Rajasthan High court
Rajasthan High court
Litigation News

Right to default bail under Section 167(2) of CrPC not affected by Supreme Court's March 23 order extending Limitation: Rajasthan HC

"Taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution", the Court held.

Rintu Mariam Biju

In a significant decision, the Rajasthan High Court has held that the general order passed by the Supreme Court to extend the period of limitation under various laws 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. (Default Bail - Rajasthan High Court)

Justice Dinesh Mehta went on to grant bail to the petitioner before the Court, a minor, while stating that taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution.

"In absence of any amendment in the statute and without there being any remote reference of investigation or provisions of the Code in the order of Supreme Court, taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution."

Rajasthan High Court

Factual Background

One Swapnil Kalal had filed an FIR, intimating that two young boys intercepted him and snatched away his bag containing Rs.62,460 along with some important documents. During the investigation, the police identified the present petitioner as one of the accused and apprehended to try him for the offences under Section 392 read with Section 34 of Indian Penal Code.

Considering that the petitioner was 17 years of age, he was ordered to be sent to a Rehabilitation Center subsequently. A bail application was later filed on the petitioner’s behalf, which came to be rejected by the Juvenile Justice Board, in February this year.

In appeal, the bail was rejected by the appellate Court as well. Therefore, the petitioner has preferred present revision petition under Section 102 of Juvenile Justice Act, 2015 (JJ Act), challenging the orders of the Special POCSO Court Judge and the Principal Magistrate, Juvenile Justice Board, Udaipur.

Contentions of Parties

For the petitioner, it was submitted that the offences alleged are triable by the magistrate. Thus, the Juvenile Justice Board ought to have enlarged the petitioner on bail, considering the fact that he was behind bars for considerable period.

Further it was contended that despite being a juvenile, the petitioner is languishing in judicial custody for an offence that was not very serious. Showing concern about petitioner’s predicament, he added that had he been a major, he would have been released on bail by this time.

Pertinently, it was informed that the chargesheet/ final report has not been filed so far and due to the same, the petitioner is entitled to be enlarged on bail, as the statutory period for filing charge-sheet had since passed.

Countering these arguments, the Public Prosecutor argued that as per Section 12 of the JJ Act, the Board is not required to mechanically release a juvenile or grant him bail as a matter of course, merely because the accused is a juvenile.

Further, responding to the argument about petitioner’s right to be released on account of prosecution’s failure to file a final report, the Public Prosecutor submitted that the charge-sheet could not be filed in the wake of the COVID-19 lockdown.

To buttress his submission, he relied on the Supreme Court order dated March 23 passed, whereby the period of limitation under various laws came to be extended.

He emphasized that till lockdown continues, the period prescribed in the provisions of Section 167(2) of CrPC would stand extended as per the order passed by the Apex Court.

What the Court held

The Court observed at the outset that as per the scheme of Section 12 of the JJ Act, a child in conflict with law is to be given benefit of bail.

Such benefit can be denied only if there appears to be a reasonable belief that such release is likely to bring the person in contact with any known criminal or expose him to more physical or psychological danger, the Court held.

Further, it was noted that, "in case charge-sheet is not filed within 60 days or 90 days, as the case may be, an accused is entitled for bail by virtue of first proviso to sub-section (2) of Section 167 the Code".

After a thorough reading of the Section, the Court highlighted that Section 167 of the Code is not a provision containing a limitation for filing a final report. Rather, it is a provision that prescribes the consequence or effect of a failure of an investigating officer to complete the investigation within the specified period.

"Failure to adhere to the timeline contained in Section 167 of the Code does not result in automatic acquittal, but it gives rise to a right to an accused to be released on bail", the Court observed.

It added, "Section 167 the Code, indubitably puts an embargo on the powers of a Magistrate to extend or authorise detention of an accused person beyond a period of 60 days or 90 days, as the case may be."

"The police or investigating agency can carry on with the investigation at their own pace, as deemed appropriate or necessary. But, in such eventuality, when they fail to complete the investigation within the given time frame, provisions contained in Section 167(2) of the Code in no ambiguous terms announce that an accused person, be released on bail...."
Rajasthan High Court

The Court further opined that that underlying intention behind this provision, is that an accused cannot be kept in police or judicial custody merely under the guise of a pending investigation.

To this end, the Court referred to the decisions in Madras High Court in Settu v. State, wherein the Madras High Court held that the Supreme Court’s March 23 order to extend the limitation during the COVID-19 pandemic would not apply to provisions concerning the grant of default bail under Section 167.

It may be noted, however, that a Division Bench of the Madras High Court was later constituted to conclusively decide on this issue, after another coordinate Bench of the Madras High Court took a view conflicting with the view taken in State v. Settu.

Further, the Court also referred to the decision, Mohd. Ali Vs. State of Kerala, passed by the Kerala High Court, in which case it was held that,

"The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality."

The Court went on to observe that it is clear that the Supreme Court order of March 24 was passed with a view to give relief to the litigants and lawyers.

The Apex Court had extended the period of limitation for filing petition, appeal, revision etc. and no such advantage had been given to any investigating agency or statutory body, the High Court said.

In view of this, the Court opined,

"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."
Rajasthan High Court

The Court also noted that that if the above is permitted, then the statutory period of completing assessments etc. in all statutes such as Income Tax Act, GST Act etc. will stand automatically extended. However, this is impermissible in absence of express statutory amendments.

In view of the above observations, Court allowed the revision petition and allowed the grant of bail. Advocate Bharat Shrimali appeared for the petitioner.

Read order here:

Default Bail - Rajasthan HC.pdf
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