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[Covid-19]: CJ Madras HC refers issue of limitation apropos Default Bail to Division Bench, conflicting views of Single Judge Bench

The Reference order has been passed by Chief Justice (CJ) of Madras High Court on 12 May, 2020, in view of two divergent orders of learned single Judges of the Madurai Bench in relation to a plea of default bail in the light of provisions of Sec.167(2) Cr.P.C. It was observed that the divergence is on account of the orders passed by the Apex Court on 23rd of March, 2020 in a Suo Motu Writ Petition (Civil) No.3 of 2020 followed by another order in the same proceedings on 6th of May, 2020 relating to the extension of the period of limitation.

One of the Single Judge had held that orders of SC for extension of limitation, have no application for filing Charge Sheet apropos default bail i.e. Sec. 167(2) Cr.P.C. - non filing of charge sheet on time would entail default bail to the accused. Whereas the other Single Judge had held that extension of limitation by SC is also applicable to filing of chargesheet for the purpose of default bail under Sec. 167(2) Cr.P.C.

The CJ Madras HC observed that applicability of the order passed by the Apex Court has to be considered in the light of the fact that Sec.167 Cr.P.C. appears to only set out the outer limit of the detaining power of the Magistrate without charge and thus is an embargo on the period of detention of an accused. It was observed that the investigation can still continue unhindered. It was further observed that apart from this there is no express provision so as to condone delay in the Cr.P.C. except the provisions of Sec. 468 to Sec. 473 thereof.

It was thus held that there are two conflicting opinions arising out of the orders, since the same is likely to have a direct impact on bail orders to be passed by the Subordinate Judiciary or even by the High Court, the matter deserves to be resolved by an authoritative pronouncement.

Accordingly, it was directed by the CJ Madras HC that in exercise of the powers conferred under Order I Rule 6 of the Madras High Court Appellate Side Rules the conflict between the two orders raising a pure question of law based on the interpretation of the order of the Supreme Court dated 23rd March, 2020 deserves to be clarified by an authoritative pronouncement. And the matter was directed to be placed before Division Bench of Madras HC for authoritative pronouncement on the said issue.

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