No Default Bail Claiming Benefit Of SC Order Extending Limitation : Single Bench Of Madras HC Differs From Earlier Judgment [Read Order]

Taking a contrary view from a judgment delivered last week, a single bench of the Madras High Court on Tuesday held that accused cannot claim 'default' bail taking advantage of the suo moto order passed by the Supreme Court to extend limitation period taking note of the COVID-19 lockdown.

The Supreme Court's extension of limitation, as ordered on March 23, is applicable for the period of investigation specified under Section 167(2) of the Code of Criminal Procedure, held a bench of Justice G Jayachandran of Madurai Bench of Madras High Court held in an order pronounced on Tuesday.

The order stated that accused cannot take undue advantage of the situation where there are "fetters on the investigating agency upon their right of movement".

"Order passed by the Supreme Court invoking Article 142 of the constitution is an equitable order. After putting fetters on the investigating agency upon their right of movement causing delay in completing investigation, the person accused of the offence cannot take undue advantage of the situation and seek default bail. The liberty enshrined under Article 21 is subject to restrictions. The order of the Apex Court is Law binding on all courts. The petitioner's life and liberty is restricted only by due process of law and procedure established under law".

The Court added that the SC order will "eclipse" the time for investigation prescribed under Section 167(2) :

"Neither Section 167(2) nor Article 21 give unfettered right to the person accused of an offence. In an extraordinary situation, the Apex Court has passed the order invoking its extraordinary power under Article 142 extending the period of limitation prescribed in the general law of limitation and other special laws. The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under Section 167(2) of the code of Criminal Procedure also." 

Justice Jayachandran observed that to hold that the SC order is not applicable to the time period for filing final report amounts to mocking the Apex Court.

"Inspite of the Apex Court order extending the period of limitation in all proceedings where litigants face difficulties to be present physically, if one say it is not applicable to filing of final report on completion of investigation, he just mock the Apex Court order and nothing less"

Contrary view expressed by Justice G R Swaminathan

In an order pronounced on May 8, Justice G R Swaminathan had interpreted the SC's suo moto order passed on March 23 as applicable only to limitation period for filing cases under the Limitation Act, 1963. Justice G R Swaminathan also held that Section 167(2) cannot be held to be putting a limitation period on submitting final report, as the only consequence of failure to submit final report within the prescribed period is the accrual of right to the accused to seek default bail. The investigating agency can still submit final report even after the period prescribed under Section 167(2), the judge had noted in that case, "Settu vs The State"

Differing from this view, Justice Jayachandran held that Section 167 of the Code of Criminal Procedure mandates the investigating agency to complete the investigation within the time prescribed. In the light of this understanding, it was held that the SC order will apply to investigation as well.

"The spirit behind the order of the Apex Court is to do complete justice. Conscious to the fact that there are several legislations prescribing limitation, the Honourable Supreme Court has generally stated the period of limitation prescribed under general law of limitation or under special laws shall be extended until further order. Therefore it is needless to mention that the limitation under Section 167 for investigation also get extended".

Justice Jayachandran observed that Justice Swaminathan "has mis-interpreted the Apex Court Order dated 23/03/2020" and declared it to be "non-est" for being contrary to the apex court direction.

"The learned judge has mis-interpreted the Apex Court Order dated 23/03/2020. The clarification order dated 06/05/2020 no way dilute or restrict the scope and extend of the earlier order. Since the order relied by the learned counsel for the petitioner is contrary to the spirit of the Honourable Supreme Court order issued in exercise to the power of Article 142 it is non-est and has no binding force".

Justice Jayachandran added that the "myopic" reading of the SC order in the backdrop of the lockdown "will amount to judicial indiscipline".

"The lockdown announced by the Government is akin to proclamation of emergency. Under Article 352 of the Constitution, in case of external aggression National Emergency can be proclaimed by the President. Presently we face aggression not by human agencies, but by micro-organs. Like wise when the nation face threat to the credit or financial stability under Article 360 Financial emergency can be declared. If emergency is declared, under Article 358 the rights under Article 19 gets suspended. The right to live guaranteed under Article 21 is subject restriction. Presently, though the state is not passing through emergency duly proclaimed, whole nation has accepted the restrictions for well being of mankind. At this juncture, myopic reading of Section 167 of Cr.P.C conveniently ignoring the spirit behind the order by the Apex Court invoking its power under Article 142 of the constitution will amount to judicial indiscipline". 

"Violators of law cannot take undue advantage of the extra ordinary situation and enjoy the liberty while the entire nation is under lock down and crippled from carrying on their normal activities", said the Court while dismissing the plea for default bail

In a related development, the Uttarakhand High Court held on Tuesday that the SC order extending limitation will not affect the right to default bail. Justice Alok Kumar Verma of Uttarkhand HC expressed similar views as those of Justice G R Swaminathan.

Case Details

Title : S Kasi v The State

Case No : Crl OP(MD) No. 5296/2020

Coram   : Justice G Jayachandran

Appearances : Advocate S Mahendrapathy for accused; S Chandrasekar, Additional Public Prosecutor

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