Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, 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.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC 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.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said 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.

“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.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that 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.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case 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).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“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.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“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.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that 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. It, further, said that 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.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]


Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection for the offences punishable under Section 376(2)(i)(n) of the Penal Code and Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The FIR was lodged by the father of the victim on 26-09-2018 with the allegations that his daughter told him about the mental and physical harassment given by the applicant/accused since 2014. The victim had mentioned about applicant had taken few photographs for which he was blackmailing and harassing her along with abusing her on the phone and forcing him to make physical relations with him. The counsel for the applicant, Vinod Sharma submitted that applicant was an innocent person; no date or month of the physical relations had been mentioned in the FIR; according to the medical report dated 27-09-2018, no sexual intercourse had been committed with the victim in last few days; no said photographs were produced by the prosecution; no rape or sexual intercourse had ever been committed by the applicant on the prosecutrix; in medical report dated 27.-09-2018, no sign of rape had been found and there was no swelling, no injury, no bleeding; the applicant has no criminal history; he was in custody since 27-09-2018; prosecution had not filed so far any reliable certificate of date of birth of the victim.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where the Supreme Court had observed that the personal liberty was a very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case and in the present case the attendance of the accused could be secured without having him to be put in custody. [Amit v. State of Uttarakhand, 2020 SCC OnLine Utt 121, decided on 03-03-2020]

Case BriefsForeign Courts

Supreme Court of United Kingdom:  A five-Judge bench comprising Lady Hale, Lord Kerr, Lord Wilson, Lord Black, Lord Lloyd Jones, JJ. disposed of this matter.

The facts involved a patient PJ, a 47-year-old who suffered from a mild borderline learning disability, accompanied by aggressive behavior and seriously irresponsible behavior. The Mental Health Act, 1983 was so amended that it allowed patients like him to be introduced in the community with a Community Treatment Order (CTO) issued by a Responsible Clinician (RC). PJ’s contention before the Mental Health Review Tribunal was that the arrangements under CTO amounted to an unlawful deprivation of liberty due to excessive monitoring and boundaries. The MHRT upheld the CTO stating that the need for CTO preceded any human rights issues. The Court of Appeals stated that the restriction of movement was such that it amounted to a violation of personal liberty, however, MHRT has no power to discharge the CTO, thus the appeal lies before the Supreme Court. The Court held the CTO to be in contravention of personal liberty since the RC has no power to impose such conditions which restrict movement. The appeal was allowed.[Welsh Ministers v. PJ, [2019] 2 WLR 82, decided on 17-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of SC Dharmadhikari and Bharati H. Dangre, JJ issued a writ of habeas corpus ordering the release of the petitioner’s son, who had been illegally detained in unlawful continued judicial custody for more than sixty days. The detenu had been arrested by the Central Bureau of Investigation, Economic Offences Wing on 19-09-2017.

Following multiple remand applications requesting extension of custody of the detenu, the total detention period exceeded the maximum limit of sixty days on 23-11-2017. Under Section 167(2) of the Code of Criminal Procedure, a Judicial Magistrate is entitled to authorize a detention not exceeding 60 days for all offences, unless the offence is punishable with death, imprisonment for life or imprisonment for a period of at least ten years.

Though the prosecution contended that the charges framed against the detenu during the course of investigation involved offences that were punishable with death, with life imprisonment or with imprisonment for at least ten years, the Court held the detention beyond the period of 60 days to be in contravention of S. 167(2) CrPC and also violative of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. [Rajkumar Bhagchand Jain v. Union of India,  2017 SCC OnLine Bom 9435, order dated 08-12-2017]