceed with the investigation under the above said offences. On 12-06-2024, the period of filing the charge sheet i.e., 90 days comes to an end. On 14-06-2024 the Public Prosecutor files an application under Section 22(2)(b) of the Act seeking extension of time to complete the investigation from 90 days to 180 days. On the same day, the concerned Court allows the application extending the time. The petitioners, then after completion of 90 days on 06-07-2024, file an application under Section 167(2) of the Cr.P.C. seeking their enlargement on bail. The prosecution files its objections. The concerned Court, by its order dated 30-07-2024 rejects the application on the ground that extension of time had been sought by the prosecution to complete the investigation. Therefore, the petitioners could not be released on bail. Being aggrieved by the said order, the petitioners are before this Court seeking quashment 7 of the order dated 14-06-2024 and the subsequent order dated 30-07-2024 rejecting default bail to the petitioners.

The learned counsel appearing for the petitioners Sri I.S. Pramod Chandra would vehemently contend that right of an accused under Section 167(2) of the Cr.P.C. is indefeasible. While granting extension of time, the petitioners or their counsel were not heard in the matter. He would, therefore, contend that the very extension gets vitiated as right of the petitioners is trampled, notwithstanding the fact that the alleged offences are punishable under Section 302 of the IPC and under the Act. Therefore, he would seek quashment of the said order and consequent release of the petitioners on grant of statutory bail.

Per contra, the learned Additional State Public Prosecutor Sri B.N. Jagadeesha would vehemently refute the submissions by contending that once charge sheet is filed after extension, this Court should not put the clock back and direct bail of these petitioners solely on the score that they were not heard while granting extension of time to file the charge sheet. They were in 8 fact produced before the Court virtually and were made known that the Act is invoked and extension of time is sought and granted by the concerned Court. He would contend that in terms of law informing the accused would be necessary and not hearing them. He would seek dismissal of the petition on the score that the offences alleged against these petitioners are grave and that they should not be shown any leniency.

I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

The afore-narrated facts are not in dispute. The complaint comes to be registered by the complainant on 27-03-2024 alleging that she has four children; all of them are married and staying separately and there was a rift between the accused and her son for a long time. On 27-03-2024 it is alleged that Dinesh Kumar, one of her sons was assaulted with deadly weapons in Paradise Inn Service Hotel near Charles School at Kammanahalli. Dinesh Kumar succumbs to injuries. Alleging that her son has been killed, the 9 complainant registers the subject complaint. The Police, during investigation, filed an application before the concerned Court seeking invocation of offences under the Act. It is permitted by an order dated 14-06-2024. On expiry of 90 days’ time, when the charge sheet was not yet filed, the petitioners make an application for statutory bail under Section 167(2) of the Cr.P.C. This is objected to on the score that they have time up to 180 days, as provisions of the Act are invoked and thus comes the rejection of application seeking statutory bail. The issue now would be, at the time of granting extension of time for filing the charge sheet or extending the period of investigation from 90 days to 180 days under Section 167(2), whether the accused are to be informed or are to be heard. Therefore, what happens before the concerned Court on these relevant dates are necessary to be noticed.

8. The prosecution files application in Crime No.224 of 2024 invoking the provisions of the Act for offences punishable thereto. It is permitted by the following order: “Learned P.P. has filed an application u/S. 22(2)(b) of KCOCA praying for extension of time from 90 days to 180 10 days for the completing investigation in the case. He has filed a report of I.O along with this application. Learned P.P has moved this application on this day at

11.30 a.m. The regular date of this case is on 19-06-2024. As such office is directed to intimate the jail authority to produce the Accused before the Court through V.C. at 3.00 p.m. A1 to A12 have been produced before the Court from Bengaluru Central Prison through V.C. at 3.50 p.m. Learned P.P. present. The factum of filing of the application u/S. 22(2)(b) of KCOCA is brought to the notice of A1 to A12, who are produced before the Court from custody through V.C. A1 to A12 submit that they have engaged a counsel by name Sri Chandru. Counsel for the Accused has not appeared before the Court in the case till date and same has been brought to the notice of the accused persons. A1 to A12 have submitted that they do not know the application filed by anything about prosecution. Perusal of record reveals that A1 to A12 were produced before the Court on 28-03-2024 for 1st production. The prosecution has moved this application u/S. 22(2)(b) of KCOCA on this day i.e., 79th day from the date of first production of the accused persons.

In the application it is stated that further investigation in the case such as holding Test Identification Parade, recording of statements of the witnesses u/S. 164 of Cr.P.C. and processing of electronic evidence are pending. 11 This is a case registered under the provisions of IPC, Arms Act and KCOCA. As such the investigating agency may require sufficient time to collect all relevant materials for submitting their final report. In the above circumstances, taking into consideration the contents of the application filed by the Public Prosecutor indicating the progress of the investigation and pending part of investigation in the case as well as the nature of offence alleged against the accused persons, this court opines that the prosecution has made out valid grounds to extend the period for completing the investigation in the case from 90 days to 180 days as prayed in the application. Hence, the following: ORDER The application filed u/S. 22(2)(b) of KCOCA is allowed.

The period for completing the investigation in the case is extended from 90 days to 180 days as prayed in the application. Call on 19-06-2024.” (Emphasis added) It is seen that the learned Public Prosecutor, before the concerned Court, filed the application for extension of remand at 11.30 a.m. on 14-06-2024. Directions were immediately issued to the Jail Authorities to produce the accused through V.C. Accused Nos. 1 to 12 were produced before the Court from Central Prison through video conference at 3.00 p.m. The Public Prosecutor was present. The concerned Court notices the aforesaid submissions and also 12 observes that statements under Section 164 of the Cr.P.C. were to be recorded, test identification parade and processing of electronic evidence was pending. The Court then considering that it was a case concerning the provisions of the Arms Act and KCOCA Act, requiring the investigating agency sufficient time for collection of relevant materials for submission of final report, allows the application and permits extension of time to complete investigation from 90 days to 180 days.

9. The contention of the learned counsel for the petitioners is that it is in violation of the statutory right to seek enlargement on bail in terms of Section 167(2) of the Cr.P.C. Therefore, I deem it appropriate to notice Section 167 of the Cr.P.C. It reads as follows:- “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.

13 (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 authorise 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) (ii) ninety days, where the investigation relates to an offence punishable with death, imprisonment for a term of not less than ten years; imprisonment 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;] 14 (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. Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be: Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. (2-A) Notwithstanding anything contained in sub- section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- 15 section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it to the Chief Judicial Magistrate. (5) If in any case triable by Magistrate as a summons- case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, further the Magistrate shall make an order stopping investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub- section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.” (Emphasis supplied) 16 Interpretation of Section 167 of the Cr.P.C. and knowledge to the accused need not detain this Court for long or delve deep into the matter. The judgment of the Apex Court in the case of JIGAR ALIAS JIMMY PRAVINCHANDRA ADATIYA v. STATE OF GUJARAT1 is a comprehensive answer to the contentions of both the petitioners and the respondent. The Apex Court, in the aforesaid judgment, holds as follows: “…. …. …. Vishnu

The same issue came up for consideration before the Constitution Bench in this Court in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] . A specific submission was made before the Constitution Bench that the notice to the accused of the application for the extension as in Hitendra Vishnu contemplated by the decision Thakur [Hitendra Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] is not a written notice. The argument was that when the report of the Public Prosecutor is considered by the Special Court, it is enough that the presence of the accused is procured before the Special Court and the accused is informed that such a report has been submitted by the Public Prosecutor. By accepting the said submission, the Constitution Bench summarised its conclusions as under : (Sanjay Dutt case [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] , SCC p. 444, para 53) Thakur v. State

53. … (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 1 (2023) 6 SCC 484 17 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 [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] . The requirement of such notice to the accused before granting 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.

completing extension (emphasis supplied)

In Devinderpal Delhi) [Devinderpal Singh v. State (NCT of Delhi), (1996) 1 SCC 44 : 1996 SCC (Cri) 5] , this Court in paras 14 and 15 held thus : (SCC p. 48) Singh v. State (NCT “14. In Hitendra Vishnu Thakur case [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] it was also opined that no extension can be granted by the Designated Court under clause (bb) unless the accused is put on notice and permitted to have his say so as to be able to object to the grant of extension.

The Constitution Bench in Sanjay Dutt case [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] did not express any contrary opinion insofar as the requirement of the report of the Public Prosecutor for grant of extension is concerned or on the effect of the absence of such a report under clause (bb) of Section 20(4), but observed that the “notice” contemplated in the decision in Hitendra Vishnu Thakur case [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] before granting extension for completion of investigation is not to be construed as a “written notice” to the accused and that only the production of the accused at the time of consideration of the report of the Public Prosecutor for grant of extension and 18 informing him that the question of extension of the period for completing the investigation was being considered would be sufficient notice to the accused.” (emphasis supplied) laid down

In Ateef Nasir Mulla [Ateef Nasir Mulla v. State of Maharashtra, (2005) 7 SCC 29 : 2005 SCC (Cri) 1587] , this Court considered a similar provision under POTA. In the said decision, in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] was followed. In the facts of the case, it was found that the accused along with his advocate were present when the request for extension of time to carry on the investigation was considered by the Court and, in fact, a copy of the report praying for the extension was provided to the accused to enable him to file a reply. Kumar

In Sanjay Kedia [Sanjay Kumar Kedia v. Narcotics Control Bureau, (2009) 17 SCC 631 : (2011) 1 SCC (Cri) 1099] , this Court considered a similar provision under the NDPS Act. However, this Court did not consider the binding precedent in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] . Therefore, this decision will not be a binding precedent.

Clause (b) of sub-section (2) of Section 167CrPC 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. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand.

When the Special Court exercises the power of granting extension under the proviso to sub-section (2) of 19 Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of sub-section (2) of Section 167CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the to complete prosecution investigation is considered. In fact, the Constitution Bench of this Court in the first part of para 53(2)(a) in its decision in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] holds so. the extension of

The requirement of the report under the proviso added by sub-section (2) of Section 20 of the 2015 Act to clause (b) of sub-section (2) of Section 167CrPC is twofold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, 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. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension. larger Bench

As noted earlier, the only modification made in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] to the decision in Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] is about the mode of service of notice of the application for extension. In so many words, in para 53(2)(a) of the judgment, this Court in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] 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 20 accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality.

10. If the law as elucidated by the Apex Court is pitted against the facts obtaining in the case at hand what is discernible is, the petitioners were undoubtedly produced before the Court through video conferencing from the Central Prison. When the accused were directed to be produced before the Court through V.C., they were informed about the application filed and they were present before the Court during the time of such consideration of the application. All the events that have happened on 28-03-2024 have been taken note of by the concerned Court and holds that on 79th day since first production of the accused, the application is preferred and, therefore, it was valid. As held by the Apex Court, the application was preferred within time. The accused were made 22 aware of the application in consonance with law and were informed through video conferencing. The offences being heinous in nature, require time for investigation. Therefore, the concerned Court was in allowing the order for extension of remand and subsequently, rejecting the default bail application.

11. Finding no grounds to entertain the petition, the Writ Petition stands rejected. Sd/- (M. NAGAPRASANNA) JUDGE CT:SS