Default Bail under the Criminal Procedure Code
Article 22 of the Constitution of India along with Section 57 of CrPC lays the golden rule of producing an arrested person before the magistrate within 24 hours. Section 167 of CrPc carves out an exception, for there are many instances where the investigation cannot be completed within time. It confers power on the magistrate to detain the person in custody, on well-founded grounds, for a maximum period of 90/60 days depending on the punishment of the offence. Interestingly, Clause (2) provides the provision of a ‘default bail’. Essentially, it holds that if the charge sheet is not filed within the said time frame, the accused shall be released on bail. Moreover, such bail shall be deemed to be a bail under Chapter XXXIII of the CrPC.
Legislative Intent
Ramesh Kumar Paul vs State of Assam explains its legislative intent. It holds that the section while giving a reasonable time for completion of investigation also seeks to protect the personal liberty of the accused. Personal liberty, under Article 21, as has been re-iterated in the case of K.S. Puttaswamy v. Union of India is “inalienable to human existence”. By capping the time frame for filing the charge sheet, the section precludes the probable harassment of the accused in the hands of investigating authorities. Therefore, by preventing unreasonable and unwarranted periods of detention, it protects the personal liberty of the accused.
Consequence of the ‘Deeming Provision’
Section 167(2) holds that the default bail shall be deemed to be a bail given under Chapter XXXIII of CrPC. There was a heated controversy on whether filing the charge sheet attracts cancellation of default bail already granted. It was heavily contended that since the default bail is not granted on merits, the grounds for cancellation can be different. The case of Aslam Babalal Desai vs State of Maharashtra settled the dispute. It held that cancellation of bail intrudes in the liberty granted by law and hence the mere cure of a technical defect cannot be a ground for cancellation. The bail could be cancelled only under Section 437(5) and 439(2) on supervening grounds.
Present Scenario Under Covid-19
India, like other countries, is a victim of the Covid-19 pandemic. Due to the gravity of the scenario, litigants all across the country faced overbearing difficulties to adhere to the limitation period prescribed under various statutes. According to P. Ramanatha Aiyar’s Advanced Law Lexicon, ‘limitation period’ is a period prescribed by a statute within which an action has to be brought in order to preserve the right of the litigant. The Supreme Court vide order dated 23.03.2020 recognized the hardships faced by the litigants while filing various applications, petitions, suits, appeals and all other proceedings, which in many instances, compelled them to physically come to the courts and tribunals. To protect them, through its inherent power under Article 141 and 142, it sought to extend the limitation period until further orders with effect from 15.03.2020.
While the said order was widely appreciated, it was not clear as to whether it extended to Section 167(2) of the Code. Different High Courts were approached all over the country, challenging the same.
View of the Madras High Court
While dealing with the aforesaid issue, the High Court of Madras reached a crossroad due to two conflicting decisions. These were the decisions of Settu vs State and S. Kasi vs State.
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Settu vs State:
- The Madras High Court held that the implications of the said order could not be extended to Section 167(2) on two grounds. Firstly, the expiry of the time frame under Section 167 does not bar the filing of the charge sheet, it only gives the accused the right of bail.
- Therefore, it acts on a separate sphere. Secondly, it protects the personal liberty of the accused which is one of the most precious fundamental rights. Relying on Achpal vs State of Rajasthan, it was held that the Code does not allow anyone to extend the period of investigation. The order intends to protect rights of the people, however, if it extends to Section 167 then it will take away the most valuable right conferred on the accused solely because of the non-performance of a duty set by the Code.
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Kasi vs State:
- The court differed from the former order of Settu vs State. The Supreme Court order was passed in light of the pandemic and the resulting paralytic state of the country. The learned judge observed that due to the national lockdown, the country came to a standstill. It was difficult for the investigating agencies to complete the investigation on time and even if they did, the situation of the courts was not feasible to facilitate the same.
- Even though police investigation has not been expressly mentioned, looking at the intent and the general nature of the order, it could be read under ‘other proceedings’. The judgment compares the lockdown to the proclamation of an emergency and holds that the rights under Article 21 are not unfettered. It also held that the rights under Section 167(2) are not absolute. While concluding, it held that a ‘myopic’ reading of the section will completely contradict the intent of the order and therefore it should extend to Section 167.
Other High Courts
The Kerala High Court in Mohammed Ali vs State of Kerala, Rajasthan High Court in Pankaj vs. State, and the Uttarakhand High Court in Vivek Sharma vs. State of Uttarakhand relied on Settu vs State (Supra) to hold that the order of Supreme Court dated 23.03.2020 cannot extend to Section 167 and cannot interfere with the conferred right of bail of the accused on non-filing of the charge sheet. This is because personal liberty is one of the most valued fundamental rights. The investigating authorities could not, in any way, take benefit of the order.
View of Supreme Court
After the rejection of Bail application in S. Kasi v. State (Supra) by Madras High Court on the ground that since the order dated 23.03.2020 of Supreme Court in Suo Moto W.P. (C) No.3 of 2020 (Supra), eclipses all the provisions which prescribe the limitation period in India, it is beyond doubt that it also extends to the time limit prescribed under Section 167(2) of CrPC to file the charge-sheet, the appellant filed an SLP before the Supreme Court against this order.
The issue before Hon’ble Supreme Court was that whether the Appellant was entitled to bail under Section 167(2) of CrPC due to non-filing of charge-sheet or does the time limit prescribed under Section 167(2) of CrPC stands extended in view of its order dated 23.03.2020. The Supreme Court while relying upon Uday Mohanlal Acharya v. State of Maharashtra, and Achpal (Supra) reiterated the settled law that if the Charge-Sheet is not filed even after the expiry of period prescribed under Section 167 CrPC, an indefeasible right accrues in favour of the accused and he must be released on bail, if he is ready to furnish bail. The time limit under Section 167 CrPC cannot be increased even by Courts except for some Statutes which specifically allows such extension Such as NDPS Act, 1985 and Unlawful Activities (Prevention) Act, 1967 etc.
The Supreme Court further made it clear that the limitation period for filing various petitions/suits/application was extended so that the remedy that a person wants to seek does not become time-barred. The order dated 23.03.2020 in no way was meant to deprive a person of his rights. If such an interpretation of that order is made then it would be erroneous and the investigation agencies may delay the investigation, which would violate the right to life and personal liberty of accused. Thus, the personal liberty guaranteed by Article 21 of Constitution cannot be taken away in light of the order dated 23.03.2020 and the accused continues to possess the right to default bail under Section 167 of CrPc if all the conditions are met.
Can Right of Default Bail be Suspended During Emergency?
The Madras High Court in S. Kasi’s Case was of the view that the current situation of Covid-19 is similar to emergency and thus it is very difficult to complete the investigation process and submit the final report. The High court also said that during emergency fundamental rights are subject to restriction. The question before Supreme Court was that whether Article 21 can be suspended during an emergency or not? In ADM Jabalpur v. Shivakant Shukla, and Union of India v. Bhanudas Krishna Gawde, the Supreme Court held that fundamental rights namely Article 21 stands suspended during an emergency and no writ can be applied for enforcement of such rights during an emergency. But later on, Article 359 was amended by 44th Constitutional Amendment and Article 359(1) now allows for the enforcement of rights under Article 20 and 21 even during an emergency. The Supreme Court in K.S.Puttaswamy (Supra) which overrules the ADM Jabalpur and Bhanudas Krishna Gawde’s case (Supra) holds that life and personal liberty of an individual cannot be suspended by proclamation of emergency and thus these rights are enforceable even during an emergency. Thus, the right of default bail that comes under personal liberty cannot be suspended even during an emergency.
Doctrine of Judicial Discipline
The Supreme Court held that the order of Madras High Court in S. Kasi’s Case is flawed due to another reason also i.e. violation of doctrine of judicial discipline. This doctrine as envisaged in State of Punjab v. Devans Modern Breweries Ltd. holds that if a coordinate bench i.e. same strength bench of same court does not agree with any decision of earlier coordinate bench then it must refer the matter to a larger bench but it cannot take a contrary view to the earlier coordinate bench. The Madras High Court in S. Kasi’s Case (Supra) took a contrary view to Settu’s Case (Supra) which was a coordinate bench and thus the order of High Court is flawed.
Conclusion
The order of Supreme Court dated 19.6.2020 came in as a relief for the accused persons who were in custody for more than the time limit prescribed under Section 167 of CrPC. The Supreme Court has made it clear that Right to Default Bail is an ‘indefeasible right’ and this right cannot be curtailed even during Covid-19 situation as it would amount to a violation of personal liberty under Article 21. The Scheme of CrPC also extends to safeguard the life and personal liberty of the accused persons. There are various safeguards available in CrPC regarding arrest, bail, investigation etc. The safeguard of Section 167 CrPC by prescribing upper time limit for custody of accused aims to prevent the harassment or abuse of the accused while he is in custody. If this safeguard would not have been available then the investigating agencies could have developed methods to keep the accused in custody for an unreasonable time. Therefore it struck a correct balance between the performance of duty and the right of personal liberty. This order of Supreme Court upholding the right to default bail amidst Covid-19 situation is a relief for accused persons who now can seek default bail under Section 167 of CrPC.
About the Authors:
Shubham [2018-23] is pursuing B.B.A.LL.B (Hons) from Gujarat National Law University.
Kaarunya [2018-23] is pursuing B.Com.LL.B (Hons) from Gujarat National Law University.
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