IMPORTANT POINTS
The provisions of the Code do not empower anyone to extend the period within which investigation must be completed. If on the expiry of the period mentioned the final report is not laid, the right of the accused gets crystallised and if the accused expresses his willingness to be admitted to the benefit of bail and prefers appropriate application, he has to be granted default bail. Right of personal liberty is not only a legal right but it is a human right which is inherent in every citizen of any civilized society. Article 21 only recognizes this right. Section 57 and 167 are the provisions in the Code which provides for procedure established by law which curtails this right. Such provisions which provide for the procedure to keep an accused under prolonged incarceration will have to be interpreted keeping in mind the constitutional rights of the accused.

ORDER :

1. The petitioner herein is the accused in Crime No. 53 of 2020 of Valapattanam Police Station registered under Sections 354B, 376(2)(f)(n), 376(3) of IPC and Sections 4(2) r/w. Section 3(a), (b), 6(l), 5(j), (ii), (n), 8 r/w 7, 10 r/w. 9(l)(n) of Protection of Children from Sexual Offences Act, 2012 and Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2015.

2. The petitioner was arrested in connection with the aforesaid crime on 17.1.2020 and was remanded to judicial custody. Immediately prior to the expiry of 90 days, the petitioner herein filed an application for bail invoking Section 167(2) of the Cr.P.C. The learned Special Judge took note of the submission of the learned Public Prosecutor that the investigation has already been completed and the final report has been prepared. However, in view of the lockdown imposed consequent to SARS COVID 19 Pandemic, the investigating officer was not in a position to submit the final report within the statutory period. The learned Special Judge held that owing to the aforesaid fact, the petitioner herein was not entitled to default bail and his application was dismissed.

3. Sri. B.H. Mansoor, the learned counsel appearing for the petitioner, submitted that on the expiry of 90 days, there was no final report placed before the Special Judge for the consideration of the court. According to the learned counsel, the provision of the Cr.P.C. does not contemplate any extension of period on any grounds whatsoever and if the final report is not laid within the period prescribed in the Code and if the accused expresses his willingness to be admitted to the benefit of bail and prefers an application, the jurisdictional court will have no jurisdiction to authorise the detention of the accused beyond the said period. The expiry of the period under Section 167(2) confers on the accused a valuable and indefeasible right and the same cannot be denied on any grounds whatsoever. It is argued that the prosecution cannot be allowed to trifle with the individual liberty and the provision with regard to conferment of benefits to the accused for bail will have to be construed strictly in favour of individual liberty flowing from Article 21 of the Constitution of India. In order to substantiate his contention, the learned counsel has relied on the decision reported in Uday Mohanlal Acharya vs. State of Maharashtra, 2001 (5) SCC 453, Hitendra Vishnu Thakur and Others vs. State of Maharashtra and Others, 1994 (4) SCC 602, Sanjay Dutt vs. State through C.B.I. Bombay, AIR 2013 SC 2687 and Union of India vs. Thamisharasi and Others, 1995 (4) SCC 190.

4. Sri. T.R. Renjith, the learned Public Prosecutor, on instructions submitted that the prosecution allegation is that the petitioner herein had subjected his minor daughter to penetrative sexual assault consequent to which she became pregnant. He would point out that the allegation against the petitioner is so heinous that the prosecution had taken all steps to complete the investigation in an expeditious manner and submit the final report before the jurisdictional court within the statutory period. However, in view of the spread of the pandemic and the imposition of the lockdown in the State, the Magistrate Court was also not functioning and hence the Police were not in a position to submit the final report. It is contended that to prevent the spread of the pandemic, the Hon’ble Supreme Court had directed in order dated 23.3.2020 in Suo Motu Writ Petition (Civil) No. 3/2020 that the period of limitation prescribed under the general law of Limitation or under Special Laws (both Central and/or State) will stand extended with effect from 15.3.2020 till further orders to be passed in the said proceeding. He points out that the said order was passed in exercise of powers under Article 142 r/w. Article 141 of the Constitution of India and is binding on all Courts/Tribunals and Authorities. Later, by order dated 6.5.2020, the limitation period pr