IMPACT ON DEFAULT BAIL UPON EXTENSION OF LIMITATION STATUTE

The author of this blog is Ms. Nehal Misra,  3rd year B.Com LLB(Hons) at Institute of Law, Nirma University Ahmedabad.

 “A man of courage never needs weapons, but he may need Bail.”

–Lewis Mumford

Bail refers to a release of a person from the prison who is awaiting a trial or an appeal, through the deposit of security for the purpose of assurance of his submission to legal authority at the required time. The monetary value of the security, the bail bond, is set by the court having jurisdiction over the accused. The Criminal Procedure Code, 1973, defines the terms bailable offense and non-bailable offense, however, it fails to define the term ‘bail’.

Bail is based on consideration of merits, except under Section 167(2) of the Criminal Procedure Code, 1973 wherein trial judges grant bail upon failure to file charge-sheet by the police within the statutory period after an individual has been taken into custody. Section 167(2) deals with ‘default bail’ or ‘statutory bail’. It refers to the power of the magistrate to detain the accused in custody and release him on bail on the expiry of the statutory period. Restrictions on the powers of the magistrate were imposed with respect to regular bail under section 437 of the Code, however the same was not applicable under section 167(2). 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 in the first instance[1].

If the charge sheet is not filed within 60 or 90 days (as the case may be) of date of detention, the petitioner is entitled to be released on bail (default bail). Sub-section (a) (i) of Section 167(2) of the Code states that 90 days will be the maximum allowable detention where the inquiry relates to “an offense punishable by death, life imprisonment or imprisonment for a period not less than 10 years”. Subsection (a) (ii) of Section 167(2) of the Code provides that sixty days would be the maximum period of custody for offenses with imprisonment with a term of fewer than ten years.[2]

The Supreme Court[3] held, that the provisions of the Code, in particular Sections 57 and 167, express the legislative anxiety that, once the freedom of a person has been interfered with by the police arresting him without a court order or warrant, the investigation must be conducted as a matter of utmost urgency and completed within the maximum period permitted by Section 167(2) of the Code. No bail will be granted under section 167(2) of the Code if charge sheet is filed before the expiry of 90 days or 60 days from the date of the first remand. Once charge sheet is filed, the right of default bail is lost. However, if a judge fails to pass a formal judicial order of extension of remand on the application of the prosecution, default bail is not the remedy.

Scope of Default Bail in COVID-19

Supreme Court- In the prevailing COVID-19 situation the Supreme Court has raised certain unprecedented legal issues. A legal issue that has surfaced is “Whether the Right to default bail under Section 167(2) Cr PC is affected by the order of the Hon'ble Supreme Court whereby the limitations with respect to all legal proceedings as mandated by any general or special law have been extended”. The relevant extract of the Hon'ble Apex Court order[4] is to obviate difficulties, for this purpose, it has ordered that a period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or special laws stand extended w.e.f. 15th March 2020 till further order passed by the Court in proceedings under Article 142 r/w Article 141 of the Constitution of India.

High Court of Madras- Issue regarding whether the decision of Hon'ble Apex Court eclipses the provision of Section 167 Cr.P.C was raised in Settu v. The State[5]. Justice G.R. concluded that the Hon'ble Supreme Court's order didn’t take away the indefeasible right accrued under Section 167(2) Cr.P.C. Personal liberty is a precious fundamental right. The denial of compulsive bail to the petitioner amounts to a violation of the fundamental right under Article 21 of the Constitution of India.

However, within three days from the earlier order mentioned Justice G.Jayachandran took an alternate view in S.Kasi v. State[6]. It was held that the wings of the investigating agency are clipped and they are unable to conduct the investigation. Moreover, it is beyond their capacity to control this delay. It is impractical for the investigation agency to complete the investigation and file the final report in the Court within the time prescribed after closing down the gates and prohibiting access. In conclusion, it was held that the earlier order is contrary to the spirit of the Hon'ble Supreme Court order issued in exercise of the power of Article 142. It was decided that the Supreme Court order eclipsed all provisions prescribing the period of limitation until further orders including Section 167(2) of the Code of Criminal Procedure.

High Court of Uttarakhand- Similar question was raised before the Hon'ble High Court of Uttarakhand in Vivek Sharma v. State of Uttarakhand[7]. It was held that as the Supreme Court has not mentioned in the said orders that investigation will be covered under these Orders. Therefore, the police investigation is not covered under the Orders of the Hon'ble Supreme Court.

Analysis-There can be multiple reasons for an investigation to be not completed within 60 or 90 days, however, no reason can justify further detention beyond the said period against the mandate of the statute and without express law made by virtue of Article 142. It would be a blatant violation of the statutory right under the Code of Criminal Procedure 1973 as well as the fundamental rights under Part III of The Constitution of India. The detention cannot be made without any legislative provision or an express order made under Article 142 of the Constitution of India.

In Aslam Babalal Desai v. State of Maharashtra[8] it was held that sections 57 and 167, manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him, the investigation must be conducted with the utmost urgency, without a court order or warrant. In UOI through CBI v. Nirala Yadav[9] it was observed that a court cannot act to extinguish the right of an accused if the law so confers on him. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. The direction to frustrate a legal right of the accused would be impermissible. In Rakesh Kumar Paul v. State of Assam[10] the Supreme Court had denounced any attempt to subterfuge the right of the default bail under Section 167(2) Cr.P.C.

It is pertinent to refer to the famous dissent of Justice H R Khanna in ADM Jabalpur vs Shivakant Shukla[11] wherein it was observed that even in a state of emergency, the right to personal liberty will stand guaranteed under Article 21 of the Constitution of India.  Neither Section 167(2) nor Article 21 gives an unfettered right to the person accused of an offense. It is germane that the legislature has framed the procedure with the intention of preservation of the fundamental rights and principles of natural justice. The law enforcement agency cannot hide behind the judicial orders and choose to not comply with the mandates of the statutes. If such interpretation is continued to be given to all the provisions of Cr.P.C, in future, the law enforcement agencies may even choose to avoid the limitation of 24 hours within which the arrested person has to be produced before the nearest Magistrate as mandated by Sec.57 and Sec.167 (1) Cr.P.C. Such exercise would not only be in violation of the statutory right but also Article 22(1) of The Constitution of India.

The above two orders are in clear conflict with each other, which leaves the litigants in a state of ambiguity. In view of the two conflicting orders of Hon'ble Madras High Court, one in favor of enforcement of a statutory right concerning personal liberty and another being in favor of its suspension, it is necessary to clarify this position at the earliest. A legal issue as such, which has ramifications on the procedure to be adopted by the Sub-ordinate courts and litigants, cannot be left hanging without a conclusive and binding view. Therefore, while interpreting the benevolent order of the Hon'ble Apex Court, it can be presumed that the nature of the order in any form won’t curtail any fundamental rights as it would be contradictory to Article 13 of the Constitution. Hence, while interpreting the order of the Supreme Court, the extension of the limitation period shall not be applicable on Section 167 because it may be inappropriate as it inclines towards violation of the fundamental right guaranteed under Article 21 of the Indian Constitution.

[1] State of U.P. v. Laxmi Brahman, AIR 1983 SC 439 12
[2] Rakesh Kumar Paul v. State of Assam, SLP(Cr) No.2009/2017
[3] Aslam Babalal Desai Vs State of Maharashtra, AIR 1993 SC 1
[4] Suo Motu Writ Petition (Civil) No(S).3/2020 In Re : Cognizance For Extension Of Limitation
[5] Crl OP (MD). No.5296 of 2020
[6] Crl OP (MD) No. 5291 of 2020
[7] First Bail Application No.511 of 2020
[8] (1992) 4 SCC 272
[9] (2014) 9 SCC 457
10]AIR 2017 SC 3948
[11](1976) 2 SCC 521