[Supreme Court] Right to get default bail under Sec. 167(2) Cr.P.C. is indefeasible right, cannot be taken away even in emergency: Madras HC Judge sitting in a coordinate Bench has no business to make uncharitable remark on any other judgment

The SC on June 19, 2020 {S.KASI vs STATE THROUGH THE INSPECTOR OF POLICE SAMAYNALLUR POLICE STATION MADURAI DISTRICT} held that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. It was held that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. It was held that the provision gives due recognition to the personal liberty. 

It was observed by the Bench, comprising of Justice Ashok Bhushan, Justice M.R. Shah & Justice V. Ramasubramanian, that the order dated 23.03.2020 (extending period of limitation due to lockdown) of SC 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. It was held that the Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, it was held that even during the lockdown 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 from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

The only issue which arose in this appeal before the SC was as to whether the appellant due to non-submission of charge sheet within the prescribed period by the prosecution was entitled for grant of bail as per section 167(2) of the Code of Criminal Procedure.

The SC held that the prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. It was held that the right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167 Cr.P.C.

It was held that the learned Single Judge in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. However, by citing precedents the SC also ruled that life & liberty are inalienable rights, which even in case of emergency cannot be suspended by ruling dispensation. These natural rights are primordial, and existed even before the Constitution came into force, are inalienable for humanly existence. It was held that neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights.

The SC concluded that neither the Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.

It was observed by the SC that there is one more reason due to which the impugned judgment of the learned Single Judge deserves to be set aside. It was held that Learned Single Judge in the impugned judgment has taken a contrary view to the earlier judgment of another learned Single Judge in Crl.OP(MD) No. 5291 of 2020, Settu versus the State. It was held that it is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. It was held that the judicial discipline ordains so.

It was further held by the SC that Learned Single Judge did not follow the judicial discipline while taking a contrary and diagonally opposite view to one which have been earlier taken by another learned Single Judge in Settu versus The State (supra). It was held that the contrary view taken by learned Single Judge in the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person.

It was observed that learned Single Judge in the impugned judgment had not only breached the judicial discipline but has also referred to an observation made by learned Single Judge in Settu versus The State (supra) as uncharitable. It was held that in any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment. The Court held it strongly disapproves the course adopted by the learned Single Judge in the impugned judgment.

In view of the foregoing discussions, the appeal was allowed by the SC setting aside the judgment of learned Single Judge, and directed that appellant be released on default bail.