S. KASI versus STATE THROUGH THE INSPECTOR OF POLICE SAMAYNALLUR POLICE STATION MADURAI DISTRICT on 19 June 2020

[2020] 5 S.C.R. 277

S. KASI

STATE THROUGH THE INSPECTOR OF POLICESAMAYNALLUR POLICE STATION MADURAI DISTRICT

(Criminal Appeal No. 452 of 2020)

JUNE 19, 2020

[ASHOK BHUSHAN, M.R. SHAH ANDV. RAMASUBRAMANIAN, JJ.]

Code of Criminal Procedure, 1973 – s. 167(2) – Entitlementto bail in event charge sheet not filed by the police within thestipulated period – The appellant-accused was arrested on21.02.2020 u/ss. 457, 380, 457(2), 380(2), 411(2) and 414(2) IPC– After being in judicial custody for more than 73 days and non-filing of charge-sheet – The appellant filed for bail by default ascontemplated u/s. 167(2) Cr. P.C. before the High Court – The HighCourt referring to an order of the Supreme Court dated 23.03.2020passed in Suo Moto W.P.(C) No. 3 of 2020 took the view that theSupreme Court’s Order extended the period for submission ofcharge-sheet prescribed u/s. 167(2) Cr. P.C. – On appeal, held: TheOrder dated 23.03.2020 was passed to protect the litigants/ lawyerswhose petitions/ application/ suits/ appeals/ all other proceedingswould become time barred they being not able to physically cometo file such proceedings considering the challenge faced by theCountry on account of Covid-19 Virus – When the Supreme Courtpassed the order for extending limitation for filing petitions/applications/ suits/ appeals/ all other proceedings, the Order wasfor the benefit of those who have to take remedy, whose remedymay be barred by time because they were unable to come physicallyto file such proceedings – The Order dated 23.03.2020 cannot beread to mean that it ever intended to extend the period of filingcharge-sheet by police as contemplated u/s 167(2) of the Cr. P.C.– Therefore, even during the lockdown the investigating officer wasnot precluded from filing/submitting the charge-sheet even withinthe stipulated period before the Magistrate (incharge) – Thus, theHigh Court committed error in extending the restriction to filingof charge-sheet by investigating officer in the Order dated23.03.2020.

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AConstitution of India – Proclamation of Emergency and Art.21 – Code of Criminal Procedure, 1973 – s. 167(2) – The SingleJudge of the High Court held that lockdown announced by theGovernment of India is akin to the proclamation of Emergency andthe restrictions imposed should not give accuse a right to pray forgrant of default bail u/s. 167(2) Cr. P.C. – Held: The Seven JudgesBConstitution Bench Judgment in K.S. Puthaswamy and Another v.Union of India and Others held that life and personal liberty areinalienable to human existence – They constitute rights underNatural Law – The human element in the life of an individual isintegrally founded on the sanctity of life – In the instant case, theCSingle Judge of the High Court erred in holding that the lockdownannounced by the Government is akin to the proclamation ofEmergency and the restrictions imposed during the lockdown shouldnot give the right to an accused to pray for grant of default baileven though charge-sheet has not been filed within the time prescribed u/s. 167(2) Cr. P.C. – The views of the Single Judge ofDthe High Court were not in accordance with law – Accordingly, thejudgment of the Single Judge set aside.

Allowing the appeal, the Court

Conclusion

HELD: 1. The limitation for filing petitions/ applications/Esuits/ appeals/all other proceedings was extended to obviatelawyers/litigants to come physically to file such proceedings inrespective Courts/Tribunals. The order was passed to protectthe litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being notable to physically come to file such proceedings. The order wasFfor the benefit of the litigants who have to take remedy in lawas per the applicable statute for a right. The law of limitationbars the remedy but not the right. When this Court passed theabove order for extending the limitation for filing petitions/applications/ suits/ appeals/all other proceedings, the order wasGfor the benefit of those who have to take remedy, whose remedymay be barred by time because they were unable to comephysically to file such proceedings. The order dated 23.03.2020cannot be read to mean that it ever intended to extend theperiod of filing charge sheet by police as contemplated underSection 167(2) of the Code of Criminal Procedure. TheHInvestigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during thelockdown 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 fromfiling/submitting the charge-sheet even within the stipulatedperiod before the Magistrate (Incharge). [Para 17] [289-B-F]

2. If the interpretation by the Single Judge in the impugnedjudgment is taken to its logical end, due to difficulties and dueto present pandemic, Police may also not produce an accusedwithin 24 hours before the Magistrate’s Court as contemplatedby Section 57 of the Code of Criminal Procedure, 1973. As notedabove, the provision of Section 57 as well as Section 167 aresupplementary to each other and are the provisions whichrecognises the Right of Personal Liberty of a person asenshrined in the Constitution of India. The order of this Courtdated 23.03.2020 never meant to curtail any provision of Codeof Criminal Procedure or any other statute which was enactedto protect the Personal Liberty of a person. The right ofprosecution to file a charge sheet even after a period of 60 days/90 days is not barred. The prosecution can very well file acharge sheet after 60 days/90 days but without filing a chargesheet they cannot detain an accused beyond a said period whenthe accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. The rightof prosecution to carry on investigation and submit a chargesheet is not akin to right of liberty of a person enshrined underArticle 21 and reflected in other statutes including Section 167,Cr.P.C. [Para 18] [289-F-H; 290-A-C]

3. This Court, thus, is of the clear opinion that the SingleJudge in the impugned judgment erred in holding that thelockdown announced by the Government of India is akin to theproclamation of Emergency. The view of the Single Judge thatthe restrictions, which have been imposed during period oflockdown by the Government of India should not give right toan accused to pray for grant of default bail even though chargesheet has not been filed within the time prescribed under Section167(2) of the Code of Criminal Procedure, is clearly erroneousand not in accordance with law. [Para 25] [294-E-G]

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A4. This Court, thus, is of the view that neither this Courtin its order dated 23.03.2020 can be held to have eclipsed thetime prescribed under Section 167(2) of Cr.P.C. nor therestrictions which have been imposed during the lockdownannounced by the Government shall operate as any restrictionon the rights of an accused as protected by Section 167(2)Bregarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. TheSingle Judge of the High Court committed serious error inreading such restriction in the order of this Court dated23.03.2020. [Para 26] [294-G-H; 295-A]

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K.S.Puttaswamy and Another v. Union of India andOthers (2017) 10 SCC 1 : [2017] 10 SCR 569 –followed.

Uday Mohanlal Acharya v. State of Maharashtra(2001) 5 SCC 453 : [2001] 2 SCR 878 ; RakeshDKumar Paul v. State of Assam (2017) 15 SCC 67 :[2017] 8 SCR 785 ; Achpal Alias Ramswaroop andAnother v. State of Rajasthan (2019) 14 SCC 599 :[2018] 12 SCR 327 ; State of Punjab and Another v.Devans Modern Breweries ltd. and Another (2004) 11ESCC 26 : [2003] 5 Suppl. SCR 930 – relied on.

Additional District Magistrate, Jabalpur v. ShivakantShukla (1976) 2 SCC 521 : [1976] Suppl. SCR172; Union of India and Others v. Bhanudas KrishnaGawde and Others (1977) 1 SCC 834 : [1977] 2 SCR719 – referred to.

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Settu v. The State (In the High Court of Madras,Crl.OP(MD) No. 5291 of 2020) ; Mohammed Ali v.State of Kerala (In the High Court of Kerala,Bail Application No. 2856 of 2020) ; Pankaj v. StateG(In the High Court of Rajasthan, S.B. CriminalRevision Petition No.355 of 2020) ; Vivek Sharma v.State of Uttrakhand (In the High Court ofUttarakhand, First Bail Application No.511 of 2020)– referred to.

S. KASI v. STATE THR. THE INSPECTOR OF POLICE SAMAYNALLURPOLICE STATION MADURAI DISTT.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 452 of 2020.

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From the Judgment and Order dated 11.05.2020 of the HighCourt of Judicature at Madras at Madurai in CRLOP (MD) No. 5296of 2020

Jayanth Muthuraj, AAG, Sidharth Luthra, Sr. Adv., KarunakarMahalik, M. Yogesh Kanna, Advs. for the appearing parties.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. This appeal has been filed questioning the judgment of MaduraiBench of Madras High Court dated 11.05.2020 in Crl.OP(MD) No.5296of 2020 by which judgment the bail application of the appellant has beendismissed.

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2. Brief facts giving rise to this appeal are: - 2.1. The appellant is an accused in Crime No.495 of 2015underSections 457, 380, 457(2), 380(2), 411(2) and 414(2) of Indian PenalCode. The appellant was arrested on 21.02.2020 in the above case andlodged in Central Prison, Trichy. The bail application of the appellantunder Section 439 was rejected by the trial court on 30.04.2020. Afterbeing in judicial custody for more than 73 days, the appellant filed anapplication Crl.OP(MD)No.5296 of 2020before the High Court ofJudicature of Madras at Madurai Bench praying for grant of bail onaccount of passage of such 73 days and non-filing of charge sheet.One of the contentions of the appellant before the High Court was thatcharge sheet having not been filed, the appellant is entitled for bail bydefault as contemplated under Section 167(2) of the Code of CriminalProcedure.

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A2.2. The High Court referring to an order of this Court dated23.03.2020 passed in Suo Moto W.P.(C) No.3 of 2020 took the view:- “...The Supreme Court order eclipses all provisions prescribingperiod of limitation until further orders. Undoubtedly, it eclipsesthe time prescribed under Section 17(2) of the code of CriminalBProcedure...”

2.3 Aggrieved by the order of the Madras High Court dated11.05.2020, this appeal has been filed.

3. We have heard Shri Sidharth Luthra, learned senior counselappearing for the appellant and Shri Jayanth Muthuraj, learnedCAdditional Advocate General for the State.

4. Shri Sidharth Luthra, learned senior counsel for the appellantcontends that the High Court committed error in taking the view thatthis Court’s order dated 23.03.2020 extended the period for submissionof charge sheet as prescribed under Section 167(2) Cr.P.C.It is submittedDthat the provisions of Section 167(2) Cr.P.C. are provisions for protectionof personal liberty and in event charge sheet has not been filed by thepolice within the stipulated period, the appellant is entitled for defaultbail. The order of this Court dated 23.03.2020 in no manner can beread as extending the period for the prosecution to submit the chargeEsheet. The High Court had erroneously taken the view that the orderof this Court eclipses the time prescribed under Section 167(2) of Codeof Criminal Procedure.

5. Learned senior counsel further submits that learned SingleJudge in the impugned judgment had also erred in taking a contraryview to an earlier judgment delivered by another learned Single JudgeFin Settu versus The State, Crl. O.P. (MD) No. 5291 of 2020wherethe learned Single Judge of Madras High Court decided on 08.05.2020has taken the view that the order of this Court dated 23.03.2020 in nomanner can be applied on the provisions of Section 167(2) of Code ofCriminal Procedure.

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6. Learned counsel for the State supports the impugned judgmentand submits that due to enormous difficulties in carrying out theinvestigation, charge sheet could not be filed in the present case andthe appellant is not entitled to take benefit of Section 167(2) in precarioussituation which has occurred on account of pandemic of Covid-19.

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7. We have considered the submissions of learned counsel forthe parties and perused the record.

8. The only issue which need to be decided in this appeal is asto whether the appellant due to non-submission of charge sheet withinthe prescribed period by the prosecution was entitled for grant of bailas per section 167(2) of the Code of Criminal Procedure. Before wenotice the order of this Court dated 23.03.2020 passed in Suo MotuW.P.(C) No. 3 of 2020 which has been applied by the High Court onthe provisions of Section 167(2) Cr.P.C., we need to notice object andpurpose of enactment of Section 167 of the Code of CriminalProcedure.

9. In the earlier Code, i.e.,the Code of Criminal Procedure, 1898,Section 167 laid down the procedure to be followed in the event theinvestigation of an offence was not completed within 24 hours. Section167 in the Code of Criminal Procedure, 1898, was premised on theconclusion of investigation within 24 hours or within 15 days on theoutside regardless of the nature of the offence or the punishment.

10. The Law Commission of India in its Forty-first Reportrecommended for increasing the time limit for completion of investigationto 60 days. The new Code of Criminal Procedure, 1973 gave effect tothe recommendation of the Law Commission. Section 167 as enactedprovided for time limit of 60 days regardless of the nature of offenceor the punishment. In the year 1978, Section 167 was amended. Section167(2) which is relevant for the present case existing as of now is tothe following effect:-

“167.(2) The Magistrate to whom an accused person isforwarded under this section may, whether he has or has notjurisdiction to try the case, from time to time, authorise thedetention of the accused in such custody as such Magistratethinks fit, for a term not exceeding fifteen days in the whole;and if he has no jurisdiction to try the case or commit it fortrial, and considers further detention unnecessary, he mayorder the accused to be forwarded to a Magistrate havingsuch jurisdiction: Provided that- (a) the Magistrate may authorise the detention of theaccused person, otherwise than in the custody of thepolice, beyond the period of fifteen days; if he is A

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satisfied that adequate grounds exist for doing so,but no Magistrate shall authorise the detention ofthe accused person in custody under this paragraphfor a total period exceeding,-

(i) ninety days, where the investigation relates to anoffence punishable with death, imprisonment forlife or imprisonment for a term of not less thanten years; B

(ii) sixty days, where the investigation relates to anyother offence, and, on the expiry of the saidperiod of ninety days, or sixty days, as the casemay be, the accused person shall be released onbail if he is prepared to and does furnish bail,and every person released on bail under this sub-section shall be deemed to be so released underthe provisions of Chapter XXXIII for thepurposes of that Chapter;]

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(b) no Magistrate shall authorise detention in anycustody under this section unless the accused isproduced before him;

(c) no Magistrate of the second class, not speciallyempowered in this behalf by the High Court, shallEauthorise detention in the custody of the police”

11. A three-Judge Bench of this Court in Uday MohanlalAcharya versus State of Maharashtra, (2001)5 SCC 453, has noticedthe object of enacting the provisions of Section 167 Cr.P.C. Section 57of the Code of Criminal Procedure contains the embargo on the PoliceOfficers to detain in custody a person arrested beyond 24 hours. TheFobject is that the accused should be brought before a Magistrate withoutdelay within 24 hours, which provision is, in fact, in consonance withthe constitutional mandate engrafted under Article 22(2) of theConstitution. The provision of Section 167 is supplementary to Section57. The power under Section 167 is given to detain a person in custodyGwhile police goes on with the investigation. Section 167 is, therefore, aprovision which authorises the Magistrate permitting the detention ofthe accused in custody prescribing the maximum period. In UdayMohanlal Acharya(Supra), this court while dealing with Section 167laid down following:- “...This provision of Section 167 is in fact supplementary toHSection 57, in consonance with the principle that the accused

is entitled to demand that justice is not delayed. The objectof requiring the accused to be produced before a Magistrateis to enable the Magistrate to see that remand is necessaryand also to enable the accused to make a representationwhich he may wish to make. The power under Section 167is given to detain a person in custody while the police goeson with the investigation and before the Magistrate starts theenquiry. Section 167, therefore, is the provision whichauthorises the Magistrate permitting detention of an accusedin custody and prescribing the maximum period for whichsuch detention could be ordered. Having prescribed themaximum period, as stated above, what would be theconsequences thereafter has been indicated in the provisoto sub-section (2) of Section 167. The proviso is unambiguousand clear and stipulates that the accused shall be releasedon bail if he is prepared to and does furnish the bail whichhas been termed by the judicial pronouncement to be“compulsive bail” and such bail would be deemed to be abail under Chapter 33. The right of an accused to bereleased on bail after expiry of the maximum period ofdetention provided under Section 167 can be denied onlywhen an accused does not furnish bail, as is apparent fromExplanation I to the said section. The proviso to sub-section(2) of Section 167 is a beneficial provision for curing themischief of indefinitely prolonging the investigation andthereby affecting the liberty of a citizen...”

12. Again, there has been very detailed consideration of Section167 by a Three-Judge Bench of this Court in Rakesh Kumar Paulversus State of Assam, (2017)15 SCC 67. This Court in the abovecase has traced the legislative history of the provision of Section 167.This Court in the above case emphasised that the debate on Section167 must also be looked at from the perspective of expeditiousconclusion of investigation and from the angle of personal liberty. ThisCourt also held that right for default bail is indefeasible right whichcannot be allowed to be frustrated by the prosecution. Following waslaid down in paragraphs 37,38 and 39: - “37. This Court had occasion to review the entire case lawon the subject in Union of India v. Nirala Yadav, (2014) 9SCC 457. In that decision, reference was made to UdayMohanlal Acharya v. State of Maharashtra, (2001) 5 SCC

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A453 and the conclusions arrived at in that decision. We areconcerned with Conclusion (3) which reads as follows:

“13.(3) On the expiry of the said period of 90 days or60 days, as the case may be, an indefeasible right accruesin favour of the accused for being released on bail onBaccount of default by the investigating agency in thecompletion of the investigation within the periodprescribed and the accused is entitled to be released onbail, if he is prepared to and furnishes the bail as directedby the Magistrate.”

38. This Court also dealt with the decision rendered in SanjayCDutt, (1994) 5 SCC 410 and noted that the principle laiddown by the Constitution bench is to the effect that if thecharge sheet is not filed and the right for “default bail” hasripened into the status of indefeasibility, it cannot befrustrated by the prosecution on any pretext. The accusedDcan avail his liberty by filing an application stating that thestatutory period for filing the charge sheet or challan hasexpired and the same has not yet been filed and thereforethe indefeasible right has accrued in his or her favour andfurther the accused is prepared to furnish the bail bond.

39. This Court also noted that apart from the possibility ofEthe prosecution frustrating the indefeasible right, there areoccasions when even the court frustrates the indefeasibleright. Reference was made to Mohd. Iqbal Madar Sheikh v.State of Maharashtra, (1996) 1 SCC 722 wherein it wasobserved that some courts keep the application for “defaultbail” pending for some days so that in the meantime aFcharge-sheet is submitted. While such a practice both on thepart of the prosecution as well as some courts must be verystrongly and vehemently discouraged, we reiterate that nosubterfuge should be resorted to, to defeat the indefeasibleright of the accused for “default bail” during theinterregnum when the statutory period for filing the charge-Gsheet or challan expires and the submission of the charge-sheet or challan in court.”

13. One more judgment of this Court on Section 167 Cr.P.C. benoticed, i.e.,Achpal Alias Ramswaroop and Another versus State ofRajasthan, (2019) 14 SCC 599. After referring to several earlierHjudgments of this Court including the judgment of this Court in Uday

Mohanlal Acharya(supra) and Rakesh Kumar Paul(supra), thisCourt had laid down that the provisions of the Code do not empoweranyone to extend the period within which the investigation must becompleted. This Court held that no Court either directly or indirectlycan extend such period. Following are the observations of this Court inparagraph 20: - “20. We now turn to the subsidiary issue, namely, whetherthe High Court could have extended the period. Theprovisions of the Code do not empower anyone to extend theperiod within which the investigation must be completed nordoes it admit of any such eventuality. There are enactmentssuch as the Terrorist and Disruptive Activities (Prevention)Act, 1985 and the Maharashtra Control of Organised CrimeAct, 1999 which clearly contemplate extension of period andto that extent those enactments have modified the provisionsof the Code including Section 167. In the absence of anysuch similar provision empowering the Court to extend theperiod, no court could either directly or indirectly extendsuch period. In any event of the matter all that the HighCourt had recorded in its order dated 03.07.2018 was thesubmission that the investigation would be completed withintwo months by a gazetted police officer. The order does notindicate that it was brought to the notice of the High Courtthat the period for completing the investigation was comingto an end. Mere recording of submission of the PublicProsecutor could not be taken to be an order grantingextension. We thus reject the submissions in that behalfadvanced by the learned counsel for the State and thecomplainant.”

14. The scheme of Code of Criminal Procedure as noticed aboveclearly delineates that provisions of Section 167 of Code of CriminalProcedure gives due regard to the personal liberty of a person. Withoutsubmission of charge sheet within 60 days or 90 days as may beapplicable, an accused cannot be detained by the Police. The provisiongives due recognition to the personal liberty.

15. After noticing the purpose and object of Section 167, we nowcome to the judgment of this Court dated 23.03.2020 which has beenrelied and referred by learned Single Judge in the impugned judgmentfor holding that the time period in Section 167(2) is eclipsed by judgementof this Court dated 23.03.2020. The Order dated 23.03.2020 was passed A

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Aby this Court in Suo Motu W.P.(C) No.3 of 2020. The entire orderpassed on 23.03.2020 is to the following effect: -

“This Court has taken Suo Motu cognizance of the situationarising out of the challenge faced by the country on accountof Covid-19 Virus and resultant difficulties that may be facedBby litigants across the country in filing their petitions/applications/ suits/ appeals/all other proceedings within theperiod of limitation prescribed under the general law oflimitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/Clitigants do not have to come physically to file suchproceedings in respective Courts/Tribunals across the countryincluding this Court, it is hereby ordered that a period oflimitation in all such proceedings, irrespective of thelimitation prescribed under the general law or Special Lawswhether condonable or not shall stand extended w.e.f. 15thDMarch 2020 till further order/s to be passed by this Courtin present proceedings.

We are exercising this power under Article 142 read withArticle 141 of the Constitution of India and declare that thisorder is a binding order within the meaning of Article 141Eon all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courtsfor being communicated to all subordinate Courts/Tribunalswithin their respective jurisdiction.

FIssue notice to all the Registrars General of the High Courts,returnable in four weeks.”

16. The reason for passing the aforesaid order for extending theperiod of limitation w.e.f. 15.03.2020 for filing petitions/ applications/suits/ appeals/all other proceedings are indicated in the order itself. TwoGreasons, which are decipherable from the order of this Court dated23.03.2020 for passing the order are: - i) The situation arising out of the challenge faced by thecountry on account of Covid-19 virus and resultantdifficulties that are being faced by the litigants acrossHthe country in filing their petitions/ applications/ suits/

appeals/all other proceedings within the period oflimitation prescribed.

ii) To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file suchproceedings in respective Courts/Tribunals acrossthe country including this Court.

17. The limitation for filing petitions/ applications/ suits/ appeals/all other proceedings was extended to obviate lawyers/litigants to comephysically to file such proceedings in respective Courts/Tribunals. Theorder was passed to protect the litigants/lawyers whose petitions/applications/ suits/ appeals/all other proceedings would become timebarred they being not able to physically come to file such proceedings.The order was for the benefit of the litigants who have to take remedyin law as per the applicable statute for a right. The law of limitationbars the remedy but not the right. When this Court passed the aboveorder for extending the limitation for filing petitions/ applications/ suits/appeals/all other proceedings, the order was for the benefit of thosewho have to take remedy, whose remedy may be barred by timebecause they wereunable to come physically to file such proceedings.The order dated 23.03.2020 cannot be read to mean that it ever intendedto extend the period of filing charge sheet by police as contemplatedunder Section 167(2) of the Code of Criminal Procedure. TheInvestigating Officer could have submitted/filed the charge sheet beforethe (Incharge) Magistrate. Therefore, even during the lockdown andas has been done in so many cases the charge-sheet could have beenfiled/submitted before the Magistrate (Incharge) and the InvestigatingOfficer was not precluded from filing/submitting the charge-sheet evenwithin the stipulated period before the Magistrate (Incharge).

18. If the interpretation by learned Single Judge in the impugnedjudgment is taken to its logical end, due to difficulties and due to presentpandemic, Police may also not produce an accused within 24 hoursbefore the Magistrate’s Court as contemplated by Section 57 of theCode of Criminal Procedure, 1973. As noted above, the provision ofSection 57 as well as Section 167 are supplementary to each otherandare the provisions which recognises the Right of Personal Liberty of aperson as enshrined in the Constitution of India. The order of this Courtdated 23.03.2020 never meant to curtail any provision of Code ofCriminal Procedure or any other statute which was enacted to protect A

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Athe Personal Liberty of a person. The right of prosecution to file a chargesheet even after a period of 60 days/ 90 days is not barred. Theprosecution can very well file a charge sheet after 60 days/90 daysbut without filing a charge sheet they cannot detain an accused beyonda said period when the accused prays to the court to set him at libertydue to non-filing of the charge sheet within the period prescribed. TheBright of prosecution to carry on investigation and submit a charge sheetis not akin to right of liberty of a person enshrined under Article 21and reflected in other statutes including Section 167, Cr.P.C. Followingobservations of Madras High Court in the impugned judgment areclearly contrary to the order dated 23.03.2020 of this Court: -C“...The Supreme Court order eclipses all provisions prescribingperiod of limitation until further orders. Undoubtedly, it eclipsesthe time prescribed under Section 167(2) of the Code of CriminalProcedure also...”

19. Learned Single Judge in paragraph 13 of the impugnedDjudgment has also observed that the lockdown announced by theGovernment is akin to proclamation of Emergency. Learned Single Judgehas also referred to Financial Emergency under Article 360 of theConstitution. Learned Single Judge also noticed that presently thoughthe State is not passing through Emergency duly proclaimed but thewhole nation has accepted the restrictions for the well-being of theEmankind. Let us also examine as to whether in event of proclamationof Emergency under Article 352 of the Constitution,whether right toliberty as enshrined under Article 21 stands suspended?

20. We may recall the Constitution Bench Judgment of this Courtin Additional District Magistrate, Jabalpur versus ShivakantFShukla, (1976) 2 SCC 521, where majority of the Judges(JusticeH.R. Khanna dissenting) had taken the view that after proclamationof Emergency under Article 352, no proceedings can be initiated forenforcement of right under Article 21. Justice A.N.Ray,C.J., withwhom three other Hon’ble Judges have concurred in paragraph 136Gand paragraph 137 laid down following:- “136. First, In view of the Presidential Order dated June 27,1975 under clause (1) of Article 359 of our Constitution noperson has locus standi to move any writ petition underArticle 226 before a High Court for Habeas Corpus or anyother writ or order or direction to enforce any right toHpersonal liberty of a person detained under the Act on the grounds that the order of detention or the continueddetention is for any reason not under or in compliance withthe Act or is illegal or mala fide.

137. Second, Article 21 is the sole repository of rights to lifeand personal liberty against the State. Any claim to a writof habeas corpus is enforcement of Article 21 and, is,therefore, barred by the Presidential Order.”

21. Another Three-Judge judgment of this Court in Union ofIndia and others versus Bhanudas Krishna Gawde andothers, (1977) 1 SCC 834, took the same view following themajority of this Court in ADM, Jabalpur versus ShivakantShukla. In paragraph 23, following was observed: - “23………Accordingly, if a person was deprived of his personalliberty not under the Defence of India Act or any rule or ordermade thereunder but in contravention thereof, his locus standi tomove any court for the enforcement of his rights, conferred byArticles 21 and 22 of the Constitution was not barred. More orless, similar was the pattern and effect of the presidential Orderdated November 16, 1974. The position with respect to thePresidential Orders dated 27, 1975 and January 8, 1976 is,however, quite different. These orders are not circumscribed byany limitation and their applicability is not made dependent uponthe fulfilment of any condition precedent. They impose a totalor blanket ban on the enforcement inter alia of the fundamentalrights conferred by Articles 19,21 and 22 of the Constitution whichcomprise all varieties or aspects of freedom of personcompendiously described as personal liberty. [See A.K. Gopalanv. State of Madras, AIR 1950 SC 27; Kharak Singh v. State ofU.P., AIR 1963 SC 1295 and A.D.M. Jabalpur v. ShivakantShukla(supra).] Thus there is no room for doubt that thePresidential orders dated June 27, 1975, and January 8, 1976,unconditionally suspend the enforceability of the right conferredupon any person including a foreigner to move any court for theenforcement of the rights enshrined in Articles 14, 19, 21 and 22of the Constitution.”

22. Article 359 of the Constitution was amended by the Forty-fourth Constitutional Amendment Act, 1978. In sub-Article (1)of Article 359, the expression “except Articles 20 and 21 havebeen inserted”. After the amendment, Article 359(1) reads asfollows:- “

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ASuspension of the enforcement of the rights conferred by PartIII during emergencies.359(1). Where a Proclamation ofEmergency is in operation, the President may by orderdeclare that the right to move any court for the enforcementof such of the rights conferred by Part III (except articles20 and 21) as may be mentioned in the order and allBproceedings pending in any court for the enforcement of therights so mentioned shall remain suspended for the periodduring which the Proclamation is in force or for such shorterperiod as may be specified in the order”

23. The sting of the judgment of this Court in Additional DistrictCMagistrate, Jabalpur versus Shivakant Shukla (supra), andretrograde steps taken in respect of right protected under Article 21was, thus, immediately remedied by the Parliament by the aboveConstitutional Amendment. The minority judgment of Justice H.R.Khanna in Additional District Magistrate, Jabalpur versusDShivakant Shukla (supra)has held that State has no power to deprivethe person of his life or liberty without the authorities of law. Inparagraphs 525 and 530, Justice Khanna observed:- “525....I am of the opinion that Article 21 cannot beconsidered to be the sole repository of the right to life andpersonal liberty. The right to life and personal liberty is theEmost precious right of human beings in civilised societiesgoverned by the rule of law. Many modern Constitutionsincorporate certain fundamental rights, including the onerelating to personal freedom. According to Blackstone, theabsolute rights of Englishmen were the rights of personalFsecurity, personal liberty and private property. The AmericanDeclaration of Independence (1776) states that all men arecreated equal, and among their inalienable rights are life,liberty, and the pursuit of happiness.

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G530. Even in the absence of Article 21 in the Constitution,the State has got no power to deprive a person of his life orliberty without the authority of law. This is the essentialpostulate and basic assumption of the rule of law and notof men in all civilised nations. Without such sanctity of lifeand liberty, the distinction between a lawless society and oneHgoverned by laws would cease to have any meaning. The principle that no one shall be deprived of his life or libertywithout the authority of law is rooted in the considerationthat life and liberty are priceless possessions which cannotbe made the plaything of individual whim and caprice andthat any act which has the effect of tampering with life andliberty must receive sustenance from and sanction of the lawsof the land. Article 21 incorporates an essential aspect ofthat principle and makes it part of the fundamental rightsguaranteed in Part III of the Constitution. It does not,however, follow from the above that if Article 21 had not beendrafted and inserted in Part III, in that event it would havebeen permissible for the State to deprive a person of his lifeor liberty without the authority of law. No case has beencited before us to show that before the coming into force ofthe Constitution or in countries under the rule of law wherethere is no provisions corresponding to Article 21, a claimwas ever sustained by the courts that the State can deprivea person of his life or liberty without the authority oflaw………………………………...”

24. We may notice that the Constitution Bench Judgment of thisCourt in A.D.M.,Jabalpur versus Shivakant Shukla (supra),foundation of which judgment was knocked out by Forty-fourthConstitutional Amendment has been formally over-ruled by Seven-Judges Constitution Bench Judgment in K.S.Puttaswamy and anotherversus Union of India and others, (2017) 10 SCC 1. Dr.D.Y.Chandrachud,J.,speaking for the Court in paragraphs 136 and 139held:- “136.The judgments rendered by all the four judges constitutingthe majority in ADM Jabalpur are seriously flawed. Life andpersonal liberty are inalienable to human existence. These rightsare, as recognised in Kesavananda Bharati, primordial rights.They constitute rights under Natural law. The human element inthe life of the individual is integrally founded on the sanctity oflife. Dignity is associated with liberty and freedom. No civilizedstate can contemplate an encroachment upon life and personalliberty without the authority of law. Neither life nor liberty arebounties conferred by the state nor does the Constitution createthese rights. The right to life has existed even before the adventof the Constitution. In recognising the right, the Constitution does ABC

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Anot become the sole repository of the right. It would bepreposterous to suggest that a democratic Constitution withouta Bill of Rights would leave individuals governed by the statewithout either the existence of the right to live or the means ofenforcement of the right. The right to life being inalienable toeach individual, it existed prior to the Constitution and continuedBin force under Article 372 of the Constitution. Khanna, J. wasclearly right in holding that the recognition of the right to life andpersonal liberty under the Constitution does not denude theexistence of that right, apart from it nor can there be a fatuousassumption that in adopting the Constitution the people of IndiaCsurrendered the most precious aspect of the human persona,namely, life, liberty and freedom to the state on whose mercythese rights would depend. Such a construct is contrary to thebasic foundation of the Rule of Law which imposes restraintsupon the powers vested in the modern state when it deals withthe liberties of the individual. The power of the Court to issue aDWrit of Habeas Corpus is a precious and undeniable feature ofthe rule of law.

139. ADM Jabalpur must be and is accordingly overruled. Wealso overrule the decision in Union of India v. Bhanudas KrishnaGawde, which followed ADM Jabalpur.”

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25. We, thus, are of the clear opinion that the learned Single Judgein the impugned judgment erred in holding that the lockdown announcedby the Government of India is akin to the proclamation of Emergency.The view of the learned Single Judge that the restrictions, which havebeen imposed during period of lockdown by the Government of IndiaFshould not give right to an accused to pray for grant of default bail eventhough charge sheet has not been filed within the time prescribed underSection 167(2) of the Code of Criminal Procedure, is clearly erroneousand not in accordance with law.

26. We, thus, are of the view that neither this Court in its orderGdated 23.03.2020 can be held to have eclipsed the time prescribed underSection 167(2) of Cr.P.C. nor the restrictions which have been imposedduring the lockdown announced by the Government shall operate asany restriction on the rights of an accused as protected by Section167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learnedHSingle Judge committed serious error in reading such restriction in the order of this Court dated 23.03.2020.

27. There is one more reason due to which the impugnedjudgment of the learned Single Judge deserves to be set aside. A learnedSingle Judge of Madras High Court in Crl.OP(MD)No. 5291 of2020,Settu versus the State, had already considered the judgment ofthis Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020and its effect on Section 167(2) Cr.P.C. The above was also a case ofa bail where the accused was praying for grant of default bail due tonon-submission of charge sheet. The prosecution had raised objectionand had relied on the order of this Court dated 23.03.2020 passed inSuo Moto W.P(C)No.3 of 2020 claiming that period for filing chargesheet stood extended until further orders. The submission of prosecutionwas rejected by learned Single Judge. The learned Single Judge hadmade following observations in paragraphs 14 and 15:- “14. Personal liberty is too precious a fundamental right.Article 21 states that no person shall be deprived of hispersonal liberty except according to procedure establishedby law. So long as the language of Section 167(2) of Cr.P.C.remains as it is, I have to necessarily hold that denial ofcompulsive bail to the petitioner herein will definitely amountto violation of his fundamental right under Article 21 of theConstitution of India. The noble object of the Hon’bleSupreme Court’s direction is to ensure that no litigant isdeprived of his valuable rights. But, if I accept the plea ofthe respondent police, the direction of the Hon’ble SupremeCourt which is intended to save and preserve rights wouldresult in taking away the valuable right that had accrued tothe accused herein.

15. Of course, the construction placed by me will have noapplication whatsoever in the case of certain offences undercertain special laws, such as Unlawful Activities (Prevention)Act, 1967 and NDPS Act, 1985. For instance, Section 36-A(4) of the NDPS Act enables the investigation officer to applyto the special court for extending the period mentioned inthe statute from 180 days to 1 year ifit is not possible tocomplete the investigation. Thus, under certain statutes, theprosecution has a right to apply for extension of time. Inthose cases, the benefit of the direction of the Hon’ble A

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ASupreme Court made 23.03.2020 in Suo Motu Writ Petition(Civil) No.3 of 2020 will apply. But, in respect of the otheroffences for which Section 167 of Cr.P.C. is applicable, thebenefit of the said direction cannot be availed.”

28. The Prayer of the accused in the said case for grant ofBdefault bail was allowed. The claim of the prosecution that by order ofthis Court dated 23.03.2020, the period for filing charge sheet underSection 167 Cr.P.C. stands extended was specifically rejected.

29. The view taken by learned Single Judge of Madras High Courtin Settu versus The State (supra) that the order of this Court datedC23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 does not extendthe period for filing charge sheet under Section 167(2) Cr.P.C. has beenfollowed by Kerala High Court as well as Rajasthan High Court. KeralaHigh Court in its judgment dated 20.05.2020 in Bail Application No.2856 of 2020 –Mohammed Ali Vs. State of Kerala and Anr. afternoticing the contention raised on the basis of order of this Court datedD23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 rejected the saidcontention and followed the judgment of the learned Single Judge ofMadras High Court in Settu versus The State (supra). Kerala HighCourt in paragraph 13 of the judgment observes: -

“13. I respectfully concur with the exposition of law laid downEby the learned Single Judge of the Madras High Court inCrl.O.P.(MD) No.5291 of 2020 as well by the learned SingleJudge of Uttarakhand High Court when their lordships held thatthe investigating agency cannot benefit from the directions issuedby the Supreme Court in the Suo moto Writ Petition.”F30. Rajasthan High Court had occasion to consider Section 167as well as the order of this Court dated 23.03.2020 passed in Suo MotoW.P(C)No.3 of 2020 and Rajasthan High Court has also come to thesame conclusion that the order of this Court dated 23.03.2020 has noconsequence on the right, which accrues to an accused on non-filingGof charge sheet within time as prescribed under Section 167 Cr.P.C.Rajasthan High Court in S.B. Criminal Revision Petition No. 355of 2020 – Pankaj Vs. State decided on 22.05.2020 has also followedthe judgment of learned Single Judge of the Madras High Court in Settuversus The State (supra) and has held that accused was entitled forgrant of the default bail. Uttarakhand High Court in First BailHApplication No.511 of 2020 – Vivek Sharma Vs. State of

Uttarakhand in its judgment dated 12.05.2020 has after consideringthe judgment of this Court dated 23.03.2020 passed in Suo MotoW.P(C)No.3 of 2020 has taken the view that the order of this Courtdoes not cover police investigation. We approve the above view takenby learned Single Judge of Madras High court in Settu versus TheState (supra) as well as the by the Kerala High Court, Rajasthan HighCourt and Uttarakhand High Court noticed above.

31. Learned Single Judge in the impugned judgment has taken acontrary view to the earlier judgment of learned Single Judge in Settuversus The State (supra). It is well settled that a coordinate Benchcannot take a contrary view and in event there was any doubt, acoordinate Bench only can refer the matter for consideration by aLarger Bench. The judicial discipline ordains so. This Court in State ofPunjab and another versus Devans Modern Breweries ltd. andanother, (2004) 11 SCC 26, in paragraph 339 laid down following:- “339.Judicial discipline envisages that a coordinate Benchfollow the decision of an earlier coordinate Bench. If acoordinate Bench does not agree with the principles of lawenunciated by another Bench, the matter may be referred onlyto a Larger Bench. (See Pradip Chandra Parija v. PramodChandra Patnaik, (2002) 1 SCC 1 followed in Union of IndiaVs. Hansoli Devi, (2002) 7 SCC 273.But no decision can bearrived at contrary to or inconsistent with the law laid downby the coordinate Bench. Kalyani Stores (supra) and K.K.Narula (supra) both have been rendered by the ConstitutionBenches. The said decisions, therefore, cannot be thrown outfor any purpose whatsoever; more so when both of them ifapplied collectively lead to a contrary decision proposed bythe majority.”

32. Learned Single Judge did not follow the judicial discipline whiletaking a contrary and diagonally opposite view to one which have beentaken by another learned Single Judge in Settu versus The State(supra). The contrary view taken by learned Single Judge in theimpugned judgment is not only erroneous but also sends wrong signalsto the State and the prosecution emboldening them to act in breach ofliberty of a person.

33. We may further notice that learned Single Judge in theimpugned judgment had not only breached the judicial discipline but has AB

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Aalso referred to an observation made by learned Single Judge in Settuversus The State as uncharitable. All Courts including the High Courtsand the Supreme Court have to follow a principle of Comity of Courts.A Bench whether coordinate or Larger,has to refrain from making anyuncharitable observation on a decision even though delivered by a Benchof a lesser coram. A Bench sitting in a Larger coram may be right inBoverturning a judgment on a question of law, which jurisdiction a Judgesitting in a coordinate Bench does not have. In any case, a Judge sittingin a coordinate Bench or a Larger Bench has no business to make anyadverse comment or uncharitable remark on any other judgment. Westrongly disapprove the course adopted by the learned Single Judge inCthe impugned judgment.

34. In view of the foregoing discussions, we allow this appeal,set aside the judgment of learned Single Judge, direct that appellant bereleased on default bail subject to personal bond of Rs.10,000/- withtwo sureties to the satisfaction of trial court.

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Appeal allowed.

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