New Delhi, June 19: In a judgment with potentially broad implications, the Supreme Court on Friday set aside an order of the Madurai bench of the Madras high court equating the nation-wide lockdown with the Emergency, so as to justify denial of bail to an accused, The Wire reported.

In S. Kasi v State Through the Inspector of Police, Samaynallur Police Station, Madurai District, Justice G. Jayachandran of the Madurai bench of the Madras high court refused default bail to S. Kasi, an accused in an idol theft case registered in 2015. The accused, who was arrested on February 21, has been in custody beyond 90 days, the period within which the police is expected to file a final report, failing which bail by default as contemplated under section 167(2) of Code of Criminal Procedure (CrPC) applies.

Relying on the Supreme Court’s recent suo motu order issued on March 23 extending the period of limitation to obviate the difficulties faced by the litigants who are supposed to personally come to the court and file the relevant documents, Justice Jayachandran accepted the state’s contention that in this case, the COVID-19 situation is reason enough for the police not completing the investigation within the time fixed under the statute.

“Violators of law cannot take undue advantage of the extraordinary situation and enjoy the liberty while the entire nation is under lockdown and crippled from carrying on their normal activities”, Justice Jayachandran had reasoned.

“The lockdown announced by the government is akin to proclamation of emergency…. If emergency is declared, under Article 358, the rights under Article 19 get suspended.  

The right to life guaranteed under Article 21 is subject to restriction. Presently, though the state is not passing through emergency duly proclaimed, the whole nation has accepted the restrictions for the well-being of mankind.  At this juncture, a myopic reading of section 167 of Cr.P.C. conveniently ignoring the spirit behind the order by the apex court invoking its power under Article 142 of the constitution will amount to judicial indiscipline,” he had explained in his order.

However, the Supreme Court’s judgment – authored by Justice Ashok Bhushan on behalf of the bench which also comprised Justices M.R. Shah and V. Ramasubramanian – made it clear that Section 167 of the CrPC gives due regard to the personal liberty of a person. Without submission of chargesheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the police, the bench held.

The Supreme Court bench found Justice Jayachandran’s reasoning that the time period in Section 167(2) was eclipsed by the apex court’s suo motu order extending limitation erroneous. The suo motu order, passed on March 23, was for the benefit of those who have to take remedy, which may be barred by time because they were unable to come physically to file such proceedings, the bench clarified.  Even during the lockdown, the charge-sheet could have been filed before the magistrate, and the investigating officer was not precluded from doing so within the stipulated period, the bench pointed out.

If Justice Jayachandran’s interpretation is taken to its logical end, the police may also not produce an accused within 24 hours before the magistrate’s court as contemplated by section 57 of CrPC citing the lockdown as an excuse, the Supreme Court explained. Sections 57 and 167 are supplementary to each other and recognise the right to personal liberty of a person as enshrined in the constitution, the bench held.

The Supreme Court bench also criticised Justice Jayachandran for his view that in the event of the proclamation of an emergency under Article 352, the right to liberty as enshrined under Article 21 stands suspended. Tracing the case law from ADM Jabalpur v Shivkant Shukla (1976) which supported such a view to the 2017 judgment in K.S.Puttaswamy v Union of India, which overruled it, the Supreme Court bench held that Justice Jayachandran erred in his judgment.

Justice Jayachandran also came in for criticism by the Supreme Court for ignoring a decision of another bench in Settu v The State, which had already rejected a similar contention that default bail cannot be granted during the lockdown. The judgment in Settu v The State was delivered by another single judge, Justice G.R. Swaminathan, who has recently delivered a progressive judgment upholding the right of a journalist in a defamation case.

“It is well settled that a coordinate bench cannot take a contrary view and in the event there was any doubt, a coordinate bench only can refer the matter for consideration by a larger bench. The judicial discipline ordains so,” the Supreme Court held.

Justice Jayachandran had referred to an observation made by Justice G.R. Swaminathan in Settu v The State as uncharitable. This too came in for criticism by the Supreme Court, which held as follows:

“All courts including the high courts and the Supreme Court have to follow [the] principle of comity of courts. A bench, whether coordinate or larger, has to refrain from making any uncharitable observation on a decision even though delivered by a bench of a lesser coram…. We strongly disapprove the course adopted by the learned single judge in the impugned judgment.”

https://thewire.in/law/supreme-court-madras-high-court-lockdown-emergency

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