Extension Proceedings and Default Bail: Revisiting the landmark ruling of Hitendra Thakur vs. State of Maharashtra

Hitendra Thakur vs. State of Maharashtra

This Article is submitted by –

  • Gaurav Thote, Advocate practising at the Bombay High Court..

Legal proceedings, although painstakingly lengthy, require the utmost attention and dedicated efforts to ensure that each procedure and protocol is followed. These procedures define what law is, a focussed approach to reach an outcome.

An emphasis on the importance of following the procedure has been made in Hitendra Thakur vs State of Maharashtra[i] : a landmark decision of the Apex Court which was delivered more than two decades ago. A close reading of the decision highlights that the prosecution is rightful of an extension for the purpose of completing investigation in Special Criminal Statutes, provided the procedure is upheld and followed. On July 12, 1994 i.e. just after the constitutional decision of Kartar Singh vs. State of Punjab[ii] [delivered on March 11, 1994 upholding the validity of the Terrorist and Disruptive Activities (Prevention) Act (“TADA Act”)] a Division Bench of the Supreme Court had the occasion to revisit certain provisions of the TADA Act in Hitendra Thakur’s case wherein the ambit and scope of Sections 20(4) and 20(8) of the TADA Act was considered essentially elucidating-

  • factors which the Designated Court had to keep in view while dealing with Applications seeking extension of time to investigate under clause (bb) of Section 20(4) of the Act and;
  • grant of default bail to an accused under Section 20(4) of TADA read with Section 167 of the CrPC, as also illuminating as to whether the rigours of twin conditions contemplated under Section 20(8) of the Act were applicable in cases of default bail.

The law laid down in the decision has been followed in a catena of judgments including constitutional decisions in the cases of Sanjay Dutt, Uday Mohanlal Acharya, Rakesh Kumar Paul, Rambir Shokeen etc. Although the TADA Act was subsequently repealed, certain procedural aspects contemplated in the provisions of Sections 20(4) and 20(8) of the Act also exist in other Special Enactments like MCOCA, UAPA, NDPS, etc. and hence the ratio rendered in Hitendra Thakur is applicable in all such proceedings.

Section 20(4) of TADA reads as-

“4. Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made there under subject to the modifications that –

  1. xxx;
  • the reference in sub-section (2) thereof to “fifteen days,” “ninety days” and “sixty days,” wherever they occur, shall be construed as references to “sixty days,” [one hundred and eighty days] and [one hundred and eighty days], respectively;

bb.   sub-section (2-A) thereof shall be deemed to have been omitted.

bbb. In sub-section (2), after the proviso, the following proviso shall be inserted, namely: –

“Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.”

Section 20(8) of TADA states-

  • “Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made there under shall, if in custody, be released on bail or on his own bond unless, –
  • the Public Prosecutor has been given an opportunity to oppose the application for such release, and
  • where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Section 167 (2) of the Code holds that a person accused of any offence has a statutory right to bail if investigation in the said offence is not completed within the prescribed periods, being sixty or ninety days, as the case may be.

In Hitendra Thakur (supra) the Supreme Court, inter alia, highlighted the role of a public prosecutor and distinguished it from that of an investigating officer. It was observed-

“The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before Submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation.”

It was further observed that although the provision of Section 20(4) did not specifically provide for the issuance of a notice to the accused or prosecution regarding his/her say in the matter, the issuance of such a notice was mandatory in the interest of the accused and the prosecution, for doing complete justice between the parties, as it was underpinned by principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and insisted upon.

The Court interjected that when an application for extension of time and an application for bail was heard together, and no extension was granted after the prescribed period under the provision; or if such extension was granted erroneously, an indefeasible right of bail would accrue in favour of the accused and the Court would have to release such accused on bail, if he so desired. It was also held that the rigours of twin conditions contemplated under Section 20(8) of TADA for the purpose of seeking bail were inapplicable in such proceedings.

In this backdrop, the Supreme Court set aside the order of the Designated Court refusing to release the accused on bail and allowed the appeal of accused observing that the requirements contemplated in the provision were not satisfied.

In Sanjay Dutt v. State through CBI.[1], a five-judge-bench of the Supreme Court clarified the decision of Hitendra Thakur observing that:

  • When an application for extension of time and an application for default bail were heard together, no bail could be granted unless the prayer for extension of the period was rejected. In short, the grant of bail in such a situation was subject to refusal of the prayer for extension of time, if such a prayer was made.
  • Section 20(4)(bb) of the TADA Act only required production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure 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 was to be understood in the Judgment of the Division Bench of Hitendra Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation was not a written notice to the accused giving reasons therein and 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, was alone sufficient for the purpose.
  • The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan/final-report within the time allowed, as held in Hitendra Thakur was a right which ensured to, and was enforceable by the accused only from the time of default till the filing of the challan and it would not survive or remain enforceable on the challan/final-report being filed.

In Rambir Shokeen v. State[2].(delivered on January 31, 2018), a three-judge-bench of the Supreme Court was dealing with a circumstance wherein the Designated Court was hearing the applications for extension of time and default bail together. The application for extension was adjourned for say of accused, but in the meantime the final report came to be filed, which is why the Designated Court deemed the extension proceedings “infructuous” and rejected the bail application of the Accused. The Accused challenged this course before the Delhi High Court which in turn, set aside the order deeming the proceedings infructuous, however, upholding the order of the Designated Court extending the custody of accused. This was further challenged by the Accused in the Supreme Court wherein the judgment of the High Court was upheld, relying on the constitution-bench-judgment of Sanjay Dutt (supra) observing that until the request for extension was formally and expressly rejected by the competent Court, the concerned Court could not have assumed jurisdiction to consider the prayer for grant of statutory bail of the appellant. In this backdrop, the Supreme Court dismissed the Petition holding that the indefeasible right of bail had not crystalized in favour of the applicant.

In Sharjeel Imam v. State[iii], the Delhi High Court rejected the statutory bail plea of the accused although he was not produced before the Special Court for the purpose of seeking extension, relying on the constitutional bench decision of Sanjay Dutt (supra). The High Court held that a WhatsApp notice to the lawyer-on-record of the accused was enough for the purpose and there was no need to obtain his say. Furthermore, the High Court relied on the decision of a co-ordinate bench of the High Court (Syed Shahid Yousuf v. NIA[iv]) which had observed that the Accused cannot ask to see the reports of the Prosecutor during extension proceedings, as such reports are equivalent to the case diary maintained under section 174 CrPC.

This course adopted by the Delhi High Court, with utmost respect, is not in consonance with settled principles of natural justice. The High Court, in para 54 of the judgment observed that the constitution bench in Sanjay Dutt (supra) diluted the law laid down in Hitendra Thakur. At the cost of repetition, Sanjay Dutt’s case (supra) clarified that production of an accused is sufficient notice and no written notice would be required for the purpose. The construction placed by the constitution bench vis-à-vis notice to an accused person during extension proceedings is equated to remand proceedings (as observed by the Apex Court in Mustaq Isak vs. State[v]) and therefore copy of the Application would naturally have to be given to the other side to obtain his/her say. However, the Delhi High Court in Sharjeel Imam (supra) appears to have misconstrued “notice” as a mere formality. Additionally, the judgment relied upon by the High Court – Syed Shahid Yousuf (supra) is opposed to principles of natural justice and also falls contrary to judgments of the Bombay High Court as regards the report of the Public Prosecutor (Refer-Rahul Shedge v. Intelligence Officer).


In the end, we are free to adopt a reasoning which, in our view, appears to be just and correct. As regards the decision of Sharjeel Imam (supra)- it cannot be assumed that the constitution bench judgment interferes with the judgment of Hitendra Thakur (supra). The forethought of the Constitution Bench was to clarify the decision of the Division Bench and it would therefore still hold the field. Quoting a line of the Constitution Bench – “We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that (Hitendra Thakur’s) decision.”

Despite a proper procedure being laid out, the necessity might be overlooked in various cases (Refer- Union of India through CBI v. Nirala Yadav[vi], Sanjay Kedia v. Intelligence Officer[vii], Rahul Shedge v. Intelligence Officer[viii], Sachin Rathod v. State of Maharashtra[ix]) which leads to the extension being deemed erroneous, and the accused receiving bail.

“The views of the authors are personal


[1] 1994 AIR (SCW) 3857

[2] 2018 AIR (SCW) 688

[i] 1994 (4) SCC 602

[ii] 1994 (3) SCC 569

[iii] CRL.M.C. 1475/2020

[iv] 2018 (250) DLT 283

[v] 2009 AIR (SC) 2772

[vi] 2014 (9) SCC 457

[vii] 2010 (1) SCR 555

[viii] Cri Application 1448 of 2018 (Bombay High Court)

[ix] 2019 All.M.R.(Cri) 801

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