Filing of Chargesheet: Whether Sec 10 of General Clauses Act be applicable on Investigaing Agency when time period expires on a holiday? HC answers

  

The Madras High Court has decided on whether Section 10 would be applicable to the Investigating Agency for filing the charge sheet, if the period contemplated under Section 167(2) Cr.P.C expires on a holiday?

The single-judge bench of Justice K. Murali Shankar while deciding on time constraints applicable to the accused for availing the Right to Default Bail and to the Investigating Agency for filing of charge-sheet before the court, answered on this aspect as well.

In the particular case, the prosecution contended that since the Courts were closed for Dassara Holidays, the charge sheet has been laid on the very next working day and as per Section 10 of the General Clauses Act, the prosecution is certainly entitled to file the charge sheet on the next working day, since the date on which, the period prescribed for filing the charge sheet expires on a holiday.

The Court while taking a read on the Act noted that Section 10 of the General Clauses Act contemplates that a person for whom a period is prescribed for the performance of an act in a Court or Office, and that the period expires on a holiday and went onto answer the interesting aspect as to whether this is applicable to the investigating agency for filing the charge sheet, if the period contemplated under Section 167(2) Cr.P.C expires on a holiday.

The Court referred to the provisions in various High Court Judgements and thus denied the applicability and noted that Section 10 of General Clauses Act presupposes that there must be a positive act to be performed, in existence and for the performance of which, there is in existence a period prescribed by law.

"It is pertinent to mention that the Code of Criminal Procedure does not prescribe any particular period for laying the charge sheet and the Section 167(2) of Cr.P.C does not prescribe any period of limitation even by implication. The investigating agency is certainly entitled to file the charge sheet, even after expiry of 60 or 90 or 180 days, as the case may be, but they will not have any right to seek extension of remand beyond the period prescribed under Section 167(2) Cr.P.C."

"Considering the judgements of Delhi, Orissa and Bombay High Courts and the reasonings given therein, this Court is in entire agreement with the view expressed by the Bombay High Court, which was accepted by the Delhi High Court. Hence, this Court has no hesitation to hold that Section 10 of the General Clauses Act has no application at all and the same cannot be invoked by the investigating agency for laying the final report, after the expiry of the prescribed period."

The Court further cited SC Judgements in S.Kasi v. State through the Inspector of Police, Samayanallur Police Station, Madurai District,2020 Latest Caselaw 408 SC where it was clarified that Right to Default Bail can't be suspended even during a pandemic.

"the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet."

The Top Court had stated that neither their order, dated 23.03.2020 can be held to have eclipses the time prescribed under Section 167(2) Cr.P.C nor the restrictions, which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused, as protected by Section 167(2) Cr.P.C regarding his indefeasible right to get a default bail on non submission of charge sheet within the time prescribed.

The Apex Court referred to its earlier judgments, for highlighting the purpose and object of Section 167 Cr.P.C.

'“14.The Scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.”

In view of the above, the High Court held that the Trial Court has not dealt with the application filed under Section 167(2) Cr.P.C in proper legal perspective, but by considering the merits of the case dismissed the petition and as such. It then accordingly set aside the impugned order as the same was not good in law.

Read Judgement Here:

 

 

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