Sunday, 10 May 2020

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
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.
17.Accordingly, the petitioner is ordered to be released on
default bail, subject to the following conditions;
(i) the petitioner shall execute a bond for a sum
of Rs.10,000/- (Rupees Ten Thousand Only) with
two sureties, each for a like sum to the satisfaction
of the learned Judicial Magistrate No.II, Thanjavur
District.
(ii)the petitioner is directed to appear before the
respondent police as and when required for
interrogation.
(iii)on breach of any of the aforesaid conditions,
the Magistrate/Trial Court is entitled to take
appropriate action against the petitioner in
accordance with law as if the conditions have been
imposed and the petitioner released on bail by the
Magistrate/Trial Court himself as laid down by the
Hon'ble Supreme Court in P.K.Shaji vs. State of
Kerala [(2005) AIR SCW 5560].
G.R.S., J.
08.05.2020


Print Page

No comments:

Post a comment