“A man of courage never needs weapons, but he may need bail.”
– Lewis Mumford
(American historian, architect, philosopher, literary critic)
The present article focuses on the aspect of “default/statutory/compulsory bail”, in terms of the provisions of Section 167 of the Code of Criminal Code, 1973. The moot question that the present article tries to address is that “whether various prisoners who are lodged in various prisons all over the country, irrespective of the nature and gravity of the offences alleged, are entitled to avail “default/statutory/compulsory bail”, if no final report is filed against them under Section 173 CrPC and the prescribed period as per Section 167(2) CrPC is over?”
The relevant provision of Section 167 CrPC reads as follows:
“Section 167. Procedure when investigation cannot be completed in twenty-four hours.– * * *
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
a. the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) 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;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;”
It is no longer res integra that every accused person who is arrested in a criminal case, is entitled to a default/statutory/compulsory bail as a matter of right, as an “indefeasible right” accrues in his/her favour, the moment, the statutory period of 60 days or 90 days, as the case may be, is over, no charge-sheet/challan is filed against him/her for any reason whatsoever, and the arrestee is willing to furnish the bail bonds, in terms of Section 167(2) CrPC. The said right is absolute, unconditional and beyond the scope of any interpretation and provides a valuable mechanism to safeguard the fundamental rights even that of a prisoner. It is stated that way back in the year 1994, in the landmark case of Sanjay Dutt v. State[1], the Constitution Bench of the Supreme Court of India, while reiterating the view taken in Hitendra Vishnu Thakur v. State of Maharashtra[2], held that the said right is an indefeasible right and can be availed of till the challan is filed by the prosecution. Though, it is pertinent to mention that the Supreme Court on 23.03.2020 took suo motu cognizance of a matter being Suo Moto Civil Writ Petition (Civil) No. 3/2020 titled “In Re: Cognizance for Extension of Limitation”[3] and in view of the present unfortunate coronavirus situation, extended the period of limitation for the litigants and held that, “to obviate such difficulties, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further orders to be passed by this Court in present proceedings“. Even then, the said order dated 23.03.2020 may not be of any help to the investigating agencies inasmuch as the Limitation Act, 1963 is not applicable to Section 167 CrPC. The said section, rather, only confers a power on the Magistrate to commit an accused person to custody for a maximum period as prescribed in the said section. This view finds support from the decision of the High Court of Delhi rendered in Powell Nwawa Ogechi v. The State (Delhi Administration)[4] wherein the High Court, while agreeing with the view taken by the High Court of Bombay in State of Maharashtra v. Sharad B. Sarda[5] 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 High Court of Rajasthan in Hari Singh v. State of Rajasthan[6] and by the High Court of Gujarat in Alamkhan Umarkhan Jatmalek Jenjari v. State of Gujarat[7].
Protection envisaged under the Constitution of India
It is apposite to mention that as per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Admittedly, the prisoners also have the aforesaid fundamental right enshrined under Article 21 of the Constitution of India, which is not only a legal right but also a human right inherent in our society. Therefore, any person can be deprived of his/her life or personal liberty but only according to procedure established by law and Section 167 CrPC provides for the said “procedure established by law” and curtails the aforesaid fundamental right enshrined under Article 21 to that extent. Hence, any non-compliance of Section 167 CrPC on any pretext, would amount to non-compliance of “procedure established by law”, thereby leading to a breach and violation of the fundamental right of the prisoners/arrestees guaranteed under Article 21 . Even in the absence of Article 21, the State has got no power to deprive a person of his or her life or liberty without the authority of law. This is the essential postulate and basic assumption of the Rule of law. Without such sanctity of life and liberty, the distinction between a lawless society and lawful society would cease to exist. Article 21 is rooted in consideration that life and liberty are priceless possessions and they cannot be compromised except with the sanction of law. This right is, as observed by the Supreme Court of India in its nine-Judge Bench judgment passed in Justice K.S. Puttaswamy v. Union of India[8], a primordial right, and cannot be curtailed. It was further held in the said judgment that the landmark case of ADM Jabalpur v. Shivakant Shukla[9] (also known as the Habeas Corpus case), wherein the suspension of Article 21 during the period of Emergency declared in the year 1975 was upheld by the Supreme Court, was a bad law and that, “the human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised State can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution.”
No doubt, the present situation is akin to a state of an “Emergency”, however, even during the proclamation of Emergency in terms of Article 356, Article 21 cannot be suspended and in this regard, Article 359 is very clear, which was specifically amended by passing the Constitution (Forty-fourth) Amendment Act, 1978 so as to exclude the provision of Article 21 even from the period of Emergency.
No court can, thus, extend the period prescribed under Section 167 CrPC unless it is specifically provided in the statute like in the Unlawful Activities (Prevention) Act, 1967[10], the Terrorist and Disruptive Activities (Prevention) Act, 1987[11], the Maharashtra Control of Organised Crime Act, 1999[12], etc. The Supreme Court in Achpal v. State of Rajasthan[13] categorically held that even if the charge-sheet is returned for technical fault, the benefit of Section 167 CrPC has to be given to the accused as it is an indefeasible right and that no court can extend the period prescribed.
Therefore, as soon as the period of 60 days or 90 days expires, as the case may be, and the challan is not filed then the accused person’s right ripens and he has to be released on bail, the moment he offers to furnish bail bonds. In Rakesh Kumar Paul v. State of Assam[14] , Deepak Gupta, J. while upholding the view taken by Madan B. Lokur, J. categorically reiterated the principle of bail under Section 167 CrPC and held that, “the accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail.”
Therefore, all those prisoners, who are in custody beyond the statutory period and charge-sheets/challans are not yet filed, can seek to explore this remedy to be released on statutory bail immediately and the denial thereof, might amount to a violation of their fundamental rights and be against the spirit of law laid by the Supreme Court of India in a number of cases.
*Advocate, Delhi High Court
[1] (1994) 5 SCC 410
[2] (1994]) 4 SCC 602
[8] (2017) 10 SCC 1
[9] (1976) 2 SCC 521
[10] Unlawful Activities (Prevention) Act, 1967
[11] Terrorist and Disruptive Activities (Prevention) Act, 1987
[12] Maharashtra Control of Organised Crime Act, 1999
[13] (2019) 14 SCC 599
Settu v. State of Tamil Nadu was the first case in which the Madras High Court, Madurai Bench passed a judgment in favour of the accused by granting bail and establishing that the limitation extended by the Supreme Court will not dilute Section 167 and Article 21 in the absence of a separate notification or amendment to that effect.