[BREAKING] Right To Default Bail Under Section 167(2) CrPC Not Affected By SC Order Extending Limitation : Madras HC [Read Order]

In a significant decision, the Madras High Court has 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 the Code of Criminal Procedure.

A single bench of Justice G R Swaminathan observed that the police cannot take benefit of the SC order to claim additional period for filing final report.

The Court 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", observed Justice Swaminathan in the order.

The order was passed in a bail application filed by one Settu, who was arrested on January 19, 2020, on the allegation of committing robbery. He was made accused in an FIR registered for offences under Sections 392 read with 397 of the Indian Penal Code. He remained under custody since the day of arrest.

Section 392 of IPC deals with robbery of two kinds ; robbery committed on the highway between sunset and sunrise and other kinds of robbery. The former is punishable with imprisonment that may extend to 14 years. Robbery simpliciter is punishable with rigorous imprisonment for a term which may extend to ten years. If petitioner's case is classified as robbery simpliciter, he can seek default bail on the expiry of the 60th day from the date of remand. If the petitioner's case is catergorized under the aggravated type, then it will be on the expiry of 90 days.

The 60th day after his remand fell on 19th March, 2020. The 90th day fell on April 18th 2020. In any case, the police had not filed final report, even as on the date of bail hearing. Therefore, the accused sought for default bail, as per Section 167(2) of the CrPC.

In opposition, the prosecution sought to place reliance on the order passed by the Supreme Court on March 23, whereby limitation period for filing of cases in courts and tribunals was extended with effect from March 15 until further orders to be passed by the top court. 

Also, on May 6, the SC passed a further order extending the limitation periods under the Arbitration and Conciliation Act and Section 138 of the Negotiable Instruments Act.

Hence, the question before the HC was whether this order of the SC will extend the time for filing final report.

To settle the issue, Justice Swaminathan first examined the scope of the term 'limitation'.

Referring to Section 2(j) of the Limitation Act, it was observed that "period of limitation" pertains to the time period prescribed for any suit, appeal or application. After the expiry of the limitation period, the application or appeal cannot be straightaway admitted, unless the delay is condoned under Section 5 of the Limitation Act or other relevant provision.

In this context, the judge examined if Section 167(2) can be construed as prescribing any period of limitation for investigation. This was answered in the negative on two grounds :

1. Section 167(2) does not bar the filing of final report even after the period prescribed therein.
2. The effect of expiry of the period under Section 167(2) is just the accrual of rights to the accused for default bail.

The order stated :

"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 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports, observed the Court.

The Court noted that it has been held by the SC in Achpal v. State of Rajasthan that on the expiry of the period under Section 167(2), an "indefeasible right" would accrue in favour of the accused to seek default bail.

The Court also took note of the fact that the Central Government had brought an Ordinance - Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 - to extend the period of filings and complainces under various taxation and regulatory laws. Yet, the Executive did not think it necessary to make any amendments to Section 167(2).

"No similar change has been effected in respect of Section 167(2) of Cr.Pc. If the executive had actually intended that the period specified in Section 167 of Cr.Pc should be extended, it ought to have come out with an appropriate formal measure. The executive must exhibit nimble footwork and not hide behind judicial orders. Only little children hide behind the saree end (pallu) of their mothers", the Court said.

The Court added that crimes were happening even during lockdown, and arrests were being made. So the general extension of limitation cannot be cited as a reason to not file final report.

"It is not as if crimes have not taken place during these pandemic times. Arrests are also being made and accused are being remanded. Therefore, the respondent is not justified in citing the closure of the courts and the general extension of the limitation period".  

It was noted that even the Executive Magistrate has been empowered under Section 167(2A) to pass detention orders in the absence of judicial magistrate.

"In this case, nothing stopped the respondent from formally presenting the final report before the stipulated date and getting the initial of the jurisdictional magistrate. This Court would definitely have construed the same as sufficient compliance of the requirement of law. Such is not the case here", Justice Swaminathan noted.

Interpretation not applicable to UAPA, NDPS cases

However, the Court added that the interpretation given by it will not apply to cases under special laws like UAPA, NDPS etc.

The order stated :

"Of course, the construction placed by me will have no application whatsoever in the case of certain offences under certain special laws, such as Unlawful Activities (Prevention) Act, 1967 and NDPS Act, 1985. For instance Section 36-A (4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon'ble Supreme Court made 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 will apply. But, in respect of the other offences for which Section 167 of Cr.Pc is applicable, the benefit of the said direction cannot be availed". 

The petitioner was ordered to be released on default bail subject to conditions. :

1. the petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties, each for a like sum to the satisfaction of the learned Judicial Magistrate No.II, Thanjavur District.
2. the petitioner is directed to appear before the respondent police as and when required for interrogation.
3. on breach of any of the aforesaid conditions, the Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law

The Court also clarified that the order does not prohibit the arrest or rearrest of the petitioner on cogent grounds in respect of the subject charge as per the law laid down by the SC in Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67 and in that event , the petitioner will have to move a regular application for grant of bail which will be considered on its own merit.

Case Details

Title : Settu vs The State

Case No : Crl OP(MD) No. 5291/2020

Bench    : Justice G R Swaminathan

Appearances : K.M.Karunakaran for accused; A.Robinson for Prosecution.

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