A learned Single Judge of
Madras High Court in Crl.OP(MD)No. 5291 of 2020,
Settu versus the State, had already considered the
judgment of this Court dated 23.03.2020 passed in
Suo Moto W.P(C)No.3 of 2020 and its effect on
Section 167(2) Cr.P.C. The above was also a case of
a bail where the accused was praying for grant of
default bail due to non-submission of charge sheet.
The prosecution had raised objection and had relied
on the order of this Court dated 23.03.2020 passed
in Suo Moto W.P(C)No.3 of 2020 claiming that period
for filing charge sheet stood extended until
further orders. The submission of prosecution was
rejected by learned Single Judge. The learned
Single Judge had made following observations in
paragraphs 14 and 15:-
“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.P.C.
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 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.P.C. is applicable, the
benefit of the said direction cannot be
availed.”
28. The Prayer of the accused in the said case for
grant of default bail was allowed. The claim of the
prosecution that by order of this Court dated
23.03.2020, the period for filing charge sheet
under Section 167 Cr.P.C. stands extended was
specifically rejected.
29. The view taken by learned Single Judge of
Madras High Court in Settu versus The State (supra)
that the order of this Court dated 23.03.2020
passed in Suo Moto W.P(C)No.3 of 2020 does not
extend the period for filing charge sheet under
Section 167(2) Cr.P.C. has been followed by Kerala
High Court as well as Rajasthan High Court.
30. Rajasthan High Court had occasion to consider
Section 167 as well as the order of this Court
dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of
2020 and Rajasthan High Court has also come to the
same conclusion that the order of this Court dated
23.03.2020 has no consequence on the right, which
accrues to an accused on non-filing of charge sheet
within time as prescribed under Section 167 Cr.P.C.
Rajasthan High Court in S.B. Criminal Revision
Petition No. 355 of 2020 – Pankaj Vs. State decided
on 22.05.2020 has also followed the judgment of
learned Single Judge of the Madras High Court in
Settu versus The State (supra) and has held that
accused was entitled for grant of the default bail.
Uttarakhand High Court in First Bail Application
No.511 of 2020 – Vivek Sharma Vs. State of
Uttarakhand in its judgment dated 12.05.2020 has
after considering the judgment of this Court dated
23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020
has taken the view that the order of this Court
does not cover police investigation. We approve the
above view taken by learned Single Judge of Madras
High court in Settu versus The State (supra) as
well as the by the Kerala High Court, Rajasthan
High Court and Uttarakhand High Court noticed
above.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEA L NO. 452 OF 2020
S.KASI Vs STATE THROUGH THE INSPECTOR OF POLICE
SAMAYNALLUR POLICE STATION MADURAI DISTRICT
ASHO K BHUSHAN,J.
Dated:JUNE 19,2020
This appeal has been filed questioning the
judgment of Madurai Bench of Madras High Court
dated 11.05.2020 in Crl.OP(MD) No.5296 of 2020 by
which judgment the bail application of the
appellant has been dismissed.
2. Brief facts giving rise to this appeal are: -
2.1. The appellant is an accused in Crime
No.495 of 2015 under Sections 457, 380,
457(2), 380(2), 411(2) and 414(2) of
Indian Penal Code. The appellant was
arrested on 21.02.2020 in the above case
and lodged in Central Prison, Trichy. The
bail application of the appellant under
Section 439 was rejected by the trial
court on 30.04.2020. After being in
judicial custody for more than 73 days,
the appellant filed an application
Crl.OP(MD)No.5296 of 2020 before the High
Court of Judicature of Madras at Madurai
Bench praying for grant of bail on account
of passage of such 73 days and non-filing
of charge sheet. One of the contentions of
the appellant before the High Court was
that charge sheet having not been filed,
the appellant is entitled for bail by
default as contemplated under Section
167(2) of the Code of Criminal Procedure.
2.2. The High Court referring to an order of
this Court dated 23.03.2020 passed in Suo
Moto W.P.(C) No.3 of 2020 took the view: -
“...The Supreme Court order
eclipses all provisions
prescribing period of
limitation until further
orders. Undoubtedly, it
eclipses the time prescribed
3
under Section 17(2) of the code
of Criminal Procedure...”
2.3 Aggrieved by the order of the Madras High
Court dated 11.05.2020, this appeal has
been filed.
3. We have heard Shri Sidharth Luthra, learned
senior counsel appearing for the appellant and Shri
Jayanth Muthuraj, learned Additional Advocate
General for the State.
4. Shri Sidharth Luthra, learned senior counsel
for the appellant contends that the High Court
committed error in taking the view that this
Court’s order dated 23.03.2020 extended the period
for submission of charge sheet as prescribed under
Section 167(2) Cr.P.C. It is submitted that the
provisions of Section 167(2) Cr.P.C. are provisions
for protection of personal liberty and in event
charge sheet has not been filed by the police
within the stipulated period, the appellant is
entitled for default bail. The order of this Court
dated 23.03.2020 in no manner can be read as
extending the period for the prosecution to submit
the charge sheet. The High Court had erroneously
4
taken the view that the order of this Court
eclipses the time prescribed under Section 167(2)
of Code of Criminal Procedure.
5. Learned senior counsel further submits that
learned Single Judge in the impugned judgment had
also erred in taking a contrary view to an earlier
judgment delivered by another learned Single Judge
in Settu versus The State, Crl. O.P. (MD) No. 5291
of 2020 where the learned Single Judge of Madras
High Court decided on 08.05.2020 has taken the view
that the order of this Court dated 23.03.2020 in no
manner can be applied on the provisions of Section
167(2) of Code of Criminal Procedure.
6. Learned counsel for the State supports the
impugned judgment and submits that due to enormous
difficulties in carrying out the investigation,
charge sheet could not be filed in the present case
and the appellant is not entitled to take benefit
of Section 167(2) in precarious situation which has
occurred on account of pandemic of Covid-19.
5
7. We have considered the submissions of learned
counsel for the parties and perused the record.
8. The only issue which need to be decided in this
appeal is as to whether the appellant due to nonsubmission
of charge sheet within the prescribed
period by the prosecution was entitled for grant of
bail as per section 167(2) of the Code of Criminal
Procedure. Before we notice the order of this Court
dated 23.03.2020 passed in Suo Motu W.P.(C) No. 3
of 2020 which has been applied by the High Court on
the provisions of Section 167(2) Cr.P.C., we need
to notice object and purpose of enactment of
Section 167 of the Code of Criminal Procedure.
9. In the earlier Code, i.e., the Code of Criminal
Procedure, 1898, Section 167 laid down the
procedure to be followed in the event the
investigation of an offence was not completed
within 24 hours. Section 167 in the Code of
Criminal Procedure, 1898, was premised on the
conclusion of investigation within 24 hours or
6
within 15 days on the outside regardless of the
nature of the offence or the punishment.
10. The Law Commission of India in its Forty-first
Report recommended for increasing the time limit
for completion of investigation to 60 days. The new
Code of Criminal Procedure, 1973 gave effect to the
recommendation of the Law Commission. Section 167
as enacted provided for time limit of 60 days
regardless of the nature of offence or the
punishment. In the year 1978, Section 167 was
amended. Section 167(2) which is relevant for the
present case existing as of now is to the following
effect:-
“167.(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
7
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”
8
11. A three-Judge Bench of this Court in Uday
Mohanlal Acharya versus State of Maharashtra,
(2001)5 SCC 453, has noticed the object of enacting
the provisions of Section 167 Cr.P.C. Section 57 of
the Code of Criminal Procedure contains the embargo
on the Police Officers to detain in custody a
person arrested beyond 24 hours. The object is that
the accused should be brought before a Magistrate
without delay within 24 hours, which provision is,
in fact, in consonance with the constitutional
mandate engrafted under Article 22(2) of the
Constitution. The provision of Section 167 is
supplementary to Section 57. The power under
Section 167 is given to detain a person in custody
while police goes on with the investigation.
Section 167 is, therefore, a provision which
authorises the Magistrate permitting the detention
of the accused in custody prescribing the maximum
period. In Uday Mohanlal Acharya(Supra), this court
while dealing with Section 167 laid down
following:-
9
“...This provision of Section 167 is in
fact supplementary to Section 57, in
consonance with the principle that the
accused is entitled to demand that justice
is not delayed. The object of requiring
the accused to be produced before a
Magistrate is to enable the Magistrate to
see that remand is necessary and also to
enable the accused to make a
representation which he may wish to make.
The power under Section 167 is given to
detain a person in custody while the
police goes on with the investigation and
before the Magistrate starts the enquiry.
Section 167, therefore, is the provision
which authorises the Magistrate permitting
detention of an accused in custody and
prescribing the maximum period for which
such detention could be ordered. Having
prescribed the maximum period, as stated
above, what would be the consequences
thereafter has been indicated in the
proviso to sub-section (2) of Section 167.
The proviso is unambiguous and clear and
stipulates that the accused shall be
released on bail if he is prepared to and
does furnish the bail which has been
termed by the judicial pronouncement to be
“compulsive bail” and such bail would be
deemed to be a bail under Chapter 33. The
right of an accused to be released on bail
after expiry of the maximum period of
detention provided under Section 167 can
be denied only when an accused does not
furnish bail, as is apparent from
Explanation I to the said section. The
proviso to sub-section (2) of Section 167
is a beneficial provision for curing the
mischief of indefinitely prolonging the
investigation and thereby affecting the
liberty of a citizen...”
10
12. Again, there has been very detailed
consideration of Section 167 by a Three-Judge Bench
of this Court in Rakesh Kumar Paul versus State of
Assam, (2017)15 SCC 67. This Court in the above
case has traced the legislative history of the
provision of Section 167. This Court in the above
case emphasised that the debate on Section 167 must
also be looked at from the perspective of
expeditious conclusion of investigation and from
the angle of personal liberty. This Court also held
that right for default bail is indefeasible right
which cannot be allowed to be frustrated by the
prosecution. Following was laid down in paragraphs
37, 38 and 39: -
“37. This Court had occasion to review the
entire case law on the subject in Union of
India v. Nirala Yadav, (2014) 9 SCC 457.
In that decision, reference was made to
Uday Mohanlal Acharya v. State of
Maharashtra, (2001) 5 SCC 453 and the
conclusions arrived at in that decision.
We are concerned with Conclusion (3) which
reads as follows:
“13.(3) On the expiry of the said
period of 90 days or 60 days, as
the case may be, an indefeasible
right accrues in favour of the
accused for being released on bail
on account of default by the
11
investigating agency in the
completion of the investigation
within the period prescribed and
the accused is entitled to be
released on bail, if he is prepared
to and furnishes the bail as
directed by the Magistrate.”
38. This Court also dealt with the
decision rendered in Sanjay Dutt, (1994) 5
SCC 410 and noted that the principle laid
down by the Constitution bench is to the
effect that if the charge sheet is not
filed and the right for “default bail” has
ripened into the status of
indefeasibility, it cannot be frustrated
by the prosecution on any pretext. The
accused can avail his liberty by filing an
application stating that the statutory
period for filing the charge sheet or
challan has expired and the same has not
yet been filed and therefore the
indefeasible right has accrued in his or
her favour and further the accused is
prepared to furnish the bail bond.
39. This Court also noted that apart from
the possibility of the prosecution
frustrating the indefeasible right, there
are occasions when even the court
frustrates the indefeasible right.
Reference was made to Mohd. Iqbal Madar
Sheikh v. State of Maharashtra, (1996) 1
SCC 722 wherein it was observed that some
courts keep the application for “default
bail” pending for some days so that in the
meantime a charge-sheet is submitted.
While such a practice both on the part of
the prosecution as well as some courts
must be very strongly and vehemently
discouraged, we reiterate that no
subterfuge should be resorted to, to
defeat the indefeasible right of the
12
accused for “default bail” during the
interregnum when the statutory period for
filing the charge-sheet or challan expires
and the submission of the charge-sheet or
challan in court.”
13. One more judgment of this Court on Section 167
Cr.P.C. be noticed, i.e., Achpal Alias Ramswaroop
and Another versus State of Rajasthan, (2019) 14
SCC 599. After referring to several earlier
judgments of this Court including the judgment of
this Court in Uday Mohanlal Acharya(supra) and
Rakesh Kumar Paul(supra), this Court had laid down
that the provisions of the Code do not empower
anyone to extend the period within which the
investigation must be completed. This Court held
that no Court either directly or indirectly can
extend such period. Following are the observations
of this Court in paragraph 20: -
“20. We now turn to the subsidiary issue,
namely, whether the High Court could have
extended the period. The provisions of the
Code do not empower anyone to extend the
period within which the investigation must
be completed nor does it admit of any such
eventuality. There are enactments such as
the Terrorist and Disruptive Activities
(Prevention) Act, 1985 and the Maharashtra
Control of Organised Crime Act, 1999 which
clearly contemplate extension of period
13
and to that extent those enactments have
modified the provisions of the Code
including Section 167. In the absence of
any such similar provision empowering the
Court to extend the period, no court could
either directly or indirectly extend such
period. In any event of the matter all
that the High Court had recorded in its
order dated 03.07.2018 was the submission
that the investigation would be completed
within two months by a gazetted police
officer. The order does not indicate that
it was brought to the notice of the High
Court that the period for completing the
investigation was coming to an end. Mere
recording of submission of the Public
Prosecutor could not be taken to be an
order granting extension. We thus reject
the submissions in that behalf advanced by
the learned counsel for the State and the
complainant.”
14. The scheme of Code of Criminal Procedure as
noticed above clearly delineates that provisions of
Section 167 of Code of Criminal Procedure gives due
regard to the personal liberty of a person.
Without submission of charge sheet within 60 days
or 90 days as may be applicable, an accused cannot
be detained by the Police. The provision gives due
recognition to the personal liberty.
15. After noticing the purpose and object of
Section 167, we now come to the judgment of this
Court dated 23.03.2020 which has been relied and
14
referred by learned Single Judge in the impugned
judgment for holding that the time period in
Section 167(2) is eclipsed by judgement of this
Court dated 23.03.2020. The Order dated 23.03.2020
was passed by this Court in Suo Motu W.P.(C) No.3
of 2020. The entire order passed on 23.03.2020 is
to the following effect: -
“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
15
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.”
16. The reason for passing the aforesaid order for
extending the period of limitation w.e.f.
15.03.2020 for filing petitions/ applications/
suits/ appeals/all other proceedings are indicated
in the order itself. Two reasons, which are
decipherable from the order of this Court dated
23.03.2020 for passing the order are: -
i) The situation arising out of the challenge
faced by the country on account of Covid-19
virus and resultant difficulties that are
being faced by the litigants across the
country in filing their petitions/
applications/ suits/ appeals/all other
proceedings within the period of limitation
prescribed.
16
ii) 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.
17. The limitation for filing petitions/
applications/ suits/ appeals/all other proceedings
was extended to obviate lawyers/litigants to come
physically to file such proceedings in respective
Courts/Tribunals. The order was passed to protect
the litigants/lawyers whose petitions/
applications/ suits/ appeals/all other proceedings
would become time barred they being not able to
physically come to file such proceedings. The order
was for the benefit of the litigants who have to
take remedy in law as per the applicable statute
for a right. The law of limitation bars the remedy
but not the right. When this Court passed the above
order for extending the limitation for filing
petitions/ applications/ suits/ appeals/all other
proceedings, the order was for the benefit of those
who have to take remedy, whose remedy may be barred
17
by time because they were unable to come physically
to file such proceedings. The order dated
23.03.2020 cannot be read to mean that it ever
intended to extend the period of filing charge
sheet by police as contemplated under Section
167(2) of the Code of Criminal Procedure. The
Investigating Officer could have submitted/filed
the charge sheet before the (Incharge) Magistrate.
Therefore, even during the lockdown and as has been
done in so many cases the charge-sheet could have
been filed/submitted before the Magistrate
(Incharge) and the Investigating Officer was not
precluded from filing/submitting the charge-sheet
even within the stipulated period before the
Magistrate (Incharge).
18. If the interpretation by learned Single Judge
in the impugned judgment is taken to its logical
end, due to difficulties and due to present
pandemic, Police may also not produce an accused
within 24 hours before the Magistrate’s Court as
contemplated by Section 57 of the Code of Criminal
Procedure, 1973. As noted above, the provision of
18
Section 57 as well as Section 167 are supplementary
to each other and are the provisions which
recognises the Right of Personal Liberty of a
person as enshrined in the Constitution of India.
The order of this Court dated 23.03.2020 never
meant to curtail any provision of Code of Criminal
Procedure or any other statute which was enacted to
protect the Personal Liberty of a person. The right
of prosecution to file a charge sheet even after a
period of 60 days/ 90 days is not barred. The
prosecution can very well file a charge sheet after
60 days/90 days but without filing a charge sheet
they cannot detain an accused beyond a said period
when the accused prays to the court to set him at
liberty due to non-filing of the charge sheet
within the period prescribed. The right of
prosecution to carry on investigation and submit a
charge sheet is not akin to right of liberty of a
person enshrined under Article 21 and reflected in
other statutes including Section 167, Cr.P.C.
Following observations of Madras High Court in the
19
impugned judgment are clearly contrary to the order
dated 23.03.2020 of this Court: -
“...The Supreme Court order eclipses all
provisions prescribing period of
limitation until further orders.
Undoubtedly, it eclipses the time
prescribed under Section 167(2) of the
Code of Criminal Procedure also...”
19. Learned Single Judge in paragraph 13 of the
impugned judgment has also observed that the
lockdown announced by the Government is akin to
proclamation of Emergency. Learned Single Judge has
also referred to Financial Emergency under Article
360 of the Constitution. Learned Single Judge also
noticed that presently though the State is not
passing through Emergency duly proclaimed but the
whole nation has accepted the restrictions for the
well-being of the mankind. Let us also examine as
to whether in event of proclamation of Emergency
under Article 352 of the Constitution, whether
right to liberty as enshrined under Article 21
stands suspended?
20. We may recall the Constitution Bench Judgment
of this Court in Additional District Magistrate,
Jabalpur versus Shivakant Shukla, (1976) 2 SCC 521,
20
where majority of the Judges(Justice H.R. Khanna
dissenting) had taken the view that after
proclamation of Emergency under Article 352, no
proceedings can be initiated for enforcement of
right under Article 21. Justice A.N. Ray, C.J.,
with whom three other Hon’ble Judges have concurred
in paragraph 136 and paragraph 137 laid down
following:-
“136. First, In view of the Presidential
Order dated June 27, 1975 under clause (1)
of Article 359 of our Constitution no
person has locus standi to move any writ
petition under Article 226 before a High
Court for Habeas Corpus or any other writ
or order or direction to enforce any right
to personal liberty of a person detained
under the Act on the grounds that the
order of detention or the continued
detention is for any reason not under or
in compliance with the Act or is illegal
or mala fide.
137. Second, Article 21 is the sole
repository of rights to life and personal
liberty against the State. Any claim to a
writ of habeas corpus is enforcement of
Article 21 and, is, therefore, barred by
the Presidential Order.”
21. Another Three-Judge judgment of this Court in
Union of India and others versus Bhanudas Krishna
Gawde and others, (1977) 1 SCC 834, took the same
21
view following the majority of this Court in ADM,
Jabalpur versus Shivakant Shukla. In paragraph 23,
following was observed: -
“23………Accordingly, if a person was
deprived of his personal liberty not under
the Defence of India Act or any rule or
order made thereunder but in contravention
thereof, his locus standi to move any
court for the enforcement of his rights,
conferred by Articles 21 and 22 of the
Constitution was not barred. More or less,
similar was the pattern and effect of the
presidential Order dated November 16,
1974. The position with respect to the
Presidential Orders dated 27, 1975 and
January 8, 1976 is, however, quite
different. These orders are not
circumscribed by any limitation and their
applicability is not made dependent upon
the fulfilment of any condition precedent.
They impose a total or blanket ban on the
enforcement inter alia of the fundamental
rights conferred by Articles 19,21 and 22
of the Constitution which comprise all
varieties or aspects of freedom of person
compendiously described as personal
liberty. [See A.K. Gopalan v. State of
Madras, AIR 1950 SC 27; Kharak Singh v.
State of U.P., AIR 1963 SC 1295 and A.D.M.
Jabalpur v. Shivakant Shukla(supra).] Thus
there is no room for doubt that the
Presidential orders dated June 27, 1975,
and January 8, 1976, unconditionally
suspend the enforceability of the right
conferred upon any person including a
foreigner to move any court for the
enforcement of the rights enshrined in
Articles 14, 19, 21 and 22 of the
Constitution.”
22
22. Article 359 of the Constitution was amended by
the Forty-fourth Constitutional Amendment Act,
1978. In sub-Article (1) of Article 359, the
expression “except Articles 20 and 21 have been
inserted”. After the amendment, Article 359(1)
reads as follows:-
“
Suspension of
the
enforcement
of the rights
conferred by
Part III
during
emergencies.
359(1). Where a
Proclamation of
Emergency is in
operation, the President
may by order declare
that the right to move
any court for the
enforcement of such of
the rights conferred by
Part III (except
articles 20 and 21) as
may be mentioned in the
order and all
proceedings pending in
any court for the
enforcement of the
rights so mentioned
shall remain suspended
for the period during
which the Proclamation
is in force or for such
shorter period as may be
specified in the order”
23. The sting of the judgment of this Court in
Additional District Magistrate, Jabalpur versus
Shivakant Shukla (supra), and retrograde steps
23
taken in respect of right protected under Article
21 was, thus, immediately remedied by the
Parliament by the above Constitutional Amendment.
The minority judgment of Justice H.R. Khanna in
Additional District Magistrate, Jabalpur versus
Shivakant Shukla (supra) has held that State has no
power to deprive the person of his life or liberty
without the authorities of law. In paragraphs 525
and 530, Justice Khanna observed:-
“525....I am of the opinion that Article
21 cannot be considered to be the sole
repository of the right to life and
personal liberty. The right to life and
personal liberty is the most precious
right of human beings in civilised
societies governed by the rule of law.
Many modern Constitutions incorporate
certain fundamental rights, including the
one relating to personal freedom.
According to Blackstone, the absolute
rights of Englishmen were the rights of
personal security, personal liberty and
private property. The American Declaration
of Independence (1776) states that all men
are created equal, and among their
inalienable rights are life, liberty, and
the pursuit of happiness.
xxxxxxxxxxxxx xxxxxxxxxxxxxx
530. Even in the absence of Article 21 in
the Constitution, the State has got no
power to deprive a person of his life or
liberty without the authority of law. This
24
is the essential postulate and basic
assumption of the rule of law and not of
men in all civilised nations. Without such
sanctity of life and liberty, the
distinction between a lawless society and
one governed by laws would cease to have
any meaning. The principle that no one
shall be deprived of his life or liberty
without the authority of law is rooted in
the consideration that life and liberty
are priceless possessions which cannot be
made the plaything of individual whim and
caprice and that any act which has the
effect of tampering with life and liberty
must receive sustenance from and sanction
of the laws of the land. Article 21
incorporates an essential aspect of that
principle and makes it part of the
fundamental rights guaranteed in Part III
of the Constitution. It does not, however,
follow from the above that if Article 21
had not been drafted and inserted in Part
III, in that event it would have been
permissible for the State to deprive a
person of his life or liberty without the
authority of law. No case has been cited
before us to show that before the coming
into force of the Constitution or in
countries under the rule of law where
there is no provisions corresponding to
Article 21, a claim was ever sustained by
the courts that the State can deprive a
person of his life or liberty without the
authority of law………………………………...”
24. We may notice that the Constitution Bench
Judgment of this Court in A.D.M., Jabalpur versus
Shivakant Shukla (supra), foundation of which
judgment was knocked out by Forty-fourth
Constitutional Amendment has been formally over25
ruled by Seven-Judges Constitution Bench Judgment
in K.S.Puttaswamy and another versus Union of India
and others, (2017) 10 SCC 1. Dr. D.Y. Chandrachud,
J., speaking for the Court in paragraphs 136 and
139 held:-
“136. The judgments rendered by all the
four judges constituting the majority in
ADM Jabalpur are seriously flawed. Life and
personal liberty are inalienable to human
existence. These rights are, as recognised
in Kesavananda Bharati, primordial rights.
They constitute rights under Natural law.
The human element in the life of the
individual is integrally founded on the
sanctity of life. Dignity is associated
with liberty and freedom. No civilized
state can contemplate an encroachment upon
life and personal liberty without the
authority of law. Neither life nor liberty
are bounties conferred by the state nor
does the Constitution create these rights.
The right to life has existed even before
the advent of the Constitution. In
recognising the right, the Constitution
does not become the sole repository of the
right. It would be preposterous to suggest
that a democratic Constitution without a
Bill of Rights would leave individuals
governed by the state without either the
existence of the right to live or the means
of enforcement of the right. The right to
life being inalienable to each individual,
it existed prior to the Constitution and
continued in force under Article 372 of the
Constitution. Khanna, J. was clearly right
in holding that the recognition of the
right to life and personal liberty under
the Constitution does not denude the
26
existence of that right, apart from it nor
can there be a fatuous assumption that in
adopting the Constitution the people of
India surrendered the most precious aspect
of the human persona, namely, life, liberty
and freedom to the state on whose mercy
these rights would depend. Such a construct
is contrary to the basic foundation of the
Rule of Law which imposes restraints upon
the powers vested in the modern state when
it deals with the liberties of the
individual. The power of the Court to issue
a Writ of Habeas Corpus is a precious and
undeniable feature of the rule of law.
139. ADM Jabalpur must be and is
accordingly overruled. We also overrule the
decision in Union of India v. Bhanudas
Krishna Gawde, which followed ADM
Jabalpur.”
25. We, thus, are of the clear opinion that the
learned Single Judge in the impugned judgment erred
in holding that the lockdown announced by the
Government of India is akin to the proclamation of
Emergency. The view of the learned Single Judge
that the restrictions, which have been imposed
during period of lockdown by the Government of
India should not give right to an accused to pray
for grant of default bail even though charge sheet
has not been filed within the time prescribed under
Section 167(2) of the Code of Criminal Procedure,
27
is clearly erroneous and not in accordance with
law.
26. We, thus, are of the view that neither this
Court in its order dated 23.03.2020 can be held to
have eclipsed the time prescribed under Section
167(2) of Cr.P.C. nor the restrictions which have
been imposed during the lockdown announced by the
Government shall operate as any restriction on the
rights of an accused as protected by Section 167(2)
regarding his indefeasible right to get a default
bail on non-submission of charge sheet within the
time prescribed. The learned Single Judge committed
serious error in reading such restriction in the
order of this Court dated 23.03.2020.
27. There is one more reason due to which the
impugned judgment of the learned Single Judge
deserves to be set aside. A learned Single Judge of
Madras High Court in Crl.OP(MD)No. 5291 of 2020,
Settu versus the State, had already considered the
judgment of this Court dated 23.03.2020 passed in
Suo Moto W.P(C)No.3 of 2020 and its effect on
Section 167(2) Cr.P.C. The above was also a case of
a bail where the accused was praying for grant of
default bail due to non-submission of charge sheet.
The prosecution had raised objection and had relied
on the order of this Court dated 23.03.2020 passed
in Suo Moto W.P(C)No.3 of 2020 claiming that period
for filing charge sheet stood extended until
further orders. The submission of prosecution was
rejected by learned Single Judge. The learned
Single Judge had made following observations in
paragraphs 14 and 15:-
“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.P.C.
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 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.P.C. is applicable, the
benefit of the said direction cannot be
availed.”
28. The Prayer of the accused in the said case for
grant of default bail was allowed. The claim of the
prosecution that by order of this Court dated
23.03.2020, the period for filing charge sheet
under Section 167 Cr.P.C. stands extended was
specifically rejected.
29. The view taken by learned Single Judge of
Madras High Court in Settu versus The State (supra)
that the order of this Court dated 23.03.2020
passed in Suo Moto W.P(C)No.3 of 2020 does not
extend the period for filing charge sheet under
Section 167(2) Cr.P.C. has been followed by Kerala
High Court as well as Rajasthan High Court. Kerala
High Court in its judgment dated 20.05.2020 in Bail
Application No. 2856 of 2020 – Mohammed Ali Vs.
State of Kerala and Anr. after noticing the
contention raised on the basis of order of this
Court dated 23.03.2020 passed in Suo Moto
W.P(C)No.3 of 2020 rejected the said contention and
followed the judgment of the learned Single Judge
of Madras High Court in Settu versus The State
(supra). Kerala High Court in paragraph 13 of the
judgment observes: -
“13. I respectfully concur with the
exposition of law laid down by the learned
Single Judge of the Madras High Court in
Crl.O.P.(MD) No.5291 of 2020 as well by
the learned Single Judge of Uttarakhand
High Court when their lordships held that
the investigating agency cannot benefit
from the directions issued by the Supreme
Court in the Suo moto Writ Petition.”
30. Rajasthan High Court had occasion to consider
Section 167 as well as the order of this Court
dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of
2020 and Rajasthan High Court has also come to the
same conclusion that the order of this Court dated
23.03.2020 has no consequence on the right, which
accrues to an accused on non-filing of charge sheet
within time as prescribed under Section 167 Cr.P.C.
Rajasthan High Court in S.B. Criminal Revision
Petition No. 355 of 2020 – Pankaj Vs. State decided
on 22.05.2020 has also followed the judgment of
learned Single Judge of the Madras High Court in
Settu versus The State (supra) and has held that
accused was entitled for grant of the default bail.
Uttarakhand High Court in First Bail Application
No.511 of 2020 – Vivek Sharma Vs. State of
Uttarakhand in its judgment dated 12.05.2020 has
after considering the judgment of this Court dated
23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020
has taken the view that the order of this Court
does not cover police investigation. We approve the
above view taken by learned Single Judge of Madras
High court in Settu versus The State (supra) as
well as the by the Kerala High Court, Rajasthan
High Court and Uttarakhand High Court noticed
above.
31. Learned Single Judge in the impugned judgment
has taken a contrary view to the earlier judgment
of learned Single Judge in Settu versus The State
(supra). It is well settled that a coordinate Bench
cannot take a contrary view and in event there was
any doubt, a coordinate Bench only can refer the
matter for consideration by a Larger Bench. The
judicial discipline ordains so. This Court in State
of Punjab and another versus Devans Modern
Breweries ltd. and another, (2004) 11 SCC 26, in
paragraph 339 laid down following:-
“339. Judicial discipline envisages that a
coordinate Bench follow the decision of an
earlier coordinate Bench. If a coordinate
Bench does not agree with the principles
of law enunciated by another Bench, the
matter may be referred only to a Larger
Bench. (See Pradip Chandra Parija v.
Pramod Chandra Patnaik, (2002) 1 SCC 1
followed in Union of India Vs. Hansoli
Devi, (2002) 7 SCC 273. But no decision
can be arrived at contrary to or
inconsistent with the law laid down by the
coordinate Bench. Kalyani Stores (supra)
and K.K. Narula (supra) both have been
rendered by the Constitution Benches. The
said decisions, therefore, cannot be
thrown out for any purpose whatsoever;
more so when both of them if applied
collectively lead to a contrary decision
proposed by the majority.”
32. Learned Single Judge did not follow the
judicial discipline while taking a contrary and
diagonally opposite view to one which have been
taken by another learned Single Judge in Settu
versus The State (supra). The contrary view taken
by learned Single Judge in the impugned judgment is
not only erroneous but also sends wrong signals to
the State and the prosecution emboldening them to
act in breach of liberty of a person.
33. We may further notice that learned Single Judge
in the impugned judgment had not only breached the
judicial discipline but has also referred to an
observation made by learned Single Judge in Settu
versus The State as uncharitable. All Courts
including the High Courts and the Supreme Court
have to follow a principle of Comity of Courts. A
Bench whether coordinate or Larger, has to refrain
from making any uncharitable observation on a
decision even though delivered by a Bench of a
lesser coram. A Bench sitting in a Larger coram may
be right in overturning a judgment on a question of
law, which jurisdiction a Judge sitting in a
coordinate Bench does not have. In any case, a
Judge sitting in a coordinate Bench or a Larger
Bench has no business to make any adverse comment
or uncharitable remark on any other judgment. We
strongly disapprove the course adopted by the
learned Single Judge in the impugned judgment.
34. In view of the foregoing discussions, we allow
this appeal, set aside the judgment of learned
Single Judge, direct that appellant be released on
default bail subject to personal bond of
Rs.10,000/- with two sureties to the satisfaction
of trial court.
..........................J.
( ASHOK BHUSHAN )
..........................J.
( M.R.SHAH )
..........................J.
( V.RAMASUBRAMANIAN )
NEW DELHI,
JUNE 19,2020
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