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Analysing the Right to Default Bail: In the Light of COVID 19 situation

Updated: Oct 29, 2021

The Supreme Court via its order dated 23rd March 2020 ordered the extension of the period of limitation. The limitation period extends w.e.f 15th March 2020 until further notice. This extension relates to all petitions, applications, suits, appeals, and all other proceedings by the litigant. It applies to both the general law of limitation as well as the special laws in this regard. Further, on 6th May 2020, the SC passed another order extending the period of limitation under the Arbitration and Conciliation Act and The Negotiable Instruments Act.

INTRODUCTION

With the Covid-19 Pandemic on a surge, the courts have resorted to virtual hearings. This step is necessary to ensure the smooth facilitation of justice. To increase efficiency and minimize the harm caused by this outbreak, various steps are being taken. One such step relates to the extension of the limitation period. However, over the last two months, this order has raised concerns and legal issues due to its vagueness. The courts are posed with questions regarding the applicability of the order to the matters of right to default bail. This article aims at analyzing this right in light of the Covid-19 situation and highlighting the stance of courts on this issue.


WHAT IS THE ISSUE?

The issue at hand relates to ambiguity in orders passed by court dated 23rd March 2020 and 6th May 2020. These orders relate to the extension of the limitation period to file petitions, applications, appeals, etc in various courts and tribunals. However, questions are raised as to the order’s application on the right to default bail under Sec. 167(2) of the Code of Criminal Procedure (Cr.P.C.). Thus the main issue is whether the extension of limitation can also be made applicable to investigation and filing of the police report within the prescribed time-period under Sec. 167(2). What needs to be emphasized is that if answered in affirmative, then it would amount to a denial of statutory right to bail.


WHAT IS THE VIEW OF THE COURTS?

On 8th May 2020, the issue of application of the said orders on Sec. 167(2) was raised for the first time before the Hon'ble Madras High Court. The court held that the orders of the Supreme Court do not apply to section 167(2) and are not capable of taking away the indefeasible right of the detained person. It further stated that, in case the Supreme Court intended to take away this right, it would have expressly stated the extension of time in completion of the investigation. Thus, the right to default bail stands unaffected by the orders extending limitation. In deciding the above order, the learned judge opined that –

“So long as the language of Section 167(2) of Cr.P.C. remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to a violation of his fundamental right under Article 21 of the Constitution of India."


However, on 11th May 2020, the same High Court took a contrary view on the application of the order on Sec. 167(2). In light of the current pandemic, the court felt that the investigating agencies should be granted an extension. It stated that owing to the current scenario, the investigating agency can't conduct and complete the investigation in the given time. Moreover, even if they complete the investigations, the courts are not open to receive them.


This order compares the current situation to the state of emergency under article 352 of the constitution. In such a situation the rights stand suspended and right under article 21 is also imposed with reasonable restrictions. The order also criticizes the previous order dated 8th May and terms it as an ignorant act. Thus, as per this order, the extension applies to Sec. 167(2).


On 12th May 2020, the Hon'ble High Court of Uttarakhand also faced a similar issue while deciding the matter of bail. The court held that investigation matters are not subject to the apex court's order. The Supreme Court would have mentioned in the order, had it intended to extend the application of extension of limitation to Sec. 167(2). Moreover, the court stated that the orders passed by the Supreme Court are binding on all High Courts. The High Court doesn't have the power to interpret the order in different terms. Thus, Sec. 167(2) is not covered under the said order.


WHAT IS THE RIGHT TO DEFAULT BAIL IN INDIA?

Section 167(2) of the Cr.P.C, gives the right to default bail. It provides for the time within which an arrested person can be legally remanded. It also imposes a maximum time limit on the police for investigation, for filing the final report. As per the section the persons undergoing investigation are by default eligible for bail. This statutory right is given, in case the investigating officers fail to complete the investigation and file the charge sheet within a particular time. The time prescribed are-

  • 90 days in case the investigation relates to any offense punishable with death. Ife imprisonment or imprisonment for more than ten years; and

  • 60 days in case the investigation relates to any other offense.


DOES THE TIME-PERIOD UNDER SEC. 167(2) AMOUNT TO LIMITATION?

The concept of limitation in both general and special laws is that after the expiry of the limitation period, the appeals, applications, etc cannot be admitted right away. Thus the whole purpose of the contentious orders of the apex court was to ensure that litigants don’t lose their rights. However, when we look at Sec. 167(2), it gives us the intention of the legislature to maintain efficiency in the working of the investigating agency. It nowhere aims to obstruct the process of investigation or filing charge-sheet. It does not impose a bar on filing the final report even after the prescribed time.

The essence of Sec. 167(2) is that if the final report is not filed within the specified time, then the magistrate will be divested of the jurisdiction to authorize the detention of the accused person beyond the said period if the accused is prepared to and does furnish bail. Thus the Section provides a statutory right to bail or right to default bail. Thus it can be stated that even though the section refers to a time, the same cannot be on the footing of the limitation period. The Code does not provide for a limitation on the filing of the final report.


WHAT IS THE IMPORTANCE OF THE TIME-PERIOD UNDER SEC. 167(2)?

The time-period under the section is only in respect of the period of detention and not on filing the final report. There may be cases where the investigation continues for more than the prescribed time-period. In such cases, if the accused is brought before the Magistrate for extension of his remand, the Magistrate must look into two questions-

  • Whether the investigation is completed and the final report filed; and

  • Whether the accused is prepared to furnish bail

If the answer is yes, then the limitation would apply and as stated above the magistrate will be divested of his jurisdiction to extend the detention.

However, under Article 142 of the Constitution, the Supreme Court may expressly confer the power on the magistrate to extend the remand of the accused beyond the time prescribed under Sec. 167(2). Thus the time period under Sec. 167(2) is only a limitation on the extension of remand and not on the filing of the final report.


AUTHOR’S NOTE

If the orders are made applicable to Sec. 167(2) then it will pose grave issues. It will lead to a situation of prolonged detentions and are most likely to be misused. The application would be violative of Article 21 of the Constitution which deals with the right to life and liberty. Every individual has a right to live with dignity and enjoy other rights given by the Constitution. The limitation on time under C.P.C. curtails the rights of a detailed person in s reasonable way. In case this limitation extends it would be regarded as excessive and unreasonable. Even during this pandemic, there is a need for reasonable restrictions. The orders passed by the apex court were done to ease the difficulties faced by the litigant. They should not be taken as a license by the investigating officers to justify the delay in forming the final report. The divergent views taken by the courts need to be harmonized and the Supreme Court's order in this regard needs to be clarified.


*The author views are personal.

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