In light of the Covid-19 outbreak, the courts took an unprecedented move to address urgent matters through video conferencing. For smooth functioning of the legal hierarchy, it is crucial for the Courts to remain functional during this time of crisis. However, the appropriate measures taken up by the Courts have also raised certain legal issues and challenges to safeguard rights of citizens in the present time.
The Supreme Court of India on 23rd March, 2020 ordered the extension of limitation period for filing petitions/applications/suits/appeals/all other proceedings by the litigants. It further stated that the limitation period under the general law of limitation or under Special Laws (both Central and/or State) would stand extended w.e.f 15th March 2020 till further order comes.
In furtherance of the same, Madras High Court in Settu v. The State[i] granted bail to the accused stating that the Supreme Court Order did not specifically mention the extension of time in completion of the investigation. Henceforth, if in any case mandatory period as prescribed under Sec.167 (2) of Cr.P.C. expires the accused is rightfully entitled to default bail. However, contradictory views were drawn in the same High Court in S. Kasi v. State[ii] held that the order passed by Apex Court invoking Article 142 is equitable and is applicable for the period of investigation as envisaged under section 167(2) Cr.P.C. The inability of the investigation agency to conduct the investigation qua the lockdown guidelines shall in no circumstance benefit the accused. Consequently, the contradiction in the two orders has been referred to a larger bench of the High Court.
Recently, a single bench of Kerala High Court also in Mohammed Ali v. State of Kerala & Anr. addressed a legal issue erupted out of the Supreme Court Order to extend the period of limitation for filing suits/petition/application/all other proceedings to mitigate the difficulties faced by litigants due to the present crisis. The Supreme Court order has raised an issue "Whether the order of extending the limitation period will apply on the provision under section 167 (2) Cr.P.C?
The Supreme Court Order has posed a legal conundrum as to whether it is applicable on the time period of investigation and filing of the police report as stated in Section 167 Cr.P.C and thereby denying the right of statutory bail to the arrested person.
The Section 167 Cr.P.C provides for the time period an arrested person can be legally remanded and also puts a maximum time limit for investigation by Police for filing the final report. As detained persons undergoing investigation are statutorily eligible for bail under Section 167(2) after ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for not less than ten years; and sixty days where the investigation is relating to any other offence, if the investigating authorities fail to complete their investigation and file a charge-sheet within this period.
The provision suggests that the legislature intended investigation of various crimes to be completed within a time period. Its purpose is to prevent lethargy in investigation by police and indefinite torture of the arrested person in prison. The provision nowhere hinders the investigation or submission of the final report. However, after the completion of the stipulated time period the Magistrate is divested of the power to further remand beyond the period even on the basis of incomplete or preliminary report[iii]. The said provision is a mere limitation on extension of remand by the authority to uphold the right of personal liberty of detained persons upon failure of completion of investigation.
On the expiry of such time period it is an indefeasible right of accused to be granted statutory bail. If the conditions have been fulfilled, the magistrate does not have jurisdiction to extend the remand and such extension is deemed illegal[iv]. This right is not affected even if the final report is filled at a later stage; the magistrate is under the obligation to grant bail upon the failure of investigation within the specified time when the arrested person willingly furnishes it[v].
The 268th Law Commission Report reaffirmed Suresh Jain v. State of Maharashtra[vi] and Sanjay Dutt v. State, Through CBI[vii] where the Supreme Court held that the accused acquires an "indefeasible right" of an accused under Sec 167(2) Cr.P.C upon failure of complete investigation. Any detention beyond that is illegal and the Magistrate must grant bail when furnished by the accused due to expiry of time period for investigation.
The Supreme Court upheld the right to personal liberty of the detainees in the case of Mantoo Majumdar vs. State of Bihar[viii], and further observed that the delay in police investigation and the mechanical operation of the remand process by the magistrates is insensitive to the personal liberty of the under trials.
Moreover Maneka Gandhi vs. Union[ix] of India established the rule of law that no one can be deprived of his life and personal liberty by the executive action unsupported by law. Such restrictions must be in accordance with the procedure established by the law which is reasonable, just and fair. Therefore, the objective behind the prescribed time limit under section 167(2) Cr.P.C. for the investigation agency to complete the investigation, so that the arrested person is assured of his rights under Article 21 and speedy disposal of case. Thus the order should not be used as a tool to deny the arrested person it's right.
The Uttarakhand High Court[x] has also held with regards to the order passed by the Apex Court that the applicability of the order has to be considered in the light of the fact that Sec.167 Cr.P.C. appears to only set out the outer limit of the detaining power of the Magistrate without charge and thus is an embargo on the period of detention of an accused. The investigation can still continue unhindered.
The Kerala High Court[xi] analyzed Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others[xii], Uday Mohanlal Acharya v. State of Maharashtra[xiii] and reiterated "when the Supreme Court noticed that there are occasions when even the court frustrates the indefeasible right of the accused, it was held that such practice should be strongly discouraged and no subterfuge should be resorted to, to defeat the indefeasible right of the accused"[xiv]. It further observed that the directions in the Supreme Court order deals with petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws. Section 2(j) of the Limitation Act, 1963 defines 'period of limitation' as 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.
If such extensions are to be allowed then it would be a violation of Article 21 and 22 with respect to Section 167 (2) and Section 57 of Cr.P.C. The accused would remain in prolonged detention leading to serious deprivation of the rights of the accused and most certainly will be misused in certain cases.
As observed by the Supreme Court in Achpal @ Ramswaroop and Another v. State of Rajasthan[xv] that the provisions of Cr.P.C do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. Section 57 and 167 Cr.P.C provide a procedure established by law which curtails this right reasonably. However, provisions which provide for the procedure to keep an accused under prolonged incarceration will have to be interpreted keeping in mind the constitutional rights of the accused.
Therefore, Courts should not resort to frustration of such legal right of an arrested person if it has been conferred by the law[xvi]. Any attempt to extinguish the right of default bail is henceforth not permissible to any authority[xvii]. Even in a state of emergency the right to personal liberty under Article 21 cannot be compromised except only by the due process of law and procedure established under law.
Every person is entitled to enjoy the Rights envisaged under the Constitution of India. However, in case of detention these rights get restricted with a reasonable apprehention, to secure, the assistance of detenu in preceding the investigation. Pursuant thereto, reasonable restriction connotes that the limitation imposed should not be arbitrary or opposed to the fundamental principle of liberty and justice. The restriction imposed on the accused, if extended, against the time limit as prescribed by the subversion of Cr.P.C will be termed of an excessive nature in its expanded horizon. The restriction imposed even in an unreasonable time ought to be reasonably classified. The unprecedent situation that arose due to Covid-19 has put forth the court of law to deal the matters urgently with extraordinary measures. The effect of pandemic on issuing bail has to be scrutinized extraordinarily. It should be judged keeping in mind facts and circumstances of the case. There cannot be an inexorable formula in the matter of granting bail. The influence of the order passed by the Apex court for the extension of limitation in filing the petition/suits/application/appeal to ease the difficulties faced by litigants shall not be taken as a plea by the investigation agency to justify the delay caused in furnishing the final report and thereby extending the period under Section 57 and 167 Cr.P.C. Similarly, it cannot also be taken as a ground to deny the accused of his statutory right of bail on any grounds whatsoever under Section 167(2). The law enforcement agency cannot hide behind the judicial orders and choose to not comply with the mandates of the statutes. The Supreme Court shall in the current pretext surge forward to combat the impending conflict over the interpretation of the limitation act in light of section 167(2). It is important to overhaul the confusion entirely and not part of the deliberation in isolation. The divergent views drawn in granting of bail is leading to frustration of the object behind the said provision. The Supreme Court Order in this regard must be clarified and notified.
[i] CRL OP (MD). No.5291 of 2020
[ii] CRL OP (MD). No. 5296/2020
[iii] Uday Mohanlal Acharya, reported in 2001 AIR(SC) 1910
[iv] Aslam Babalal Desai v. State of Maharashtra: 1992 4 SCC 272
[v] Union of India Vs. Hassan Ali Khan and another 2011(10 ) SCC 235
[vi] (2013) 3 SCC 77
[vii] (1994) 5 SCC 410
[viii] AIR 1980 SC 846
[ix] 1978 AIR 597
[x] Vivek Sharma v. State of Uttarakhand
[xi] Mohammed Ali v. State of Kerala & Anr.
[xii] 1994 (4) SCC 602
[xiii] 2001 950 SCC 453
[xiv] Mohammed Iqbal Madar Sheikh v. State of Maharashtra: (1996) 1 SCC 722
[xv] (2019) 14 SCC 599
[xvi] Union of India through CBI v. Nirala Yadav: (2014) 9 SCC 457
[xvii] Rakesh Kumar Paul v. State of Assam: (2018) 1 SCC (Cri) 401