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TMI Blog2020 (6) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... d Under Article 22(2) of the Constitution. The provision of Section 167 is supplementary to Section 57. The power Under Section 167 is given to detain a person in custody while police goes on with the investigation. Section 167 is, therefore, a provision which authorises the Magistrate permitting the detention of the Accused in custody prescribing the maximum period. The scheme of Code of Criminal Procedure 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 limitation for filing petitions/applications/suits/appeals/all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/applications/suits/appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as High Court dated 11.05.2020 in Crl.O.P.(MD) No. 5296 of 2020 by which judgment the bail application of the Appellant has been dismissed. 2. Brief facts giving rise to this appeal are: 2.1. The Appellant is an Accused in Crime No. 495 of 2015 Under Sections 457, 380, 457(2), 380(2), 411(2) and 414(2) of Indian Penal Code. The Appellant was arrested on 21.02.2020 in the above case and lodged in Central Prison, Trichy. The bail application of the Appellant Under Section 439 was rejected by the trial court on 30.04.2020. After being in judicial custody for more than 73 days, the Appellant filed an application Crl.O.P.(MD) No. 5296 of 2020 before the High Court of Judicature of Madras at Madurai Bench praying for grant of bail 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. 2.2. The High Court referring to an order of this Court dated 23.03.2020 passed in Suo Moto W.P.(C) No. 3 of 2020 took the view: ...The Supreme Court order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution was entitled for grant of bail as per Section 167(2) of the Code of Criminal Procedure. Before we notice the order of this Court dated 23.03.2020 passed in Suo Motu W.P.(C) No. 3 of 2020 which has been applied by the High Court on the provisions of Section 167(2) Code of Criminal Procedure, we need to notice object and purpose of enactment of Section 167 of the Code of Criminal Procedure. 9. In the earlier Code, i.e., the Code of Criminal Procedure, 1898, Section 167 laid down the procedure to be followed in the event the investigation of an offence was not completed within 24 hours. Section 167 in the Code of Criminal Procedure, 1898, was premised on the conclusion of investigation within 24 hours or within 15 days on the outside regardless of the nature of the offence or the punishment. 10. The Law Commission of India in its Forty-first Report recommended for increasing the time limit for completion of investigation to 60 days. The new Code of Criminal Procedure, 1973 gave effect to the recommendation of the Law Commission. Section 167 as enacted provided for time limit of 60 days regardless of the nature of offence or the punishment. In the year 1978, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(2) of the Constitution. The provision of Section 167 is supplementary to Section 57. The power Under Section 167 is given to detain a person in custody while police goes on with the investigation. Section 167 is, therefore, a provision which authorises the Magistrate permitting the detention of the Accused in custody prescribing the maximum period. In Uday Mohanlal Acharya (Supra), this Court while dealing with Section 167 laid down following: ...This provision of Section 167 is in fact supplementary to Section 57, in consonance with the principle that the Accused is entitled to demand that justice is not delayed. The object of requiring the Accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the Accused to make a representation which he may wish to make. The power Under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an Accused in custody and prescribing the maximum period for which such detention could be ordered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by the Constitution bench is to the effect that if the charge sheet is not filed and the right for default bail has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The Accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the Accused is prepared to furnish the bail bond. 39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 wherein it was observed that some courts keep the application for default bail pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be detained by the Police. The provision gives due recognition to the personal liberty. 15. After noticing the purpose and object of Section 167, we now come to the judgment of this Court dated 23.03.2020 which has been relied and referred by learned Single Judge in the impugned judgment for holding that the time period in Section 167(2) is eclipsed by judgment of this Court dated 23.03.2020. The Order dated 23.03.2020 was passed by this Court in Suo Motu W.P.(C) No. 3 of 2020. The entire order passed on 23.03.2020 is to the following effect: This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). 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, it is hereby ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by time because they were unable to come physically to file such proceedings. 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. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge). 18. If the interpretation by learned Single Judge in the impugned judgment is taken to its logical end, due to difficulties and due to present pandemic, Police may also not produce an Accused within 24 hours before the Magistrate's Court as contemplated by Section 57 of the Code of Criminal Procedure, 1973. As noted above, the provision of Section 57 as well as Section 167 are supplementary to each other and are the provisions which recognises the Right of Personal Liberty of a person as ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated June 27, 1975 under Clause (1) of Article 359 of our Constitution no person has locus standi to move any writ petition Under Article 226 before a High Court for Habeas Corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide. 137. Second, Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential Order. 21. Another Three-Judge judgment of this Court in Union of India and Ors. v. Bhanudas Krishna Gawde and Ors. (1977) 1 SCC 834, took the same view following the majority of this Court in ADM, Jabalpur v. Shivakant Shukla. In paragraph 23, following was observed: 23. .........Accordingly, if a person was deprived of his personal liberty not under the Defence of India Act or any Rule or order made thereunder but in contravention thereof, his locus standi to move any court for the enforcement of his rights, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur v. Shivakant Shukla (supra) has held that State has no power to deprive the person of his life or liberty without the authorities of law. In paragraphs 525 and 530, Justice Khanna observed: 525. ...I am of the opinion that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the Rule of law. Many modern Constitutions incorporate certain fundamental rights, including the one relating to personal freedom. According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness. xxxxxxxxxxxxx xxxxxxxxxxxxxx 530. Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the Rule of law and not of men in all civilised nations. Wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force Under Article 372 of the Constitution. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of Law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Code of Criminal Procedure 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 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. 15. Of course, the construction placed by me 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. For instance, Section 36-A (4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also followed the judgment of learned Single Judge of the Madras High Court in Settu v. The State (supra) and has held that Accused was entitled for grant of the default bail. Uttarakhand High Court in First Bail Application No. 511 of 2020 - Vivek Sharma v. State of Uttarakhand in its judgment dated 12.05.2020 has after considering the judgment of this Court dated 23.03.2020 passed in Suo Moto W.P.(C) No. 3 of 2020 has taken the view that the order of this Court does not cover police investigation. We approve the above view taken by learned Single Judge of Madras High court in Settu v. The State (supra) as well as the by the Kerala High Court, Rajasthan High Court and Uttarakhand High Court noticed above. 31. Learned Single Judge in the impugned judgment has taken a contrary view to the earlier judgment of learned Single Judge in Settu v. The State (supra). It is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and Anr. v. Devans Modern Breweries ltd. and Anr. (2004) 11 SCC 26, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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