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This was prompted to resolve conflicting decisions rendered by two single judges of the Madurai Bench recently.
The Madras High Court's Chief Justice AP Sahi on Tuesday directed the constitution of a Division Bench to decide whether the Supreme Court's order extending the limitation period under various laws during the COVID-19 pandemic would apply to provisions concerning the grant of default bail under Section 167 of the Code of Criminal Procedure (CrPC).
This development was prompted by conflicting decisions rendered by two single judges of the Madurai Bench. In an order passed on Tuesday, Chief Justice Sahi observed that this conflict has to be resolved, given that it would have a direct impact on the grant of bail during the present time. His order states,
In criminal cases where the police is not able to file its final report within 24 hours of having arrested the accused, Section 167(2) CrPC lays down that such a person cannot be detained beyond a period of either 60 days or 90 days in more serious offences, if the person “is prepared to and does furnish bail.”
On May 8, Justice GR Swaminathan had ruled that the right of an arrested person to such grant of default bail could not be diluted by applying the Supreme Court's March 23 limitation extension order to extend the time for filing an final report (Settu v. State).
On May 11, however, Justice GR Jayachandran differed from this perspective, observing that it would be unfair to expect the investigating agencies to be able to file their final report within the allotted time amid the COVID-19 crisis (S Kasi v. State).
His order emphasises that in the present restrictive circumstances,
"... 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."
Justice Jayachandran added,
"Inspite of the Apex Court order extending the period of limitation in all proceedings where litigants face difficulties to be present physically, if one says it is not applicable to filing of final report on completion of investigation, he (is) just mocking the Apex Court order and nothing less. Violators of law cannot take undue advantage of the extra ordinary situation and enjoy the liberty while the entire nation is under lock down and crippled from carrying on their normal activities."
Whereas Justice Jayachandran was appraised of Justice Swaminathan's contradictory order on a similar issue, he opined that the latter has misinterpreted the Supreme Court order. Justice Jayachandran, therefore, rejected the plea made by a person accused of theft for grant of default bail, stating,
"In view of the order passed by the Honourable 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 Cr.P.C and pray release on bail."
Read the order:
Apart from these two orders, Chief Justice Sahi has noted that there is also an Uttarakhand High Court case (Vivek Sharma v. State of Uttarkhand), in which an order has been passed on lines similar to Justice Swaminathan's ruling in Settu v. State.
The Chief Justice has now directed that a Bench headed by Justice PN Prakash given an authoritative pronouncement on the issue. The question to be considered by this Division Bench has also been framed as follows:
“Whether the orders passed by the Apex Court on 23rd March, 2020 and 6th May, 2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 also apply to the proceedings under Sec.167(2) Cr.P.C. and consequently which of the two opinions expressed by the learned single Judges in the case of Settu (supra) and Kasi (supra) lays down the law correctly."