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.