S. KASI versus STATE THROUGH THE INSPECTOR OF POLICE SAMAYNALLUR POLICE STATION MADURAI DISTRICT
[2020] 5 S.C.R. 277, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
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S. KASI
v.
STATE THROUGH THE INSPECTOR OF POLICE
SAMAYNALLUR POLICE STATION MADURAI DISTRICT
(Criminal Appeal No. 452 of 2020)
JUNE 19, 2020
[ASHOK BHUSHAN, M.R. SHAH AND
V. RAMASUBRAMANIAN, JJ.]
Code of Criminal Procedure, 1973 – s. 167(2) – Entitlement
to bail in event charge sheet not filed by the police within the
stipulated period – The appellant-accused was arrested on
21.02.2020 u/ss. 457, 380, 457(2), 380(2), 411(2) and 414(2) IPC
– After being in judicial custody for more than 73 days and non-
filing of charge-sheet – The appellant filed for bail by default as
contemplated u/s. 167(2) Cr. P.C. before the High Court – The High
Court referring to an order of the Supreme Court dated 23.03.2020
passed in Suo Moto W.P.(C) No. 3 of 2020 took the view that the
Supreme Court’s Order extended the period for submission of
charge-sheet prescribed u/s. 167(2) Cr. P.C. – On appeal, held: The
Order dated 23.03.2020 was passed to protect the litigants/ lawyers
whose petitions/ application/ suits/ appeals/ all other proceedings
would become time barred they being not able to physically come
to file such proceedings considering the challenge faced by the
Country on account of Covid-19 Virus – When the Supreme Court
passed the order for extending limitation for filing petitions/
applications/ suits/ appeals/ all other proceedings, the Order was
for the benefit of those who have to take remedy, whose remedy
may be barred by time because they were unable to come
physically
to file such proceedings – The Order dated 23.03.2020 cannot be
read to mean that it ever intended to extend the period of filing
charge-sheet by police as contemplated u/s 167(2) of the Cr. P.C.
– Therefore, even during the lockdown the investigating officer was
not precluded from filing/submitting the charge-sheet even within
the stipulated period before the Magistrate (incharge) – Thus, the
High Court committed error in extending the restriction to filing
of charge-sheet by investigating officer in the Order dated
23.03.2020.
   [2020] 5 S.C.R. 277
277
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SUPREME COURT REPORTS
[2020] 5 S.C.R.
Constitution of India – Proclamation of Emergency and Art.
21 – Code of Criminal Procedure, 1973 – s. 167(2) – The Single
Judge of the High Court held that lockdown announced by the
Government of India is akin to the proclamation of Emergency and
the restrictions imposed should not give accuse a right to pray for
grant of default bail u/s. 167(2) Cr. P.C. – Held: The Seven Judges
Constitution Bench Judgment in K.S. Puthaswamy and Another v.
Union of India and Others held that life and personal liberty are
inalienable to human existence – They constitute rights under
Natural Law – The human element in the life of an individual is
integrally founded on the sanctity of life – In the instant case, the
Single Judge of the High Court erred in holding that the lockdown
announced by the Government is akin to the proclamation of
Emergency and the restrictions imposed during the lockdown should
not give the right to an accused to pray for grant of default bail
even though charge-sheet has not been filed within the time
prescribed u/s. 167(2) Cr. P.C. – The views of the Single Judge of
the High Court were not in accordance with law – Accordingly, the
judgment of the Single Judge set aside.
Allowing the appeal, the Court
HELD: 1. The limitation for filing petitions/ applications/
suits/ appeals/all other proceedings was extended to obviate
lawyers/litigants to come physically to file such proceedings in
respective
Courts/Tribunals. The order was passed to protect
the litigants/lawyers whose petitions/ applications/ suits/ appeals/
all other proceedings would become time barred they being not
able to physically come to file such proceedings. The order was
for the benefit of the litigants who have to take remedy in law
as per the applicable statute for a right. The law of limitation
bars the remedy but not the right. When this Court passed the
above order for extending the limitation for filing petitions/
applications/ suits/ appeals/all other proceedings, the order was
for the benefit of those who have to take remedy, whose remedy
may be barred by time because they were unable to come
physically to file such proceedings. The order dated 23.03.2020
cannot be read to mean that it ever intended to extend the
period of filing charge sheet by police as contemplated under
Section 167(2) of the Code of Criminal Procedure. The
Investigating Officer could have submitted/filed the charge sheet
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before the (Incharge) Magistrate. Therefore, even during the
lockdown and as has been done in so many cases the charge-
sheet could have been filed/submitted before the Magistrate
(Incharge) and the Investigating Officer was not precluded from
filing/submitting the charge-sheet even within the stipulated
period before the Magistrate (Incharge). [Para 17] [289-B-F]
2. If the interpretation by the Single Judge in the impugned
judgment is taken to its logical end, due to difficulties and due
to present pandemic, Police may also not produce an accused
within 24 hours before the Magistrate’s Court as contemplated
by Section 57 of the Code of Criminal Procedure, 1973. As noted
above, the provision of Section 57 as well as Section 167 are
supplementary to each other and are the provisions which
recognises the Right of Personal Liberty of a person as
enshrined in the Constitution of India. The order of this Court
dated 23.03.2020 never meant to curtail any provision of Code
of Criminal Procedure or any other statute which was enacted
to protect the Personal Liberty of a person. The right of
prosecution to file a charge sheet even after a period of 60 days/
90 days is not barred. The prosecution can very well file a
charge sheet after 60 days/90 days but without filing a charge
sheet they cannot detain an accused beyond a said period when
the accused prays to the court to set him at liberty due to non-
filing of the charge sheet within the period prescribed. The
right
of prosecution to carry on investigation and submit a charge
sheet is not akin to right of liberty of a person enshrined under
Article 21 and reflected in other statutes including Section 167,
Cr.P.C. [Para 18] [289-F-H; 290-A-C]
3. This Court, thus, is of the clear opinion that the Single
Judge in the impugned judgment erred in holding that the
lockdown announced by the Government of India is akin to the
proclamation of Emergency. The view of the Single Judge that
the restrictions, which have been imposed during period of
lockdown by the Government of India should not give right to
an accused to pray for grant of default bail even though charge
sheet has not been filed within the time prescribed under Section
167(2) of the Code of Criminal Procedure, is clearly erroneous
and not in accordance with law. [Para 25] [294-E-G]
S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLUR
POLICE STATION MADURAI DISTT.
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4. This Court, thus, is of the view that neither this Court
in its order dated 23.03.2020 can be held to have eclipsed the
time prescribed under Section 167(2) of Cr.P.C. nor the
restrictions which have been imposed during the lockdown
announced by the Government shall operate as any restriction
on the rights of an accused as protected by Section 167(2)
regarding his indefeasible right to get a default bail on non-
submission of charge sheet within the time prescribed. The
Single Judge of the High Court committed serious error in
reading such restriction in the order of this Court dated
23.03.2020. [Para 26] [294-G-H; 295-A]
K.S.Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1 : [2017] 10 SCR 569 –
followed.
Uday Mohanlal Acharya v. State of Maharashtra
(2001) 5 SCC 453 : [2001] 2 SCR 878 ; Rakesh
Kumar Paul v.  State of Assam  (2017) 15 SCC 67 :
[2017] 8 SCR 785 ; Achpal Alias Ramswaroop and
Another v. State of Rajasthan (2019) 14 SCC 599 :
[2018] 12 SCR 327 ; State of Punjab and Another v.
Devans Modern Breweries ltd. and Another (2004) 11
SCC 26 : [2003] 5 Suppl. SCR 930 – relied on.
Additional District Magistrate, Jabalpur v. Shivakant
Shukla (1976) 2 SCC 521 : [1976] Suppl. SCR
172; Union of India and Others v. Bhanudas Krishna
Gawde and Others (1977) 1 SCC 834 : [1977] 2 SCR
719 – referred to.
Settu  v.  The  State  (In  the  High  Court  of  Madras,
Crl.OP(MD)  No. 5291  of 2020) ; Mohammed
Ali  v.
State  of  Kerala  (In  the  High  Court  of  Kerala,
Bail Application No. 2856 of 2020) ; Pankaj v. State
(In the High Court of Rajasthan, S.B. Criminal
Revision Petition No.355 of 2020) ; Vivek Sharma v.
State of Uttrakhand (In the High Court of
Uttarakhand, First Bail Application No.511 of 2020)
– referred to.
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Case Law Reference
[2001] 2 SCR 878
relied on
Para 11
[2017] 8 SCR 785
relied on
Para 12
[2018] 12 SCR 327
relied on
Para 13
[1976] Suppl. SCR 172
referred to
Para 19
[1977] 2 SCR 719
referred to
Para 21
[2017] 10 SCR 569
followed
Para 24
[2003] 5 Suppl. SCR 930
relied on
Para 31
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 452 of 2020.
From the Judgment and Order dated 11.05.2020 of the High
Court of Judicature at Madras at Madurai in CRLOP (MD) No. 5296
of 2020
Jayanth Muthuraj, AAG, Sidharth Luthra, Sr. Adv., Karunakar
Mahalik, M. Yogesh Kanna, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed questioning the judgment of Madurai
Bench of Madras High Court dated 11.05.2020 in Crl.OP(MD) No.5296
of 2020 by which judgment the bail application of the appellant has been
dismissed.
2. Brief facts giving rise to this appeal are: -
2.1. The appellant is an accused in Crime No.495 of 2015under
Sections 457, 380, 457(2), 380(2), 411(2) and 414(2) of Indian Penal
Code. The appellant was arrested on 21.02.2020 in the above case and
lodged in Central Prison, Trichy. The bail application of the appellant
under Section 439 was rejected by the trial court on 30.04.2020. After
being in judicial custody for more than 73 days, the appellant filed an
application Crl.OP(MD)No.5296 of 2020before the High Court of
Judicature of Madras at Madurai Bench praying for grant of bail on
account of
passage of such 73 days and non-filing of charge sheet.
One of the contentions of the appellant before the High Court was that
charge sheet having not been filed, the appellant is entitled for bail by
default as contemplated under Section 167(2) of the Code of Criminal
Procedure.
S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLUR
POLICE STATION MADURAI DISTT.
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2.2. The High Court referring to an order of this Court dated
23.03.2020 passed in Suo Moto W.P.(C) No.3 of 2020 took the view:-
“...The Supreme Court order eclipses all provisions prescribing
period of limitation until further orders. Undoubtedly, it eclipses
the time prescribed under Section 17(2) of the code of Criminal
Procedure...”
2.3 Aggrieved by the order of the Madras High Court dated
11.05.2020, this appeal has been filed.
3. We have heard Shri Sidharth Luthra, learned senior counsel
appearing for the appellant and Shri Jayanth Muthuraj, learned
Additional Advocate General for the State.
4. Shri Sidharth Luthra, learned senior counsel for the appellant
contends that the High Court committed error in taking the view that
this Court’s order dated 23.03.2020 extended the period for submission
of charge sheet as prescribed under Section 167(2) Cr.P.C.It is submitted
that the provisions of Section 167(2) Cr.P.C. are provisions for protection
of personal liberty and in event charge sheet has not been filed by the
police within the stipulated period, the appellant is entitled for default
bail. The order of this Court dated 23.03.2020 in no manner can be
read as extending the period for the prosecution to submit the charge
sheet. The High Court had erroneously taken the view that the order
of this Court eclipses the time prescribed under Section 167(2) of Code
of Criminal Procedure.
5. Learned senior counsel further
submits that learned Single
Judge in the impugned judgment had also erred in taking a contrary
view to an earlier judgment delivered by another learned Single Judge
in Settu versus The State, Crl. O.P. (MD) No. 5291 of 2020where
the learned Single Judge of Madras High Court decided on 08.05.2020
has taken the view that the order of this Court dated 23.03.2020 in no
manner can be applied on the provisions of Section 167(2) of Code of
Criminal Procedure.
6. Learned counsel for the State supports the impugned judgment
and submits that due to enormous difficulties in carrying out the
investigation, charge sheet could not be filed in the present case and
the appellant is not entitled to take benefit of Section 167(2) in precarious
situation which has occurred on account of pandemic of Covid-19.
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7. We have considered the submissions of learned counsel for
the parties and perused the record.
8. The only issue which need to be decided in this appeal is as
to whether the appellant due to non-submission of charge sheet within
the prescribed period by the prosecution was entitled for grant of bail
as per section 167(2) of the Code of Criminal Procedure. Before we
notice the order of this Court dated 23.03.2020 passed in Suo Motu
W.P.(C) No. 3 of 2020 which has been applied by the High Court on
the provisions of Section 167(2) Cr.P.C., we need to notice object and
purpose of enactment of Section 167 of the Code of Criminal
Procedure.
9. In the earlier Code, i.e.,the Code of Criminal Procedure, 1898,
Section 167 laid down the procedure to be followed in the event the
investigation of an offence was not completed within 24 hours. Section
167 in the Code of Criminal Procedure, 1898, was premised on the
conclusion of investigation within 24 hours or within 15 days on the
outside regardless of the nature of the offence or the punishment.
10. The Law Commission of India in its Forty-first Report
recommended for increasing the time limit for completion of investigation
to 60 days. The new Code of Criminal Procedure, 1973 gave effect to
the recommendation of the Law Commission. Section 167 as enacted
provided for time limit of 60 days regardless of the nature of offence
or the punishment. In the year 1978, Section 167 was amended. Section
167(2) which is
relevant for the present case existing as of now is to
the following effect:-
“167.(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having
such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days; if he is
S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLUR
POLICE STATION MADURAI DISTT. [ASHOK BHUSHAN, J.]
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satisfied that adequate grounds exist for doing so,
but no Magistrate shall authorise the detention of
the accused person in custody under this paragraph
for a total period exceeding,-
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for
life or imprisonment for a term of not less than
ten years;
(ii) sixty days, where the investigation relates to any
other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case
may be, the accused person shall be released on
bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-
section shall be deemed to be so released under
the provisions of Chapter XXXIII for the
purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any
custody under this section unless the accused is
produced before him;
(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”
11. A three-Judge Bench of this Court in Uday Mohanlal
Acharya versus State of Maharashtra, (2001)5 SCC 453, has noticed
the object of enacting the provisions of Section 167 Cr.P.C. Section 57
of the Code of Criminal Procedure contains the embargo on the Police
Officers to detain in custody a person arrested beyond 24 hours. The
object is that the accused should be brought before a Magistrate without
delay within 24 hours, which provision is, in fact, in consonance with
the constitutional mandate engrafted under Article 22(2) of the
Constitution. The provision of Section 167 is supplementary to Section
57. The power under Section 167 is given to detain a person in custody
while police goes on with the investigation. Section 167 is, therefore, a
provision which authorises the Magistrate permitting the detention of
the accused in custody prescribing the maximum period. In Uday
Mohanlal Acharya(Supra), this court while dealing with Section 167
laid down following:-
“...This provision of Section 167 is in fact supplementary to
Section 57, in consonance with the principle that the accused
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is entitled to demand that justice is not delayed. The object
of requiring the accused to be produced before a Magistrate
is to enable the Magistrate to see that remand is necessary
and also to enable the accused to make a representation
which he may wish to make. The power under Section 167
is given to detain a person in custody while the police goes
on with the investigation and before the Magistrate starts the
enquiry. Section 167, therefore, is the provision which
authorises the Magistrate permitting detention of an accused
in custody and prescribing the maximum period for which
such detention could be ordered. Having prescribed the
maximum period, as stated above, what would be the
consequences thereafter has been indicated in the proviso
to sub-section (2) of Section 167. The proviso is unambiguous
and clear and stipulates that the accused shall be released
on bail if he is prepared to and does furnish the bail which
has been termed by the judicial pronouncement to be
“compulsive bail” and such bail would be deemed to be a
bail under Chapter 33. The right of an accused to be
released on bail after expiry of the maximum period of
detention provided under Section 167 can be denied only
when an accused does not furnish bail, as is apparent from
Explanation I to the said section. The proviso to sub-section
(2) of Section 167 is a beneficial provision for curing the
mischief of indefinitely prolonging the investigation and
thereby affecting the liberty
of a citizen...”
12. Again, there has been very detailed consideration of Section
167 by a Three-Judge Bench of this Court in Rakesh Kumar Paul
versus State of Assam, (2017)15 SCC 67.  This Court in the above
case has traced the legislative history of the provision of Section 167.
This Court in the above case emphasised that the debate on Section
167 must also be looked at from the perspective of expeditious
conclusion of investigation and from the angle of personal liberty. This
Court also held that right for default bail is indefeasible right which
cannot be allowed to be frustrated by the prosecution. Following was
laid down in paragraphs 37,38 and 39: -
“37. This Court had occasion to review the entire case law
on the subject in Union of India v. Nirala Yadav, (2014) 9
SCC 457. In that decision, reference was made to Uday
Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC
S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLUR
POLICE STATION MADURAI DISTT. [ASHOK BHUSHAN, J.]
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453 and the conclusions arrived at in that decision. We are
concerned with Conclusion (3) which reads as follows:
“13.(3) 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.”
38. This Court also dealt with the decision rendered in Sanjay
Dutt, (1994) 5 SCC 410 and noted that the principle laid
down by the Constitution bench is to the effect that if the
charge sheet is not filed and the right for “default bail” has
ripened into the status of indefeasibility, it cannot be
frustrated by the prosecution on any pretext. The accused
can avail his liberty by filing an application stating that the
statutory period for filing the charge sheet or challan has
expired and the same has not yet been filed and therefore
the indefeasible right has accrued in his or her favour and
further the accused is prepared to furnish the bail bond.
39. This Court also noted that apart from the possibility of
the prosecution frustrating the indefeasible right, there are
occasions when even the court frustrates the indefeasible
right. Reference was made to Mohd. Iqbal Madar Sheikh v.
State of
Maharashtra, (1996) 1 SCC 722 wherein it was
observed that some courts keep the application for “default
bail” pending for some days so that in the meantime a
charge-sheet is submitted. While such a practice both on the
part of the prosecution as well as some courts must be very
strongly and vehemently discouraged, we reiterate that no
subterfuge should be resorted to, to defeat the indefeasible
right of the accused for “default bail” during the
interregnum when the statutory period for filing the charge-
sheet or challan expires and the submission of the charge-
sheet or challan in court.”
13. One more judgment of this Court on Section 167 Cr.P.C. be
noticed, i.e.,Achpal Alias Ramswaroop and Another versus State of
Rajasthan, (2019) 14 SCC 599. After referring to several earlier
judgments of this Court including the judgment of this Court in Uday
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Mohanlal Acharya(supra) and Rakesh Kumar Paul(supra), this
Court had laid down that the provisions of the Code do not empower
anyone to extend the period within which the investigation must be
completed. This Court held that no Court either directly or indirectly
can extend such period. Following are the observations of this Court in
paragraph 20: -
“20. We now turn to the subsidiary issue, namely, whether
the High Court could have extended the period. The
provisions of the Code do not empower anyone to extend the
period within which the investigation must be completed nor
does it admit of any such eventuality. There are enactments
such as the Terrorist and Disruptive Activities (Prevention)
Act, 1985 and the Maharashtra Control of Organised Crime
Act, 1999 which clearly contemplate extension of period and
to that extent those enactments have modified the provisions
of the Code including Section 167. In the absence of any
such similar provision empowering the Court to extend the
period, no court could either directly or indirectly extend
such period. In any event of the matter all that the High
Court had recorded in its order dated 03.07.2018 was the
submission that the investigation would be completed within
two months by a gazetted police officer. The order does not
indicate that it was brought to the notice of the High Court
that the period for completing the investigation was coming
to an end. Mere recording of submission of the Public
Prosecutor
could not be taken to be an order granting
extension. We thus reject the submissions in that behalf
advanced by the learned counsel for the State and the
complainant.”
14. The scheme of Code of Criminal Procedure as noticed above
clearly delineates that provisions of Section 167 of Code of Criminal
Procedure gives due regard to the personal liberty of a person.  Without
submission of charge sheet within 60 days or 90 days as may be
applicable, an accused cannot be detained by the Police. The provision
gives due recognition to the personal liberty.
15. After noticing the purpose and object of Section 167, we now
come to the judgment of this Court dated 23.03.2020 which has been
relied and referred by learned Single Judge in the impugned judgment
for holding that the time period in Section 167(2) is eclipsed by judgement
of this Court dated 23.03.2020. The Order dated 23.03.2020 was passed
S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLUR
POLICE STATION MADURAI DISTT. [ASHOK BHUSHAN, J.]
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by this Court in Suo Motu W.P.(C) No.3 of 2020. The entire order
passed on 23.03.2020 is to the following effect: -
“This Court has taken Suo Motu cognizance of the situation
arising out of the challenge faced by the country on account
of Covid-19 Virus and resultant difficulties that may be faced
by litigants across the country in filing their petitions/
applications/ suits/ appeals/all other proceedings within the
period of limitation prescribed under the general law of
limitation or under Special Laws (both Central and/or State).
To obviate such difficulties and to ensure that lawyers/
litigants do not have to come physically to file such
proceedings in respective Courts/Tribunals across the country
including this Court, it is hereby ordered that a period of
limitation in all such proceedings, irrespective of the
limitation prescribed under the general law or Special Laws
whether condonable or not shall stand extended w.e.f. 15th
March 2020 till further order/s to be passed by this Court
in present proceedings.
We are exercising this power under Article 142 read with
Article 141 of the Constitution of India and declare that this
order is a binding order within the meaning of Article 141
on all Courts/Tribunals and authorities.
This order may be brought to the notice of all High Courts
for being communicated to all subordinate Courts/Tribunals
within their respective jurisdiction.
Issue notice to all the Registrars
General of the High Courts,
returnable in four weeks.”
16. The reason for passing the aforesaid order for extending the
period of limitation w.e.f. 15.03.2020 for filing petitions/ applications/
suits/ appeals/all other proceedings are indicated in the order itself. Two
reasons, which are decipherable from the order of this Court dated
23.03.2020 for passing the order are: -
i) The situation arising out of the challenge faced by the
country on account of Covid-19 virus and resultant
difficulties that are being faced by the litigants across
the country in filing their petitions/ applications/ suits/
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appeals/all other proceedings within the period of
limitation prescribed.
ii) To obviate such difficulties and to ensure that lawyers/
litigants do not have to come physically to file such
proceedings in respective Courts/Tribunals across
the country including this Court.
17. The limitation for filing petitions/ applications/ suits/ appeals/
all other proceedings was extended to obviate lawyers/litigants to come
physically to file such proceedings in respective Courts/Tribunals. The
order was passed to protect the litigants/lawyers whose petitions/
applications/ suits/ appeals/all other proceedings would become time
barred they being not able to physically come to file such proceedings.
The order was for the benefit of the litigants who have to take remedy
in law as per the applicable statute for a right. The law of limitation
bars the remedy but not the right. When this Court passed the above
order for extending the limitation for filing petitions/ applications/ suits/
appeals/all other proceedings, the order was for the benefit of those
who have to take remedy, whose remedy may be barred by time
because they wereunable to come physically to file such proceedings.
The order dated 23.03.2020 cannot be read to mean that it ever intended
to extend the period of filing charge sheet by police as contemplated
under Section 167(2) of the Code of Criminal Procedure. The
Investigating Officer could have submitted/filed the charge sheet before
the (Incharge)
Magistrate. Therefore, even during the lockdown and
as has been done in so many cases the charge-sheet could have been
filed/submitted before the Magistrate (Incharge) and the Investigating
Officer was not precluded from filing/submitting the charge-sheet even
within the stipulated period before the Magistrate (Incharge).
18. If the interpretation by learned Single Judge in the impugned
judgment is taken to its logical end, due to difficulties and due to present
pandemic, Police may also not produce an accused within 24 hours
before the Magistrate’s Court as contemplated by Section 57 of the
Code of Criminal Procedure, 1973. As noted above, the provision of
Section 57 as well as Section 167 are supplementary to each otherand
are the provisions which recognises the Right of Personal Liberty of a
person as enshrined in the Constitution of India. The order of this Court
dated 23.03.2020 never meant to curtail any provision of Code of
Criminal Procedure or any other statute which was enacted to protect
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the Personal Liberty of a person. The right of prosecution to file a charge
sheet even after a period of 60 days/ 90 days is not barred. The
prosecution can very well file a charge sheet after 60 days/90 days
but without filing a charge sheet they cannot detain an accused beyond
a said period when the accused prays to the court to set him at liberty
due to non-filing of the charge sheet within the period prescribed. The
right of prosecution to carry on investigation and submit a charge sheet
is not akin to right of liberty of a person enshrined under Article 21
and reflected in other statutes including Section 167, Cr.P.C. Following
observations of Madras High Court in the impugned judgment are
clearly contrary to the order dated 23.03.2020 of this Court: -
“...The Supreme Court order eclipses all provisions prescribing
period of limitation until further orders. Undoubtedly, it eclipses
the time prescribed under Section 167(2) of the Code of Criminal
Procedure also...”
19. Learned Single Judge in paragraph 13 of the impugned
judgment has also observed that the lockdown announced by the
Government is akin to proclamation of Emergency. Learned Single Judge
has also referred to Financial Emergency under Article 360 of the
Constitution. Learned Single Judge also noticed that presently though
the State is not passing through Emergency duly proclaimed but the
whole nation has accepted the restrictions for the well-being of
the
mankind. Let us also examine as to whether in event of proclamation
of Emergency under Article 352 of the Constitution,whether right to
liberty as enshrined under Article 21 stands suspended?
20. We may recall the Constitution Bench Judgment of this Court
in Additional District Magistrate, Jabalpur versus Shivakant
Shukla, (1976) 2 SCC 521, where majority of the Judges(Justice
H.R. Khanna dissenting) had taken the view that after proclamation
of Emergency under Article 352, no proceedings can be initiated for
enforcement of right under Article 21. Justice A.N.Ray,C.J., with
whom three other Hon’ble Judges have concurred in paragraph 136
and paragraph 137 laid down following:-
“136. First, In view of the Presidential Order dated June 27,
1975 under clause (1) of Article 359 of our Constitution no
person has locus standi to move any writ petition under
Article 226 before a High Court for Habeas Corpus or any
other writ or order or direction to enforce any right to
personal liberty of a person detained under the Act on the
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grounds that the order of detention or the continued
detention is for any reason not under or in compliance with
the Act or is illegal or mala fide.
137. Second, Article 21 is the sole repository of rights to life
and personal liberty against the State. Any claim to a writ
of habeas corpus is enforcement of Article 21 and, is,
therefore, barred by the Presidential Order.”
21. Another Three-Judge judgment of this Court in Union of
India and others versus Bhanudas Krishna Gawde and
others, (1977) 1 SCC 834, took the same view following the
majority of this Court in ADM, Jabalpur versus Shivakant
Shukla. In paragraph 23, following was observed: -
“23………Accordingly, if a person was deprived of his personal
liberty not under the Defence of India Act or any rule or order
made thereunder but in contravention thereof, his locus standi to
move any court for the enforcement of his rights, conferred by
Articles 21 and 22 of the Constitution was not barred. More or
less, similar was the pattern and effect of the presidential Order
dated November 16, 1974. The position with respect to the
Presidential Orders dated 27, 1975 and January 8, 1976 is,
however, quite different. These orders are not circumscribed by
any limitation and their applicability is not made dependent upon
the fulfilment of any condition precedent. They impose a total
or blanket ban on the enforcement inter alia of the fundamental
rights conferred by Articles 19,21 and 22 of the Constitution which
comprise all varieties or aspects of freedom of person
compendiously described as personal liberty. [See A.K. Gopalan
v. State of Madras, AIR 1950 SC 27; Kharak Singh v. State of
U.P., AIR 1963 SC 1295 and A.D.M. Jabalpur v. Shivakant
Shukla(supra).] Thus there is no room for doubt that the
Presidential orders dated June 27, 1975, and January 8, 1976,
unconditionally suspend the enforceability of the right conferred
upon any person including a foreigner to move any court for the
enforcement of the rights enshrined in Articles 14, 19, 21 and 22
of the Constitution.”
22. Article 359 of the Constitution was amended by the Forty-
fourth Constitutional Amendment Act, 1978. In sub-Article (1)
of Article 359, the expression “except Articles 20 and 21 have
been inserted”. After the amendment, Article 359(1) reads as
follows:-
“
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Suspension of the enforcement of the rights conferred by Part
III during emergencies.359(1). Where a Proclamation of
Emergency is in operation, the President may by order
declare that the right to move any court for the enforcement
of such of the rights conferred by Part III (except articles
20 and 21)  as may be mentioned in the order and all
proceedings pending in any court for the enforcement of the
rights so mentioned shall remain suspended for the period
during which the Proclamation is in force or for such shorter
period as may be specified in the order”
23. The sting of the judgment of this Court in Additional District
Magistrate, Jabalpur versus Shivakant Shukla (supra), and
retrograde steps taken in respect of right protected under Article 21
was, thus, immediately remedied by the Parliament by the above
Constitutional Amendment. The minority judgment of Justice H.R.
Khanna in Additional District Magistrate, Jabalpur versus
Shivakant Shukla (supra)has held that State has no power to deprive
the person of his life or liberty without the authorities of law. In
paragraphs 525 and 530, Justice Khanna observed:-
“525....I am of the opinion that Article 21 cannot be
considered to be the sole repository of the right to life and
personal liberty. The right to life and personal liberty is the
most precious right of human beings in civilised societies
governed by the rule of law. Many modern Constitutions
incorporate
certain fundamental rights, including the one
relating to personal freedom. According to Blackstone, the
absolute rights of Englishmen were the rights of personal
security, personal liberty and private property. The American
Declaration of Independence (1776) states that all men are
created equal, and among their inalienable rights are life,
liberty, and the pursuit of happiness.
xxxxxxxxxxxxxxxxxxxxxxxxxxx
530. Even in the absence of Article 21 in the Constitution,
the State has got no power to deprive a person of his life or
liberty without the authority of law. This is the essential
postulate and basic assumption of the rule of law and not
of men in all civilised nations. Without such sanctity of life
and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning. The
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principle that no one shall be deprived of his life or liberty
without the authority of law is rooted in the consideration
that life and liberty are priceless possessions which cannot
be made the plaything of individual whim and caprice and
that any act which has the effect of tampering with life and
liberty must receive sustenance from and sanction of the laws
of the land. Article 21 incorporates an essential aspect of
that principle and makes it part of the fundamental rights
guaranteed in Part III of the Constitution. It does not,
however, follow from the above that if Article 21 had not been
drafted and inserted in Part III, in that event it would have
been permissible for the State to deprive a person of his life
or liberty without the authority of law. No case has been
cited before us to show that before the coming into force of
the Constitution or in countries under the rule of law where
there is no provisions corresponding to Article 21, a claim
was ever sustained by the courts that the State can deprive
a person of his life or liberty without the authority of
law………………………………...”
24. We may notice that the Constitution Bench Judgment of this
Court in A.D.M.,Jabalpur versus Shivakant Shukla (supra),
foundation of which judgment was knocked out by Forty-fourth
Constitutional Amendment has been formally over-ruled by Seven-
Judges Constitution Bench Judgment in K.S.Puttaswamy and another
versus Union of India and others, (2017) 10 SCC 1. Dr.
D.Y.Chandrachud,J.,speaking for the Court in paragraphs 136 and 139
held:-
“136.The judgments rendered by all the four judges constituting
the majority in ADM Jabalpur are seriously flawed. Life and
personal liberty are inalienable to human existence. These rights
are, as recognised in Kesavananda Bharati, primordial rights.
They constitute rights under Natural law. The human element in
the life of the individual is integrally founded on the sanctity of
life. Dignity is associated with liberty and freedom. No civilized
state can contemplate an encroachment upon life and personal
liberty without the authority of law. Neither life nor liberty are
bounties conferred by the state nor does the Constitution create
these rights. The right to life has existed even before the advent
of the Constitution. In recognising the right, the Constitution does
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not become the sole repository of the right. It would be
preposterous to suggest that a democratic Constitution without
a Bill of Rights would leave individuals governed by the state
without either the existence of the right to live or the means of
enforcement of the right. The right to life being inalienable to
each individual, it existed prior to the Constitution and continued
in force under Article 372 of the Constitution. Khanna, J. was
clearly right in holding that the recognition of the right to life and
personal liberty under the Constitution does not denude the
existence of that right, apart from it nor can there be a fatuous
assumption that in adopting the Constitution the people of India
surrendered the most precious aspect of the human persona,
namely, life, liberty and freedom to the state on whose mercy
these rights would depend. Such a construct is contrary to the
basic foundation of the Rule of Law which imposes restraints
upon the powers vested in the modern state when it deals with
the liberties of the individual. The power of the Court to issue a
Writ of Habeas Corpus is a precious and undeniable feature of
the rule of law.
139. ADM Jabalpur must be and is accordingly overruled. We
also overrule the decision in Union of India v. Bhanudas Krishna
Gawde, which followed ADM Jabalpur.”
25. We, thus, are of the clear opinion that the learned Single Judge
in the impugned judgment erred in holding that the
lockdown announced
by the Government of India is akin to the proclamation of Emergency.
The view of the learned Single Judge that the restrictions, which have
been imposed during period of lockdown by the Government of India
should not give right to an accused to pray for grant of default bail even
though charge sheet has not been filed within the time prescribed under
Section 167(2) of the Code of Criminal Procedure, is clearly erroneous
and not in accordance with law.
26. We, thus, are of the view that neither this Court in its order
dated 23.03.2020 can be held to have eclipsed the time prescribed under
Section 167(2) of Cr.P.C. nor the restrictions which have been imposed
during the lockdown announced by the Government shall operate as
any restriction on the rights of an accused as protected by Section
167(2) regarding his indefeasible right to get a default bail on non-
submission of charge sheet within the time prescribed. The learned
Single Judge committed serious error in reading such restriction in the
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order of this Court dated 23.03.2020.
27. There is one more reason due to which the impugned
judgment of the learned Single Judge deserves to be set aside. A learned
Single Judge of Madras High Court in Crl.OP(MD)No. 5291 of
2020,Settu versus the State, had already considered the judgment of
this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020
and its effect on Section 167(2) Cr.P.C. The above was also a case of
a bail where the accused was praying for grant of default bail due to
non-submission of charge sheet. The prosecution had raised objection
and had relied on the order of this Court dated 23.03.2020 passed in
Suo Moto W.P(C)No.3 of 2020 claiming that period for filing charge
sheet stood extended until further orders. The submission of prosecution
was rejected by learned Single Judge. The learned Single Judge had
made following observations in paragraphs 14 and 15:-
“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.P.C.
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 ifit 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, the benefit of the direction of the Hon’ble
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Supreme Court made 23.03.2020 in Suo Motu Writ Petition
(Civil) No.3 of 2020 will apply. But, in respect of the other
offences for which Section 167 of Cr.P.C. is applicable, the
benefit of the said direction cannot be availed.”
28. The Prayer of the accused in the said case for grant of
default bail was allowed. The claim of the prosecution that by order of
this Court dated 23.03.2020, the period for filing charge sheet under
Section 167 Cr.P.C. stands extended was specifically rejected.
29. The view taken by learned Single Judge of Madras High Court
in Settu versus The State (supra) that the order of this Court dated
23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 does not extend
the period for filing charge sheet under Section 167(2) Cr.P.C. has been
followed by Kerala High Court as well as Rajasthan High Court.  Kerala
High Court in its judgment dated 20.05.2020 in Bail Application No.
2856 of 2020 –Mohammed Ali Vs. State of Kerala and Anr. after
noticing the contention raised on the basis of order of this Court dated
23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 rejected the said
contention and followed the judgment of the learned Single Judge of
Madras High Court in Settu versus The State (supra).  Kerala High
Court in paragraph 13 of the judgment observes: -
“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.”
30. Rajasthan High Court had occasion to consider Section 167
as well as the order of this Court dated 23.03.2020 passed in Suo Moto
W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the
same conclusion that the order of this Court dated 23.03.2020 has no
consequence on the right, which accrues to an accused on non-filing
of charge sheet within time as prescribed under Section 167 Cr.P.C.
Rajasthan High Court in S.B. Criminal Revision Petition No. 355
of 2020 – Pankaj Vs. State decided on 22.05.2020 has also followed
the judgment of learned Single Judge of the Madras High Court in Settu
versus The State (supra) and has held that accused was entitled for
grant of the default bail.  Uttarakhand High Court in First Bail
Application No.511 of 2020 – Vivek Sharma Vs. State of
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Uttarakhand in its judgment dated 12.05.2020 has after considering
the judgment of this Court dated 23.03.2020 passed in Suo Moto
W.P(C)No.3 of 2020 has taken the view that the order of this Court
does not cover police investigation. We approve the above view taken
by learned Single Judge of Madras High court in Settu versus The
State (supra) as well as the by the Kerala High Court, Rajasthan High
Court and Uttarakhand High Court noticed above.
31. Learned Single Judge in the impugned judgment has taken a
contrary view to the earlier judgment of learned Single Judge in Settu
versus The State (supra). It is well settled that a coordinate Bench
cannot take a contrary view and in event there was any doubt, a
coordinate Bench only can refer the matter for consideration by a
Larger Bench. The judicial discipline ordains so. This Court in State of
Punjab and another versus Devans Modern Breweries ltd. and
another, (2004) 11 SCC 26, in paragraph 339 laid down following:-
“339.Judicial discipline envisages that a coordinate Bench
follow the decision of an earlier coordinate Bench. If a
coordinate Bench does not agree with the principles of law
enunciated by another Bench, the matter may be referred only
to a Larger Bench. (See Pradip Chandra Parija v. Pramod
Chandra Patnaik, (2002) 1 SCC 1 followed in Union of India
Vs. Hansoli Devi, (2002) 7 SCC 273.But no decision can be
arrived at contrary to or inconsistent with the law laid down
by the coordinate Bench.
Kalyani Stores (supra) and K.K.
Narula (supra) both have been rendered by the Constitution
Benches. The said decisions, therefore, cannot be thrown out
for any purpose whatsoever; more so when both of them if
applied collectively lead to a contrary decision proposed by
the majority.”
32. Learned Single Judge did not follow the judicial discipline while
taking a contrary and diagonally opposite view to one which have been
taken by another learned Single Judge in Settu versus The State
(supra). The contrary view taken by learned Single Judge in the
impugned judgment is not only erroneous but also sends wrong signals
to the State and the prosecution emboldening them to act in breach of
liberty of a person.
33. We may further notice that learned Single Judge in the
impugned judgment had not only breached the judicial discipline but has
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also referred to an observation made by learned Single Judge in Settu
versus The State as uncharitable. All Courts including the High Courts
and the Supreme Court have to follow a principle of Comity of Courts.
A Bench whether coordinate or Larger,has to refrain from making any
uncharitable observation on a decision even though delivered by a Bench
of a lesser coram. A Bench sitting in a Larger coram may be right in
overturning a judgment on a question of law, which jurisdiction a Judge
sitting in a coordinate Bench does not have. In any case, a Judge sitting
in a coordinate Bench or a Larger Bench has no business to make any
adverse comment or uncharitable remark on any other judgment. We
strongly disapprove the course adopted by the learned Single Judge in
the impugned judgment.
34. In view of the foregoing discussions, we allow this appeal,
set aside the judgment of learned Single Judge, direct that appellant be
released on default bail subject to personal bond of Rs.10,000/- with
two sureties to the satisfaction of trial court.
Ankit Gyan
Appeal allowed.