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.
[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
“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
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