medical grounds
Case BriefsSupreme Court

Supreme Court: Adopting a humanitarian approach, the 3-judges Bench comprising Uday Umesh Lalit, Aniruddha Bose, and Sudhanshu Dhulia, JJ., had granted permanent bail to Bhima Koregaon accused, Dr. P. Varavara Rao solely on medical grounds.

The appellant, Dr. P. Varavara Rao, presently 82 years of age, was kept in house arrest on 28-08-2018, whereafter he was taken into regular custody on 17-11-2018 in connection with Bhima Koregaon violence.

What Happened in Bhima Koregaon?

On January 1, 1818, a Dalit-dominated British Army defeated a Peshwa army, led by Peshwa Bajirao II, in Koregaon. The battle attained a legendary stature for Dalits, who consider the win as a victory of the Dalits against the injustices perpetuated by the Peshwas.

2018 marked the 200th year of battle and hence there was a larger gathering at Bhima Koregaon. During the celebrations there were violent clashes between Dalit and Maratha groups, resulting in the death of at least one person and injuries to several others.

Tensions had started simmering on December 29, 2017, the day Govind Gopal Mahar’s memorial was found desecrated. The incident found mention in the Elgar Parishad, a big public conference organised by Dalit and Bahujan groups on December 31, 2017. Police had alleged that inflammatory speeches were made in the event and that led to the violence the next day.1

Earlier Bail Orders

Earlier, by the order in P. Varavara Rao v. National Investigation Agency (Cr. A. No.52 of 2021), dated 22-02-2021, the Bombay High Court had released the appellant on bail for a period of six months on the medical condition. However, liberty was granted to apply for extension depending upon his health condition supported by medical reports. Subsequently, the appellant had preferred Interim Application No.2018 of 2021 seeking an extension of the facility of bail granted earlier on the medical condition.

By the impugned order in P. Varavara Rao v. National Investigation Agency (W.P. No. 461 of 2022), dated 13-04-2022, the Bombay High Court had extended the period only for three months on the same terms and conditions as were set out in the earlier order. That extended period came to an end on or about 12-07-2022.

Meanwhile, the appellant preferred the instant special leave to appeal on 20-06-2022, wherein the Supreme Court had, by an ad-interim order, extended the period of bail which continued on the date of instant order.

Medical Complications

The Court noted the observations made by the Bombay High Court on its order dated 22-02-2021, wherein the certain medical condition of the appellant were culled out in paragraph 72 of the order:

  • “The undertrial is aged 82 years and he suffers from pre-existing health ailments i.e. piles, prostate enlargement, coronary artery disease, Oedema/Ansarca (swelling of feet), Hypertension, Sinusitis, Migraine and Vertigo.

  • The medical papers pertaining to the stay of the undertrial in the J.J. Hospital in July 2020 show that he had to be admitted due to deterioration of health, electrolyte imbalance as a result which he was showing signs of delirium. He was bleeding from rectum and he had Urinary Tract Infection (UTI) causing urinary inconvenience and loss of control of urination.

  • The undertrial suffered a fall from bed due to which he suffered a cut on his forehead, which had to be stitched/sutured. He had difficulty in walking and he was disoriented.

  • The undertrial was found to be Covid-19 positive due to which he was shifted to the St. George’s Hospital, wherein it was recorded that the undertrial was suffering from delirium and perhaps dementia, requiring treatment for electrolyte imbalance and other ailments noted above.

  • The medical reports between 19-07-2020 and 27-08-2020 consistently showed that he was talking in an irrelevant manner and was showing signs of delirium and suffering from tremors.

  • That there were only three Ayurvedic Practitioners in the Taloja Central Prison Hospital with no nursing staff and that the undertrial prisoners were being asked to perform the task of attendants in respect of ailing inmates like the undertrial before this Court.

  • That due to UTI, the catheter had to be used which was not removed for about three months, leading to complications.”

The Court further recorded that medical data revealed that the appellant is suffering from brain atrophy, age-related cerebral cortical atrophy along with hypertension with BPH with recurrent hyponatremia, and recurrent urinary tract infection.

Rival Contentions of the Parties

Mr. Anand Grover, Senior Advocate for the appellant submitted that considering the age of the appellant and the ailments he suffered from; and the fact that his condition had not improved but had deteriorated to a certain extent, the condition regarding surrender be deleted and permanent bail be granted to the appellant. He further contended that the release of the appellant on bail ought not to be limited in point of time but may be granted permanently without fixing any such condition.

Contesting the permanent grant of bail, the National Investigation Agency submitted that the material on record showed the involvement of the appellant in a deep-rooted conspiracy and as such, going by the letter and spirit of Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 the appellant should not be entitled to the relief of bail.

Relying on Union of India v. K.A. Najeeb, (2021) 3 SCC 713, the counsel for the appellant contended that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

Observations and Directions

Considering the aforesaid, the Court culled out the following factual aspects:

  • “The appellant is 82 years of age.

  • He was taken in custody initially on 28-08-2018 and has actually spent 2½ years of custody, leaving aside the period for which benefit of bail was granted pursuant to the order dated 22.02.2021.

  • Though the charge-sheet has been filed, some of the accused are still not apprehended and the matter has not even been taken up for consideration whether the charges need to be framed against the accused who are presently before the Trial Court or not.

  • Various applications preferred by the accused seeking discharge are still pending consideration.

  • The medical condition of the appellant has not improved to such an extent, over a period of time, that the facility of bail which was granted earlier be withdrawn.”

Hence, the Court held that the appellant was entitled to the relief of permanent bail on medical grounds. Therefore, the Court granted bail to the appellant by deleting the condition placed in the Order dated 22-02-2021 limiting the relief in terms of time. The Bail is subject to the following conditions:

  • The appellant shall not leave the area of Greater Mumbai without express permission from the Trial Court.

  • The appellant shall not in any way misuse his liberty nor shall he get in touch with any of the witnesses or try to influence the course the of investigation.

  • Any infraction of the conditions shall entail in cancellation of bail granted to the appellant.

  • The appellant shall be entitled to have the medical attention of his choice but shall keep the respondent authorities in touch with any such development including the medical attention received by him.

  • It is made clear that the benefit of bail is extended to the appellant only on his medical condition.

Lastly, the Court directed the appellant to approach the Trial Court within seven days with advance intimation to the Public Prosecutor. On such representation, the Trial Court was asked to release of the appellant on permanent bail, on medical grounds, subject to such conditions as the Trial Court may deem appropriate to impose.

[P. Varavara Rao v. National Investigation Agency, 2022 SCC OnLine SC 1004, decided on 10-08-2022]

Advocates who appeared in this case :

Anand Grover, Senior Advocate, for the Appellant;

S.V. Raju, Additional Solicitor General, Advocate, for the Respondents.

*Kamini Sharma, Editorial Assistant has put this report together.


Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, the Courts must favour the   interpretation which leans towards protecting the rights of the accused, given the ubiquitous   power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

The Court, hence, concluded as follows:

  • Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
  • The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
  • Where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
  • Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Earlier this month, in Bikramjit Singh v. State of Punjab2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, 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.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, 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.

Right to default bail

Explaining the law on grant of default bail, the Court said that so long as an application for grant of default bail is made on expiry of the period of 90 days, which application need not even be in writing, before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

“In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]