TMI Blog2020 (5) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the investigation is not completed within that period then the accused, who is in custody, is entitled to default bail if no charge-sheet or challan is filed on the 60th or 90th day as the case may be, subject of course, to the condition that the accused applies for default bail and is prepared to and does furnish bail for release. In the case on hand, the petitioner herein was remanded to judicial custody on 17.1.2020. The period of 90 days had expired on 16.4.2020. His bail application was taken up for consideration by the learned Special Judge on 6.5.2020. It is clear from the order that even on that day, the final report had not been submitted before the jurisdictional court. In the light of the above settled precedents, the petitioner has to be held entitled to the grant of default bail. The situation would not change even if after the dismissal of the application by the Special Judge, the final report was laid. Whether the period for submitting the final report can be taken to be extended as contended by the learned Public Prosecutor? - HELD THAT:- If Section 167 of the Cr.P.C. is analysed, it is luculent that the said provision does not provide any outer l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. The learned Special Judge held that owing to the aforesaid fact, the petitioner herein was not entitled to default bail and his application was dismissed. 3. Sri.B.H.Mansoor, the learned counsel appearing for the petitioner, submitted that on the expiry of 90 days, there was no final report placed before the Special Judge for the consideration of the court. According to the learned counsel, the provision of the Cr.P.C. does not contemplate any extension of period on any grounds whatsoever and if the final report is not laid within the period prescribed in the Code and if the accused expresses his willingness to be admitted to the benefit of bail and prefers an application, the jurisdictional court will have no jurisdiction to authorise the detention of the accused beyond the said period. The expiry of the period under Section 167(2) confers on the accused a valuable and indefeasible right and the same cannot be denied on any grounds whatsoever. It is argued that the prosecution cannot be allowed to trifle with the individual liberty and the provision with regard to conferment of benefits to the accused for bail will have to be construed strictly in favour of individual lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rendered by a learned Single Judge of the High Court of Uttarakhand at Nainital in order dated 12.05.2020 in Vivek Sharma v. State of Uttarakhand (First Bail Application no.511 of 2020) and the other order dated 08.05.2020 of a learned Single Judge of the Madras High Court in Settu v. The State (CRL.OP (MD) No.5291 of 2020) and it was persuasively argued that the learned Single Judge after detailed analysis have conclusively held that the prosecution cannot avail of the benefits of the directions issued by the Supreme Court in Suo Motu Writ Petition. He would also point out that no materials have been placed before this Court to show that the final report was prepared and that it was submitted before the Jurisdictional Court or any other authority. 6. I have anxiously considered the submissions advanced. As the questions posed by the learned counsel revolves around Section 167 of the Code, as far as it is relevant for the purpose is extracted below for easy reference. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 7. Coming to the object and scope of Section 167 it is wellsettled that it is supplementary to Section 57 of the Code. Section 57 of the Code provides that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra (1994) 4 SCC 602, Sanjay Dutt v. State (1994) 5 SCC 410, Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718, CBI v. Anupam J. Kulkarni (1992) 3 SCC 141, Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, and Achpal @ Ramaswaroop and Another v. State of Rajastan (2019) 14 SCC 599, it was held that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. The principle laid down has been consistently followed and it must therefore be taken to be well settled that on the expiry of the period stipulated, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period stipulated and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation 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. 13. I respectfully concur with the exposition of law laid down by the learned Single Judge of the Madras High Court in Crl.O.P.(MD) No.5291 of 2020 as well by the learned Single Judge of Uttarakhand High Court when their lordships held that the investigating agency cannot benefit from the directions issued by the Supreme Court in the suo moto Writ petition. 14. For the afore reasons I allow this application an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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