The Supreme Court took a suo moto (on its own) decision stating that; its extension of the limitation or the government extending the lockdown does not affect the accused’s right for a default bail under Section 167(2) of the Code of Criminal Procedure.
The bench consisting of Justices Ashok Bhushan, M R Shah and V Ramasubramanian passed this order. Notably, this order supersedes the decision in S Kasi v State. The Madras High Court held that, the time to file charge sheet as per Section 167(2) Criminal Procedure Code; will also get extended due to the Supreme Court order extending limitation and the lockdown restrictions.
The Erraneous Decision
Firstly, the May 8 order of Settu vs The State, Justice G R Swaminathan had interpreted the Supreme Court’s order; as applicable only to limitation period for filing cases under the Limitation Act, 1963. He observed that the order did not consider any specific extension of time for completing investigation under Section 167(2). So, once the mandatory period of 60/ 90 days as prescribed under the provision expires; the accused is entitled for default bail.
Secondly, that Justice G. Jayachandran gave a conflicting decision in S. Kasi v. State through The Inspector of Police; observing that holding that the SC order as not applicable to the time period for filing final report is to mocking the Supreme Court. He held that the period of limitation for investigation under Sec.167 would also stand extended, due to the COVID-19 pandemic.
“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.” – The Apex Court hed.
The Problems in the High Court’s Decision
Moreover, the bench observed that the High Court likening the lockdown to a proclamation of emergency under Article 352 of the Constitution was not correct. Further even in emergency, the fundamental right to personal liberty under Article 21 cannot be suspended. So, the rights of the accused cannot be taken away. The Court held that the High Court should not have interpreted the suo moto order extending limitation as extending the limitation period under Section 167(2). The court held:
“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 similar to right of liberty of a person given under Article 21; and reflected in other statutes including Section 167.”
Therefore, the bench held that the if High Court’s order would stand; it may lead to police taking extra liberties even regarding the production of accused after arrest. The Court also said that the High Court’s view “sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person“.