2020 (5) TMI 698 - HC - Indian Laws

Seeking grant of Bail - time limitation - due to lockdown imposed consequent to SARS COVID 19 Pandemic the investigating officer was not in a position to submit the final report within the statutory period - HELD THAT - Coming to the object and scope of Section 167 it is well settled that it is supplementary to Section 57 of the Code. Section 57 of the Code provides that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. Such Magistrate may or may not have jurisdiction to try the case. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. The significance of the period of 60 days or 90 days as the case may be is that if the investigation is not completed within that period then the accused who is in custody is entitled to default bail if no charge-sheet or challan is filed on the 60th or 90th day as the case may be subject of course to the condition that the accused applies for default bail and is prepared to and does furnish bail for release. In the case on hand the petitioner herein was remanded to judicial custody on 17.1.2020. The period of 90 days had expired on 16.4.2020. His bail application was taken up for consideration by the learned Special Judge on 6.5.2020. It is clear from the order that even on that day the final report had not been submitted before the jurisdictional court. In the light of the above settled precedents the petitioner has to be held entitled to the grant of default bail. The situation would not change even if after the dismissal of the application by the Special Judge the final report was laid. Whether the period for submitting the final report can be taken to be extended as contended by the learned Public Prosecutor? - HELD THAT - If Section 167 of the Cr.P.C. is analysed it is luculent that the said provision does not provide any outer limit for the period of completion of investigation. It only interdicts the Magistrate from authorising detention of the accused person other than in the custody of the police for the statutory period. However the police can continue with the investigation and take their own sweet time to conclude the same and file a final report. This provision is unlike Section 468 of the Cr.P.C. which provides for limitations for taking cognizance of certain offences - Right of personal liberty is not only a legal right but it is a human right which is inherent in every citizen of any civilized society. Article 21 only recognizes this right. Section 57 and 167 are the provisions in the Code which provides for procedure established by law which curtails this right. Such provisions which provide for the procedure to keep an accused under prolonged incarceration will have to be interpreted keeping in mind the constitutional rights of the accused. Default bail is granted to the petitioner - petitioner shall be released on bail on his executing a bond for 50, 000/- with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction - application allowed.

Summary

Issues Involved:
1. Entitlement to Default Bail under Section 167(2) of the Cr.P.C.
2. Impact of COVID-19 Pandemic and Supreme Court Orders on Limitation Periods.
3. Interpretation of Section 167 of the Cr.P.C. and its Provisions.
4. Right to Personal Liberty under Article 21 of the Constitution.
5. Conditions for Granting Bail.

Detailed Analysis:

1. Entitlement to Default Bail under Section 167(2) of the Cr.P.C.:
The petitioner was arrested and remanded to judicial custody on 17.1.2020. On the expiry of 90 days, i.e., 16.4.2020, no final report was submitted. The petitioner filed for default bail under Section 167(2) of the Cr.P.C., which was initially denied by the Special Judge due to the lockdown. However, it was argued that the expiry of the period under Section 167(2) confers an indefeasible right to bail, which cannot be denied on any grounds. The court held that the petitioner was entitled to default bail as the final report had not been submitted even by 6.5.2020, and the right to default bail could not be defeated by subsequently filing a final report.

2. Impact of COVID-19 Pandemic and Supreme Court Orders on Limitation Periods:
The Public Prosecutor argued that the Supreme Court's order extending limitation periods due to the COVID-19 pandemic should apply to the period for submitting the final report. However, the court clarified that the Supreme Court's directions were meant for petitions/applications/suits/appeals and not for the period prescribed under Section 167 of the Cr.P.C. The court emphasized that Section 167 does not provide an outer limit for completing the investigation but restricts the Magistrate from authorizing detention beyond the statutory period.

3. Interpretation of Section 167 of the Cr.P.C. and its Provisions:
Section 167 of the Cr.P.C. is supplementary to Section 57, which mandates that if an investigation cannot be completed within 24 hours, the arrested person should be brought before a Magistrate. The Magistrate can authorize detention for up to 15 days, and further detention during the investigation must be in judicial custody. The proviso to Section 167(2) stipulates that detention cannot exceed 90 or 60 days, depending on the offense, and if the investigation is not completed within this period, the accused is entitled to default bail.

4. Right to Personal Liberty under Article 21 of the Constitution:
The court reiterated that the right to personal liberty is a fundamental right under Article 21 of the Constitution. The provisions of Section 167 and 57 of the Cr.P.C. are procedural safeguards to ensure that this right is not unduly curtailed. The court emphasized that any interpretation of these provisions must consider the constitutional rights of the accused, and any prolonged incarceration must adhere to the established legal procedures.

5. Conditions for Granting Bail:
The court granted default bail to the petitioner with specific conditions to ensure compliance and prevent any interference with the investigation or intimidation of witnesses. The conditions included:
- Executing a bond for ?50,000 with two solvent sureties.
- Appearing before the Investigating Officer every Saturday.
- Not contacting the victim or tampering with evidence.
- Not entering Kannur District except for compliance with court orders.
- Surrendering the passport or filing an affidavit if no passport exists.
- Not committing any offense while on bail.
- Ensuring a woman Police Constable visits the survivor's residence monthly to check for any threats or intimidation.

In case of any violation of these conditions, the jurisdictional court is empowered to consider the application for cancellation of bail and pass appropriate orders.

Conclusion:
The court allowed the application for default bail, emphasizing the importance of adhering to procedural safeguards and the constitutional right to personal liberty. The court rejected the argument that the Supreme Court's order extending limitation periods due to the pandemic applied to the period prescribed under Section 167 of the Cr.P.C. The petitioner was granted bail with specific conditions to ensure compliance and prevent any interference with the investigation.