Obtaining an order for bail in a POCSO case from Delhi High Court during lockdown

Bail application number: 1041 of 2020

Case Title: Rakesh versus State NCT of Delhi

Date of order: 07/07/2020

Coram: Hon’ble Mr. Justice Anup Jairam Bhambhani

Court:  Hon’ble High Court of Delhi

 

“Fundamental Rights do not flee the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration.” 

The COVID-19 lockdown has posed many challenges before the Judiciary one of them being upholding the fundamental rights of an individual and protect their life and personal liberty during the lockdown.  However the courts across the country have eventually adopted themselves to the changing times and have come forward to ensure that justice is readily available to all and fundamental rights of an individual are not compromised on any front.

That such an endeavor was undertaken by the Delhi High Court for e filing of urgent cases and matters of high priority. The advent of necessary modifications coming into picture, the e filing facility of the Delhi High Court is slowly becoming prominent and is viable substitute for the conventional filing of cases.

On many occasions, the endeavor of the judiciary to ensure that even in lockdown justice is not denied to the deserving has been showcased and one such instance was the example of exhibiting judicial activism in protecting the life and personal liberty of one of my client, who was accused of committing offences under Section 376 and Section 506 IPC along with Section 6 of the POCSO Act, which is an offence punishable by life imprisonment or death if a person is convicted. Prior to achieving the desired outcome, the road leading to it was difficult.

That in February, 2020, the accused who happens to be our client was charged with committing offences under Section 376 and Section 506 IPC along with Section 6 of the POCSO Act and since then he was remanded to judicial custody by the trial court. Then, one of his family member approached our firm.

That a bail application was moved in the trial court and further adding to the peril of the family and the accused, the nation wide lockdown was imposed due to the ongoing pandemic, thereby slimming down the chances of the accused to get a hearing before the Court. That neither the hearing had begun nor the trial had commenced. Furthermore, the final investigation report was not filed by the police.

That the accused was awaiting trial and his fate to be decided the trial court but due to the truncated functioning of the courts, the same was not possible. Hence, in order to bail our client out of the atmosphere filled with uncertainty, anxiety and despair, an application under Section 167(2) of the Code of Criminal Procedure was moved before the Sessions Judge, because the accused/applicant was an under trail awaiting trial and charge sheet against the accused was not filed by the police within 90 days from the day, when the accused was first remanded to custody.

In backdrop, as per the order of Hon’ble Supreme Court in Suo Motu Writ Petition Civil No. 3/2020 wherein 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. The said order was passed in exercise of powers under Article 142 r/w. Article 141 of the Constitution of India.

That further adding salt to the agony of the applicant, the application was dismissed by the Sessions Court on the ground that benefit of the above order will be available to the investigating authorities, which means that because of the unprecedented pandemic the police can file charge sheet even beyond 90 days and the accused is not entitled to bail.

 While entertaining the bail application under Section 167(2) of Code of Criminal  Procedure, 1973, the Sessions Court had further observed that even if charge sheet is filed in this case then also the further proceedings will not be done in the said matter as no regular matter are being entertained during the COVID 19 lockdown and failed to consider that the bail application was filed solely for grant of bail in default of filing charge sheet by the investigating authorities and not on merits of the case.

That with twin trouble of the POSCSO case and the incarceration due to lockdown surrounding our client, we moved for grant of default bail to the Hon’ble High Court of Delhi with foremost grounds and arguments being as follows :-

• In the present case the applicant/accused is under custody since 19/02/2020 and 95 days have already elapsed since the day accused was remanded in custody and charge sheet has not been filed by the investigating authority.
• That the investigating officer during the hearing of the bail before the Sessions Judge through video conferencing presented his written reply wherein it was stated that charge sheet has not been filed because of the COVID 19 lockdown. It is settled law that the delay can not be allowed and the applicant can not be made to deliberately suffer because of a technical reason or dilatory tactic by police and inalienable rights of the accused can not be taken away from him.
• That the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality.
• That the ‘period of limitation’ as defined under Section 2(j) of the Limitation Act, 1963 means “limitation prescribed for any suit, appeal or application  by the schedule. The order for extension of limitation does not affect the right of accused to get bail under Section 167(2) of the Code of Criminal Procedure.
• That even if the converse is taken to be true and the provisions of Section 167(2) are considered to be under the purview of extension of limitation, then it would only be just, fair and equitable to apply extension of limitation to all areas of criminal law. This would imply allowing more than 24 hours to the police to present the accused before the magistrate, but it would lead to serious consequences as it will lead to illegal detention and would clearly be violative of Article 22(2) of the Constitution and Section 57 of the Cr.P.C Moreover the police could demand could also demand that they are entitled to get police custody even beyond the period of 15 days from the first remand.     
• That if the extension of limitation is not made applicable to all areas of Criminal law then it should not be applied in a discriminatory manner to Section 167 (2) Cr.P.C Hence, the present case is a fit case for grant of default bail to the accused.
• That Section 167(2) of Code of Criminal Procedure, 1973 do not empower anyone to extend the period within which investigation must be completed.
• That on expiry of the stipulated period mentioned the final report is not laid, the right of the accused to get default bail gets crystallized 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.
• That the inalienable rights of the accused to get default bail has been sidelined to which he was fully entitled to under Section 167 (2) Cr.PC.
• That reliance was also placed on the judgment of various High Court of the country such as Hon’ble Madras High Court in Settu vs The State in Crl OP(MD) No. 5291/2020 stating that non filing of final report under Section 173 CrP.C. during the COVID 19 lockdown would not defeat the rights of the accused to get bail under Section 167 (2) of Cr.P.C
• That extension of limitation passed by the Hon’ble Apex Court was done to obviate difficulties faced by the litigants, lawyer due to the situation arising out of the pandemic. These directions are applicable to petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws and the provisions are not applicable to default bail under Section 167(2) of Cr.P.C. The same view was taken by Kerala High Court in the bail application no. 2856/2020, tilted as Md. Ali versus St. of Kerala at Ernakulam.

That to further complicate things, the two benches of Madras High Court opined in dissenting and diverse views from each other.

That because of the same, Criminal Appeal No. 452 of 2020 arising out of SLP (CRL.) NO.2433/2020 was filed in the Hon’ble Supreme Court of India titled S.Kasi versus State Through The Inspector Of Police Samaynallur Police Station Madurai District for settling the issue in controversy and settle the proposition of conflicting interpretations of the various High Courts.

That on 19/06/2020, the Hon’ble Supreme Court delivered a verdict that put the controversy at rest and held that the accused would be entitled to default bail even if lockdown was imposed and police could not file the charge sheet within stipulated time as prescribed by Cr.P.C because of the same.  The relevant  paragraphs being Para   17 and 26.

That in 5 different hearings of the bail application through video conferencing, the Hon’ble High Court of Delhi posted various questions to me about the previous involvements of the accused in any crime and requisitioned his nominal roll from the jail superintendent, the nature of job of the accused, the jail conduct of the accused  etc and heard me at length and recorded my submissions in the order that applicant was arrested on 18/02/2020 and the charge sheet was filed on 23/06/2020 which is about 36 days beyond the 90 day time frame specified in 167(2) Cr.P.C  and the applicant has spent 4 months in custody as an under trial.

The High Court of Delhi speaking through HMJ Anup Jairam Bhambhani further inquired with the prosecution about any provision in POCSO Act by virtue of which the stipulated time to file the charge sheet can be extended.

Moreover, the prosecution fairly conceded before the judgment of the Hon’ble Supreme Court.

Hence, Hon’ble High Court of Delhi was pleased to admit our client on bail thereby directing him to furnish a personal bond of Rs. 25,000 along with a surety of the like amount before the trail court. The bail is considered regular bail as per the provisions of the Cr.P.C.

That an application for acceptance of the bail bond along with duly filled bail bond, order of bail, proof of solvency of the surety and the ID proof of the surety and undertakings in the prescribed format was sent via email to the duty judge and on the next day a video conferencing hearing was conducted wherein the duty magistrate accepted the bail bond post his subjective satisfaction.

On the same day, during the later hours the applicant was released from Tihar prison.  It is trivial victory secured by us for our client. Even after suffering incarceration, our client is hopeful of attaining a favorable outcome from the trial. 

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***This article is by Adv. Lakshay Kumar of his experience during CoVID 19 urgent hearing matter at High Court in Delhi***