This article is written by Vikram Singh, Advocate on Record (AOR) in Supreme Court, Insolvency Professional and Legal Aid Counsel (LAC) in Senior Sessions Panel of DLSA South, Saket Courts, New Delhi pursuing a Diploma in M&A, Institutional Finance and Investment Laws. This article discusses the recent Qamar Ghani Usmani vs The State of Gujarat from a critical point of view.

This article has been published by Sneha Mahawar.​​ 

Introduction

A few days back, the Hon’ble Supreme Court led by our erudite Chief Justice of India gave its pronouncement on 05.04.2023 in Madhyamam Broadcasting Limited vs Union of India, which not only negated the high-handedness of the Government functionary but also gave a ray of hope to the common man living all across the country that there is an institution who would not only listen to them but also give relief even though the other side is a mighty Union government represented by equally powerhouse lawyers. This moment of joy and hope was short-lived when the same Supreme Court led by another equally erudite Hon’ble Judge delivered its judgment on 10.04.2023 titled Qamar Ghani Usmani vs The State of Gujarat.

Brief facts of the case

With due respect to the Learned Judges, the judgment of Qamar Usmani in my humble opinion, is not only per-incuriam but also bad in law. In order to understand the situation better, the following dates and events are relevant:-

Analysis of the judgment

It is of utmost relevance that the Hon’ble Supreme Court, while deciding Qamar Ghani though, cited and considered many judgments relied upon by the parties but chose not to extract any single relevant paras of those judgments. Had it been done, many illegalities could have been easily avoided. To my mind, the non-inclusion of the following paras of Sanjay Dutt vs State through C.B.I., Bombay (1994) has been utterly hazardous:-

“…..(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 CrPC and this is how the 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. The requirement of such notice to the accused before granting the extension for completing the 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.”

The Constitution bench of Hon’ble Supreme Court in Sanjay Dutt (supra) was very much categorical in observing that:-

1. Notice to the accused while considering the extension of time for investigation is a must though it may not be in writing;
2. Only notice in writing has been done away with and not the oral notice;
3. Production of the accused before the court when an extension application is considered would be construed as a valid notice;
4. Notice has to be given “before” granting the extension by the Court.

In my respectful submission, none of the aforesaid four ingredients were fulfilled in this case when the extension of time in completing the investigation was granted by the subordinate court. The lower court has committed this grave illegality and the same has been totally ignored by the High Court as also Supreme Court.

The accused in the present case was admittedly not present in the Court when the extension was granted on 22.04.2022. It is startling to note that all the courts, including the apex court, put a premium on the incompetency and illegality of the investigative agency in the matter. Has anybody bothered to ask why the IO or the prosecutor chose to make an application for an extension without serving a copy to the accused or his lawyer? What prevented the learned subordinate judge from informing the Superintendent/officials of jail to put the accused on notice qua the extension application? No one has put these basic questions to the investigative agencies or the lawyers representing them.

It is common knowledge that the accused in India engage full-fledged lawyers only when the Police report u/s 173 (2) of Cr. PC, 1973 are filed.  In the present case, illegalities of the investigative agency have been conveniently ignored and the choice or ignorance of the accused in not challenging the Order dated 22.04.2022 granting an extension of time has been put forth against him by the Hon’ble Supreme Court so as to deny the indefeasible right available to him u/s 167 (2) CrPC, 1973. In the present case, the mighty State chose not to follow the Constitution Bench judgment in Sanjay Dutt (supra) and the accused has lost his valuable statutory right of default bail. 

Another unfortunate part of Qamar Ghani is that though in Para 6.4 of the Judgment, Hon’ble Supreme Court correctly summarizes the law laid down in Sanjay Dutt and Jigar but in the very next subsequent paras gave the finding which is totally contrary to the summary. Hon’ble Supreme Court, in my humble view, was completely wrong in giving a finding ignoring the prophetic conclusions of the Sanjay Dutt judgment. 

Moreover, denying the benefit of default bail only on the ground that the accused has not challenged the extension order of the learned subordinate court goes against all cannons of jurisprudence and a sense of justice. In fact, all the courts in the present case have forced the accused to consume the fruits of the poisonous tree planted by the IO and the learned subordinate judge. When government functionaries and judicial officers ignore the basic principle of natural justice, like giving a formal notice which has also been confirmed by the 5 Hon’ble judges of the Supreme Court (in the Sanjay Dutt case), there is no occasion for the constitutional Courts to ignore these blatant illegalities and perpetuate the illegal incarceration of the accused persons.

Criticism of the judgment

To summarize, Hon’ble Supreme Court has been patently illegal in:-

1. Ignoring the illegality of the IO and Learned subordinate judge in not confirming the presence of the accused or his counsel on 22.04.2022 when the extension application is being filed and decided;
2. Ignoring the word “before” in Para 57 2(a) of the Sanjay Dutt Judgment;
3. Not commented anything about the conduct of IO and the learned subordinate judge in not following the conclusions of the Constitution Bench decision in the Sanjay Dutt case pertaining to the presence of the accused before the court when the extension application is being filed or decided;
4. Allowing the IO and the Learned subordinate judge to continue enjoying their salary and perks despite admittedly not following the Constitution Bench decision of the Supreme Court and at the same time, declining to grant default bail to the accused on the ground that he has not challenged the extension order;
5. Giving the finding which is contrary to the letter and spirit of the larger bench decisions;
6. Not commenting upon the incompetency, illegality and injustice caused by the IO and the Learned subordinate judge and elaborately commenting upon the choice made by the accused person in not challenging the extension of the investigation order and
7. Setting a wrong precedent which would give sweeping power to the investigative agencies to find modes and methods to deny the indefeasible relief of statutory bail to the accused persons.

Conclusion

Judgments of the Hon’ble Supreme Court have far-reaching consequences. Qamar Ghani’s pronouncement of the Hon’ble Supreme Court is regressive in nature and totally alien to the magnanimity of our beloved Supreme Court. It cannot be the judgment that can be celebrated like Madhyamam Broadcasting (supra). After this judgment, the adage that is going to be popular is “Default bail is default jail only”.

References

• https://www.casemine.com/judgement/in/5609aca2e4b014971140f5e7
• https://indiankanoon.org/doc/80283704/

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