(BREAKING) Right To Default Bail Under Section 167 (2) CRPC Not Affected by SC Order Extending Limitation - Madras HC (Read Order) PDF

5/9/2020 [BREAKING] Right To Default Bail Under Section 167(2) CrPC Not Affected By SC Order Extending Limitation : Madras
n : Madras HC [Read Order]
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[BREAKING] Right To Default Bail Under Section

167(2) CrPC Not Affected By SC Order
Extending Limitation : Madras HC [Read Order]
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5/9/2020 [BREAKING] Right To Default Bail Under Section 167(2) CrPC Not Affected By SC Order Extending Limitation : Madras HC [Read Order]
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In a signi cant decision, the Madras High Court has held that the general order passed
by the Supreme Court to extend the period of limitation for ling cases in view of the
COVID-19 lockdown will not affect the right of an accused to default bail under Section
167(2) of the Code of Criminal Procedure.
A single bench of Justice G R Swaminathan observed that the police cannot take bene t
of the SC order to claim additional period for ling nal report.
Also Read - SC Dismisses Plea Seeking Uniform Welfare Scheme for Lawyers In
Distress Due To Lockdown [Read Order]
The Court held that allowing such an interpretation would defeat the fundamental right to
personal liberty of a person under Article 21 of the Constitution of India.
"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.
So long as the language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily
hold that denial of compulsive bail to the petitioner herein will de nitely amount to
violation of his fundamental right under Article 21 of the Constitution of India.
Also Read - 'Let the Govt. Decide': SC Dismisses Petition Seeking For Military
Deployment For Proper Implementation Of Lockdown [Read Order]
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",
observed Justice Swaminathan in the order.
The order was passed in a bail application led by one Settu, who was arrested on
January 19, 2020, on the allegation of committing robbery. He was made accused in an
FIR registered for offences under Sections 392 read with 397 of the Indian Penal Code.
He remained under custody since the day of arrest.
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Section 392 of IPC deals with robbery of two kinds ; robbery committed on the highway
between sunset and sunrise and other kinds of robbery. The former is punishable with
imprisonment that may extend to 14 years. Robbery simpliciter is punishable with
rigorous imprisonment for a term which may extend to ten years. If petitioner's case is
classi ed as robbery simpliciter, he can seek default bail on the expiry of the 60th day
from the date of remand. If the petitioner's case is catergorized under the aggravated
type, then it will be on the expiry of 90 days.
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The 60th day after his remand fell on 19th March, 2020. The 90th day fell on April 18th
2020. In any case, the police had not led nal report, even as on the date of bail hearing.
Therefore, the accused sought for default bail, as per Section 167(2) of the CrPC.
In opposition, the prosecution sought to place reliance on the order passed by the
Supreme Court on March 23, whereby limitation period for ling of cases in courts and
tribunals was extended with effect from March 15 until further orders to be passed by the
top court.
Also, on May 6, the SC passed a further order extending the limitation periods under the
Arbitration and Conciliation Act and Section 138 of the Negotiable Instruments Act.
Hence, the question before the HC was whether this order of the SC will extend the time
for ling nal report.
To settle the issue, Justice Swaminathan rst examined the scope of the term 'limitation'.
Referring to Section 2(j) of the Limitation Act, it was observed that "period of limitation"
pertains to the time period prescribed for any suit, appeal or application. After the expiry
of the limitation period, the application or appeal cannot be straightaway admitted,
unless the delay is condoned under Section 5 of the Limitation Act or other relevant
provision.
In this context, the judge examined if Section 167(2) can be construed as prescribing any
period of limitation for investigation. This was answered in the negative on two grounds :
1. Section 167(2) does not bar the ling of nal report even after the period prescribed
therein.
2. The effect of expiry of the period under Section 167(2) is just the accrual of rights to
the accused for default bail.
The order stated :
"The point to note is after the expiry of the limitation period, the application or appeal
cannot be straightaway admitted. That is why, the Hon'ble Supreme Court in its
benevolence has ordered that the period of limitation shall stand extended during this
lock-down period. Thus, the litigants will not lose their rights. But, ling of nal report
stands on a different footing altogether".
Section 167 of Cr.PC cannot be construed as containing the period of limitation for ling
of nal reports, observed the Court.
The Court noted that it has been held by the SC in Achpal v. State of Rajasthan that on
the expiry of the period under Section 167(2), an "indefeasible right" would accrue in
favour of the accused to seek default bail.
The Court also took note of the fact that the Central Government had brought an
Ordinance - Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020
- to extend the period of lings and complainces under various taxation and regulatory
laws. Yet, the Executive did not think it necessary to make any amendments to Section
167(2).
"No similar change has been effected in respect of Section 167(2) of Cr.Pc. If the
executive had actually intended that the period speci ed in Section 167 of Cr.Pc should
be extended, it ought to have come out with an appropriate formal measure. The
executive must exhibit nimble footwork and not hide behind judicial orders. Only little
children hide behind the saree end (pallu) of their mothers", the Court said.
The Court added that crimes were happening even during lockdown, and arrests were
being made. So the general extension of limitation cannot be cited as a reason to not le
nal report.
"It is not as if crimes have not taken place during these pandemic times. Arrests are also
being made and accused are being remanded. Therefore, the respondent is not justi ed
in citing the closure of the courts and the general extension of the limitation period".
It was noted that even the Executive Magistrate has been empowered under Section
167(2A) to pass detention orders in the absence of judicial magistrate.
"In this case, nothing stopped the respondent from formally presenting the nal report
before the stipulated date and getting the initial of the jurisdictional magistrate. This
Court would de nitely have construed the same as su cient compliance of the
requirement of law. Such is not the case here", Justice Swaminathan noted.
Interpretation not applicable to UAPA, NDPS cases
However, the Court added that the interpretation given by it will not apply to cases under
special laws like UAPA, NDPS etc.
The order stated :
"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 o cer 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 bene t 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 167 of Cr.Pc is applicable, the bene t of
the said direction cannot be availed".
The petitioner was ordered to be released on default bail subject to conditions. :
1. the petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand
Only) with two sureties, each for a like sum to the satisfaction of the learned
Judicial Magistrate No.II, Thanjavur District.
2. the petitioner is directed to appear before the respondent police as and when
required for interrogation.
3. on breach of any of the aforesaid conditions, the Magistrate/Trial Court is entitled to
take appropriate action against the petitioner in accordance with law
The Court also clari ed that the order does not prohibit the arrest or rearrest of the
petitioner on cogent grounds in respect of the subject charge as per the law laid down by
the SC in Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67 and in that event ,
the petitioner will have to move a regular application for grant of bail which will be
considered on its own merit.
Case Details
Title : Settu vs The State
Case No : Crl OP(MD) No. 5291/2020
Bench : Justice G R Swaminathan
Appearances : K.M.Karunakaran for accused; A.Robinson for Prosecution.
Click here to download order
Read Order
Page 1 of 19 WWW.LIVELAW.IN
CRL OP(MD).
No.5291 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Criminal Jurisdiction )
Date : 08/05/2020
PRESENT
The Hon`ble Mr.Justice G.R.SWAMINATHAN
CRL OP(MD). No.5291 of 2020
Settu S/o.Govindaraj,
Athaliyur Village,
Mottur Post, Uthangarai Taluk,
Krishnagiri.
... Petitioner/Accused
Vs.
The State, rep.by
The Inspector of Police,
Vallam Police Station,
Thanjavur District.
(Crime No. 10 of 2020). ... Respondent/Complainant
For Petitioner : M/s.K.M.Karunakaran, Advocate.
For Respondent : Mr.A.Robinson,

Government Advocate (Crl.Side)
PETITION FOR BAIL Under Sec.439 of Cr.P.C.
PRAYER :- For Bail in Crime No. 10 of 2020 on the file of the

respondent Police.
1/19
http://www.judis.nic.in
Page 2 of 19 WWW.LIVELAW.IN
Page 1 / 19
CRL OP(MD).
No.5291 of 2020
ORDER Th C t d th f ll i d
TAGS #SECTION 167(2) CRPC DEFAULT BAIL #PERSONAL LIBERTY #ARTICLE 21
#JUSTICE G R SWAMINATHAN #MADRAS HIGH COURT LIMITATION PERIOD LIMITATION
#LIMITATION ACT COVID-19 NATIONAL LOCKDOWN
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5/9/2020 [BREAKING] Right To Default Bail Under Section 167(2) CrPC Not Affected By SC Order Extending Limitation : Madras

n : Madras HC [Read Order]

TOP STORIES NEWS UPDATES COLUMNS INTERVIEWS FOREIGN/INTERNATIONAL 

[BREAKING] Right To Default Bail Under Section

167(2) of the Code of Criminal Procedure.

of the SC order to claim additional period for ling nal report.

Distress Due To Lockdown [Read Order]

personal liberty of a person under Article 21 of the Constitution of India.

Deployment For Proper Implementation Of Lockdown [Read Order]

He remained under custody since the day of arrest.

imprisonment that may extend to 14 years. Robbery simpliciter is punishable with

type, then it will be on the expiry of 90 days.

Migrants' Shelter Been Made : NHRC Takes Suo Moto Cognizance

for ling nal report.

of the limitation period, the application or appeal cannot be straightaway admitted,

the accused for default bail.

The order stated :

of nal reports, observed the Court.

favour of the accused to seek default bail.

167(2A) to pass detention orders in the absence of judicial magistrate.

Interpretation not applicable to UAPA, NDPS cases

special laws like UAPA, NDPS etc.

The order stated :

The petitioner was ordered to be released on default bail subject to conditions. :

Judicial Magistrate No.II, Thanjavur District.

required for interrogation.

3. on breach of any of the aforesaid conditions, the Magistrate/Trial Court is entitled to

take appropriate action against the petitioner in accordance with law

considered on its own merit.

Title : Settu vs The State

Case No : Crl OP(MD) No. 5291/2020

Bench : Justice G R Swaminathan

Appearances : K.M.Karunakaran for accused; A.Robinson for Prosecution.

Click here to download order

CRL OP(MD). No.5291 of 2020

For Petitioner : M/s.K.M.Karunakaran, Advocate.

For Respondent : Mr.A.Robinson,

PETITION FOR BAIL Under Sec.439 of Cr.P.C.

PRAYER :- For Bail in Crime No. 10 of 2020 on the file of the

#JUSTICE G R SWAMINATHAN #MADRAS HIGH COURT LIMITATION PERIOD LIMITATION

#LIMITATION ACT COVID-19 NATIONAL LOCKDOWN

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Aircraft Public Health

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