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Right to default bail: Not just statutory, but a fundamental right

It is a fundamental right by being an extension of Article 21: Right to Life and Personal Liberty

Adeeti Singh 17 Oct 2020

Default bail

The Supreme Court of India has held that there 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) of the Code of Criminal Procedure are fulfilled. Moreover, life and personal liberty of an individual must be paramount.

The three-judge Bench of Justices Rohinton F Nariman, Navin Sinha and KM Joseph held that the right to default bail under the first proviso to section 167(2) of the Code of Criminal Procedure (CrPC) is not a mere statutory right but a 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” in Bikramjit Singh v State of Punjab (Cri. App No. 667 of 2020) on October 12, 2020.

While dealing with a case under the Unlawful Activities (Prevention) Act (UAPA), where the accused was denied a plea for default bail, the Supreme 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 Court further held that the Special Court alone had jurisdiction to extend time up to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act and not any Sub Divisional Judicial Magistrate. This is an important order as it offers the possibility of relief to all prisoners booked under draconian sections of UAPA that have, through procedural pronouncements, allowed incarceration for months without trial.

Section 167 (2) provides that the detention of any accused cannot be authorised beyond a statutory period prescribed under law to complete an investigation. The provision states:

 

“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;”

 

So, this section essentially provides that 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 CrPc 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.

But when it comes to Unlawful Activities [Prevention] Act (UAPA), under Section 43-D(2)(b), this period of arresting and detaining a person until the investigation is complete can be extended to 180 days instead of 90 days provided by the CrPC 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.

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 CrPc 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 offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

 

Background of the case

The accused in this case was remanded to custody by a Sub-Divisional Magistrate on November 22, 2018 under relevant sections of the Indian Penal Code, Arms Act, Explosive Substances Act and UAPA.

After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate which was dismissed on February 25, 2019 as the Sub-Divisional Judicial Magistrate had already extended time for custody from 90 days to 180 days under Section 167 of CrPC on February 13. This order was set aside by the Special Court, which held that the Special Court alone had jurisdiction to extend the time for custody 180 days under the first proviso in Section 43-D(2)(b) of the UAPA. 

The Supreme Court observed that 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 the NIA Act. However, the accused’s plea for default bail was refused.

The Special Court order was set aside by the Punjab and Haryana High Court, which held that when the probe is being conducted by the State police, the Magistrate has the power under Section 167 (2) of CrPC, read with Section 43 (a) of UAPA to extend the period of investigation up to 180 days. The High Court held that in such a case, the Magistrate may then commit the case to the Court of Sessions under Section 209 of CrPc. The High Court added that in case the investigation is conducted by the agency under the NIA Act, these powers would be exercised by the Special Court.

When the accused approached the Supreme Court, the 3 Judge bench noted that “First and foremost, the High Court has got the dates all wrong.” The bail application was dated February 25, 2019 but the High Court had marked it as March 26, 2019 and the charge sheet was filed on March 26, while the High Court marked it as March 25.

“The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b),” it said.

The Supreme Court then set aside the High court of Punjab and Haryana’s ruling. The three-judge Bench also added that “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.” 

The order may be read here:

 

Related:

Witnesses seem to be planted: Delhi HC

Bhima Koregaon case: Gautam Navlakha denied default bail; NIA granted 10 days custody

Police fail to file chargesheet, Amulya Leona gets bail

Delhi HC reserves order on Sharjeel Imam’s plea against trial court order denying default bail

Right to default bail: Not just statutory, but a fundamental right

It is a fundamental right by being an extension of Article 21: Right to Life and Personal Liberty

Default bail

The Supreme Court of India has held that there 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) of the Code of Criminal Procedure are fulfilled. Moreover, life and personal liberty of an individual must be paramount.

The three-judge Bench of Justices Rohinton F Nariman, Navin Sinha and KM Joseph held that the right to default bail under the first proviso to section 167(2) of the Code of Criminal Procedure (CrPC) is not a mere statutory right but a 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” in Bikramjit Singh v State of Punjab (Cri. App No. 667 of 2020) on October 12, 2020.

While dealing with a case under the Unlawful Activities (Prevention) Act (UAPA), where the accused was denied a plea for default bail, the Supreme 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 Court further held that the Special Court alone had jurisdiction to extend time up to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act and not any Sub Divisional Judicial Magistrate. This is an important order as it offers the possibility of relief to all prisoners booked under draconian sections of UAPA that have, through procedural pronouncements, allowed incarceration for months without trial.

Section 167 (2) provides that the detention of any accused cannot be authorised beyond a statutory period prescribed under law to complete an investigation. The provision states:

 

“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;”

 

So, this section essentially provides that 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 CrPc 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.

But when it comes to Unlawful Activities [Prevention] Act (UAPA), under Section 43-D(2)(b), this period of arresting and detaining a person until the investigation is complete can be extended to 180 days instead of 90 days provided by the CrPC 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.

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 CrPc 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 offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

 

Background of the case

The accused in this case was remanded to custody by a Sub-Divisional Magistrate on November 22, 2018 under relevant sections of the Indian Penal Code, Arms Act, Explosive Substances Act and UAPA.

After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate which was dismissed on February 25, 2019 as the Sub-Divisional Judicial Magistrate had already extended time for custody from 90 days to 180 days under Section 167 of CrPC on February 13. This order was set aside by the Special Court, which held that the Special Court alone had jurisdiction to extend the time for custody 180 days under the first proviso in Section 43-D(2)(b) of the UAPA. 

The Supreme Court observed that 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 the NIA Act. However, the accused’s plea for default bail was refused.

The Special Court order was set aside by the Punjab and Haryana High Court, which held that when the probe is being conducted by the State police, the Magistrate has the power under Section 167 (2) of CrPC, read with Section 43 (a) of UAPA to extend the period of investigation up to 180 days. The High Court held that in such a case, the Magistrate may then commit the case to the Court of Sessions under Section 209 of CrPc. The High Court added that in case the investigation is conducted by the agency under the NIA Act, these powers would be exercised by the Special Court.

When the accused approached the Supreme Court, the 3 Judge bench noted that “First and foremost, the High Court has got the dates all wrong.” The bail application was dated February 25, 2019 but the High Court had marked it as March 26, 2019 and the charge sheet was filed on March 26, while the High Court marked it as March 25.

“The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b),” it said.

The Supreme Court then set aside the High court of Punjab and Haryana’s ruling. The three-judge Bench also added that “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.” 

The order may be read here:

 

Related:

Witnesses seem to be planted: Delhi HC

Bhima Koregaon case: Gautam Navlakha denied default bail; NIA granted 10 days custody

Police fail to file chargesheet, Amulya Leona gets bail

Delhi HC reserves order on Sharjeel Imam’s plea against trial court order denying default bail

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