While hearing the plea involving the UAPA, the apex court held that the right to default bail under Section 167(2), CrPc, is part of procedure established by law under Article 21 of the Constitution of India.
Eminent lawyer and managing partner of OP Khaitan & Co, Gautam Khaitan, has welcomed the recent judgment of the Hon’ble Supreme Court that held the right to default bail as not only a statutory, but a fundamental right under Article 21 of the Constitution of India. A three-judge bench comprising Hon’ble Justices KM Joseph, Navin Sinha and Rohinton F Nariman in the matter of Bikramjit Singh vs State of Punjab Criminal Appeal No. 667 of 2020 declared on October 12, 2020, that it is a “fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), Section 167 (2) of the Code of Criminal Procedure (CrPC) are fulfilled.”
Section 167 (2) CrPC provides that the detention of an accused person cannot be extended beyond a statutory period prescribed to completion of the investigation. In cases involving offences punishable with life imprisonment or death, the statutory period to complete the investigation and file chargesheet/final report is a maximum of 90 days. Nevertheless, it is 180 days in offences under the UAPA. It was while hearing a plea involving a UAPA case when the Supreme Court held default bail as a fundamental right. The Court said:
“We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.”
A few months ago, the Hon’ble Madras High Court in Settu vs The State [Crl OP(MD) NO. 5291/2020] held that the Hon’ble Supreme Court’s order on March 23, 2020, 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 Code of Criminal Procedure (CrPC), 1973.
The Hon’ble High Court observed that, “Personal liberty is too valuable a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except in accordance with the procedure established by law. So long as the language of Section 167 (2) of CrPC remains as it is, I have to necessarily hold that the denial of compulsive bail to the petitioner herein will definitely amount to a violation of his fundamental right under Article 21 of the Indian Constitution.”
The Hon’ble Madras High Court also observed that the Apex Court had not specified that the extension of limitation would apply to police investigations as well. The failure of the State Police to complete an investigation on time cannot be hidden by invoking Supreme Court’s order.
Landmark Cases On Right To Default Bail By Hon’ble Courts
1. Rakesh Kumar Paul vs State of Assam, (2017) 15 SCC 67
The Hon’ble Supreme Court held that “..in matters of personal freedom, the courts cannot and should not be too technical and must lean in favor of personal liberty. The generic principle of criminal law is that “a person is innocent until proven guilty.” From even before the registration of an FIR till the completion of the trial, the law provides for many provisions of bail. In countless cases, the Supreme Court has held that bail is a person’s absolute right (in bailable offenses). Granting of bail is the rule while sending to jail is the exception. Very often, we hear about anticipatory bail or regular bail. But, there is one more type of bail that is relatively less known. This is called default bail. The right to default bail is also an absolute and indefeasible right of the accused. Section 167(2) lays down the provisions regarding this right. This section provides a specified period beyond which the accused cannot be kept in custody. On the expiry of such a period, if the police have not completed their investigation and filed the charge-sheet, the accused can seek default bail. This right accrues from the failure of the police. It acts as an incentive for the police to do timely investigations while also protecting the right to liberty of the accused.”
2. Sanjay Dutt vs State through CBI, Bombay, (1994) 5 SCC 410
The Hon’ble Supreme Court has laid down several guidelines in case with respect to section 167, CrPC. These guidelines specified that the completion of 90 days or 60 days, as the case may be, accrues an indefeasible right in favor of the accused for grant of bail. This right arises from the failure of investigative agencies to complete investigations and file the charge sheet within the prescribed time. He becomes entitled to a release on bail if he is prepared to and furnishes bail. If he is unable to furnish bail and investigation is complete, then such a right would extinguish.
3. Aslam Babalal Desai vs State of Maharashtra, (1992) 4 SCC 272
In this case, the Supreme Court pointed towards the “legislative anxiety” found in Sections 57 and 167 of CrPC. These sections express the urgency with which the investigation must be completed within the prescribed period once a person is deprived of his liberty. Proviso (a) to Section 167(2) provides a maximum period of 90 days or 60 days, as the case may be.
It was introduced to allow the investigative agencies to complete the investigation within the maximum stipulated time. The Court further held that if the investigation is not completed within this maximum period, the accused is entitled to the right to default bail. It was also held that Section 167 does not give any power to cancel bails. Such power is only available under section 437 or 439 of CrPC.
4. Powell Nwawa Ogechi vs The State (Delhi Administration)
The Hon’ble High Court of Delhi, while agreeing with the view taken by the High Court of Bombay in State of Maharashtra vs Sharad B. Sarda (1982 SCC OnLine Bom 287), held that even if the last day to file final report was a holiday. Still, the same could not come to the rescue of the investigating agency therein.
The provision of Section 10 of the General Clauses Act, 1897, which is pari materia to Section 4 of the Limitation Act, 1963, was considered and it was held that, “A bare reading of the aforesaid provision of the Code would go to show that this provision merely confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision of the Code falls under Chapter XII of the Code relating to information to the police and their powers to investigate. It is thus clear that this is a power which is only exercisable during the course of investigation of a case. Any further remand to judicial custody beyond 90 days and 60 days without the charge-sheet being presented before the Court will be without the authority of law.”
The same view has been taken by the Hon’ble High Court of Rajasthan in Hari Singh vs State of Rajasthan 1998 SCC OnLine Raj 381 and by the Hon’ble High Court of Gujarat in Alamkhan Umarkhan Jatmalek Jenjari vs State of Gujarat 2015 SCC OnLine Guj 1557 .
Conclusion
On careful consideration of various judgments, including the Bikramjit Singh’s case, Gautam Khaitan quoted America’s visionary social critic and philosopher Lewis Mumford’s statement: “A man of courage never needs weapons, but he may need bail.” Mr Khaitan further emphasized the fact that while applying the judicial mind in regards to the personal liberty of an accused under a statute that imposes severe punishments. The right to default bail is not mere statutory rights under Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, as has been reaffirmed by this recent judgment in Bikramjit Singh’s case.
It can be observed that the right to default bail under Section 167(2) CrPC is based on the fact that the accused must either “make use of” or “enforce his right to be released on bail”. The Court has to ascertain whether the accused is prepared to furnish bail. Therefore, a magistrate receives no such application, he has no power to release the accused.
It is also crucial to note that the application can either be written or oral. It is a legislative mandate through the procedure established by law and not the discretion of the Court that makes the right to bail under Section 167(2) absolute and indefeasible. Hence, if the investigating agency fails to file a charge sheet/final report before the 90 or day expiration, as the case may be, the accused in custody should be released on bond and the merits of the case are not to be examined at length while such consideration.