Chennai Police outside Madras High Court
Chennai Police outside Madras High Court
Litigation News

Why SC order to extend limitation during COVID-19 crisis does not apply to grant of default bail u/Section 167, CrPC: What Madras HC said

The Court said that if the Supreme Court's order was made applicable to Section 167, CrPC, an order intended to save rights "would result in taking away the valuable right that had accrued to the accused herein."

Meera Emmanuel

The Madras High Court on Friday held that the Supreme Court’s March 23 order to extend the limitation period under various laws during the COVID-19 pandemic would not apply to provisions concerning the grant of default bail under Section 167 of the Code of Criminal Procedure (CrPC).

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 Friday Justice GR Swaminathan observed that to deny the benefit of this provision would entail a denial of the right to liberty under Article 21 of the Constitution.

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 Judge notes in his order.
Justice GR Swaminathan (L), Madurai Bench of Madras High Court (R)
Justice GR Swaminathan (L), Madurai Bench of Madras High Court (R)

The Court proceeded to highlight that it was not the intention of the Supreme Court to deprive a person of these rights when it extended the limitation period during this COVID-19 pandemic.

Rather, it was pointed out that the Supreme Court order was passed “to obviate the difficulties faced by the litigants and to ensure that they and their lawyers do not have to come physically to file in the respective Courts and Tribunals.”

Notably, the judge observed that, “The Hon'ble Supreme Court has not mentioned that police investigations would also be covered by the said order.

It was further noted that another Supreme Court order passed on May 6 to extend the limitation period under the Arbitraton and Negotiable Instrument laws also made no such reference.

This being the case, the Court rejected submissions for the State Police, made while in opposing a plea for default bail, that such relief cannot be granted in view of the Supreme Court’s limitation extension order of March 23.

Object of Supreme Court’s March 23 order vs. Section 167, CrPC

It may be recalled that with this order, the top Court had directed that the limitation period in all cases would stand extended until further orders with effect from March 15.

Justice Swaminathan pointed out,

“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."
Madras High Court

The Court further explained that while the Supreme Court’s March 23 order was passed, in its benevolence, to ensure that persons do not lose their rights approach courts, “filing of final report stands on a different footing altogether.”

In this regard, it was pointed out that Section 167, CrPC does not contain a limitation period for final reports, but rather entails the accrual of a right for the accused. As elaborated in the order,

Section 167 (2) of Cr.Pc does not bar the filing of final report even after the period specified therein. The implication of Section 167 (2) is that if the final report is not filed within the time limit prescribed therein, the magistrate will be divested of the jurisdiction to authorise the detention of the accused person beyond the said period, if the accused is prepared to and does furnish bail. The expiry of the period results in accrual of right in favour of the accused. Even though this time limit is referred to as period of limitation, technically it is not.”

The Court added, “Even Section 167 (5) of Cr.Pc has been interpreted to mean that the magistrate shall only make a direction for stopping further investigation in a summons case if it is not concluded within the period of six months and the said period has not been extended and it does not bar the magistrate from taking cognizance based on the final report filed thereafter."

"Hence, Section 167 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports.”
Madras High Court

State cannot hide behind judicial orders, High Court

The Court also chided the State Police for attempting the invoke the Supreme Court’s limitation extension order to justify its failure to present its final report in the case.

It is not as if crimes have not taken place during these pandemic times. Arrests are also being made and accused are being remanded”, the Court noted.

Further, it was opined that, “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.”

Moreover, the Court also pointed out that if it wanted to extend the time period outline in Section 167, CrPC, it ought to have come out with an appropriate formal measure.

To cite an example of such an executive measure, the Court pointed out that the Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance was passed last month to extend the time limit and waiver of penalty in certain offences.

As such, the Court remarked,

“The executive must exhibit nimble footwork and not hide behind judicial orders. Only little children hide behind the saree end (pallu) of their mothers.”
Madras High Court

UAPA, NDPS Act, offences under other special laws not affected by High Court order

Before parting with the matter, the High Court emphasised that its observations in this order “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."

The Court observed that,

“… 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.”

With these observations, the Court allowed a plea for default bail, while also noting that the order does not prohibit the arrest or rearrest of the petitioner on cogent grounds, in which case the accused would have to move a regular bail application.

Read the Order:

Settu v. State - Madras HC order.pdf
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