Kar HC | Whether the indefeasible right of an accused to seek compulsive bail under S. 167(2) CrPC is defeated by the unilateral extension of time by the Court; HC elaborates

Karnataka High Court: John Michael Cunha, J., while allowing the present application for bail under Section 439 Criminal Procedure Code, 1973 made significant observations with respect to default bail under Section 167(2) Criminal Procedure Code and protection guaranteed by Article 21 of the  Constitution of India.

 Brief Facts

The facts of the case are briefly enumerated hereunder;

1. That the petitioner accused 2 and 3 were arrested and produced before the Court on 28-12-2019 on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”)
2. That as per Section 36A(4), the respondent was required to file charge-sheet by 27-06-2020 but an application was filed before the Special Judge for NDPS cases, seeking an extension of time.
3. That an order with respect to the aforementioned application was passed, dated 1-06-2020, granting an extension of time by another 90 days, to the respondent authority.
4. That the present petition is moved under Section 439 CrPC, praying to enlarge the petitioner on bail exercising right against the same under Section 167(2) CrPC.

 Issue

1. Whether the petitioners are entitled to grant of bail as per Section 167(2) r/w Section 36A(4) of the NDPS Act due to non-completion of the investigation?

 Observation

The Court cited the following cases pursuant to its decision;

• Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Highlighting the prerequisite of granting an extension of time to the investigative authorities, the Court said, “when a report is submitted by the Public Prosecutor to the designated Court, for extension under Clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to oppose the extension of time on legitimate grounds available to him.”
• Sanjay Dutt v. State, (1994) 5 SCC 410; Clarifying on what shall be considered as an aforementioned notice, the Court held, “requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered is sufficient for the purpose.”
• Sanjay Kumar Kedia v. Intelligence Officer, NCB,2010 Cri.L.J 2054; In this case, the Court relying on the decision in Hitendra Vishnu, said that the proviso inserted as (bb) in sub-section (4) of Section 20 of TADA was pari-pateria with proviso to sub-section (4) of Section 36A of NDPS Act and an extension in such cases can be granted only upon satisfaction of certain conditions.
• Kasi v. State; 2020 SCC OnLine SC 529, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) CrPC is eclipsed by the judgment of the Supreme Court dated, 23-03-2020 in Suo Moto WP(C) No. 3 of 2020, it was held “Para 17. 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 IO could have submitted/filed the charge sheet before the Magistrate.” Therefore, even during the lockdown as has been done in so many cases the chargesheet could have been filed/submitted and the IO was not precluded from filing the same. There is no contradiction at all with respect to the extension of limitation order by the Supreme Court order dated 23-03-2020 and the statutory protection granted under Section 167(2) CrPC.
• The Court also observed that the right of accused under Section 167 CrPC can be denied only when the accused fails to furnish bail as mentioned under Explanation I to the said Section. It was further said that proviso to Section 167(2) CrPC is beneficial legislation made to cure the mischiefs of the preliminary investigation.

Decision

While allowing the present petition, securing bail bond and sureties, the Court reiterated the observation of the Supreme Court where it was categorically stated, “Personal Liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to the procedure established by Law. So long as the language of Section 167(2) of CrPC remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights.” The Court further said that the present instance is an indirect frustration of the petitioner’s right under Section 167(2) CrPC and it is “really shocking to note that even after expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused has been produced before the Court.” [Sayeed Majid Ahamad v. State of Karnataka, Crl Pet. No. 4398 of 2020, decided on 05-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together