Law Web: Madras HC: Scope of default Bail U/S 167 of CRPC during this period of Covid 19

It has been held in Achpal v. State of Rajasthan

(2019) 14 SCC 599 that the provisions of the Code do not

empower any one to extend the period within which the

investigation must be completed. If on the expiry of the period

aforesaid mentioned, the accused applies for bail and is ready to

furnish sureties, an indefeasible right would accrue in his

favour.

8.The Hon'ble Supreme Court taking note of the

extraordinary situation obtaining in the country has ordered as

mentioned above that the period of limitation shall stand

extended until further orders. This was to obviate the difficulties

faced by the litigants and to ensure that they and their lawyers

do not have to come physically to file in the respective Courts

and Tribunals. The Hon'ble Supreme Court has not mentioned

that police investigations would also be covered by the said

order.

But, filing of final report stands on a

different footing altogether. Section 167 (2) of Cr.Pc does not

bar the filing of final report even after the period specified

therein. The implication of Section 167 (2) is that if the final

report is not filed within the time limit prescribed therein, the

magistrate will be divested of the jurisdiction to authorise the

detention of the accused person beyond the said period, if the

accused is prepared to and does furnish bail. The expiry of the

period results in accrual of right in favour of the accused.

Of course, the construction placed by me will have no

application whatsoever in the case of certain offences under

certain special laws, such as Unlawful Activities (Prevention) Act,

1967 and NDPS Act, 1985. For instance Section 36-A (4) of the

NDPS Act enables the investigation officer to apply to the special

court for extending the period mentioned in the statute from 180

days to 1 year if it is not possible to complete the investigation.

Thus, under certain statutes, the prosecution has a right to

apply for extension of time. In those cases, the benefit of the

direction of the Hon'ble Supreme Court made 23.03.2020 in Suo

Motu Writ Petition (Civil) No.3 of 2020 will apply. But, in

respect of the other offences for which Section 167 of Cr.Pc is

applicable, the benefit of the said direction cannot be availed.

Result :

16.In view of the reasons set out above, I conclude that the

petitioner is entitled to default bail. Of course, as held by the

Hon'ble Supreme Court in Rakesh Kumar Paul vs. State of

Assam (2017) 15 SCC 67 this order does not prohibit the arrest

or rearrest of the petitioner on cogent grounds in respect of the

subject charge and in that event, the petitioner will have to move

a regular application for grant of bail which of course will be

considered on its own merits.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

( Criminal Jurisdiction )

Date : 08/05/2020

PRESENT

Mr.Justice G.R.SWAMINATHAN

CRL OP(MD). No.5291 of 2020

Settu S/o.Govindaraj, Vs. The State

ORDER : The Court made the following order :-

Heard the learned counsel appearing for the petitioner and

the learned Government Advocate (Crl. Side) appearing for the

respondent police.

Facts of the case :

2.According to the respondent police, one Arokiyamary was

on her morning walk on 19.01.2020 in Alakudi Road when she

was robbed of her gold chain. A person coming from behind in a

two wheeler bearing Registration No.TN 47 AQ 5726 intercepted

her and threatened her with a knife and took away her one

sovereign gold chain. The occurrence is said to have taken place

at about 06.30 A.M and the complaint was lodged at around

8.00 A.M. It was registered as Crime No.10 of 2020 by the

respondent for the offences under Sections 392 and 397 of I.P.C.

The petitioner was arrested during the course of the day on the

allegation that it was he who committed the aforesaid robbery.

He was remanded to judicial custody.

3.The petitioner had earlier filed bail petitions before me. I

dismissed them because the petitioner was said to be involved in

three previous cases of the same nature. This petition has been

filed solely on the ground that since final report has not been

filed within the mandatory time limit, the petitioner is entitled to

default bail.

Objection raised by the prosecution :

4.Shri.A.Robinson, the learned Government Counsel

(crl.side) submitted that the petitioner is accused of having

committed the offences under Sections 392 r/w 397 of IPC. The

offence under Section 397 of IPC is punishable with

imprisonment which shall be not less than seven years. It is an

offence triable by the Sessions Court. Section 392 of IPC deals

with robbery of two kinds ; robbery committed on the highway

between sunset and sunrise and other kinds of robbery. The

former is punishable with imprisonment that may extend to 14

years. Robbery simpliciter is punishable with rigorous

imprisonment for a term which may extend to ten years. If the

case on hand is brought under the robbery simpliciter category,

the petitioner can seek default bail on the expiry of the 60th day

from the date of remand. If the petitioner's case is catergorized

under the aggravated type, then it will be on the expiry of 90

days. The petitioner's arrest and remand was on 19th January,

2020. The 60th day will fall on 19th March, 2020. The 90th day

will fall on April 18th 2020. Shri.A.Robinson with his customary

fairness submitted that the final report has not been made ready

till date. But, he wanted to take advantage of the special

direction passed by the Hon'ble Supreme Court on 23.03.2020 in

Suo Motu Writ Petition (Civil) No.3 of 2020 by which the period of

limitation prescribed under various laws stood extended until

further orders. The sweep and reach of the order passed by the

Hon'ble Supreme Court is with effect from 15th March, 2020.

Even if the petitioner's case comes under the lesser category, his

right to default bail will accrue only on 20th March. In view of

the intervention by the Hon'ble Supreme Court, the failure of the

prosecution to file final report will not confer any right on the

petitioner. His pointed contention is that while it is open to this

Court to grant bail on merits, the petitioner is not entitled to

claim the benefit of default bail.

Order passed by the Hon'ble Supreme Court on 23.03.2020

in Suo Motu Writ Petition (Civil) No.3 of 2020:

“This Court has taken Suo Motu cognizance of

the situation arising out of the challenge faced by the

country on account of Covid-19 Virus and resultant

difficulties that may be faced by litigants across the

country in filing their petitions/applications/suits/

appeals/all other proceedings within the period of

limitation prescribed under the general law of

limitation or under Special Laws (both Central and/or

State).

To obviate such difficulties and to ensure that

lawyers/litigants do not have to come physically to file

such proceedings in respective Courts/Tribunals

across the country including this Court, it is hereby

ordered that a period of limitation in all such

proceedings, irrespective of the limitation prescribed

under the general law or Special Laws whether

condonable or not shall stand extended w.e.f. 15th

March 2020 till further order/s to be passed by this

Court in present proceedings.

We are exercising this power under Article 142

read with Article 141 of the Constitution of India and

declare that this order is a binding order within the

meaning of Article 141 on all Courts/Tribunals and

authorities.

This order may be brought to the notice of all

High Courts for being communicated to all

subordinate Courts/Tribunals within their respective

jurisdiction.

Issue notice to all the Registrars General of the

High Courts, returnable in four weeks.”

Issue arising for consideration :

5.Section 167 of Cr.PC lays down the procedure to be

followed when investigation cannot be completed in 24 hours.

Section 167 (1) and (2) of the Code is as under :

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 subinspector,

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.

(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, authorize 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) ninety days,

where the investigation relates to an offence

punishable with death, imprisonment for life or

imprisonment for a term of not less than ten

years; (ii) 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 in any

custody under this Section unless the Accused is

produced before him; (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.”

Sub-section (2) stipulates that the magistrate cannot authorise

detention of the accused in custody on expiry of such period of

90 days or 60 days as the case may be and shall release him on

bail, if the accused person is prepared to and furnishes bail. The

question of law to be answered is whether the order passed by

the Hon'ble Supreme Court will apply to Section 167(2) of Cr.Pc

also.

Analysis :

6.The order passed by the Hon'ble Supreme Court is not

only under Article 142 but also under Article 141 of the

Constitution of India. It is binding on all the Courts and

Tribunals including the High Courts. No one has the right to

interpret the orders and directions passed by the Hon'ble

Supreme Court. This is well settled. Yet when a case of this

nature arises, I have no option but to examine the issue and

answer to the best of my lights.

7.It has been held in Achpal v. State of Rajasthan

(2019) 14 SCC 599 that the provisions of the Code do not

empower any one to extend the period within which the

investigation must be completed. If on the expiry of the period

aforesaid mentioned, the accused applies for bail and is ready to

furnish sureties, an indefeasible right would accrue in his

favour.

8.The Hon'ble Supreme Court taking note of the

extraordinary situation obtaining in the country has ordered as

mentioned above that the period of limitation shall stand

extended until further orders. This was to obviate the difficulties

faced by the litigants and to ensure that they and their lawyers

do not have to come physically to file in the respective Courts

and Tribunals. The Hon'ble Supreme Court has not mentioned

that police investigations would also be covered by the said

order.

9.What has been extended is the period of limitation

prescribed under the general law of limitation or under special

laws. Section 2(j) of the Limitation Act reads as follows :

“period of limitation” means the period

of limitation prescribed for any suit, appeal or

application by the Schedule, and “prescribed

period” means the period of limitation computed in

accordance with the provisions of this Act.”

Black's Law Dictionary defines limitation as “1. The act of

limiting; the quality, state, or condition of being limited. 2. A

restriction. 3. A statutory period after which a lawsuit or

prosecution cannot be brought in the court.” P.Ramanatha

Aiyar's Advanced Law Lexicon gives the following meaning :

“In its ordinary sense, restriction or

circumspection; in its ordinary legal and

popular sense, the word refers to the time

within which an action may be brought, or

some act done, to preserve a right.

Period beyond which legal proceedings

cannot be brought; the period usually

commences when the cause of action arises.

The term “Limitation” has been defined to

mean the time which is prescribed by the

authority of the law, during which a title may

be acquired to property by virtue of a simple

adverse possession and enjoyment, of the time

at the end of which no action or suit can be

maintained”.

The limitation barrier prescribed for institution of suits is

impregnable and cannot be breached. However, Section 5 of the

Limitation Act provides for extension of prescribed period in

certain cases. If Section 5 of the Limitation Act is not excluded

either expressly or by implication, the power to condone delay in

filing the appeal or application can always be invoked. The

special laws also contain special periods of limitation with or

without power to condone delay.

10.The point to note is after the expiry of the limitation

period, the application or appeal cannot be straightaway

admitted. That is why, the Hon'ble Supreme Court in its

benevolence has ordered that the period of limitation shall stand

extended during this lock-down period. Thus, the litigants will

not lose their rights. But, filing of final report stands on a

different footing altogether. Section 167 (2) of Cr.Pc does not

bar the filing of final report even after the period specified

therein. The implication of Section 167 (2) is that if the final

report is not filed within the time limit prescribed therein, the

magistrate will be divested of the jurisdiction to authorise the

detention of the accused person beyond the said period, if the

accused is prepared to and does furnish bail. The expiry of the

period results in accrual of right in favour of the accused. Even

though this time limit is referred to as period of limitation,

technically it is not. It is only Chapter XXXVI of Cr.Pc that deals

with limitation for taking cognizance of certain offences. Even

Section 167 (5) of Cr.Pc has been interpreted to mean that the

magistrate shall only make a direction for stopping further

investigation in a summons case if it is not concluded within the

period of six months and the said period has not been extended

and it does not bar the magistrate from taking cognizance based

on the final report filed thereafter. Hence, Section 167 of Cr.PC

cannot be construed as containing the period of limitation for

filing of final reports.

11.The Hon'ble Supreme Court had passed one more order

on 06.05.2020 in the very same Suo Motu Writ Petition in

respect of proceedings in relation to Section 29 (A) of the

Arbitration and Conciliation Act, 1996 and initiation of

proceedings under Section 138 of the Negotiable Instruments

Act, 1881 in I.A No.48411/2020. The said order reads as

follows :

In view of this Court’s earlier order dated

23.03.2020 passed in Suo Motu Writ Petition

(Civil) No.3/2020 and taking into consideration

the effect of the Corona Virus (COVID 19) and

resultant difficulties being faced by the lawyers

and litigants and with a view to obviate such

difficulties and to ensure that lawyers/litigants do

not have to come physically to file such

proceedings in respective Courts/Tribunal across

the country including this Court, it is hereby

ordered that all periods of limitation prescribed

under the Arbitration and Conciliation Act, 1996

and under section 138 of the Negotiable

Instruments Act 1881 shall be extended with

effect from 15.03.2020 till further orders to be

passed by this Court in the present proceedings.

In case the limitation has expired after

15.03.2020 then the period from 15.03.2020 till

the date on which the lockdown is lifted in the

jurisdictional area where the dispute lies or where

the cause of action arises shall be extended for a

period of 15 days after the lifting of lockdown.

In view of the above, the instant interlocutory

application is disposed of.”

This order also does not deal with Section 167 of Cr.Pc.

12.It is not as if crimes have not taken place during these

pandemic times. Arrests are also being made and accused are

being remanded. Therefore, the respondent is not justified in

citing the closure of the courts and the general extension of the

limitation period. Section 167 (2A) of contemplates the situation

when the judicial magistrate is not available. In such

circumstances for a short period, even the executive magistrate

may pass detention orders. In this case, nothing stopped the

respondent from formally presenting the final report before the

stipulated date and getting the initial of the jurisdictional

magistrate. This Court would definitely have construed the

same as sufficient compliance of the requirement of law. Such

is not the case here.

13.This Court can take note of the fact the Government has

come out with the Taxation and Other Laws (Relaxation of

Certain Provisions) Ordinance, 2020 on 01.04.2020. The

ordinance provides relaxations related to compliance, such as

extension of time limit and waiver of penalty, in relation to

certain specified laws. The time limits for compliance or

completion of certain actions under the specified laws, falling

during the period March 20, 2020 to June 29, 2020, have been

extended. No similar change has been effected in respect of

Section 167(2) of Cr.Pc. If the executive had actually intended

that the period specified in Section 167 of Cr.Pc should be

extended, it ought to have come out with an appropriate formal

measure. The executive must exhibit nimble footwork and not

hide behind judicial orders. Only little children hide behind the

saree end (pallu) of their mothers.

14.Personal liberty is too precious a fundamental right.

Article 21 states that no person shall be deprived of his personal

liberty except according to procedure established by law. So

long as the language of Section 167(2) of Cr.Pc remains as it is, I

have to necessarily hold that denial of compulsive bail to the

petitioner herein will definitely amount to violation of his

fundamental right under Article 21 of the Constitution of India.

The noble object of the Hon'ble Supreme Court's direction is to

ensure that no litigant is deprived of his valuable rights. But, if

I accept the plea of the respondent police, the direction of the

Hon'ble Supreme Court which is intended to save and preserve

rights would result in taking away the valuable right that had

accrued to the accused herein.

15.Of course, the construction placed by me will have no