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SC To Examine Whether It's Order On Extension Of Limitation Affect An Accused' Right To Default Bail Under Section 167(2) CrPC

Mehal Jain
28 May 2020 2:14 PM GMT
SC To Examine Whether It
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The Supreme Court on Thursday issued notice on the SLP preferred against the May 11 order of the Madras High Court holding that the accused cannot claim 'default' bail taking advantage of the March 23 suo moto order the Supreme Court to extend limitation periods in view of the COVID-19 lockdown.

After hearing Senior Advocates Sidharth Luthra and V. Karthic and Advocate Nithin Saravanan for the petitioner, the bench of Justice V. Ramasubramanian was pleased to issue notice.
The SLP urges that the High Court did not consider that section 167(2) does not bar the filing of the chargesheet even after the period specified therein, that the implication of the provision is that if the chargesheet is not filed within the stipulated period, the magistrate is divested of the jurisdiction to authors the detention of the accused. The provision is an accrual of right in favour of the accused who is prepared to furnish bail, and not to be construed as containing the period of limitation for filing the final report.
It is pressed that the objective of the Apex Court's March 23 order was to ensure that no litigant is deprived of his valuable rights, and that the denial of compulsive bail under section 167(2) would be an infringement of the precious fundamental right under Article 21.
It is argued that the High Court, in passing the impugned order, has not duly appreciated the provisions of the CrPC, particularly section 473 which is the specific provision for extension of limitation in certain cases, where the delay is properly explained or it is deemed necessary to overlook the expiry of limitation in the interest of justice,
The Supreme Court's extension of limitation, as ordered on March 23, is applicable for the period of investigation specified under Section 167(2) of the Code of Criminal Procedure, held Justice G Jayachandran of the Madurai Bench of the Madras High Court on May 11.
The order stated that accused cannot take undue advantage of the situation where there are "fetters on the investigating agency upon their right of movement".

"Order passed by the Supreme Court invoking Article 142 of the constitution is an equitable order. After putting fetters on the investigating agency upon their right of movement causing delay in completing investigation, the person accused of the offence cannot take undue advantage of the situation and seek default bail. 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".

This was in contradiction of the earlier order of the same court, of another single bench of Justice G R Swaminathan, which had observed that the police cannot take benefit of the SC order to claim additional period for filing final report.

On May 8, the Court had held that allowing such an interpretation would defeat the fundamental right to personal liberty of a person under Article 21 of the Constitution of India- "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"

The Kerala High Court and the SC Order For Extension Of Limitation Does Not Affect An Accused' Right To Default Bail Under Section 167(2) CrPC: Uttarakhand HC [Read Order] Uttarakhand High Court have also expressed similar views in the matter. Last week, the Rajasthan High Court also reiterated, "In absence of any clear stipulation in the above referred order of Hon'ble Supreme Court, in my considered opinion, the investigating or prosecuting agency cannot claim self-serving extension, under the pretence or cloak of such order. If that be permitted, statutory period of completing assessments etc. in all statutes such as Income Tax Act, GST Act etc. will stand automatically extended, which, in absence of express statutory amendments is impermissible",

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