ISUUE TO BE DECIDED
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.
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OBJECT OF ENACTING SECTION 167 Cr.P.C
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.
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COURT CANNOT EXTEND PERIOD
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 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.
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EXTENTION OF LIMITATION DURING CORONO PERIOD DOES NOT APPLY TO SECTION 167 Cr.P.C
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 17 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 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).
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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 order of this Court dated 23.03.2020.
PARTY: S.KASI vs. STATE THROUGH THE INSPECTOR OF POLICE SAMAYNALLUR POLICE STATION MADURAI DISTRICT CRIMINAL APPEAL NO. 452 OF 2020 (ARISING OUT OF SLP (CRL.) NO.2433/2020) – SEPTEMBER 13, 2023.
https://main.sci.gov.in/supremecourt/2020/11405/11405_2020_35_1501_22666_Judgement_19-Jun-2020.pdf
