2020 (5) TMI 692 - HC - Indian Laws

Petitioner granted default bail due to late final report filing. Conditions apply. Arrest still possible.

The Court ruled that the petitioner is entitled to default bail as the final report was not filed within the mandatory time limit under Section 167(2) of ... Grant of default bail - Robbery of Gold chain - entitlement to default bail when final report has not been filed within the mandatory time limit - HELD THAT:- It has been held in Achpal v. State of Rajasthan [2018 (9) TMI 1863 - SUPREME COURT] that the provisions of the Code do not empower any one to extend the period within which the investigation must be completed. If on the expiry of the period aforesaid mentioned, the accused applies for bail and is ready to furnish sureties, an indefeasible right would accrue in his favour - The Hon'ble Supreme Court taking note of the extraordinary situation obtaining in the country has ordered as mentioned above that the period of limitation shall stand extended until further orders. This was to obviate the difficulties faced by the litigants and to ensure that they and their lawyers do not have to come physically to file in the respective Courts and Tribunals. The Hon'ble Supreme Court has not mentioned that police investigations would also be covered by the said order. The limitation barrier prescribed for institution of suits is impregnable and cannot be breached. However, Section 5 of the Limitation Act provides for extension of prescribed period in certain cases. If Section 5 of the Limitation Act is not excluded either expressly or by implication, the power to condone delay in filing the appeal or application can always be invoked. The special laws also contain special periods of limitation with or without power to condone delay - The expiry of the period results in accrual of right in favour of the accused. Even though this time limit is referred to as period of limitation, technically it is not. It is only Chapter XXXVI of Cr.Pc that deals with limitation for taking cognizance of certain offences. Even Section 167 (5) of Cr.Pc has been interpreted to mean that the magistrate shall only make a direction for stopping further investigation in a summons case if it is not concluded within the period of six months and the said period has not been extended and it does not bar the magistrate from taking cognizance based on the final report filed thereafter. Hence, Section 167 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports. Personal liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law - the prosecution has a right to apply for extension of time. The petitioner is entitled to default bail - Petition allowed. Issues Involved:1. Entitlement to default bail under Section 167(2) of Cr.PC.2. Applicability of the Supreme Court's order extending the period of limitation due to COVID-19 to Section 167(2) of Cr.PC.3. Interpretation of the Supreme Court's order in the context of Section 167(2) of Cr.PC.Detailed Analysis:Entitlement to Default Bail under Section 167(2) of Cr.PC:The petitioner was arrested on 19th January 2020 for alleged robbery under Sections 392 and 397 of IPC and remanded to judicial custody. The petitioner filed for default bail on the grounds that the final report was not submitted within the mandatory time limit. According to Section 167(2) of Cr.PC, the magistrate cannot authorize detention beyond 90 days for offenses punishable with imprisonment of not less than ten years, and 60 days for other offenses, if the final report is not filed within these periods. The petitioner argued that since the final report was not filed within the stipulated time, he is entitled to default bail.Applicability of the Supreme Court's Order Extending the Period of Limitation:The prosecution contended that the Supreme Court's order dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020, which extended the period of limitation due to the COVID-19 pandemic, should apply to the filing of the final report under Section 167(2) of Cr.PC. The Supreme Court's order aimed to alleviate difficulties faced by litigants and lawyers due to the pandemic by extending the period of limitation for various proceedings.Interpretation of the Supreme Court's Order:The Court analyzed whether the Supreme Court's order extending the period of limitation applies to Section 167(2) of Cr.PC. It was noted that the Supreme Court's order was intended to extend the period of limitation for filing suits, appeals, and applications, but did not explicitly cover police investigations or the filing of final reports under Section 167(2) of Cr.PC. The Court observed that the term 'limitation' typically refers to the time within which legal proceedings must be initiated, not to procedural timelines for investigations.The Court referred to the definition of 'limitation' in various legal dictionaries and concluded that Section 167(2) of Cr.PC does not prescribe a period of limitation for filing final reports but rather sets a procedural timeline for the detention of the accused. The Court emphasized that the failure to file a final report within the stipulated time results in an indefeasible right to default bail for the accused.The Court also highlighted that the Supreme Court's order did not mention extending the time limit for filing final reports under Section 167(2) of Cr.PC. The Court pointed out that the executive had not issued any formal measure to extend the period specified in Section 167 of Cr.PC, unlike other laws where specific relaxations were provided.Result:The Court concluded that the petitioner is entitled to default bail as the final report was not filed within the mandatory time limit prescribed under Section 167(2) of Cr.PC. The Court ordered the petitioner to be released on default bail subject to certain conditions, including executing a bond and appearing before the respondent police for interrogation as required.The Court clarified that this order does not prohibit the arrest or rearrest of the petitioner on cogent grounds in respect of the subject charge, and any subsequent bail application would be considered on its own merits.Conditions for Bail:1. The petitioner shall execute a bond for Rs. 10,000 with two sureties of like sum to the satisfaction of the Judicial Magistrate No.II, Thanjavur District.2. The petitioner must appear before the respondent police as and when required for interrogation.3. Any breach of the conditions will entitle the Magistrate/Trial Court to take appropriate action as per law.