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IN THE HIGH COURT OF ALLAHABAD
ATTAU RAHMAN MASOODI, J.
Abhishek Srivastava – Appellant
Versus
State of U.P. – Respondent
Bail Nos. 5384, 5756 of 2020
Decided On : 25-11-2020
Information Technology Act – Section 67 – Prevention of Corruption Act – Section 7/13 – Constitution of India, 1950 – Article 21 – Penal Code, 1860 – Sections 406, 409, 419, 420, 467, 468, 471 – Code of Criminal Procedure, 1973 – Sections 173, 167 – Bail Application – Bail applications involve an identical question of law. In both the applications, the right of personal liberty embodied under Article 21 of the Constitution of India is pressed on the ground of default on the part of the prosecution to file the charge-sheet within the statutory period as provided under Section 167(2) of Code of Criminal Procedure –
Finding of the Court:
Prosecution has adopted a peculiar stand to justify the default. – It is stated that the closure of court prevented them to file the charge-sheet before the deadline i.e. 29.4.2020. – The prosecution has taken a bald plea without showing any steps having been taken to file the charge-sheet by approaching the court or through online service. – The plea advanced is misleading and cannot be accepted particularly when the date of filing itself is shown during the lock-down period i.e. 5.5.2020. – Moreover, as per the periodic guidelines during Pandemic, the courts were open for filing the reports under Section 173 Cr.P.C. – Position emerging as a result of failure to sanction prosecution, in absence whereof cognizance cannot be taken, has been clarified in the case reported in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra, (2013) 3 SCC 77, wherein failure to file the charge-sheet has been laid down as the rule for default bail. – It is well settled that investigation is complete with the filing of charge-sheet, therefore, the limitation embodied under Section 167(2) must be seen on the date of filing of the charge-sheet in the court and any other date suggesting completion of investigation is irrelevant and does not satisfy the requirement of law. – The right of default bail which undoubtedly accrued to the applicant became enforceable– This right was very much alive when the charge-sheet was filed in the court on 5.5.2020 and survived thereafter. – The applicant Sanjeev Yadav is thus entitled to be enlarged on bail at par with the case of Abhishek Srivastava. – Let the applicant Sanjeev Yadav involved in Case Crime No. 78 of 2020, under Section 406, 409, 419, 420, 467, 468, 471 IPC, Section 67 Information Technology Act and Section 7/13(1)(c) Prevention of Corruption Act, Police Station Gola, District Lakhimpur Kheri, be enlarged on bail on the same conditions and satisfaction of the court concerned as provided in the case of Abhishek Srivastava. –
Result: Bail Granted
Key Points: - Investigation is complete with the filing of charge-sheet; therefore, limitation under Section 167(2) must be seen on the date of filing the charge-sheet in court (!) . - The right of personal liberty under Article 21 is an indefeasible right, and default bail becomes enforceable once the charge-sheet is filed, regardless of lock-down or court closure (!) (!) . - Courts are duty-bound to deal with remand and bail matters as per General Rules (Criminal), 1977 and holiday practice, even during court closures, and cannot deny default bail selectively (!) (!) (!) . - Mere closure of courts due to lock-down does not extinguish the right to default bail; the limitation period is computed from the date the charge-sheet is filed (!) (!) . - Failure to file charge-sheet within the statutory period without genuine effort constitutes a dereliction of duty, and the accused is entitled to default bail on par with established case law (!) (!) (!) .
JUDGMENT :
ATTAU RAHMAN MASOODI, J.
1. Heard Sri. Pranjal Krishna, learned counsel for the applicant in Bail No. 5384 of 2020, Sri. Sushil Kumar Singh, learned counsel for the applicant in Bail No. 5756 of 2020 and learned AGA for the State. Perused the record.
2. These two bail applications involve an identical question of law. In both the applications, the right of personal liberty embodied under Article 21 of the Constitution of India is pressed on the ground of default on the part of the prosecution to file the charge-sheet within the statutory period as provided under Section 167(2) of Code of Criminal Procedure (Cr.P.C.).
3. Learned counsel for the applicants would contend that personal liberty of a citizen is fundamental and the same cannot be curtailed without following due procedure prescribed under law.
4. In the case of Abhishek Srivastava i.e. in Bail Application No. 5384 of 2020, the accused after arrest by the police was taken in judicial custody with the passing of remand order on 16.1.2020 whereafter the judicial custody continued from time to time and lastly the remand was extended on 11/12.3.2020 for a period of fourteen days i.e. upto 25.3.2020. Before the said date, nationwide lock-down was imposed and the functioning of the Courts stood obstructed rather completely closed except for the urgent work regulated as per the directives issued by Hon’ble the Chief Justice from time to time.
5. Due to closure of courts from 24.3.2020, the first/fresh remand cases were done and no remand orders could be passed from 25.3.2020 to 26.6.2020. This position was brought to the notice of this Court by the District Judge, Lucknow on 29.9.2020 pursuant to an order passed by this Court on 18.9.2020 which reads as under:
Having heard the learned counsel for the parties, it is desirable that a report may be called for from the District Judge, Lucknow clarifying the position of remand in case crime no. 368 of 2018 from 11/12.3.2020 to 16.6.2020.
The District Judge, Lucknow is expected to forward a clear report within ten days for the reason that the matter pertains to the freedom of life and personal liberty of the accused applicant.
List for further hearing on 30.9.2020.”
6. The effect of lock-down was equally harsh on the litigants or detenues in jail who could not assert their rights of personal liberty through the process of law. The period of 90 days in Bail Application No. 5756 of 2020 expired on 14.4.2020 and in absence of any remand order since 25.3.2020, the applicant (Abhishek Srivastava) continued in jail till the filing of charge-sheet on 1.5.2020 and thereafter until the rejection of default bail on 18.6.2020. The personal liberty of the accused applicant oscillated without any attention either by prosecution or the guardian of justice i.e. courts. The duty on the part of the State to set the applicant free by apprising the court was given a complete go by to legitimize the default. Non performance of the judicial duty also owes its failure to the nationwide lock-down due to Pandemic Covid-19.
7. The magistrate notwithstanding the filing of charge-sheet beyond the period of limitation, has nevertheless rejected the bail application treating the right of default bail to have extinguished on filing of the charge-sheet and this position is evident from the order passed by the magistrate on 18.6.2020.
8. In the connected matter i.e. Bail Application No. 5384 of 2020, the initial remand order was passed on 31.1.2020 and the period of limitation for filing of charge-sheet lapsed on 29.4.2020 whereafter the police report was filed on 5.5.2020. The order sheet merely endorsed ‘remand’ on several dates and lastly on 29.4.2020. The default bail application was filed in the month of June which was rejected on 20.6.2020. In the counter affidavit filed by the State, a plea has been taken that the police report was ready on 29.4.2020 but the same could not be filed before the deadline i.e. 29.4.
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