Introduction
In the common parlance, we often come across terms like ‘regular bail’, ‘anticipatory bail’ etc. However, the pandemic, amongst other things has also brought to our attention, the term ‘default bail’. This term doesn’t find explicit mention in the Criminal Code Procedure (Cr.P.C.), (hereinafter the Code). Nevertheless, default bail is a statutory bail available to an accused by virtue of Section 167(2) of the Code.
This is a rather important provision as it bestows upon an accused (provided the accused has moved an application for bail), the right of bail even in case of non-bailable offences upon the expiration of the prescribed period of 90 or 60 days as the case may be. The period of 90 or 60 days would begin to run from the day on which the accused is remanded to custody by the magistrate at the first instance, as was held in Chaganti Satyanarayana v. State of Andhra Pradesh.
Since the accused automatically becomes entitled to be released on bail on account of non-filing of the chargesheet within the prescribed period, it is called a ‘default bail’. In Natbar Parinda, the Supreme Court held that the accused has a right to be released on bail under S. 167(2) of the Code “even in serious and ghastly types of crimes”. This alone reflects the importance of this provision.
The Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra elucidated the object of S. 167(2) of the Code and further held it to be a an unambiguous and clear provision. The Court held:
“Personal Liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provision thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody upto a maximum period as indicated in the proviso to sub-section (2) of section 167, any further detention beyond the period without filing of challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution.”
The Court held that the proviso to S. 167(2) is aimed at preventing indefinitely prolonged investigations and thereby affecting the liberty of a citizens. The proviso prescribes a period of 90 days in case of offences punishable with imprisonment for a term not less than 10 years and a period of 60 days for offences punishable with imprisonment for a term less than 10 years. It further provides that upon expiration of the prescribed period, if the investigative agency fails to file a completed chargesheet, the accused is entitled to be released on bail provided he furnishes an application to that effect.
The Conundrum
The recent debate surrounding default bail comes in the wake of the Supreme Court order dated 23.03.2020 (In Re: Cognizance for extension of Limitation) which was passed by the Court while exercising its power under Art. 142 read with 141 of the Constitution of India. The Court took suo moto cognizance of the plight of litigants in filing their applications, appeals, etc. within the period of limitation prescribed. It accordingly extended the period of limitation in all proceedings both under general and special laws. This stirred up the debate of whether this order would also be applicable to S. 167(2) of the Code and would invariably also extend the period of conducting investigation and filing the chargesheet.
Two varying legal opinions were given by two learned judges of the Madras High Court. Justice G.R. Swaminathan in Settu v. The State, held that the order of the Supreme Court strictly applied to the period of the limitation in all proceedings. The order didn’t mention the extension of the investigation period of 60 or 90 days as given in the Code. Hence, the right of default bail accrues to the accused upon expiry of the prescribed period and failure of filing the chargesheet.
However, Justice G. Jayachandran, in S. Kasi v. State, Through the Inspector of Police, provided a dissenting opinion and observed that holding the order of the Supreme Court as inapplicable to the period of investigation under S. 167(2) would amount to “mocking” the Court. Therefore, he held that the period of limitation for investigation would stand extended.
A middle ground to this difference in the abovementioned opinions of two learned judges was struck by the Supreme Court in S. Kasi v. State Through The Inspector of Police Samaynallur Police Station Madurai District. The Court was hearing an appeal against the impugned judgment of the Madurai Bench of Madras High Court dated 11.05.2020. The Court in this case considered the question of the applicability of the Order extending the period of limitation, to the provision of the Code. It delineated the object and purpose of Section 167 of the Cr.P.C.
It relied on Rakesh Kumar Paul v. State of Assam, wherein the Court had held that the debate on S. 167 has to be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty as has been enshrined in Article 21 of the Indian Constitution. The Court also held the right for default bail to be an indefeasible right which cannot be frustrated by the Prosecution under any circumstance. The reasoning behind this is fairly simple. S. 167(2) in no way bars the investigative agency from carrying out the investigation beyond the period of 60 or 90 days. The Police can continue with the investigation, however, keeping the accused in custody beyond the prescribed period and without the filing of a chargesheet would not be in accordance with law. Accordingly, the right of the accused to life and personal liberty would be infringed. The said provision safeguards the personal liberty of the accused and therefore can’t be frustrated.
The Constitution bench, in the case of Sanjay Dutt v. State Through C.B.I., noted that if the chargesheet is not filed and right for default bail has ripened into the status of infeasibility, it can’t be frustrated by the Prosecution on any pretext. The court noted that on several occasions, even the Courts try to frustrate the indefeasible right by keeping the application for default bail pending so that in the meantime a chargesheet is filed. Further, in Anchal Alias Ramswaroop and Another v. State of Rajasthan, the Court held that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed. Therefore, no court can either directly or indirectly extend such period. Even in this light, the order of the Supreme Court (extending the period of limitation) can’t be construed to extend the period of investigation under S. 167.
The Supreme Court, after considering the abovementioned propositions, sided with Justice G.R. Swaminathan and held that the order dated 23.03.2020 can’t be read to mean that it intended to extend the period of filing of chargesheet by the police as contemplated under S. 167(2) of the Code. This view has also been supported and followed by the Kerala, Rajasthan and Uttarakhand High Courts, which were also faced with the same issue. The Kerala High Court in Mohammed Ali v. State of Kerala and Anr., the Rajasthan High Court in Pankaj v. State and the Uttarakhand High Court in Vivek Sharma v. State of Uttarakhand have all come to the conclusion that the order of the Supreme Court doesn’t cover police investigation and therefore does not affect the right of the accused for default bail.
Conclusion
It can be fairly concluded that the order of the Supreme Court (In Re: Cognizance for extension of Limitation) was never intended to alter or affect any provision of the Criminal Procedure Code. If this was, in fact, the case, it would go against the line of precedent well established by the Apex Court itself which has invariably held default bail to be an indefeasible right and any attempt to subterfuge it would go against the right to personal liberty of the accused. Further, the goal of Cr.P.C. is surely to do societal justice in a fair manner, but it also must preserve and further the fundamental right of life and personal liberty which is indeed a precious right. A balance has to be struck between social justice and prevent a delay of justice to the accused. Therefore, the view taken by Justice G. Jayachandran (in S. Kasi v. State, Through the Inspector of Police) is erroneous and bad in law as has been stated by the Supreme Court itself. The intent and purpose of the order of the Supreme Court is not obscure and in no way affects the right of an accused to obtain default bail. S. 167(2) is a statutory safeguard devised to protect accused persons against mischief on part of investigative agencies by indefinitely prolonging investigation and therefore is of paramount importance.
About the Author: Ishani [2019-24] is pursuing B.A.LL.B (Hons) from Gujarat National Law University, Gandhinagar.
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