Analysing the judgment of the Madras High Court in Settu v. State

On May 6 2020 a three-judge-bench of the Supreme Court extended all limitation periods prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act, 1881 with effect from March 15, 2020, until further orders.

In an earlier order dated March 23, the Supreme Court essentially extended the period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or special laws. The Court clarified that the said order was passed to ensure that lawyers/litigants do not have to physically approach the Courts in view of the COVID-19 lockdown and resultant difficulties in filing such applications/petitions.

This order of the Supreme Court was, however, honoured in its heterogeneity. On May 8, while deciding an application for default bail, the Madras High Court in Settu v. State ⁱ observed that the order of the Apex Court would not defeat the right of an accused under Section 167(2) of the Criminal Procedure Code (CrPC), as denial of compulsive bail to such person would amount to violation of his fundamental right under Article 21 of the Constitution of India.

However, on May 11, a contrary view was taken by a co-ordinate bench of the High Court in S. Kasi v. State ⁱⁱ holding the order of extension to apply to Section 167(2) of the CrPC as the right to live guaranteed under Article 21 was subject to restriction.

In Appeal, the Apex Court overturned the subsequent decision of the Madras High Court ⁱⁱⁱ observing that the order of extension would have no application to periods contemplated under Section 167 of the Criminal Procedure Code and was for the benefit of those who have to take remedy, whose remedy may be barred by time considering the inability to come physically, to file such proceedings.

Additionally, the Apex Court interjected that the co-ordinate single-judge-bench, in the subsequent decision was bound by the view taken in Settu v. State (supra) and had breached the doctrine of judicial discipline by taking a contrary view.

Nevertheless, this Article analyses the prior view taken by the Madras High Court in Settu v. State and evaluates it from a legal standpoint.

In Settu v. State (supra), it was clarified that the construction placed on the point of applicability of the Supreme Court's order was limited to periods prescribed under Section 167 of CrPC and would have no application in case of offences under certain special laws. The single-judge-bench observed-

"……the construction placed by me will have no application whatsoever in the case of certain offences under certain special laws such as Unlawful Activities (Prevention) Act 1967 and NDPS Act, 1985. For instance Section 36(A)(4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon'ble Supreme Court made 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 will apply."

ANALYSIS

Statutory provisions-

Provisions under Special Statutes pertaining to extension viz. Section 36(A)(4) of NDPS Act, Section 43D(2) of UAPA, Section 21(2) of MCOCA, Section 20(4) of TADA etc. recurrently enumerate that if it is not possible to complete the investigation within the period prescribed under the respective statute, the Special/Trial Court may extend the said period up to the period prescribed under the respective Act, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period prescribed in the Special Statute.

DECISIONS

The aforementioned provisions pertaining to extension under Special Acts are elucidated in a catena of judgments of the Apex Court and High Courts.

In Hitendra Vishnu Thakur v. State of Maharashtra ^iv the Apex Court while dealing with the aspect of extension under Section 20(4) of TADA held that an extension for completing investigation could not be granted without say of accused. The Court went on to hold-

"However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause(bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section20(4) is filed first or the report as envisaged by clause(bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause(bb) but the charge-sheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is prepared to furnish the bail as directed by the court. Moreover, no extension under clause(bb) can be granted by the Designated Court except on a report of the public prosecutor nor can extension be granted for reasons other than those specifically contained in clause(bb) which must be strictly construed."

In Sanjay Kedia v. Intelligence Officer ^v, the Apex Court while granting bail to the Appellant charged under provisions of the NDPS Act, set aside the order of the Special Judge and High Court observing that the applications for extension filed by the public prosecutor under Section 36(A)(4) of NDPS Act did not satisfy the required conditions contemplated under the said provision. The Court observed-

"14. A bare perusal of this application shows that it has been filed by the investigating officer of respondent No.1 and does not indicate even remotely any application of mind on the part of the public prosecutor. It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days. This application was allowed by the Special Judge on 2nd August, 2007 i.e. on the day on which it was filed which also reveals that no notice had been issued to the accused and he was not even present in Court on that day."

In Rahul Shedge v. Intelligence Officer ^vi, the Bombay High Court set aside the order of the Special Judge, NDPS granting extension for filing of charge-sheet, observing it mandatory to hear the accused in cases of extension. The relevant paragraph reads-

"10. …The accused has right to move the Application for bail in default, if the chargesheet is not filed within the stipulated period. If the extension is granted, then the accused is deprived of the said possible liberty. Under such circumstances, it is mandatory for the Court to give audience to the accused, as right made available to the accused by the legislature is going to be taken away. It is the basic principle of fair trial and all the Courts are required to adhere to the rules of fair trial.

12. Under the provision of sub-section (4) of Section 36A, Public Prosecutor is supposed to file report indicating the progress of the investigation and giving reasons for detention of the accused. Thus, the report filed by Prosecutor is necessarily a different document than the regular remand report. The remand report is filed by the Investigating officer and the report for seeking extension for filing chargesheet is another report under proviso of sub-section (4) of Section 36A. The requirement of said report given by the prosecutor under the said proviso is also specifically mentioned in the proviso. Thus, when such report is filed and audience is required to be given to the accused, then naturally the copy of the said application is to be furnished to the accused."

The cumulative effect of above-mentioned judgments indicate that the provisions for extension under Special Acts are supplementary periods to Section 167(2) of the CrPC and empower a Judge to use his "special powers" for the purpose of extending the time period, which essentially impacts the fate of "personal liberty" of an accused. Under such circumstances, it would be mandatory to follow a procedure and give audience to the accused as it involves a right made available to him/her by virtue of the statute.

CONCLUSION

The Supreme Court in S. Kasi's decision (supra) made it clear that the order of extension would only apply to limitation periods where a remedy of a litigant is barred by time. The provisions enumerated in Special Statutes such as TADA, UAPA, NDPS, MCOCA for extension of time to file the final report/charge-sheet, being supplementary to Section 167(2) of the CrPC, are not periods of limitations but special periods for the purpose of extending time to file the final report/charge-sheet. These special provisions are assimilated after taking into account the difficulties of the investigating agencies faced in complicated and grave offences where evidence is not easily available. There is no limitation imposed on the investigating agency to file the final report/charge-sheet.

As per the observation in Settu v. State, if the benefit of direction of the Supreme Court's order is applied to extension periods under Special Statutes, it would essentially curtail the liberty of an accused for an invariable period without following the procedure mandated in the statute and above-mentioned judgments. Bearing this in mind, the observation in Settu v. State which holds that the benefit of direction of the Supreme Court's order of extension is to apply in cases of extension would not be in accordance with decisions of the Apex Court and High Courts.