Criminal jurisprudence has always focussed on a “socially sensitized” judicial mechanism. Certain rights, in the light of principles of justice and liberty, are statutorily and constitutionally bestowed upon the accused (to be specific, herein we are referring to under trial prisoners, in particular) that may be exercised during the pendency of trial. The prescribed liberties include remedies in the form of regular bail, anticipatory bail, parole and default bail. The provisions relating to bail form part of Chapter XXXIII of Code of Criminal Procedure, 1973. There is another provision that does not find its reference in the above mentioned chapter but rather in Chapter XII of the Code which is referred to as “default bail” under section 167(2) CrPC.
Section 167(2) CrPC is the point of origin of the concept of default bail. It states as under:-
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;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
In the light of this Covid 19 pandemic and the resultant “procedural and administrative hault”, working of “default bail”, as a rule of law, has been facing certain ambiguities with respect to its interpretation, especially in the light of an order passed by the Hon’ble Supreme Court dated March 23, In Re: Cognizance For Extension Of Limitation, for extension of limitation during the lockdown period.
In Settu v. The State, the Madras High Court, followed by Uttarakhand High Court in Vivek Sharma v. State of Uttarakhand, and subsequently a decision rendered by another single judge of the same Madras High Court in S. Kasi v. State through Inspector of Police, the respective High Courts seemingly lay down conflicting views with respect to applicability of the Supreme Court’s order upon section 167(2) CrPC. Out of these three, the first two decisions have enunciated the observations in the favour of accused person’s right to default bail whereas the last one has tried to strike it down. It was held in Settu Case and Vivek Sharma Case that the order of the Apex Court In Re Cognizance: Extension of Limitation would not be applicable on time period prescribed under Section 167(2) CrPC that is provision for default bail shall not be adversely affected.
In Settu v. State the Hon’ble Judge of the Madras High Court enunciated and determined that the provision of extension of limitation cannot be misutilized by the investigating/police authorities as a blanket liberty to interminently extend the scope of time period prescribed under Code of Criminal Procedure as 60 days in case of certain offences and 90 days in rest. The Hon’ble Court observed that despite the time period prescribed, the investigating authorities are not precluded from following the same thereby affirming the accused person’s right to seek default bail which is duly substantiated and enriched by Article 21 of the Constitution of India. This view was formulated in Achpal v. State of Rajasthan  by the Apex Court and was subsequently reiterated in the case of Vivek Sharma v. State of Uttarakhand, by a single judge of the Uttarakhand High Court..
On the other hand, a conflicting ratio was made by another single judge of Madras High Court in case of S. Kasi v. State through Inspector Police wherein the Hon’ble judge observed that the power exercised by the Hon’ble Apex Court under Article 142 must be respected and complied with. It was further stated that the inhibitions faced on part of the Investigating agencies during the lockdown in effectively completing their investigation does not get the accused a letter of liberty so as to exercise his right of default bail. Taking into consideration this conflicting opinion, what we need to analyse is the provision of law concerning default bail vis a vis the provisions of personal liberty enshrined under Article 21 with respect to the accused. The liberty under Article 21 can only be suspended only in situation when it is in accordance with procedure established by law. The difference between procedure established by law and due process of law is that procedure established by law calls for law “as it is” rather than what law “ought to be.” The Indian Constitutional doctrine refers to procedure established by law and which is the rule of law as established by law of the land irrespective of its justness and fairness. This was interpreted liberally in case of Maneka Gandhi v. UOI wherein the Constitutional Bench of the Apex Court had opined and asserted that the procedure established by law must be “right and just and fair’ and ‘not arbitrary, fanciful or oppressive” else the situation under Article 21 will not stand satisfied. Criminal jurisprudence always seeks to balance the right between the accused and the society at large. It presumes the innocence of the accused unless proved beyond reasonable doubt by the prosecution. Under this presumptive law certain exceptions have been spelt out such as presumption of rape under Section 114-A or presumption of dowry death under Section 113-B as prescribed by the Indian Evidence Act, 1872. Only under such situation upon allegations with respect to such heinous offences the reversal of burden of proof will be done else the same will lie upon the prosecution.
Even if we try to create an intelligible differentia between under-trials acused of heinous offences and the ones accused of non-heinous offences, the balance of convenience should be tilted towards “individual rights” with respect to his right to seek “default bail.” Taking the same into consideration, equity warrants his release when there occurred a lapse of the prescribed time period because an unreasonable delay in the process of investigation would go on to annihilate his basic right of liberty which cannot be taken away in such an arbitrary fashion. Moreover the exercise of right is not absolute and always exists at the discretion of the concerned Magistrate or the Hon’ble Court and there will be no inhibition caused in the process of filing of final report because bail can be made stringently conditional by way of imposing stern conditions of attendance, reliable sureties, bonds etc which form a chain of statutory safeguards against any sort of misuse of the consequent liberty.
Furthermore, it is evident that, in addition to being violative of Article 21, it also violates Article 14 in an implied fashion. Firstly,the deprivation of Article 21 is in an arbitrary manner which is in violation of Article 14 as stated in case of EP Royappa v. UOI because “Arbitrariness is antithetical to equality.” It also violates principles of equity as there is no class of difference or intelligible diferrentia between ‘convicted prisoners’ already undergoing imprisonment and those ‘under trial prisoners’. Therefore to strike a balance amidst such ambiguities and uncertainity, right of the prisoner, social security and the grund norm of criminal jurisprudence must be given due weightage and the discretion of the court must be exercised in favour of the accused so as to enable him to achieve the required “interim measure” in the form of “default bail”.
Lastly, now that the Hon’ble Chief Justice of the Madras High Court has duly constituted a Division Bench so as to settle down the mixed waters of interpretation, we sincerely hope that the scales of justice will draw a fine balance between “individual liberty” and “societal conscience”. Not to forget, “The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers.”
-  AIR 2018 SC 4647
-  1974 AIR 555
-  Central Bureau of Investigation vs Anupam J Kulkarni (1992 AIR 1768)