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2020 (5) TMI 699

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..... appellate Court were justified in concluding that if he is handed over to the guardian or released on bail, he is likely to go in company or in association of known criminals and the same would expose him to crimes of like nature - It is more or less trite that in case charge-sheet is not filed within 60 days or 90 days, as the case may be, an accused is entitled for bail by virtue of first proviso to sub-section (2) of Section 167 the Code. The government has come out with the taxation and other laws (Relaxation of Certain Provision) Ordinance, 2020. By virtue of the provisions contained in this Ordinance, the limitation or outer limit for compliance or actions/orders under various enactments has been extended. Concededly, no amendment has been introduced in the Code, particularly in Section 167(2) - In absence of any amendment in the statute and without there being any remote reference of investigation or provisions of the Code in the order of Supreme Court, taking shield of the Supreme Court s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution. It is directed that the petiti .....

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..... ed an appeal against the above order dated 10.2.2020, which too was rejected by the appellate Court. 2.6 The petitioner (through his guardian) has prefered the present revision petition seeking quashment of above referred orders passed by the Board and appellate Court while also praying that he be released on bail. 3. Questioning the legality and proprietary of the above referred orders, learned counsel for the petitioner argued that the offences alleged against the petitioner (Section 392/34 of the IPC) are triable by magistrate and thus, the Juvenile Justice Board ought to have enlarged the petitioner on bail considering that he was behind bars for considerable period. He argued that despite being a juvenile, the petitioner is languishing in judicial custody for not so serious offence. Showing concern about petitioner s predicament, he added that had he been a major, he would have been released on bail by this time. 4. Concluding his submissions, while informing that chargesheet/ final report has not been filed so far, he asserted that petitioner is entitled to be enlarged on bail, as the statutory period for filing charge-sheet has since passed. 5. Learned Public Pro .....

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..... e nature of allegation against the petitioner, the Board and appellate Court were justified in concluding that if he is handed over to the guardian or released on bail, he is likely to go in company or in association of known criminals and the same would expose him to crimes of like nature. 12. Having upheld the orders under challenge on their merits, I proceed to deal with the argument based on failure to file chargesheet and corresponding defence taken by the State-Prosecution. 13. Before moving on to this argument, it is pertinent to note that this argument was neither raised before the courts below nor had the occasion to raise such plea arisen. Because, the period of 60 days from petitioner s arrest was over on 31st March, much after the Board and even the appellate Court passed the impugned order. 14. It is more or less trite that in case charge-sheet is not filed within 60 days or 90 days, as the case may be, an accused is entitled for bail by virtue of first proviso to sub-section (2) of Section 167 the Code. Various High Courts and the Apex Court have time and again reverberated that such right is an indefeasible and crystallized right of an accused. 15. The pr .....

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..... ed that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings. In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown. In view of the above, the instant interlocutory application is disposed of. 17. In order to have a better conspectus of the law, vis-a-vis the order dated 23.3.2020, it is considered necessary to have provisions of Section 167 of the Code handy; the same is thus, being reproduced hereinbelow: 167. Procedure when investigation cannot be completed in twenty-four hours- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or informatio .....

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..... ody of the police. Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the Accused shall be detained in custody so long as he does not furnish bail. Explanation II.-If any question arises whether an Accused person was produced before the Magistrate as required under Clause (b), the production of the Accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the Accused person through the medium of electronic video linkage, as the case may be: Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. xxxxx xxxx xxxx 18. A simple reading of Section 167 of the Code makes it abundantly clear that it does not provide any outer time limit within which the investigation is required to be completed. In other words, Section 167 of the Code is not a provision containing limitation for filing a final report; it is, rather a provision, which prescribes the consequence or effect of failure o .....

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..... tablished 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 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, t .....

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..... ts, appeals and applications and Section 5 provides for extension of prescribed period in certain cases. Section 29(2) of Act 36 of 1963 provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed in the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule. In this context, if Section 167 of the Cr.P.C. is analysed, it is luculent that the said provision does not provide any outer limit for the period of completion of investigation. It only interdicts the Magistrate from authorising detention of the accused person other than in the custody of the police for the statutory period. However, the police can continue with the investigation and take their own sweet time to conclude the same and file a final report. This provision is unlike Section 468 of the Cr.P.C., which provides for limitations for taking cognizance of certain offences. If the submission of the learned Public Prosecutor is accepted, the very same contention can be taken by the investigating agency and they can very well contend that they can detain the accused in custody .....

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..... but it is a human right which is inherent in every citizen of any civilized society. Article 21 only recognizes this right. Section 57 and 167 are the provisions in the Code which provides for procedure established by law which curtails this right. Such provisions which provide for the procedure to keep an accused under prolonged incarceration will have to be interpreted keeping in mind the constitutional rights of the accused. 24. Uttarakhand High Court also followed the suit and released the applicant therein, giving him benefit of default bail on the prosecution s failure to file final report within the period prescribed under Section 167(2) of the Code. State s claim that period stood extended by virtue of order of Apex Court has been repelled. (Re. First Bail Application No.511/2020 : Vivek Sharma Vs. State of Uttarakhand, decided on 12.5.2020). 25. While wading through the law on the subject, I came across a divergent view taken by another single Bench of Madras High Court vide order dated 11.5.2020 [Cr. OP (MD) No.5296/2020 : S. Kasi Vs. State]. In the said order, single Bench of Madras High Court after noticing the judgment dated 8.5.2020 in Settu s case, has taken t .....

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..... ilege of reading the said order. It is hight of ignorance to expect the investigation agency to complete the investigation and file final report in the Court within time prescribed after closing down the gates and prohibiting the access. After imposing restrictions on their movements and chiding them, executive must exhibit nimble footwork and not hide behind judicial order. Only little children hide behind the saree end (paalu) of their mothers is uncharitable. 17. The learned judge has mis-interpreted the Apex Court Order dated 23/03/2020. The clarification order dated 06/05/2020 no way dilute or restrict the scope and extend of the earlier order. Since the order relied by the learned counsel for the petitioner is contrary to the spirit of the Honourable Supreme Court order issued in exercise to the power of Article 142 it is non-est and has no binding force. 27. Having regard to the background in which the Hon ble Supreme Court has passed the subject order dated 23.3.2020 and in light of what has been recorded therein, it is clear that the same was passed with a view to give relief to the litigants and lawyers. Hon'ble the Supreme Court has extended the period of li .....

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..... e charge-sheet is not filed within prescribed time:- (i) CBI Vs. Anupam J. Kulkarni (1992) 3 SCC 141 (ii) Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 (iii) Sanjay Dutt Vs. State (1994) 5 SCC 410 (iv) Bipin Shantilal Panchal Vs. State of Gujarat (1996) 1 SCC 718 (v) Uday Mohanlal Acharaya Vs. State of Maharashtra (2001) 5 SCC 453 (vi) Rakesh Kumar Paul Vs. State of Assam (2017) 15 67 (vii) Achpal @ Ramswaroop Anr. Vs. State of Rajasthan (2019) 14 SCC 599 35. In light of what has been held in the above judgments of the Supreme Court; the language of the order dated 23.3.2020; relevant statutory provisions and in view of what has been discussed hereinabove and concluded in para no.33 above, I find myself in total agreement with the 1st view taken by Madras High Court (order dated 8.5.2020); Kerala High Court; and Uttarakhand High Court. Needless to mention that subsequent view taken by Single Bench of Madras High Court (order dated 11.5.2020 in S. Kasi s case) does not much impress me. 36. The revision petition, thus, deserves to be allowed; it is hereby allowed. Order dated 10.2.2020 passed by the learned Principal Magistrate, Juvenil .....

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