SC Order Extending Limitation will not Affect the Right To Default Bail Under Section 167(2) CrPC: Madras HC [Read Order]

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Madras High Court on Friday has held that the general order passed by the Supreme court for the extension of Limitation period for filing of cases will not affect the Right of the accused to Default Bail under section 167(2) CrPC.

Facts of the case:

According to Police, one Arokiyamary was on her morning walk on 19.01.2020 in Alakudi Road when she was robbed of her gold chain. A person coming from behind in a two wheeler bearing Registration No.TN 47 AQ 5726 intercepted her and threatened her with a knife and took away her one sovereign gold chain. The case was registered for the offences under Sections 392 and 397 of I.P.C. The petitioner was arrested during the course of the day on the allegation that it was he who committed the aforesaid robbery. He was remanded to judicial custody.

It was contended by the Shri.A.Robinson, the learned Government Counsel (crl.side) that the petitioner is accused of having committed the offences under Sections 392 r/w 397 of IPC.The offence under Section 397 of IPC is punishable with imprisonment which shall be not less than seven years. It is an offence triable by the Sessions Court. 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 the case on hand is brought under the robbery simpliciter category, the petitioner 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. The petitioner’s arrest and remand was on 19th January, 2020. The 60th day will fall on 19th March, 2020. The 90th day will fall on April 18th 2020.

He further submitted that the final report has not been made ready till date. And referred the special direction passed by the Hon’ble Supreme Court on 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 by which the period of limitation prescribed under various laws stood extended until further orders. The sweep and reach of the order passed by the Hon’ble Supreme Court is with effect from 15th March, 2020.

He further contended that even if the petitioner’s case comes under the lesser category, his right to default bail will accrue only on 20th March. In view of the intervention by the Hon’ble Supreme Court, the failure of the prosecution to file final report will not confer any right on the petitioner. His pointed contention is that while it is open to this Court to grant bail on merits, the petitioner is not entitled to claim the benefit of default bail.

A single bench of Justice G.R.SWAMINATHAN referred to the Directions of Supreme Court and noted that The Hon’ble Supreme Court taking note of the extraordinary situation obtaining in the country has ordered 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 Court referred Section 2(j) of the Limitation Act which reads as follows : “period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act.”

The Court held that 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. But, filing of final report stands on a different footing altogether. Section 167 (2) of Cr.Pc does not bar the filing of final report even after the period specified therein. The implication of Section 167 (2) is that if the final report is not filed within the time limit prescribed therein, the magistrate will be divested of the jurisdiction to authorise the detention of the accused person beyond the said period, if the accused is prepared to and does furnish bail. 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.

Section 167 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports, the Court Observed.

The Court noted that the 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 definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.

The Court held:

In view of the reasons set out above, I conclude that the petitioner is entitled to default bail. Accordingly, the petitioner is ordered to be released on default bail, subject to the following conditions;

  • 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.
  • the petitioner is directed to appear before the respondent police as and when required for interrogation.
  • 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.

Read Order here:

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