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
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
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
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
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
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.
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:
- Whether the investigation is completed and final report has been filed
- 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
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
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
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
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
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
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
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
[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.
- Suo Motu Writ Petition (Civil) No(S).3/2020 In Re : Cognizance For
Extension Of Limitation
- Crl OP(MD). No.5296 of 2020
- Crl OP (MD) No. 5291 of 2020.
- First Bail Application No.511 of 2020
- (1992) 4 SCC 272,
- (2014) 9 SCC 457,
- AIR 2017 SC 3948
- (1976) 2 SCC 521,