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IN THE HIGH COURT OF ALLAHABAD
Pritinker Diwaker, Shekhar Kumar Yadav, JJ.
Yadav Singh - Appellants
Vs.
Central Bureau of Investigation and Ors.- Respondent
Habeas Corpus Writ Petition No. 266 of 2020
Decided On : 08-07-2020
Prevention of Corruption Act, 1988 - Sections 13 (2) r/w 13 (1) (b) & 13 (1) (d) - Criminal Procedure Code - Section 167 (2) – Indian Penal Code - Sections 120-B – First Information Report – Anticipatory bail – Jurisdiction - Whether in special circumstances of COVID-19 pandemic period of sixty days for filing charge-sheet can be enhanced or not - Whether Court below was justified in rejecting claim of petitioner on strength the order passed by Apex Court in Suo Moto Writ Petition - Petitioner filed an application for default bail through e-mail before the District Judge, Ghaziabad under Section 167 (2) of Code of Criminal Procedure - As appears from the documents available on record District Judge forwarded the said application to the Special CBI Court Ghaziabad and in turn Special CBI Court had gone to the District Jail for considering the application filed by petitioner under Section 167 (2) of Cr PC - Vide impugned order Special CBI Court has rejected said application on ground that limitation of sixty days would not be counted for purpose of Section 167 (2) of Cr PC because of lock down due to COVID-19 pandemic and in view of order passed by the Apex Court in Suo Moto Writ Petition Cognizance For Extension of Limitation – Held, Provisions of Code do not empower any one to extend period within which the investigation must be completed - If on the expiry of period aforesaid mentioned accused applies for bail and is ready to furnish sureties an indefeasible right would accrue in his favors - It is not case of CBI that during lock down period no offence had taken place in the country nor any arrest or remand has been made – Therefore CBI is not justified in citing the closure of courts and the general extension of the limitation period - Section 167 (2A) of Cr PC contemplates the situation when the judicial magistrate is not available - In such circumstances for a short period even executive magistrate may pass detention orders - In this case nothing stopped the CBI from formally presenting report before stipulated date and getting initial of the jurisdictional magistrate - Considering all aspects of case in particular judgment of Apex Court are of view that the Special Judge has erred in law in rejecting application filed by the petitioner under Section 167 (2) of Cr PC – Accordingly impugned order is set aside - Detention of petitioner is held to be illegal and he is entitled for default bail – Court accordingly direct that petitioner be set free forthwith in respect of FIR for offences under Sections 120-B of IPC and Sections 13 (2) r/w 13 (1) (b) & 13 (1) (d) of Prevention of Corruption Act, 1988, Police Station STF District New Delhi on fulfilling the conditions to be laid down by Special Court - Writ petition is allowed
ORDER :
Pritinker Diwaker, J.
1. When the instant matter is being taken up, Sri Zain Abbas, learned counsel for the petitioner submits that the case is to be argued by Sri Vikram Chaudhary, learned Senior Counsel from Delhi through Video Conferencing.
A third supplementary affidavit has been filed by the petitioner, annexing a letter by Ms. Diksha Rai, Advocate-on-Record, Supreme Court of India dated 8.7.2020 (Annexure No. TSA-1) in connection with Writ Petition (Crl.) No. 143/2020: Yadav Singh Vs. Central Bureau of Investigation and SLP (Crl.) No. 2965/2020: Yadav Singh Vs. Central Bureau of Investigation filed by the petitioner and submitted that the Supreme Court has requested this Court to decide the present writ petition today itself. Counsel for the CBI has also confirmed this fact that a direction has been issued by the Supreme Court for deciding the present writ petition today itself. Accordingly, we have heard learned counsel for the respective parties.
Third Supplementary Affidavit is taken on record.
2. Petitioner is an accused vide FIR No. RC/DST/2018/A/0004 dated 17.1.2018 for the offences under Sections 120-B of IPC and Sections 13 (2) r/w 13 (1) (b) & 13 (1) (d) of the Prevention of Corruption Act, 1988, Police Station STF, District New Delhi. He was taken into custody on 10.2.2020 and was produced before the Special CBI Court on 11.2.2020 for remand. CBI Court was pleased to remand him to CBI custody, vide order dated 11.2.2020. However, charge-sheet could not be filed within the stipulated period of 60 days.
3. As there was complete lock down due to COVID-19 pandemic, on 12.4.2020, the petitioner filed an application for default bail through e-mail before the District Judge, Ghaziabad under Section 167 (2) of Code of Criminal Procedure (Cr PC). As appears from the documents available on record, the District Judge, Ghaziabad forwarded the said application to the Special CBI Court, Ghaziabad on 16.4.2020 and in turn, on 17.4.2020, the Special CBI Court had gone to the District Jail, Ghaziabad for considering the application filed by the petitioner under Section 167 (2) of Cr PC.
4. Vide impugned order dated 17.4.2020, the Special CBI Court has rejected the said application on the ground that limitation of 60 days would not be counted for the purpose of Section 167 (2) of Cr PC because of the lock down due to COVID-19 pandemic and in view of the order passed by the Apex Court on 23.3.2020 in Suo Moto Writ Petition (Civil) No(s). 3/2020: In Re: Cognizance For Extension of Limitation.
5. According to the petitioner, though he had completed 60 days in Jail and charge-sheet has not been filed within the stipulated period as defined in Cr PC, he is entitled for default bail. Learned Senior Counsel for the petitioner submits that there was sufficient opportunity for the CBI to complete the investigation and file charge-sheet within 60 days, but neither investigation was completed nor charge-sheet was filed in time. It has been argued that investigation was completed on 8.6.2020 and on the same day, charge-sheet was filed. He further submits that once the petitioner can approach the Apex Court by filing his application through email and make a special request for deciding the said application, the same exercise could have been done by the CBI also by making some efforts for filing charge-sheet before the CBI Court or before the Court having competent jurisdiction during the lock down period. Learned counsel further submits that no effort was made by the CBI to file charge-sheet within 60 days and the same was filed after expiry of 119 days, therefore, the detention of the petitioner is totally against the law and he should be set free forthwith.
6. In support of his contention, learned counsel for the petitioner submits that under no circumstances, limitation period as provided in Cr PC under Section 167 (2) can be enhanced or extended and, if charge-sheet is not filed within the stipulated period as provided, the petitioner is
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