Lockdown not akin to Emergency, default bail an indefeasible right: SC

New Delhi: The lockdown announced by the government due to COVID-19 is not akin to the proclamation of Emergency, the Supreme Court has said holding that default bail is an indefeasible right on non-submission of charge sheet within the prescribed time.

The apex court made the observation while setting aside a Madras High Court order denying bail to an accused despite non-filing of charge sheet within the stipulated time.

A bench headed by Justice Ashok Bhushan said the view of the high court that restrictions imposed during the lockdown should not give the right to an accused of default bail even though the charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is "clearly erroneous and not in accordance with law".

Terming its judgment in the ADM Jabalpur case during the Emergency as "retrograde", the top court said that right to life and liberty cannot be taken away without a due process of law.

In the ADM Jabalpur case of 1976, the five-judge bench by a majority verdict 4:1 had arrived at the conclusion that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether.

The bench, headed by Justice Ashok Bhushan, said that the "retrograde steps taken in respect of right protected under Article 21" in the ADM Jabalpur judgment were remedied by the Parliament through a constitutional amendment.

It said that any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed which cannot be allowed to be frustrated by the prosecution.

"We, thus, are of the clear opinion that the Single Judge (of HC) in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency.

"The view of the Single Judge that the restrictions, which have been imposed during the period of lockdown by the Government of India should not give the right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure" is clearly erroneous and not in accordance with the law, the apex court said.

The bench, also comprising Justices M R Shah and V Ramasubramanian, granted bail to the accused on submission of a personal bond of Rs 10,000 with two sureties and clarified that its March order on the extension of limitation does not apply to the CrPC provisions.

The order dated March 23, 2020 (on limitation) cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure, the bench said.

"The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge)," the bench said.