Crl.O.P.No.14316 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2022
CORAM:
THE HON’BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.14316 of 2021
R.Henry Paul … Petitioner
Versus
The State of Tamil Nadu
Rep.by Inspector of Police
W4 All Woman Police Station
Crime No.6 of 2021
Kilpauk, Chennai. … Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to direct the Sessions Judge, Special Court for Exclusive
Trial under POCSO Act, Chennai, to receive the application filed under Section
167(2) of Cr.P.C., in Crl.M.P.SR.No.337 of 2021 and entertain the same and
release the petitioner on default bail in Crime No.6 of 2021 on the file of the
respondent Police.
For Petitioner : Mr.M.Devaraj
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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Crl.O.P.No.14316 of 2021
ORDER
This petition has been filed to direct the Sessions Judge Special
Court for Exclusive Trial under POCSO Act, Chennai, to receive the application
filed under Section 167(2) of Cr.P.C., in Crl.M.P.SR.No.337 of 2021 and
entertain the same and release the petitioner on default bail in Crime No.6 of
2021 on the file of the respondent Police.

  1. The petitioner/A2 in Crime No.6 of 2021, which was registered
    for the offence under Sections 10 r/w 9(1) (m) (n) and Section 17 of POCSO
    Act and Section 506(ii) of IPC based on the complaint dated 12.04.2021. The
    petitioner was arrested on 23.04.2021 and remanded to Judicial Custody on
    24.04.2021.
  2. The gist of the complaint is that the defacto complainant is a
    singer by profession and the victim girl is her daughter. Due to her professional
    requirement, she left her daughter under the care and custody of her sister/A4
    from the age of 6 years. While the victim girl was under the care and custody of
    A4, she was subjected to sexual assault and harassment by A1, who is A4’s
    husband, A2/the petitioner herein, a Pastor in a Church, and A3, relative of A1.
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    Crl.O.P.No.14316 of 2021
    The victim was subjected to harassment till the age of 15 years. But A4, the
    maternal aunt of the victim girl, was a silent spectator. During January 2020, the
    victim girl unable to bear the sexual assault and harassment informed her
    mother defacto complainant through neighbour’s mobile. Immediately, defacto
    complainant, the mother of the victim girl, took the victim girl with her. During
    her stay with her mother, the victim was found uneasy. When she was examined
    by a psychologist, the victim girl narrated the sexual assault committed on her
    from the age of six. Based on which, the mother of the victim girl lodged a
    complaint and a case was registered against the petitioner and 3 others. The
    petitioner was arrested on 23.04.2021 and remanded on 24.04.2021.
  3. The contention of the petitioner is that he moved a bail
    application in Crl.M.P.No.459 of 2021 on merits. The Trial Court by order
    dated 04.05.2021, dismissed the same for the reason statement of the victim girl
    not yet recorded and the investigation is at the preliminary stage. Thereafter, the
    petitioner moved a bail application before this Court in Crl.O.P.No.9099 of
  4. When the case was taken up for hearing, it was reported that the victim
    girl tested positive for Covid-19 and hence delay in recording 164 Cr.P.C.
    statement. Later, on 22.06.2021, the bail application was dismissed as
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    Crl.O.P.No.14316 of 2021
    withdrawn. Subsequently, the petitioner filed statutory bail application in
    Crl.M.P.No.562 of 2021 under Section 167(2) of Cr.P.C since charge sheet was
    not filed even after expiry of 60 days. Alteration report filed on 25.06.2021
    which is on 62nd day. However, the same was dismissed for the reason, offence
    committed involves Section 6 of POCSO as per 164 Cr.P.C., statement received
    on 18.06.2021. Thereafter, the petitioner filed second statutory bail application
    in Crl.MP.SR.No.337 of 2021 on 22.07.2021, the same was not entertained and
    returned for the reason that only 89 days completed as on 22.07.2021.
  5. In this case, alteration report was filed after filing of the first
    statutory bail application. The Lower Court relied on the judgment of the
    Bombay High Court in the case of Kapil Wadhawan, wherein it was held that
    the Court has to apply its mind at every stage from remand till framing of
    charges. Further, the power of Court is very wide to determine, as to whether
    the report to be filed was within 90 days or 60 days and dismissed the same. In
    this case, the alteration report not filed in time, till expiry of both statutory
    period. Further, 164 Cr.P.C., statement of the victim girl was recorded on
    10.06.2021, received by the trial Court on 18.06.2021, it was contended that
    164 statement disclose, commission of offence under Section 6 of POCSO Act.
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    Crl.O.P.No.14316 of 2021
    Further, Trial Court gives yet another reason that initial complaint of the defacto
    complainant, discloses the offences punishable under Section 6 of POCSO Act.
    Hence, Trial Court dismissed the first statutory bail of the petitioner/accused,
    even though First Information Report was registered only under Section 10 and
    17 of POCSO Act, despite final report was not filed within the statutory period
    of 60 days.
  6. Thereafter, the petitioner once again filed 2nd statutory bail
    application in Crl.MP.SR.No.337 of 2021 on 22.07.2021 and the same was not
    entertained and returned for the reason that only 89 days was completed as on
    22.07.2021.
  7. The learned counsel for the petitioner submitted that the
    petitioner was arrested on 23.04.2021 and remanded to judicial custody on
    24.04.2021, statutory bail application in Crl.MP.SR.No.337 of 2021 was filed
    on 22.07.2021. Though the application was filed after 90 days of remand, the
    Trial Court wrongly returned the application as “not maintainable”, for the
    reason only 89 days completed. According to the learned counsel, the date of
    remand has to be included while considering the statutory bail application. If the
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    Crl.O.P.No.14316 of 2021
    date of remand is included, 90 days would be completed on 22.07.2021 and
    hence, the petition filed under Section 167(2) Cr.P.C is maintainable.
  8. In support of the contention of the petitioner, the learned counsel
    relied upon the judgment of the Hon’ble Apex Court in the case of Chaganti
    Satyanarayana and others Vs. State of Andhra Pradesh, reported in 1986
    SceJ 001, wherein the Apex Court held that the date of remand has to be
    included. The learned counsel for the petitioner also referred to the judgment of
    Uday Mohanlal Acharya, on this point.
  9. The learned counsel further stated that Article 21 of the
    Constitution of India provides that “no person shall be deprived of his life or
    personal liberty except according to procedure established by law.” and the
    same was settled by a Constitution Bench of this Court in Maneka Gandhi Vs.
    Union of India reported in (1978) 1 SCC 248.
  10. The learned counsel also relied upon the case of Rakesh
    Kumar Paul Vs. State of Assam, reported in (2017) 15 SCC 67, wherein it is
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    Crl.O.P.No.14316 of 2021
    held that the Court should not be too technical in matters of personal liberty.
  11. The Division Bench of the State of Maharashtra in the case of
    Hitendra Vishnu Thakur, held that unless the Court grants extension in time
    based on the report of the Public Prosecutor, the designated Court under TADA
    would have no jurisdiction to deny the accused his indefeasible right to default
    bail if the accused seeks and is prepared to furnish the bail bonds as directed by
    the Court.
  12. The learned counsel further referred to the judgment of the
    Apex Court in the case of Enforcement Directorate, Government of India,
    Vs. Kapil Wadhawan & Another etc., wherein it is held that while computing
    the period of 90 days or 60 days for default bail as contemplated in Section
    167(2) (a) (ii) of the Cr.P.C., whether the day of remand is to be included or
    excluded, the concerned Court may take a decision on this issue depending
    upon the judgments brought before the notice of the Court. Further, directed the
    Registry to place all the relevant documents before the Hon’ble Chief Justice for
    constituting a bench of at least 3 judges to resolve the conflict in law on the
    issue of grant of default bail.
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    Crl.O.P.No.14316 of 2021
  13. The learned counsel for the petitioner further submitted that
    Rule 6 (8) in the Criminal Rules of Practice reads as follows:
    “6(8) In computing the period of 15 days
    mentioned in Sub-Section (2) of Section 167 or the first
    proviso to sub-section (2) of Section 309 of the Code,
    both they day on which the order of remand is made and
    the day on which the accused is ordered to be produced
    before the Court, should be included in Judicial Form
    Nos.14 and 25, respectively.” This Court which has been
    stated that the date of remand is to be included while
    calculating the period of remand under Section 167(2) of
    Cr.P.C.
  14. In view of the same, the trial Court in rejecting the statutory
    bail application on its own interpretation on 28.06.2021, wound amount to
    defeating the rights of the accused. The Apex Court time and again held that the
    indefeasible rights of the accused should be protected. The enactment of
    Section 167(2) Cr.P.C., is the safeguard for default bail contained in the
    provision thereto is intrinsically linked to Article 21.
  15. The learned Additional Public Prosecutor filed his objection
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    Crl.O.P.No.14316 of 2021
    that the victim’s statement was recorded under Section 164 of Cr.P.C., on
    10.06.2021 and the same was received by the trial Court on 18.06.2021. The
    statutory bail application was filed on 24.06.2021. The perusal of 164 Cr.P.C.,
    statement of the victim discloses the offence is punishable under Section 6 of
    POCSO Act and hence, non filing of alteration report in time is not a ground to
    consider the statutory bail.
  16. He further submits that the accused was arrested on
    23.04.2021 and remanded on 24.04.2021. The petitioner filed first bail
    application under Section 167(2). The trial Court rightly rejected the same since
    164 statement disclosed offence under Section 6 of POCSO Act is attracted.
    Thereafter, alteration report was filed on 25.06.2021. Subsequently, the
    petitioner filed second statutory bail application under Section 167(2) of Cr.P.C.
    on 22.07.2021, contending that even after expiry of 90 days, charge sheet not
    filed. In this case, charge sheet was filed on 23.07.2021. According to the
    learned Public Prosecutor, the date of remand to be excluded which is clearly
    held in the case of M.Ravidran Vs. Intelligence Officer, Directorate of
    Revenue, Intelligence. But the petitioner wrongly included the date of remand,
    hence, the trial Court rightly rejected the statutory bail application.
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    Crl.O.P.No.14316 of 2021
  17. Considering the submissions made by the learned counsels
    appearing on either side and on perusal of the materials, it is seen that the case
    in Crime No.6 of 2021 registered on 22.04.2021, the petitioner is arrayed as A2
    for offence under Sections 10, 9(i), 9(m) 9(n) 17 of POCSO Act and Section
    506(ii) of IPC. The petitioner filed a bail application before the Trial Court on
    merits in Crl.M.P.No.459 of 2021, and it was dismissed on 04.05.2021.
    Thereafter, the petitioner filed bail application before this Court in
    Crl.O.P.No.9099 of 2021 and the same was dismissed as withdrawn on
    22.06.2021.
  18. Thereafter, the petitioner filed first statutory bail application in
    Crl.M.P.No.562 of 2021. The Trial Court while considering the said application
    placing reliance on the decision of Bombay High Court in the case of Kapil
    Wadhawan, wherein it was held that the concerned Court has sufficient power
    to examine whether the period of filing final report is 90 days or 60 days.
  19. In the present case, Trial Court considered the 164 statement of
    the victim girl, found that Section 6 of POCSO Act gets attracted, hence
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    Crl.O.P.No.14316 of 2021
    assumed the statutory period as 90 days. On such assumption, the Trial Court
    dismissed the statutory bail application, even though FIR was registered only
    under Sections 10 r/w Section 9 (i) (m) (n) and Section 17 of POCSO Act, and
    the accused was remanded for the said offences only. The accused was arrested
    and remanded on 23.04.2021, charge sheet ought to be filed within 60 days that
    is on or before 22.06.2021, admittedly alteration report filed on 25.06.2021. On
    the contrary, Lower Court on its own, assumed Section 6 of POCSO Act gets
    attracted and dismissed the first statutory bail petition on 28.06.2021, which is
    not proper.
  20. Subsequently, the petitioner once again filed 2nd statutory bail
    application in Crl.MP.SR.No.337 of 2021 on 22.07.2021 and the same was not
    entertained for the reason that only 89 days completed as on 22.07.2021 and
    returned the statutory bail application on 26.07.2021. The petitioner resubmitted
    the petition giving calculation of 90 days;
    Date of remand 24.04.2021,
    April – 7 days
    May – 31days
    June – 30 days
    July – 22 days
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    Crl.O.P.No.14316 of 2021
    90 days
  21. The petitioner admittedly was arrested on 23.04.2021 for the
    offence under Sections 10 r/w Section 9 (i) (m) (n) and Section 17 of POCSO
    Act and Section 506(ii) of IPC, the petitioner was remanded on 24.04.2021. It
    is seen that in the remand order, Section 6 of POCSO Act is not found. The
    alteration report was filed on 25.06.2021. Admittedly, charge sheet not filed till
    22.06.2021, hence accused entitled for mandatory bail. The trial Court in its
    order in Crl.MP.No.562 of 2021 dated 28.06.2021, on its own, gives reason that
    164 statement of the victim girl dated 10.06.2021, was received by the trial
    Court on 18.06.2021 and the statement reveals commission of offence under
    Section 6 of POCSO Act. In the First Information Report, remand report and in
    remand order, there is no mention of inclusion of Section 6 of POCSO Act.
    Admittedly, in this case, the accused was not remanded under Section 6 of
    POCSO Act. Likewise, the alteration report with Section 6 of POCSO Act filed
    only on 25.06.2021, the date of considering the first statutory bail application is
    on 22.06.2021 on that date, no charge sheet filed. Hence, this Court is of the
    view that the order passed by the Magistrate dismissing the first statutory bail in
    Crl.M.P.No.562 of 2021 on 28.06.2021 is not proper.
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  22. The prayer now sought for in this petition is to consider and
    direct the Special Judge to grant statutory bail, in Crl.M.P.SR.No.337 of 2021.
    The Hon’ble Apex Court in the case of Sanjay Dutt vs. State through C.B.I.
    cited supra clarified that when the accused promptly exercised his right under
    Section 167(2) and indicated his willingness to furnish bail, no reason to deny
    bail. Further held that the accused cannot be detained in custody on account of
    subterfuge of the prosecution in filing a police report or additional complaint on
    the same day, for reason the bail application is filed. Thus, when 60 days default
    bail was filed, no alteration report filed, the petitioner is entitled for statutory
    bail which is an accrued and indefeasible right. The Hon’ble Apex Court in the
    case of Bikramjit Singh v. The State of Punjab reported in 2020 10 SCC 616,
    reiterated and confirmed the right of accused and principles and guidelines to be
    followed while considering statutory/default bail under Section 167(2) Cr.P.C,
    by referring to various decisions of Apex Court, and the relevant portions are
    extracted hereunder:-
    “27. The second vexed question which arises on the facts of this case is
    the question of grant of default bail.
  23. …..with approval to the law laid down in Rajnikant
    Jivanla Patel v. Intelligence Officer, Narcotic Control Bureau,
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    Crl.O.P.No.14316 of 2021
    New Delhi reported in 1989 (3) SCC 532, wherein it was held
    that:
    “9. …13…The right to bail under Section 167(2)
    proviso (a) thereto is absolute. It is a legislative
    command and not court’s discretion. If the
    investigating agency fails to file charge- sheet before the
    expiry of 90/60 days, as the case may be, the accused in
    custody should be released on bail. But at that stage,
    merits of the case are not to be examined. Not at all. In
    fact, the Magistrate has no power to remand a person
    beyond the stipulated period of 90/60 days. He must
    pass an order of bail and communicate the same to the
    accused to furnish the requisite bail bonds.”
  24. …No other condition like the gravity of the case,
    seriousness of the offence or character of the offender, etc., can
    weigh with the Court at that stage to refuse the grant of bail to an
    accused under Sub-Section (4) of Section 20T TADA on account of
    the “default” of the prosecution.
  25. … The majority judgment of G.B.Pattanaik, J. reviewed the
    decisions of this Court and in particular the enigmatic expression “if already
    not availed of: in Sanjay Dutt. The Court Court then held: (Uday Mohanlal
    Acharya Case, SCC pp. 469-70 & 472-74, para 13)
    13 …….We are of the considered opinion that
    an accused must be held to have availed of his right
    flowing from the legislative mandate engrafted in the
    proviso to sub-section (2) of Section 167 of the Code
    if he has filed an application after the expiry of the
    stipulated period alleging that no challen has been
    filed and he is prepared to offer the bail that is
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    Crl.O.P.No.14316 of 2021
    ordered, and it is found as a fact that no challan has
    been filed within the period prescribed from the date
    of the arrest of the accused……..
    …But so long as the accused files an
    application and indicates in the application to offer
    bail on being released by appropriate orders of the
    Court then the right of the accused on being released
    on bail cannot be frustrated on that the Magistrate
    erroneously refuses to pass an order and the matter
    is moved to the higher forum and a challan is filed in
    interregnum.
  26. …This was stated in Rakesh Kumar Paul Versus State of Assam
    reported in (2017) 15 SCC 67:-
  27. …This Court also noted that apart from the
    possibility of the prosecution frustrating the
    indefeasible right, there are occasions when even the
    Court frustrates the indefeasible right. Reference was
    made to Mohd. Iqbal Madar Sheikh Vs. State oif
    Maharashtra, wherein it was observed that some
    Courts keep the application for “default bail”
    pending for some days so that in the meantime a
    charge sheet is submitted. While such a practice both
    on the part of the prosecution as well as some
    Courts must be very strongly and vehemently
    discouraged, we reiterated that no subterfuge should
    be resorted to, to defeat the indefeasible right of the
    accused for “default bail”during the interregnum
    when the statutory period for filing the charge sheet
    or challan expires and the submission of the charge
    sheet or challan in Court.”
  28. In the above decisions, the Hon’ble Supreme Court held the
    fact that the appellant filed yet another application for “default bail” would not
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    Crl.O.P.No.14316 of 2021
    mean that this application would wipe out the effect of the earlier application
    that had been wrongly decided. The dictum therefore is that in the matters of
    personal liberty of an accused not to be too technical and be in favour of
    personal liberty. The right to default bail, as has been correctly held by the
    judgments of this Court, are not mere statutory rights under the first proviso to
    Section 167(2) of the Code, but is part of the procedure established by law
    under Article 21 of the Constitution of India, which is, therefore, a fundamental
    right granted to an accused person to be released on bail once the conditions of
    the first proviso to Section 167(2) are fulfilled. Hence, this Court is inclined to
    grant bail to the petitioner.
  29. This Court for the second contention as regards in dealing the
    second statutory bail, it is not in dispute that the accused was remanded on
    24.04.2021. The petitioner made second statutory bail application on
    22.07.2021, which was returned stating 89 days only completed and thereafter,
    it was represented. The bone of contention in this petition is whether the date
    of remand to be included or excluded. The Criminal Rules of Practice 2019,
    Rule 6 (8) clarifies the same, the date of remand to be included. Further, the
    Apex Court in view of conflicting decisions, in the case of Enforcement
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    Crl.O.P.No.14316 of 2021
    Directorate, Government of India, Vs. Kapil Wadhawan & Anr. Etc., (cited
    supra), directed the concerned Court to take decision on the issue whether date
    of remand to be included or excluded while considering the statutory period
    under Section 167(2) and entitlement of default bail, on its own by framing
    questioning of law. The Criminal Rules of Practice framed by this Court in Rule
    6(8), mandates including the date of remand. As the facts placed herein clearly
    show that within 90 days, the charge sheet not filed. Admittedly, the charge
    sheet was filed on 23.07.2021. Therefore, the petitioner is entitled for statutory
    bail and the same is granted.
  30. The petitioner is ordered to be released on bail on executing his own
    bond for a sum of Rs.10,000/- (Rupees Ten thousand only), before the
    Superintendent of the Central Prison, Puzhal. Thereafter on his release, the
    petitioner shall execute two sureties for a sum of Rs.10,000/- (Rupees Ten
    Thousand only) each, before the learned Special Court for Exclusive Trial under
    POCSO Act at Chennai, within 15 days from the date of lifting of the lock down
    and the commencement of the Court’s normal functioning, failing which the bail
    granted by this Court shall stand dismissed automatically.
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    (a)the petitioner to appear before the trial Court on all
    hearing dates.
    (b)the sureties shall affix their photographs and left thumb
    impression in the surety bond and the Magistrate may obtain a
    copy of their Aadhar card or Bank pass Book to ensure their
    identity;
    (c) the petitioner shall not tamper with evidence or witness
    either during investigation or trial;
    (d) the petitioner shall not abscond either during
    investigation or trial;
    (e) on breach of any of the aforesaid conditions, the
    learned Magistrate/ Trial Court is entitled to take appropriate
    action against the petitioner in accordance with law as if the
    conditions have been imposed and the petitioner released on bail
    by the learned Magistrate/Trial Court himself as laid down by the
    Hon’ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005)
    AIR SCW 5560]; and;
    (f)if the accused thereafter absconds, a fresh FIR can be
    registered under Section 229-A IPC.
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  31. With the above directions, this Criminal Original Petition is
    allowed.
    31.01.2022
    Index: Yes/No
    Internet: Yes/No
    dna
    To
    1.The Sessions Judge Special Court for Exclusive
    Trial under POCSO Act, Chennai.
    2.The Inspector of Police
    W4 All Woman Police Station
    Kilpauk, Chennai.
    3.The Public Prosecutor
    High Court, Madras.
    M.NIRMAL KUMAR.J.,
    dna
    Copy To
    https://www.mhc.tn1.9g/o2v0.in/judis
    Crl.O.P.No.14316 of 2021
    The Superintendent,
    Central Prison, Puzhal.
    Crl.O.P.No.14316 of 2021
    31.01.2022
    https://www.mhc.tn2.0g/o2v0.in/judis

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