Right For Default Bail Is Indefeasible Right: SC

The Supreme Court on Friday has said its Suo Motu order extending the Limitation period due to coronavirus-induced lockdown cannot be read to mean that it ever intended to extend the period of filing charge sheet by police under section 167(2) CrPC.

The Court said, the reason for extending the period of limitation w.e.f. 15.03.2020 for filing petitions/ applications/ suits/ appeals/ all other proceedings are indicated in the order itself. Only for two reasons, the court has passed the order; firstly, the situation arising out of the challenge faced by the country on account of COVID-19 virus and resultant difficulties that are being faced by the litigants across the country in filing their petitions/ applications/ suits/ appeals/ all other proceedings with the period of limitation prescribed. Secondly, to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/ Tribunals across the country including this Court.

“The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate,” said the Court.

The Court passed its order on a plea filed by a person accused under Sections 457, 380, 457(2), 380(2), 411(2) and 414(2) of Indian Penal Code, challenging the Judgement passed by the Madras High Court which had dismissed his bail application filed on account of passage of such 73 days and non-filing of charge sheet. One of the contentions of the appellant before the High Court was that charge sheet having not been filed; the appellant is entitled for bail by default as contemplated under Section 167(2) of the Code of Criminal Procedure.

The High Court referring to an order of the Supreme Court dated 23.03.2020 passed in Suo Moto W.P.(C) No.3 of 2020 took the view: – “…The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under Section 17(2) of the code of Criminal Procedure…”

Aggrieved by the order of the Madras High Court dated 11.05.2020, the appellant moved to the Supreme Court.

Shri Sidharth Luthra, learned senior counsel for the appellant contended that the High Court committed error in taking the view that this Court’s order dated 23.03.2020 extended the period for submission of charge sheet as prescribed under Section 167(2) Cr.P.C. He submitted that the provisions of Section 167(2) Cr.P.C. are provisions for protection of personal liberty and in event charge sheet has not been filed by the police within the stipulated period, the appellant is entitled for default bail. The order of this Court dated 23.03.2020 in no manner can be read as extending the period for the prosecution to submit the charge sheet. The High Court had erroneously taken the view that the order of this Court eclipses the time prescribed under Section 167(2) of Code of Criminal Procedure.

He further submitted that learned Single Judge in the impugned judgment had also erred in taking a contrary view to an earlier judgment delivered by another learned Single Judge in Settu versus The State, Crl. O.P. (MD) No. 5291 of 2020 where the learned Single Judge of Madras High Court decided on 08.05.2020 has taken the view that the order of this Court dated 23.03.2020 in no manner can be applied on the provisions of Section 167(2) of Code of Criminal Procedure.

Whereas, the counsel for the State supported the impugned judgment and submitted that due to enormous difficulties in carrying out the investigation, charge sheet could not be filed in the present case and the appellant is not entitled to take benefit of Section 167(2) in precarious situation which has occurred on account of pandemic of Covid-19.

The Supreme Court noted, “The only issue which needs to be decided in this appeal is as to whether the appellant due to non submission of charge sheet within the prescribed period by the prosecution was entitled for grant of bail as per section 167(2) of the Code of Criminal Procedure.”

“the debate on Section 167 must also be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty. This Court also held that right for default bail is indefeasible right which cannot be allowed to be frustrated by the prosecution,” the Court said.

It further added, “The scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.”

“The order of this Court dated 23.03.2020 never meant to curtail any provision of Code of Criminal Procedure or any other statute which was enacted to protect the Personal Liberty of a person. The right of prosecution to file a charge sheet even after a period of 60 days/ 90 days is not barred. The prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C.,” said the Apex Court.

The Supreme Court also opined that the learned Single Judge in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.

“We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed,” held the Supreme Court.

The Supreme Court set aside the judgment of learned Single Judge, directed that appellant be released on default bail subject to personal bond of Rs.10,000/- with two sureties to the satisfaction of trial court.

Read the Judgement here;

-India Legal Bureau