AKBAR KADARMIYA SUNNI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Petitioner has filed the present petition under the provisions of Article 226 of the constitution of India, read with sec. 187 and Sec. 483 of Bharatiya Nagarik Suraksha Sanhita with following prayers:

(2.) The facts and circumstances gave rise to the filing of the present petition are such that an FIR being CR. no. 11196010250001 of 2025 came to be registered at the DCB Police Station, Vadodra City for offence punishable under the provision of The Gujarat Control of Terrorism and Organized Crimes Act, 2015 (For Short GUJCTOC Act) on 01/01/2025. The Petitioner was arrested in connection with the present offence on 06/01/2025. On 21/03/2025 the Special Public Prosecutor submitted an application under Sec. 20 (2)(B) of the GUJCTOC Act before the learned Special Court, praying for extension of time for the investigation agency to conclude the investigation for further period of 90 days. Upon the said application being filed, a notice came to be issued to the present Petitioner and other co-accused asking them to remain present for hearing of the said application. The Petitioner and other co-accused refused to accept the notice issued by the learned Special Court. The learned Special Court thereafter vide order dtd. 24/03/2025 allowed the application submitted by the learned Special Public Prosecutor and the period for the investigating agency to conclude the investigation was extended by 90 days. On 09/04/2025 that is after the learned Special Court passed an order of extension of time for conclusion of investigation, the Petitioner submitted an application under Sec. 187 of the Bharatiya Nagarik Suraksha Sanhita seeking statutory bail. The said application was dismissed by the learned Special Court vide order dtd. 22/04/2025. Being aggrieved by the same the petitioner has preferred the present petition.

(3.) Heard learned advocate Mr. Virat G. Popat appearing for the petitioner. He submitted that the petitioner was arrested in connection with the offence on 06/01/2025 and therefore, the period for the investigating agency to conclude the investigation was getting over on 6/4/2025. In the interregnum, learned Special Public Prosecutor filed an application before the learned Special Court on 21/03/2025, seeking to extend the period for conclusion of investigation by 90 days. Upon receipt of the said application, a notice came to be issued by the learned Special Court to the present Petitioner as well as the other co-accused. However, the Petitioner as well as the other co-accused intimated that they would receive the notice only after discussing the matter with their advocate. The application submitted by the learned Special Public Prosecutor was decided by the learned Special Court and was allowed vide order dtd. 24/03/2025. He submitted that accepting for the sake of argument that the Petitioner and other co-accused had refused to receive the notice, the provision of Sec. 167 (2) of the Criminal Procedure Code, requires the accused to be kept present before the court at the time of hearing of the application for extension of time for conclusion of investigation. There is two fold statutory requirement for deciding the application filed by the prosecution for extension of time, wherein at first place, a notice is required to be issued to the accused and the accused is also required to be kept present before the court at the time of hearing of such application. This is a mandatory requirement. Therefore, merely because a notice was issued to the Petitioner and the other co-accused by the learned Special Court, which was allegedly refused by the Petitioner and other co-accused, would not absolve the prosecution of its liability to keep the accused present before the court. He further submitted that learned Special Public Prosecutor had merely signed the report, which was received by him from the investigating officer. There was no independent application of mind by the Special Public Prosecutor to the facts of the case. He further submitted that no explanation is coming forth from the record as to why the Petitioner and the other co-accused were not kept present before the Court, when the order dtd. 24/03/2025 came to be passed by the learned Special Court. Therefore, the order passed by the learned Special Court extending the time limit for the investigating agency to conclude the investigation, suffers from gross violation of the mandatory requirements, under the provision of Sec. 187 of the Bharatiya Nagarik Suraksha Sanhita, which entitles the Petitioner herein to be enlarged on statutory (default) bail.