Noting that the final report has been filed only after the lapse of the statutory period of 90 days, and even before the final report was filed, the petitioner had moved the subordinate court seeking default bail, the Madras High Court last week held a murder accused, in custody since 5 months, to be entitled to bail under section 167(2), Cr. P. C.
Justice V. Bharathidasan noted that the occurrence is said to have taken place on 06.03.2020 and the petitioner was arrested on 08.03.2020 and remanded to judicial custody on 09.03.2020 and now he has been in jail for nearly five months. The Single Judge appreciated that the statutory period of ninety days under section 167(2) has been completed on 07.06.2020, however, the respondent police has filed the final report before the concerned Court only on 18.06.2020.
The Single Bench noted the petitioner’s submission that a bail application had been filed after expiry of 90 days and before the filing of the final report by the respondent police, but the Magistrate’s court below erroneously dismissed the bail petition. Accordingly, Justice Bharathidasan rejected the argument of the Government Advocate that the respondent police have completed the investigation and filed the final report before the concerned Court on 18.06.2020, and hence he is not entitled for statutory bail.
The bench recorded that the petitioner is seeking bail invoking the provision under Section 167(2) of the Code of Criminal Procedure, on the ground that even after expiry of 90 days, no final report had been filed by the respondent police. “Section 57 of the Code of Criminal Procedure empowers the Police Officer to detain the accused in custody for 24 hours. However, Section 167 of the Code of Criminal Procedure, as amended, authorizes the Magistrate to detain the accused in custody for a term not exceeding fifteen days in the whole. Section 167 also empowers a Magistrate to detain a person in custody while the investigation is being conducted by the police and also prescribes the maximum period for which such detention could be ordered. However, the proviso to Section 167(2) stipulates the right of an accused to be released on bail after the expiry of maximum period of detention provided therein”, appreciated the Single Judge.
“The Hon’ble Supreme Court, in number of its pronouncements, has clearly held that the Proviso to Sub-Section (2) of Section 167 is a beneficial provision for curing the mischief of prolonging the investigation indefinitely, which ultimately affects the liberty of a citizen”, reflected the bench, reiterating that the Right for bail under Section 167(2) is a indefeasible right and it cannot be frustrated by the prosecution.
“The Court cannot extend the period within which the investigation must be completed on any reason, in the absence of any provision empowering the Court to extend the period. After expiry of the statutory period prescribed under Section 167(2) of the Code of Criminal Procedure, the accused cannot be detained in custody”, repeated the Single Judge.
Justice Bharathidasan placed reliance on the June 19 judgment of the top court holding that its suo moto order extending limitations in view of the lockdown restrictions of the government will not affect the right of an accused to seek default bail under Section 167(2) of the Code of Criminal Procedure. Holding thus, a bench comprising Justices Ashok Bhushan, M R Shah and V Ramasubramanian set aside the judgment of a single bench of the Madras High Court in S Kasi v State through the Inspector of Police, which had held the time to file chargesheet under Section 167(2) CrPC will also get extended on account of the SC order extending limitation and the lockdown restrictions. It was on account of this judgment of the Madras High Court that the Magistrate in the present case had dismissed the petitioner’s prayer for default bail.
“Very recently, the Hon’ble Supreme Court in CRIMINAL APPEAL No.452 OF 2020 (ARISING OUT OF SLP (CRL.) NO.2433/2020) [S.KASI VERSUS STATE THROUGH THE INSPECTOR OF POLICE, SAMAYNALLUR POLICE STATION, MADURAI DISTRICT], decided on 19.06.2020, after considering the various other judgments, has held that an accused cannot be detained by the police beyond the maximum period prescribed under Section 167 of the Code of Criminal Procedure”, observed Justice Bharathidasan.
Accordingly, the Single bench was of the view that the final report having been filed only after the lapse of 90 days and even before the final report filed, the petitioner having moved the Court seeking bail, the petitioner is entitled to be released on bail.
The sanctity to the finality of judicial orders should never deter a Court in correcting its plain errors, remarked Justice Sudhanshu Dhulia while allowing a plea seeking modification of a directive issued by the Uttarakhand High Court in its 2018 judgment setting maximum noise level for loudspeakers.
In the 2018 judgment, the state was directed to to ensure that no loudspeaker or public address system shall be used by any person including religious bodies in Temples, Mosques and Gurudwaras without written permission of the authority even during day time, that too, by getting an undertaking that the noise level shall not exceed more than 5dB(A) peripheral noise level. This direction has been now modified to read thus (modified portion in bold letters):
The State Government is directed to ensure that no loudspeaker or public address system shall be used by any person including religious bodies in Temples, Mosques and Gurudwaras without written permission of the authority even during day time, that too, by getting an undertaking that the noise level shall not exceed bymore than 5dB(A) peripheral noise level above the ambient noise standards specified for the area in which it is used at the boundaries of the private place”.
Explaining his own reasons for allowing the application, the Judge observed:
Sound as we know is measured in decibel i.e. dB. Now just to put things in their right perspective, let us also understand that 5 dB(A) sound level is as good as silence. There is almost no sound. The drop of a needle makes a sound of 5 dB(A)! Normally human breathing makes a sound which is louder, which is 10 dB(A). 26. “The noise level shall not exceed more than 5 dB(A), peripheral noise level”, are the directions. Can there be so much of a paradox in an order. No there cannot be, and there was none. It is simply an inadvertent error, and we quickly realize this when we study the entire judgment. The Court never intended to say that the noise level shall not exceed more than 5 dB(A); what was intended was that the noise level shall 22 not exceed by more than 5 dB(A) peripheral noise level above the ambient noise standards specified for the area. This is so because the limits of peripheral sound level have been prescribed under the Rules of Central Government known as “the “Noise Pollution (Regulation and Control) Rules, 2000”. The noise level is given in the Schedule where the maximum noise level in a residential area is 55 dB(A) during day and 45 dB(A) during night and in the main body of the Rules it is permissible to increase this noise level by 5 dB(A) and when we read the entire judgment dated 19.06.2018, we realize that the directions given in the operative portion of the judgment is not in agreement with what has been discussed by the Division Bench in the body of the judgment. What was intended was that noise level should not be more than 5 dB(A) of the prescribed sound level and the prescribed level is 55 dB(A) during day and 45 dB(A) during night. It is 5 dB(A) increase in the sound level, and not 5 dB(A) limited sound level!
Justice Dhulia observed that Justice Singh had rejected the application primarily on a technicality, as the Judge himself agreed that a review could have been maintainable.
“I would most respectfully state that it matters little how the matter came up before this Court. Whether it was clothed in the shape of a review or a mere application under Section 152 CPC is not relevant. The Rules of procedure are after all the handmaids of justice. Consequently when there is no doubt as to the powers of the Court in correcting an apparent error, correction must be done. The case was before this Court ultimately in a writ proceeding. The powers of review in a writ proceeding are inherent in Article 226, which must be exercised in appropriate cases as the Hon’ble Apex Court while exercising powers 32 of review also acts as a Court of equity, which is duty bound to correct its errors.”
The Court further observed:
“The power to make corrections in an order or decree ‘on its own motion’ would mean powers which can be exercised ‘sua sponte’, i.e. on its own. The mere fact that there is an application too for such corrections is immaterial. Once the Court has an option to exercise powers sua sponte and it chooses to do that, that is the end of it. The fact that there is also an application before the Court by a party matters little. The Court here, we must not forget, is also a superior Court and a “Court of record”. It has inherent powers and a duty to correct its records.”
In this regard, the judge quoted Lord Atkin has famously said, “finality is a good thing, but justice is better.” He also referred to quotes of Justice Aharon Barak of Israel Supreme Court:
“Before I part, I must refer to Aharon Barak, who never tires in reminding Judges that they are human beings after all, and as such prone to commit errors. But then these errors must be corrected at the first given opportunity. To emphasise his point, Barak first cites the well known statement of Justice Jackson (“we are not final because we are infallible but we are infallible only because we are final”), and then adds “I think that the learned Judge erred. The finality of our decisions is based on our ability to admit our mistakes, and our willingness to do so in appropriate cases.”Barak then cites a case in which he gave an opinion. This case was later reargued before a larger Bench. Barak’s earlier decision was reversed, and while doing so Barak explained why: “This conclusion of mine conflicts with the conclusion that I reached in my ruling, which is the subject of this petition. In other words, I changed my mind. Indeed, since the judgment was given – and against the backdrop of the further hearing itself – I have not ceased to examine whether my approach is correctly grounded in law. I do not count myself among those who believe that the finality of a decision testifies to its correctness. We all err. Our professional integrity requires us to admit our mistakes, if we are convinced that we have indeed erred…in our difficult hours, when we evaluate ourselves, our North Star should be uncovering the truth that brings justice within the limits of law. We should not entrench ourselves in our previous decisions. We must be prepared to admit our mistakes.”
Case no.: Writ Petition (PIL) No. 112 of 2015 Case name: Mahendra Singh vs. State of Uttarakhand