"Personal liberty of the individual, guaranteed under Article 21 of the Constitution of India, is very precious fundamental right and it should be curtailed only according to law."
Emphasizing on the "indefeasible right" of an accused to be released on default bail after expiry of 60 or 90 days of custody, as the case may be, the Uttarakhand High Court on Tuesday held that the general order passed by the Supreme Court to extend the period of limitation for filing cases in view of the COVID-19 lockdown will not affect the right of an accused to default bail under Section 167(2) of CrPC.
The order was passed by Justice Alok Kumar Verma who clarified that the order for extension of limitation did not mean that the Court had extended the 60 days/ 90 days period of police investigation.
"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," he held.
A similar order was also passed by the Madras High Court last week, whereby it was held that Section 167 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports. Accordingly Justice GR Swaminathan had observed,
"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.P.C."
The present order was passed in an application for regular bail whereby the applicant had orally challenged the order of Chief Judicial Magistrate, Champawat, who had rejected the applicant's request for default bail after holding that the applicant is not entitled to claim the benefit of default bail in the light of the Supreme Court order dated March 23, 2020 In Re-Cognizance For Extension Of Limitation.
"On the expiry of the said period of 90 days or 60 days [under Section 167], 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 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," the court reiterated the observations made in Uday Mohanlal Acharya vs. State of Maharasthra, (2001) 5 SCC 453.
The court further held that the right to default bail under section 167(2) CrPC is not affected by the Supreme Court's order for extending limitation.
Accordingly, the applicant was released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned subject to certain other bail conditions.
The applicant in this case is an accused in the scholarship scam whereby embezzlement of approximately Rs. 39,52,000/- is involved.
Case Title: Vivek Sharma v. State of Uttarakhand
Case No.: First Bail Application No. 511/2020
Quorum: Justice Alok Kumar Verma
Appearance: Advocate Sanpreet Singh Ajmani (for Applicant); Govt Advocate GS Sandhu and Assistant Government Advocate JS Virk (for State)
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