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Suspension of Right to Default Bail under Section 167(2) CrPC during Lock down Period

The prevailing COVID-19 situation and the consequent measures taken by the government and Hon'ble Supreme Court have given raise to certain unprecedented legal issues. The Hon'ble High Courts of various states and the Hon'ble Apex Court itself have been posed with legal conundrums which challenges the ability to safe guard the statutory and constitutional rights of the citizens despite the hurdles created by the present crisis.

One such legal issue that has surfaced in the recent past is Whether the Right to default bail under Section 167(2) Cr PC is affected by the order of the Hon'ble Supreme Court dated 23.03.2020, whereby the limitations with respect to all legal proceedings as mandated by any general or special law have been extended. The relevant extract of the Hon'ble Apex Court order[i] dated 23.03.2020 is as follows:
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.

Conflicting views of the Hon'ble High Court of Madras:

Order dated 08.05.2020:
When the question of whether the order dated 23.03.2020 of the Hon'ble Apex Court eclipses the provision of Section 167 CrPC was first raised before the Hon'ble Madurai Bench of Madras High Court, His lordship Mr Justice G.R.Swaminathan was pleased to clarify the present position, vide order in Settu v. The State[ii] dated 08.05.2020, by concluding that the Hon'ble Supreme Court's order dated 23.03.2020 does not take away the indefeasible right accrued under Section 167(2) CrPC. If the executive had actually intended that the period specified in Section 167 of CrPC should be extended, it ought to have come out with an appropriate formal measure.

While deciding so, it was observed that:
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 CrPC 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.

The said order also clarifies that, with respect to certain special laws such as Unlawful Activities (Prevention) Act, 1967 and NDPS Act, 1985, where the prosecution is entitled to apply for extension of the statutory period, the decision of the Apex Court dated 23.03.2020 is applicable. But, in respect of the other offences for which Section 167 of CrPC is applicable, the benefit of the said direction cannot be availed.

Order dated 11.05.2020
Within three days from the earlier order mentioned above, His lordship Mr. Justice G.Jayachandran has taken an alternate view with respect to the same issue, vide order in S.Kasi v. State[iii] dated 11.05.2020.

In the said order, it was observed that the wings of the investigating agency are clipped; their legs are tied. They are unable to conduct the investigation and complete the same. Even if they complete the investigation, courts are not open to receive it.

This is not their fault. Covid-19 situation is the cause for not completing the investigating within the time fixed under the Statute.
Interestingly, the order dated 11.05.2020 also observes that the present situation is akin to a state of emergency proclaimed under Article 352 of the constitution. If emergency is declared, under Article 358 the rights under Article 19 gets suspended. The right to live guaranteed under Article 21 is subject to restriction. Presently, though the state is not passing through emergency duly proclaimed, whole nation has accepted the restrictions for well-being of mankind.

The Hon'ble judge has also referred to the earlier order dated 08.05.2020 of the same bench of the same High Court and has commented that, It is height of ignorance to expect the investigation agency to complete the investigation and file final report in the Court within time prescribed after closing down the gates and prohibiting the access.

In conclusion it was held that the earlier order is contrary to the spirit of the Hon'ble Supreme Court order issued in exercise of the power of Article 142 and therefore it is non-est and has no binding force.

While observing as above, the Hon'ble High Court has decided that:
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.

While concluding, the order also remarks on the merits of the case that the petitioner was arrested for the theft of three idols in the temple. One idol has been recovered based on the confession of the co- accused and two idols are yet to be recovered.

Out of seven accused four have been arrested and three more are at large. In view of the order passed by the Hon'ble Supreme Court extending the limitation, the time prescribed for completing investigation under Section 167(2) gets eclipsed. The petitioner cannot harp on the limitation prescribed under Section 167(2) of CrPC and pray release on bail. Therefore, the bail was dismissed.

Decision of the Hon'ble High Court of Uttarakhand:

When a similar question was raised before the Hon'ble High Court of Uttarakhand at Nainital, The Hon'ble Court was pleased to grant bail vide order dated 12.05.2020 in Vivek Sharma v. State of Uttarakhand[iv] while observing that:
The Hon'ble Supreme Court has not mentioned in the said Orders that investigation will be covered under these Orders. The Orders of the Hon'ble Supreme Court are binding on all the courts including High Courts. No court has the right to interpret the Orders passed by the Hon'ble Apex Court. Therefore, the police investigation is not covered under the Orders of the Hon'ble Supreme Court.

The decision and the observations made by the Hon'ble High Court of Uttarakhand are in line with the earlier order of the Hon'ble High Court of Madras dated 08.05.2020.

Limitation under Sec.167(2) CrPC:

The Hon'ble Supreme Court vide order dated 23.03.2020 and subsequent orders has extended the limitation to obviate the 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.

The question arises as to whether this includes the limitation prescribed under Section167(2) CrPC. In the said earlier order dated 08.03.2020 passed by the Hon'ble High Court of Madras, following observations and analysis were made with respect to the question, Whether the 60 days and 90 days, as the case may be, enumerated under Section167(2) CrPC can be termed as a limitation for filing final report,

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 CrPC 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 CrPC that deals with limitation for taking cognizance of certain offences. Even Section 167 (5) of CrPC 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 CrPC cannot be construed as containing the period of limitation for filing of final reports.

In support of the above observation, it would also be pertinent to state that, Section 167 CrPC does not provide an outer limit for completion of the investigation. Though the language of the provision indicates that the investigation has to be completed within 60 or 90 days, as the case may be, there is no bar for filing the final report after the said period. There is no limitation under the Code with respect to filing of final report. The limitation with respect to cognizance of case were dealt with under Chapter XXXVI.

Consider a case where a FIR has been registered and no person has been arrested, the investigation can go on as long as the investigating agency wishes. The Final report can be filed even after a year or so, the Code does not mandate that the investigation ought to be completed within a prescribed time period. The 60 days and 90 days mentioned under Section 167 CrPC is with respect to the period of detention. Upon the expiry of 60 or 90 days of detention, as the case may be.

When the Magistrate is posed with question of further extension of the remand of an accused person, who is produced before him, he is mandated under Section 167 CrPC to satisfy himself with two requisites namely:
  1. Whether the investigation is completed and final report has been filed and
  2. Whether accused is prepared to and does furnish bail.

If both the conditions are satisfied, the Magistrate will lack the jurisdiction to further detain the accused and so the Magistrate shall release the accused on bail. While this being the word of the statute, unless the Hon'ble Apex Court vide an order under Article 142 of the Constitution of India, expressly confers the powers to the Magistrate to extend remand of accused beyond the time period stipulated under Section 167(2) CrPC, the Magistrate will continue to lack discretion as well as jurisdiction to extend the remand.

Therefore, the period of 60 or 90 days from the date of arrest within which investigation is to be completed under Section 167(2) CrPC is only a limitation for extension of remand and not as limitation for filing Final report. Even if the accused is released under Section 167(2) CrPC, the final report can be filed at a later point.

There is no bar for the same. Therefore, it wouldn't be appropriate to label the condition precedent for granting bail upon expiry of the limitation of judicial custody under Section 167(2) CrPC as a Limitation to file final report.

There can be thousands of reasons for an investigation to be not completed within 60 or 90 days, as the case may be, from the date of the arrest of an accused person, but no reason including the lock down can justify further detention beyond the said period against the mandate of the statute and without express law made by virtue of Article 142 of the Constitution of India. The same would be a blatant violation of the statutory right under Code of Criminal Procedure 1973 as well as the Fundamental rights under Part III of The Constitution of India.

Even if the order of the Hon'ble High Court dated 11.05.2020 is attempted to be enforced, the Magistrate will still lack the jurisdiction to order further detention beyond the statutory period. Mere observation of the Hon'ble High Court in order dated 11.05.2020 that the investigating agency need not complete the investigation within 60 or 90 days, may not sufficiently empower the Magistrate to extend the Judicial custody of accused persons beyond the statutory period in all the case across the State. Such detention cannot be made without any legislative provision or an express order made under Article 142 of the Constitution of India.

Frustration of Right under Sec.167(2) Cr PC

In the decision of Aslam Babalal Desai v. State of Maharashtra[v] the Hon'ble Apex Court has held that, the provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons liberty has been interfered with by the police arresting him without a court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realized that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody.

Therefore, the prosecuting agency must realize that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code.

The Hon'ble Apex court in a catena of Judgements has reiterated that, under Section 167(2) CrPC an indefeasible right of bail accrues at the expiry of the prescribed time. Upon satisfying the prescribed conditions, the magistrate has neither discretion nor jurisdiction to extend the judicial custody thereupon. Any such extension can be regarded as illegal.

The Hon'ble Apex Court in Union of India through CBI v. Nirala Yadav[vi] referred to various judgement in this area of law and has rightly observed that
A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible.

Though the above observation was made with respect to Magistrates procrastinating consideration of bail applications under 167(2) CrPC, the language of the Apex court manifests that the court will include the Hon'ble High Court and an interpretation of the Hon'ble Apex Court's direction to frustrate a legal right of the Accused would be impermissible.

In Rakesh Kumar Paul v. State of Assam[vii] the Hon'ble Supreme Court has categorically denounced any attempt to subterfuge the right of default bail under Sec.167(2) CrPC. The said decision of the Hon'ble Apex Court has also been referred by his lordship Justice G.R.Swaminathan in the earlier order dated 08.05.2020.

Though the Hon'ble Madras High Court in the subsequent order dated 11.03.2020 has recognized the right of default bail under the said provision, it has compared the prevailing situation to a state of emergency due to external aggressions. The court has interpreted the decision of the Hon'ble Apex Court dated 23.03.2020 and inferred that the statutory right conferred under Section 167 CrPC is suspended during the prevailing situation.

At this juncture, it is pertinent to refer the famous dissent of His Lordship Justice H R Khanna in Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla[viii] wherein it was observed that:
Presidential order under Art. 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the Fundamental Rights mentioned in the order. Rights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential order.

Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order. Any redress sought from a court of law on the score of breach of statutory provision would be outside the purview of Art. 359(1) and the Presidential order made thereunder.

Even in a state of emergency, the Right to Personal liberty will stand guaranteed under Article 21 of the Constitution of India. The Hon'ble Madras High Court in Order dated 11.05.2020 has observed that The liberty enshrined under Article 21 is subject to restrictions. The order of the Apex Court is Law binding on all courts. The petitioner's life and liberty is restricted only by due process of law and procedure established under law.

Neither Section 167(2) nor Article 21 give unfettered right to the person accused of an offence. The above observation can be justified if an express authority is conferred upon by the statue or the Apex Court on the Magistrate to extend the detention beyond 60 days or 90 days, as the case maybe. Mere conclusion that the limitation to file final report is extended may not be sufficient to state that the right to life and personal liberty is being restricted by due process of law.

It is germane to state that, the legislature has framed the procedure with the intention of preservation of the fundamental rights and principles of natural justice. The law enforcement agency cannot hide behind the Judicial orders and choose to not comply with the mandates of the statutes.

If such interpretation is continued to be given to all the provisions of CrPC, in future, the law enforcement agencies may even choose to avoid the limitation of 24 hours within which the arrested person has to produced before the nearest Magistrate as mandated by Sec.57 and Sec.167 (1) CrPC. Such exercise would not only be violative of the statutory right but also Article 22(1) of The Constitution of India. Therefore, interpretation of a benevolent order of the Hon'ble Apex Court dated 23.03.2020, to curtail certain statutory rights which enforces the fundamental rights of person, with all due respect, may not be appropriate.

The above two orders are in clear conflict with each other, which leaves the litigants and the sub-ordinate courts in a state of ambiguity. In view of the two conflicting orders of Hon'ble Madras High Court, one in favor of enforcement of a statutory right concerning personal liberty and another being in favor of its suspension, it is expedient for the larger bench of the Hon'ble Madras High Court that has been constituted on 12.05.2020 to clarify this position at the earliest. A legal issue as such, which has ramifications on the procedure to be adopted by the Sub-ordinate courts and litigants, cannot be left hanging without a conclusive and binding view.

  1. Suo Motu Writ Petition (Civil) No(S).3/2020 In Re : Cognizance For Extension Of Limitation
  2. Crl OP(MD). No.5296 of 2020
  3. Crl OP (MD) No. 5291 of 2020.
  4. First Bail Application No.511 of 2020
  5. (1992) 4 SCC 272,
  6. (2014) 9 SCC 457,
  7. AIR 2017 SC 3948
  8. (1976) 2 SCC 521,

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