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TMI Blog2020 (5) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 One Swapnil Kalal filed an FIR on 12.10.2019, intimating that two young boys intercepted him when he reached Darshan Ghati on his motorcycle and snatched away his bag containing Rs. 62,460/- and some important documents. 2.2 During investigation, the police identified the present petitioner as one of the accused and apprehended to try him for the offence under Section 392/34 of Indian Penal Code. 2.3 Considering that petitioner was 17 years of age - a juvenile, he was ordered to be sent to Rehabilitation Center on 30.1.2020. 2.4 A bail application was filed on petitioner's behalf by his uncle, which came to be rejected by the JJ Board, vide its order dated 10.2.2020. 2.5 The petitioner preferred 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 (Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the present petitioner - a child in conflict with law is released, there is every likelihood that he will mingle in the company of violators of law and prodded or prompted to commit similar offences. 10. As per the scheme of the JJ Act, more particularly Section 12 thereof, a child in conflict with law is to be given benefit of bail. Such benefit can be denied only upon recording a finding that there appears reasonable belief that such release is likely to bring the person into association of any known criminal or expose him to more physical or psychological danger. 11. There is no gainsaying the fact that two more cases of like nature are pending against him. Considering the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in four weeks." 16. Another order (dated 6.5.2020) passed by Hon'ble the Supreme Court in the said case also has a bearing on the issue at hands, hence, the same is being reproduced hereunder: "In view of this Court's earlier order dated 23.03.2020 passed in Suo Motu Writ Petition (Civil) No.3/2020 and taking into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by the lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the provisions of Chapter XXXIII for the purposes of that Chapter; *(emphasis supplied) (b) no Magistrate shall authorise detention of the Accused in custody of the police under this Section unless the Accused is produced before him in person for the first time and subsequently every time till the Accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the Accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report within the time prescribed. Hence, an accused/detenu has to be released, subject atleast to his willingness to furnish the bail as deemed appropriate. 22. It is pertinent to note that similar plea was raised before Madras High Court in Cr. OP (MD) No.5291/2020: Settu Vs. State. Madras High Court on 8.5.2020, while taking note of the orders passed by Hon'ble the Superme Court in Suo Moto Writ Petition (Civil) No.3/2020 and other relevant laws held as under : "14. 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 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to obviate difficulties faced by the litigants, lawyer due to the situation arising out of the pandemic. Those directions are applicable to petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws. Section 2(j) of the Limitation Act, 1963 defines 'period of limitation' as 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. Section 3 of Act 36 of 1963 provides for limitation of suits, 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant." (emphasis supplied) 12. What has been emphatically stated is that the provisions of the Code do not empower anyone to extend the period within which investigation must be completed. If on the expiry of the period mentioned the final report is not laid, the right of the accused gets crystallised and if the accused expresses his willingness to be admitted to the benefit of bail and prefers appropriate application, he has to be granted default bail. Right of personal liberty is not only a legal right 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 prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated the period of limitation prescribed under general law of limitation or under special laws shall be extended until further order. Therefore it is needless to mention that the limitation under Section 167 for investigation also get extended. 15.The learned counsel for the petitioner relying upon the order passed by this Court in Crl.O.P(MD) No. 5291 of 2020 in Settu -vs- The State rep. by the Inspector of Police, Vallam Police Station, Thanjavur District, dated 08.05.2020 insisted that the extension of period envisaged in the Apex court order will not apply to Section 167 Cr.P.C. 16. This Court had the privilege 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigating officer was required to file final report or charge-sheet within 60 days, i.e., latest by 30th March, 2020. The same has not been filed even till today. The petitioner is, thus, justified in asserting his right to be released on bail, by offering requisite bail bonds. 34. In the process of reaching the above conclusion, following judgments of Hon'ble the Supreme Court have guided me; wherein provisions of Section 167 the Code have been interpreted and concept of default bail has not only been recognized or accepted, but has been held to be an indefeasible right of an accused, in case 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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