The Right To Default Bail: An Indefeasible Right

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Right To Personal Liberty

The Constitution of India is the supreme charter in India from which all the rights of the citizens flow. Every legislation which has been enacted by the legislature has to be in conformity with the principles that are enshrined in the Constitution of India[1]. Any attempt on the part of the state authorities to transgress or violate the provisions of the Constitution would bring the impugned action or statute within the ambit of judicial scrutiny[2]. The statutes which are not in consonance with the spirit of the Constitution are, therefore, struck down by the Hon’ble Courts.

Part III of the Constitution of India guarantees certain fundamental rights to the citizens of India. The fundamental rights which are guaranteed by the Constitution are essentially basic human rights without which the all round development of an individual might not be possible. One such important fundamental right which is guaranteed by the Constitution to every person in India is the Right to life and personal liberty under Article 21 of the Constitution of India. The right to personal liberty ensures that no person is deprived of his liberty by way of an arbitrary state action[3]. The liberty of an individual is the most cherished right and therefore accorded protection by enacting just, fair and proper procedures by the State.

The Right Of An Individual To Default Bail

The right of personal liberty as guaranteed by the Constitution of India has found due regard under Section 167 of the Code of Criminal Procedure, 1973 which provides the right of default bail to an accused person[4]. Section 167 of the Code provides that if the Magistrate is satisfied that it is essential for the purpose of investigation, he may authorise the detention of the accused person beyond the period of 15 days. However, such detention shall be in the custody other than the police custody[5]. The total period of detention, however, must not exceed (a) 90 days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and (b) 60 days, where the investigation concerns any other offence committed by the accused person[6].

The extension of the period of detention as authorised by Section 167 of the Code of Criminal Procedure, 1973 can be authorised only if the Magistrate is satisfied that it is essential for the purpose of conducting the investigation. For this, the police must satisfy the Magistrate by producing case diary and the day to day report of the investigation. It must be established before the Magistrate that prima facie material exists against the accused which requires further investigation[7]

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In case it is not possible for the investigating agencies to complete the investigation within the prescribed period of 60 days or 90 days as aforesaid, then a right accrues in favour of the accused person. The right is known as the right to default bail by which the accused becomes entitled to be released on bail on the expiry of the above period from the date of arrest. The gravity of the crime committed by the accused has no relation with his right under the CrPC. However, this right to default bail gets expired if the charge sheet is filed by the investigating authorities before the accused exercise the right[8].

Extension Of The Period Of Limitation

The rise of the Coronavirus 19 pandemic has led the world to witness unprecedented times. Countries all over the world are trying to develop a vaccine in order to cure the people who are infected of the deadly virus which spreads mainly through human interactions. In the meantime, in order to curb the spread of this virus, the Government of India implemented the unprecedented measures of social distancing and lockdown so as to curb the spread of the infection.

Because of the lockdown situation imposed by the Government of India, the movement of citizens were restricted unless and until they went out to purchase the essential commodities. Resultantly, even the courts in India, in order to ensure that they do not contribute to the spread of the disease, restricted the physical hearing of the matters and started taking up the matters virtually. Since this move of the Court might have resulted in difficulties being faced by the litigants across the country in filing their appeals or suits within the period of limitation, the Hon’ble Supreme Court of India on March 23rd, 2020 in order to mitigate the hardships passed an order in ‘Re: Cognizance for extension of limitation[9]‘ thereby extending the period of limitation in all proceedings. This power was exercised by the Hon’ble Court under Article 142 read with Article 141 of the Constitution of India.

The Controversy

This order passed by the Hon’ble Supreme Court of India stirred up a controversy as differing opinions were given by two learned judges of the Madras High Court concerning the rights of an accused person under Section 167(2) of the Code of Criminal Procedure, 1973. Hon’ble Justice G.R. Swaminathan in the case of Settu vs. The State[10]

held that the effect of the order of the Hon’ble Supreme Court is that the limitation period as prescribed in the general law of limitation has been extended. It will have no effect on the right of an accused person under Section 167 of the Code of Criminal Procedure as the period of 60 days (or 90 days as the case may be) are not technically the period of limitation. Therefore, the period for filing of final reports by the investigating agency to the magistrate has not been extended by the order of the Hon’ble Apex Court.

On the contrary, Justice G. Jayachandran in the case of S. Kasi vs. State, through inspector of Police took a contrary view from the above decision. He held that because of the extraordinary situation being faced by the country because of the Coronavirus 19 pandemic, the period of limitation as prescribed under Section 167 of the CrPC also stood extended. This has resulted in two conflicting decisions of the court on the same issue.

Right To Default Bail : An Indefeasible Right

This controversy created because of the differing judgments of the Madras High Court was finally put to rest by the Hon’ble Supreme Court of India in the case of S. Kasi vs. State, through inspector of Police[11] in which it was held that the order of extension of the period of limitation has no effect on the provisions of the Code of Criminal Procedure, 1973. The provision as to default bail under Section 167 of the Code of Criminal Procedure was enacted so as to secure the liberty to the individual under Article 21 of the Constitution of India. Therefore, the order extending the period of limitation cannot be read as to extending the period of filing the chargesheet under Section 167 of the CrPC. The chargesheet has to be filed within the period of 60 days (or 90 days as the case maybe), failing which the accused has the right to be released on bail. Thus, the controversy was put to rest by the Hon’ble Court by clarifying that the right to default bail is an indefeasible right available to an accused person.

Conclusion

The guarantee against illegal detention is one of the most important fundamental right which is available to all the person in India. The right of an accused to default bail is a manifestation of such right so as to ensure that the accused is saved from arbitrary detention and harassment at the hands of the police official. The right as has been guaranteed by Section 167 of the Code of Criminal procedure is thus indefeasible, which means that it cannot be denied to the accused by extending the period of filing the chargesheet by the prosecution.

(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)


[1] Chintaman Rao vs. State of M.P., AIR 1951 SC 118.

[2] Hamdard Dawakhana vs. Union of India., AIR 1960 SC 554.

[3] Maneka Gandhi vs. Union of India., AIR 1978 SC 597.

[4] State of Kerela vs. Sadanandan., 1984 CriLJ 1823

[5] Gauri Shankar vs. State of Bihar., AIR 1972 SC 711.

[6] P.P. vs. Satyanarayana., 1986 CriLJ 1134.

[7] Rajani vs. State of Orissa., 1975 CriLJ 83.

[8] Syed Mohd. Ahmad Kazmi vs. State, GNCTD., AIR 2013 SC 152.

[9] Suo Motu Writ Petition (Civil) no. 3/2020.

[10] CRL OP (MD) No. 5291 of 2020.

[11] Criminal Appeal no. 452 of 2020.