SC Order For Extension Of Limitation Does Not Affect An Accused' Right To Default Bail Under Section 167(2) CrPC: Kerala HC [Read Order]

The bench of Justice Raja Vijayaraghavan V. has held that the provisions of the CrPC do not empower anyone to extend the period, within which investigation must be completed.

"The provisions of the Code do not empower anyone to extend the period within which investigation must be completed. If on the expiry of the period mentioned the final report is not laid, the right of the accused gets crystallised and if the accused expresses his willingness to be admitted to the benefit of bail and prefers appropriate application, he has to be granted default bail," the bench held.

Reliance was placed on Achpal @ Ramaswaroop & Anr. v. State of Rajastan, (2019) 14 SCC 599, whereby the Supreme Court was confronted with the issue as to whether the High Court could have extended the period prescribed under Section 167 of the CrPC. The top court had observed,

"We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality."

Further, the High Court has clarified that a reading of the general order passed by the Supreme Court to extend the period of limitation for filing cases would show that those directions were issued to obviate difficulties faced by the litigants, lawyer and they are "applicable to petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws."

The court iterated that the 'period of limitation' as defined under Section 2(j) of the Limitation Act, 1963 means "limitation prescribed for any suit, appeal or application by the Schedule".

In this context it was held, Section 167 of the CrPC does not provide any "outer limit" for the period of completion of investigation. The police may continue to investigate even after completion of the 60/ 90 days period stipulated under the provision and hence, the Supreme Court order cannot be made applicable to the provision for default bail.

"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," the bench remarked.

Justice Vijayaraghavan went on to state that if the contrary were to be assumed and the extension of limitation was allowed for the purposes of Section 167(2), then the very same contention could be taken by the investigating agency and they could very well contend that they can detain the accused in custody for more than 24 hours. They could also demand that they are entitled to get police custody even beyond the period of 15 days from the first remand.

"This will result in serious deprivation of the rights of the accused and most certainly will be misused in certain cases," the bench held.

The court emphasized that under Section 167(2), an accused acquires the "indefeasible right" to be released on bail. "When the right for default bail has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext," the bench recalled the observation of the Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001(5) SCC 453.

It thus held,

"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."

While making these observations, the bench expressed its concurrence with the verdict of Justice Alok Kumar Verma of the Uttarkhand High Court in Vivek Sharma v. State of Uttarkhand, whereby it was had held that the SC order for extension of limitation does not mean that the Court had extended the 60 days/ 90 days period of police investigation prescribed under Section 167(2).

The bench also expressed concurrence with Justice G R Swaminathan of the Madras High Court in "Settu vs The State" who had interpreted the SC's order as applicable only to limitation period for filing cases under the Limitation Act, 1963.

Justice Swaminathan had observed that the order did not touch upon any specific extension of time for completing investigation under Section 167(2). Hence, it was held that once the mandatory period of 60/ 90 days as prescribed under the provision expires, the accused is entitled for default bail.

"I respectfully concur with the exposition of law laid down by the learned Single Judge of the Madras High Court in Crl.O.P.(MD) No.5291 of 2020 as well by the learned Single Judge of Uttarakhand High Court when their lordships held that the investigating agency cannot benefit from the directions issued by the Supreme Court in the suo moto Writ petition," Justice Vijayaraghavan said in his order.

It is noteworthy however that the abovementioned verdict of the Madras High Court has been referred to a higher bench for consideration alongside another single-bench decision in S. Kasi v. State through The Inspector of Police, whereby Justice G. Jayachandran had held that the period of limitation for investigation under Sec.167 CrPC would also stand extended, keeping in view the extraordinary situation of the Covid-19.

"There are two conflicting opinions arising out of the orders referred to above and in my considered view, since the same is likely to have a direct impact on bail orders to be passed by the Subordinate Judiciary or even by this Court, the matter deserves to be resolved by an authoritative pronouncement," Chief Justice AP Sahi stated in the reference order.

Case Background

The extensive observations have been made in a bail application moved by Mohammed Ali, who was denied the right to default bail by the Special Judge (POCSO), owing to the fact that investigation in the case had been completed and the final report had been prepared, however the same could not be filed since the trial court was closed in view of the COVID 19 lockdown.

The Applicant had been booked Sections 354B, 376(2)(f)(n), 376(3) of IPC, Sections 4(2) r/w. Section 3(a), (b), 6(l), 5(j), (ii), (n), 8 r/w 7, 10 r/w. 9(l)(n) of POCSO and Section 75 of the JJ Act, for committing penetrative sexual assault on his daughter.

In view of the observations made above, the court allowed the bail application of the Petitioner-accused, on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. To ensure the safety of the child victim, the court ordered that a woman Police Constable in plain clothes will be deputed to the residence of the survivor child once in a month for the next six months.

While passing the order for release of the Petitioner, the court clarified that even if final report was submitted after the dismissal of the bail application by the Special Judge, the situation would not change. Reliance was placed on Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67.

"As held in Rakesh Kumar Paul (supra), the petitioner having availed of his right to default bail immediately on the expiry of the statutory period, and the same having been denied, his right could not be defeated by subsequently filing a final report," the High Court held.

Case Details:

Case Title: Mohammed Ali v. State of Kerala & Anr.

Case No.: BA No. 2856/2020

Quorum: Justice Raja Vijayaraghavan V.

Appearance: Advocate Mansoor BH (for Petitioner); Public Prosecutor TR Renjith (for State)

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