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TaxTMI 
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2020 (6) TMI 727
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.....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 eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed Under Section 17(2) of the Code of Criminal Procedure... 2.3. Aggrieved by the order of the Madras High Court dated 11.05.2020, this appeal has been filed. 3. We have heard Shri Sidharth Luthra, learned senior Counsel appearing for the Appellant and Shri Jayanth Muthuraj, learned Additional Advocate General for the State. 4. Shri Sidharth Luthra, learned senior Counsel for the Appellant contends that the High Court committed error in taking the view that....
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....ted 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, Section 167 was amended. Section 167(2) which is relevant for the present case existing as of now is to the following effect: 167.(2) The Magistrate to whom an Accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the Accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the Accused to be forwarde....
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....ection 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. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to Sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the Accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by the judicial pronouncement to be "compulsive bail" and such bail would be deemed to be a bail under Chapter 33. The right of an Accused to be released on bail after expiry of the maxi....
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....her 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 Accused for "default bail" during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court. 13. One more judgment of this Court on Section 167 Code of Criminal Procedure be noticed, i.e., Achpal Alias Ramswaroop and Anr. v. State of Rajasthan, (2019) 14 SCC 599. After referring to several earlier judgments of this Court including the judgment of this Court in Uday Mohanlal Ac....
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....uo 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 that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power Under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order with....
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.... 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 enshrined in the Constitution of India. 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 aft....
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....ention 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, conferred by Articles 21 and 22 of the Constitution was not barred. More or less, similar was the pattern and effect of the presidential Order dated November 16, 1974. The position with respect to the Presidential Orders dated 27, 1975 and January 8, 1976 is, however, quite different. These orders are not circumscribed by any limitation a....
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.... 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. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the ....
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....eans 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 precious and undeniable feature of the Rule of law. 139. ADM Jabalpur must be and is accordingly overruled. We also overrule the decision in Union of India v. Bhanudas Krishna Gawde, which followed ADM Jabalpur. 25. We, thus, are of the clear opinion that the learned Single Judge in the impugned judgment erred in ....
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....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, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon'ble Supreme Court made 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020 will apply. But, in respect of the other offences for which Section 16....
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....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 paragraph 339 laid down following: 339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only....