Under Section 167(2) of the Cr.P.C., a person who is in custody during investigation is entitled to be released on bail (generally called default bail) if the investigating officer fails to file charge sheet in the case within a period of 90 days (for an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years) or 60 days (for other offences).
Vide its Order dated 23.03.2020 in Suo Motu W.P.(C) No. 3 of 2020, the Supreme Court had extended the period of limitation w.e.f. 15.03.2020 till further orders for filing petitions / applications / suits / appeals / all other proceedings. This was done in view of following reasons:
(1) 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 / appeals / all other proceedings within the period of limitation prescribed.
(2) 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 the Supreme Court.
A question arose as to whether this extension of limitation period made by Supreme Court for various types of proceedings is also applicable to the aforesaid provision of default bail if the charge sheet is not filed by police within the period of 90 days or 60 days, as the case may be. Thus, the question was whether these time periods to file charge sheets were also extended due to the above Supreme Court order.
There were some conflicting judgments of high courts on this issue. Recently, on 19 June 2020, this issue was settled by the Supreme Court in the case of S. Kasi v. State, 2020 SCC OnLine SC 529.
In this case, on 11.05.2020, the Madurai bench of the Madras high court had held that the Supreme Court order dated 23.03.2020 of extending limitation periods eclipses all provisions prescribing period of limitation until further orders, and that it also it eclipses the time prescribed under Section 167(2) of Cr.P.C. relating to default bail. This means that the high court said that default bail cannot be granted despite the fact that charge sheet had not been filed within the stipulated period under Section 167(2) of Cr.P.C.
However, in appeal, the Supreme Court set aside this order of the high court. After referring to certain previous judgments, the Supreme Court observed that:
“The scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of Code of Criminal Procedure give 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.”
Referring to its aforesaid order dated 23.03.2020, the Supreme Court observed that:
“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 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).”
Accordingly, it was held that neither the Supreme 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.
Thus, the right of an accused to get default bail under Section 167(2) of the Cr.P.C. if the charge sheet is not filed by police within the stipulated period, continues to be applicable despite Supreme Court’s order of extension of limitation period in other matters due to corona virus lockdown.
