“DEFAULT BAIL” IN TIMES OF COVID-19

Preface:

The indefeasible right of the accused to be released on bail in accordance with proviso (a) to Section 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) in default of completion of the investigation and filing of the final report within the time allowed is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the final report and it does not survive or remain enforceable after filing of the final report.

If the accused files application for default bail when the indefeasible right for default bail accrues due to non-completion of the investigation and filing of the charge-sheet within the time prescribed by proviso (a) to Section 167 (2) of the Cr.P.C., the accused is entitled to default bail even if the final report is filed subsequent to the filing of the application for default bail by the accused. However, if the accused files application subsequent to the filing of the charge-sheet, the indefeasible right to default bail gets extinguished even if the charge-sheet was filed after the period of time stipulated under proviso (a) to Section 167 (2) of the Cr.P.C.

It is settled law, as was held in the matter of: Aslam Babalal Desai V/s State of Maharashtra, AIR 1993 SC 1, that once an accused is released on bail under Section 167 (2) of the Cr.P.C. then he cannot be taken back in custody, merely on the filing of the charge-sheet.

Recently, in the matter of: Roy @ Compan Roy V/s State of Kerala & Anr, Bail Application No. 5939/ 2019, High Court of Kerala, Date of Decision: 22.08.2019, it was observed that:

“… The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him without a court order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by proviso (a) to Section 167 (2) of the Code. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail. Since Section 167 of the Code does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437 (5) or Section 439 (2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437 (1)/ Section 437 (2) or Section 439 (1) of the Code. Once an accused has been released on bail, his liberty cannot be interfered with lightly i.e., on the ground that the prosecution has subsequently submitted a charge-sheet. There must exist special circumstances for cancelling the bail. The above discussion would make it clear that once the bail is granted under Section 167 (2) of the Code, the bail granted cannot be cancelled on mere filing of the final report by the police.”

Order of the Hon’ble Supreme Court of India (Extension of Period of Limitation) Dated: 23.03.2020:

That the Hon’ble Supreme Court of India in the matter of: Suo Motu Writ Petition (Civil) No. 3 of 2020 took Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 and resultant difficulties faced by litigants across the country in filing their petitions/ applications/ suits/ appeals and/ or other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/ or State).

That to obviate such difficulties and to ensure that lawyers and/ or litigants do not have to come physically to file proceedings in courts and/ or tribunals across the country including the Supreme Court of India, it was ordered by the Hon’ble Court 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. 15^th March 2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/ Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/ Tribunals within their respective jurisdiction.”

 

Order of the Hon’ble Supreme Court of India (Extension of Period of Limitation) Dated: 06.05.2020:

That the Hon’ble Supreme Court of India in matter of: Suo Motu Writ Petition (Civil) No. 3 of 2020 was called upon to answer the following prayer:

“To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Arbitration and Conciliation Act, 1996 and (ii) initiation of proceedings under section 138 of the Negotiable Instruments Act, 1881.”

That the Hon’ble Supreme Court of India vide its order dated: 06.05.2020 observed that:

“… it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings.

In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown.”

Default Bail and the Order passed by the High Court of Madras:

In the matter of: Settu V/s State, Crl. O.P. (MD) No. 5291/ 2020, High Court of Madras, Date of Decision: 08.05.2020, the question of law that came up for adjudication before the Hon’ble Court can be articulated as follows:

“Can failure of the prosecution to file final report within the time span provided in proviso (a) to Section 167 (2) of the Cr.P.C. be condoned in view of orders of the Hon’ble Supreme Court of India, dated: 23.03.2020 and 06.05.2020?”

That answering the aforenoted question of law in the negative, the Hon’ble Court observed as follows:

• The Hon’ble Supreme Court of India in the aforenoted orders dated: 23.03.2020 and 06.05.2020, taking note of the extraordinary situation obtaining in the country due to Covid-19, ordered that the period of limitation would extend in the manner, form and matters provided in the respective aforenoted orders till the continuation of the lockdown. This was done by the Hon’ble Supreme Court in exercise of jurisdiction vested in it by virtue of Article 141 read with Article 142 of the Constitution of India, 1950, to obviate the difficulties faced by the litigants and to ensure that they and their lawyers do not have to come physically to file pleadings in the respective courts and tribunals. However, the Hon’ble Supreme Court nowhere mentioned in those orders dated: 23.03.2020 and 06.05.2020, that police investigations will also be covered/ governed by the exemptions granted by it by virtue of those orders to the ordinary litigants.
• That in Para 10 of the judgment, it was observed that:

“… The point to note is after the expiry of the limitation period, the application or appeal cannot be straightway admitted. That is why, the Hon’ble Supreme Court in its benevolence has ordered that the period of limitation shall stand extended during this lock-down period. Thus, the litigants will not lose their rights. But, filing of final report stands on a different footing altogether. Section 167 (2) of Cr.P.C. does not bar the filing of final report even after the period specified therein. The implication of Section 167 (2) is that if the final report is not filed within the time limit prescribed therein, 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. The expiry of the period results in accrual of right in favour of the accused. Even though this time limit is referred to as period of limitation, technically it is not. It is only Chapter XXXVI of Cr.P.C. that deals with limitation for taking cognizance of certain offences.”

• Section 167 of the Cr.P.C. cannot be construed as containing any period of limitation for filing of final reports.
• That none of the orders of the Hon’ble Supreme Court of India, that is, orders dated: 23.03.2020 and 06.05.2020 deal with Section 167 of the Cr.P.C.
• It is not as if crimes have not taken place during these pandemic times; accused have been arrested and have been remanded to custody. Therefore, it is not justified on the part of the prosecution to seek extension of time for filing the charge-sheet citing the closure of the courts. Section 167 (2A) of the Cr.P.C. contemplates the situation when the judicial magistrate is not available; in such circumstances for a short period, even the executive magistrate can pass detention orders.
• That in Para 15 of the judgment, it was observed that:

“… Of course, the construction placed by me will have no application whatever in the case of certain offences under certain special laws, such as Unlawful Activities (Prevention) Act, 1967 and NDPS Act, 1985. For instance, Section 36-A (4) of the NDPS Act enables the investigation officer to apply to the special court for extending the period mentioned in the statute from 180 days to 1 year if it is not possible to complete the investigation. Thus, under certain statutes, the prosecution has a right to apply for extension of time. In those cases, the benefit of the direction of the Hon’ble Supreme Court made [on] 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020 will apply. But, in respect of other offences for which Section 167 of Cr.P.C. is applicable, the benefit of the said direction cannot be availed.” (emphasis supplied)

Upshot:

• An accused has indefeasible right to get default bail under proviso (a) to Section 167 (2) of the Cr.P.C., if the investigation is not complete within the statutory period as provided under proviso (a) to Section 167 (2) of the Cr.P.C. Therefore, if the accused is prepared to execute the bail, he shall be released on bail if the investigation is not complete within the statutory period.
• If the accused files any application for default bail after the statutory period and before filing of the final report, the accused is entitled to default bail under proviso (a) to Section 167 (2) of the Cr.P.C.
• If the accused files application for default bail after filing of the final report, if at all the final report is filed after the expiry of the statutory period provided under proviso (a) to Section 167 (2) of the Cr.P.C., the accused is not entitled to get default bail as the indefeasible right of the accused to be released on bail in accordance with the provisions of proviso (a) to Section 167 (2) of the Cr.P.C. is enforceable by the accused only from the time of default till the filing of the charge-sheet and it does not survive or remain enforceable after filing of the charge-sheet.
• Once the accused is released on bail under proviso (a) to Section 167 (2) of the Cr.P.C., he cannot be taken into custody merely on the filing of the charge-sheet.
• That none of the orders of the Hon’ble Supreme Court of India, that is, orders dated: 23.03.2020 and 06.05.2020 deal with proviso (a) to Section 167 (2) of the Cr.P.C.
• That failure of the prosecution to file charge-sheet within the time span provided under proviso (a) to Section 167 (2) of the Cr.P.C., cannot condoned by the court in view of orders of the Hon’ble Supreme Court of India, dated: 23.03.2020 and 06.05.2020 respectively.