The Supreme Court via its order dated 23rd March 2020 ordered the extension of the period of limitation. The limitation period extends w.e.f 15th March 2020 until further notice. This extension relates to all petitions, applications, suits, appeals, and all other proceedings by a litigant. It applies to both the general law of limitation as well as the special laws in this regard. Further, on 6th May 2020, the SC passed another order extending the period of limitation under the Arbitration and Conciliation Act and The Negotiable Instruments Act.
With the COVID-19 pandemic on a surge, courts have resorted to virtual hearings. This step is necessary to ensure the smooth facilitation of justice. Various steps are being taken to increase efficiency and reduce the harm caused by this outbreak. One such step relates to the extension of the limitation period. But, over the last two months, this order has raised concerns and legal issues due to its vagueness. Courts are facing questions about the applicability of the order in the matters of Right to Default Bail. This article aims at analyzing this right in light of the COVID-19 situation. It highlights the stance of Courts on this issue.
The issue at hand relates to ambiguity in the above mentioned two orders passed by the Supreme Court. Petitions have been filed in different Courts, seeking clarification on whether the said orders apply to Sec. 167(2) of the Code of Criminal Procedure (Cr.P.C.) or not. If the extension of limitation, as per the orders, is applicable to this section, it would imply an extension in the maximum time prescribed to investigate and file a police report. Hence, this application would amount to a denial of statutory Right to Bail as granted by this Section.
Right to Default Bail in India
Sec. 167(2) of the Cr.P.C, gives the Right to Default Bail. It provides the time within the police can remand an arrested person. It also imposes a maximum time limit on the police for investigating the case and filing the final report. Under the Section, persons undergoing investigation are by default eligible for bail. This statutory right arises if the investigating officers fail to complete the investigation and file the charge sheet within a particular time period. The period prescribed are divided into two categories-
- 90 days in case the investigation relates to any offence punishable with death, life imprisonment or imprisonment for more than ten years, and;
- 60 days in case the investigation relates to any other offence.
Does the Time-Period under Section Sec. 167(2) Amount to Limitation?
After the expiry of the limitation period, any appeals, applications, etc. cannot be admitted right away. Thus, the Apex Court intended to ensure that litigants don’t lose their right to file petitions, appeals, etc. But the intention of Sec. 167(2) was to maintain efficiency in the working of the investigating agency. It nowhere aimed to obstruct the process of investigation or filing charge-sheet. Thus, it does not impose a bar on filing the final report even after the prescribed time.
The essence of Sec. 167(2) is that if the final report is not filed within the specified time, then the magistrate will be divested of the jurisdiction to authorize the detention of the accused person beyond the mentioned period. This is if the accused prepares himself to and actually furnishes bail. Thus, the Section provides a statutory right to bail or right to default bail. Moreover, the Section cannot be on the footing of the limitation period. The Code does not provide for a limitation on the filing of the final report.
Importance of Time Period under Sec.167(2)
The time period under this Section is only in respect of the period of detention. It does not mention the time taken to file the final report. There may be cases where the investigation continues for more than the prescribed time. In such cases, if the accused is brought before the Magistrate for extension of his remand, the Magistrate must look into two questions–
- Whether the investigation is completed and the final report is filed and;
- Whether the accused is prepared to furnish bail.
If yes, then the limitation would apply. The magistrate will be divested of his jurisdiction to extend the detention.
Under Article 142 of the Constitution, the Supreme Court may allow the magistrate to extend the remand beyond the time prescribed under Sec. 167(2). Thus, the time under Sec. 167(2) is only a limitation on the extension of remand and not on the filing of the final report.
View of the Court
In Settu v. The State
On 8th May 2020, the issue of application of the said orders on Sec. 167(2) was raised for the first time before the Hon’ble Madras High Court. The Court held that the orders of the Supreme Court do not apply to Sec. 167(2). It also stated that the orders are not capable of taking away the indefeasible right of the detained person. In case the Supreme Court intended to take away this right, it would have expressed the same. Thus, the right to default bail stands unaffected by the orders extending limitation. In deciding the above order, the learned judge opined that –
“So long as the language of Section 167(2) of Cr.P.C. remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to a violation of his fundamental right under Article 21 of the Constitution of India.”
In S.Kasi v. State
But on 11th May 2020, the same High Court took a contrary view on the application of the order on Sec. 167(2). In light of the current pandemic, the Court observed that investigating agencies should be granted an extension. It stated that investigating agencies cannot complete investigations in the given time frame. Moreover, even if they complete investigations, Courts are not open to receive them.
The order compares the current situation to an emergency under Article 352 of the Constitution. In such a situation, rights stand suspended. Further, the rights granted under Article 21 are exercised with reasonable restrictions. The order also criticizes the previous order dated 8th May and terms it as an ignorant act. Thus, as per this order, this extension applies to Sec. 167(2).
In Vivek Sharma v. the State of Uttarakhand
On 12th May 2020, the High Court of Uttarakhand faced a similar issue while deciding a matter of bail. The Court held that investigation matters are not subject to the Apex Court’s order. If the Supreme Court intended to extend limitation under Sec. 167(2), it would have mentioned it in the order. Moreover, the Court stated that the orders passed by the Supreme Court are binding on all High Courts. The High Court doesn’t have the power to interpret the order in different terms. Thus, the said order does not cover Sec. 167(2).
If the orders are applicable to Sec. 167(2), it will pose grave issues. It will lead to a situation of prolonged detentions and are most likely to be misused. The application will also violate Article 21 of the Constitution. This article deals with the Right to Life and Liberty. It provides that every Indian citizen has the right to live with dignity.
The limitation on time under Sec. 167(2) Cr.P.C. curtails the rights of a detained person in a reasonable way. In case this limitation extends, it will be excessive and unreasonable. Even during this pandemic, there is a need for reasonable restrictions. The orders passed by the Apex Court have eased the difficulties faced by the litigant. They do not give a license to the investigating officer to justify the delay in filing the final report. The divergent views taken by the Courts also need to be harmonized. Thus, in conclusion, the Supreme Court’s order in this regard needs to be clarified at the earliest.
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