The Concept of Default Bail during the COVID-19 Crisis

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The generic principle of criminal law is that “a person is innocent until proven guilty.”

In matters of personal liberty, the Courts cannot and should not be too technical and must lean in favour of personal liberty. From the filing of FIR, till completion of the trial and until the final decision in a criminal trial, the legislature provides various provisions for releasing an accused on a different type of bail.

The Supreme Court in Rakesh Kumar Paul v. the State of Assam,[1] held that in matters of personal freedom, the Courts cannot and should not be too technical and must lean in favour of personal liberty. Most often, we hear about ‘anticipatory or regular bail’, however, there is another not so widely known form of bail, which is called as ‘Default Bail’ or ‘Statutory Bail’.

Default Bail as Dealt under Section 167(2), Criminal Procedure Code, 1973

Learned Trial Judges have been empowered to grant bail upon failure to file a charge-sheet by the police within the statutorily stipulated period after taking an accused in custody. There are two subparts of this Section providing for entitlement of an accused of obtaining default bail:

  • ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;[2]
  • sixty days, where the investigation relates to any other offence,[3]

However, no case for grant of bail will be made out under Section 167(2) of the Code of Criminal Procedure (“CRPC”), if the charge sheet is filed before the expiry of 90 days or 60 days, as the case may be, from the date of the first remand. The right of default bail is lost, once the charge sheet is filed.

Recent judicial developments

The Supreme Court in Suo Moto Writ Petition (Civil) No(s). 3/2020[iv] titled as Re: Cognizance of Extension of Limitation vide its order dated March 23, 2020, extended the period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or special laws to ease hardships on all litigants and advocates given COVID-19 Pandemic. Subsequently, on May 06, 2020, the Hon’ble Supreme Court, extended all limitation periods prescribed under the Arbitration and Conciliation Act, 1996 and Section 138 of the Negotiable Instruments Act, 1881.

One of the most intriguing questions of law that arises from the abovementioned orders of the Hon’ble Supreme Court is that “Whether the extension of the limitation period shall be applicable on the investigating agencies in relation to the time limit for filing of charge sheet and also for the concept of Default bail under Section 167(2) of CRPC?”.

  • The Madras High Court in Settu v. the State,[v] held that the abovementioned orders of the Supreme Court’s granting an extension of the limitation period for various laws would not apply to the right to default bail as granted under section 167 of the CRPC. The Court observed that personal liberty is too valuable a fundamental right per Article 21 of the Constitution of India. Hence, the Court held that denial of compulsive bail to the petitioner will amount to a violation of its fundamental rights under the Constitution of India.
  • However, a few days later a contrary view was taken by a co-ordinate bench of the Madras High Court in Kasi v. State vide its order dated 11.5.2020. The Court while rejecting the bail of the accused person observed that the lockdown was akin to the proclamation of Emergency and thus the right to life guaranteed under Article 21 is subject restrictions.
  • The Uttarakhand High Court in Vivek Sharma State of Uttarakhand vide order dated 12.05.2020[vi] observing that no court has the right to interpret the orders passed by the Supreme Court. Therefore, the police investigation is not covered under the Orders of extension of Limitation passed by the Supreme Court.
  • The Rajasthan High Court in Pankaj State[vii] vide order dated 22.05.2020 granted bail to the accused person and observed that in absence of a clear mandate from the Hon’ble Supreme Court, the investigating or prosecuting agency cannot claim self-serving extension, under the pretence or cloak of such order.
  • The Supreme Court in an application filed in Suo Moto Writ Petition (Civil) No(s). 3/2020 (supra) seeking clarification re extension of the time frame for prosecuting agencies in 167(2) CRPC took note of some of the contradictory judgments of various High Court’s and therefore issued a notice on the subject application returnable on 07.2020.
  • Finally, the Supreme Court in the matter titled as S. Kasi v. State through the Inspector of Police set aside the order dated 11.5.2020[viii] passed by the Madras High Court in S. Kasi v. State (supra) clarified that the order dated 23.03.2020 by the same Court re extension of limitation was never meant to curtail any provision of CrPC or any other statute which was enacted to protect the personal liberty of a person.

Conclusion

The legislature has given a clear mandate under Section167(2) of the Code of Criminal Procedure that the magistrate has neither discretion nor jurisdiction to extend the judicial custody thereupon. Any such extension can be regarded as illegal.

The Hon’ble Supreme Court taking note of the above and various judicial precedents where it has been held that the Right to Personal liberty stands guaranteed under Article 21 of the Constitution of India and if it fails to show urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed under Section167(2), the accused would be entitled to be released on bail and any order passed contrary to that effect would be illegal.

It is, thus, important to understand that Section 167(2) CrPC does not impose any limitation on the Investigating Agencies to file the charge sheet within a specific period. It only enumerates the consequences in case of the charge sheet not being filed within the time prescribed under the Code. Therefore, understanding the basic object and purpose of Default Bail, no question of limitation would arise as the investigating agency can still ask for further time to file a charge sheet in a particular matter.

[1] (2017) 15 SCC 67

[2] Section 167(2)(a)(i) of CRPC

[3] Section 167(2)(a)(ii) of CRPC

[iv] 2020 SCC ONLINE SC 343

[v] 2020 SCC ONLINE MAD 1026

[vi] First Bail Application No.511 of 2020

[vii] SCC OnLine Raj 867

[viii] SLP (Crl.) No. 2433/2020

About the author:

Prateek Kumar is a partner at Chambers of Jain and Kumar. The firm is a full-service law firm located in the heart of Delhi with a network of lawyers across the country.

(Prateek Kumar is a partner at Chambers of Jain and Kumar. The firm is a full-service law firm located in the heart of Delhi with a network of lawyers across the country.

Prateek is an Alumni of Amity Law School, Delhi, Indraprastha University, enrolled with the Bar Council of Delhi in the year 2016. He is a lawyer with expertise in the laws relating to Criminal Law, Arbitration laws, Insurance Laws, Banking laws and Intellectual Property Rights. His area of practice has largely been the Delhi High Court, District Courts of Delhi and various Tribunals, wherein several of his judgements have been reported.

In the past, he has worked in a tier-one Intellectual Property Law firm and subsequently with a former Special Public Prosecutor of CBI before the Hon’ble Delhi High Court. He is also a member of Delhi High Court Bar Association.)


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