By Nihit Chauhan* & Kirti Tandon**
“A man of courage never needs weapons, but he may need bail.”
-Lewis Mumford (American historian, architect, philosopher, literary critic)
The most fundamental thing about bail in criminal justice system is the liberty which a person deserves until he is proven guilty. It might be considered a mere benefit which a person enjoys during the course of his trial but it has a far wider approach as regards individual freedom. It can be said that at times ensuring freedom is more important than delivering justice and maybe that is why the concept of default bail has emerged and evolved.
The question now arises that to what extent the freedom should be granted? For this purpose let us see how the provision for default bail has come up to be what it is today.
Earlier in the old Code of Criminal Procedure (Cr.P.C), 1898 it was the legislature’s intent that the investigation can and should be done in twenty-four hours and if it appears that the investigation could not be completed in twenty-four hours then the accused to be transferred to judicial custody for a term not exceeding fifteen days, this was misused to a large extent as it was difficult to complete investigation in mere fifteen days. The prosecution often had to take recourse to section 344 of the Code by filing a preliminary investigation report to keep the accused in custody and continue with the investigation.
The 5th Law commission established in 1968 under the Chairmanship of Mr. K. V. K. Sundaram, in its 41st report noted and proposed to increase the time limit for investigation to sixty days, acknowledging that “such an extension may result in the maximum period becoming the rule in every case as a matter of routine: but we trust that proper supervision by the superior courts will prevent that.” What was being conveyed is that the stretched arms of the police and investigation authorities can be shortened by the supervision of the superior Courts. These recommendations were accepted and incorporated into the new Code of 1973.
A few years later in 1978, a need was felt to amend Section 167 of the Cr.P.C. by extending the period of completing investigation relating to the period and nature of the offence. Therefore, a shift was proposed to grant an aggregate period of 90 days for completing the investigation in cases relating to offences punishable with death, imprisonment for life or “imprisonment for not less than ten years or more” and up to 60 days in any other case. However the term “or more” was dropped when section 167 was enacted as it seemed pointless in the context of the term “not less than”.
Therefore to sum up it could be said that the legislative intent was always to complete the investigation within twenty four hours, failing which within fifteen days (Cr.P.C of 1898) which was later extended to sixty days (Cr.P.C of 1973) and eventually the provision for ninety days was added where the investigation was related to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
The primary question in the case Rakesh Kumar Paul v. State of Assam 2017 SC 924 is ‘whether in a case regarding offence for which the punishment imposable may extend upto ten years, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure 1973 due to default on the part of the investigating agency is not filing the charge-sheet within sixty days.”?
Section 167(2)(a)(i) provides that 90 days would be the maximum permissible custody where the investigation relates to “an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years”. For offences not covered under section 167(2)(a)(i), the maximum period of custody would be sixty days. with regard to the first two categories of offences (punishable by death or imprisonment for life), there can arise no difficulty. With regard to the third category viz., offences punishable with imprisonment for a term “not less than ten years”, question arose in Rajeev Chaudhary v. State (NCT) of Delhi (2001) 5 SCC 34, as to whether this expression would cover the offences wherein the punishment provided is imprisonment “for a term which may extend to ten years.
The crucial test is whether the offence is one for which the punishment of imprisonment for ten years or more can be awarded. It is immaterial that the court may have also the discretion to award the punishment of imprisonment for a term of less than ten years. In this manner, in Rajeev Chaudhary, the Supreme Court held that in case of an offence punishable with imprisonment “for a term which may extend to 10 years” the maximum custody would be 60 days. Despite the Supreme Court judgment, the position in law would still be that where the punishment provided for an offence is imprisonment “for a term which may extend to ten years” the accused could be detained in custody for a maximum period of 90 days. Such offences are covered within the meaning of the expression” imprisonment for a term of not less than ten years” in sub clause (i) of clause (a) of section 167(2).
In the present case according to the state the appellant was liable for punishment for an offence, inter alia, under Section 13(1) of the Prevention of Corruption Act, the offence being “punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years” and fine. Therefore, the view of the state is that since the petitioner could face imprisonment that could extend to 10 years” and fine. Therefore, the view of the state is that since the petitioner could face imprisonment that could extend to 10 years, the date for applying for ‘default bail’ would commence on the expiry of 90 days. However, according to the petitioner, the date for obtaining ‘default bail’ would commence on the expiry of 60 days.
Justice Lokur concluded that the petitioner had satisfied all the requirements of obtaining “Default Bail” he had put in pre than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet has been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.
Justice Gupta concluded as follows: Section 167(2((a)(i)of the code is applicable only in cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii)offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years; In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed.
The majority verdict concurred by Justice Lokur and Justice Deepak Gupta, the apex court said that “in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty”.
However one might argue that the person who is accused of an offence for which the punishment may extend to ten years may have the potential to tamper with evidence or witnesses or be at flight risk or might even commit another crime then what good is such liberty? Though such argument holds merit, ‘it’s a necessary evil for the greater good’. Sitting in jail isn’t anybody’s idea of a good time, and it also means that defendants can’t attend to their daily lives or work to support their families, many times the accused is found to be innocent or is convicted of lesser offence than he is charged with, or above all an accused may have to wait longer for trial than the sentence he might get if at all he is found guilty. Also keeping people in jail is an expensive affair for the State.
Reforms are inevitable, the question is that at what pace it is taking place. As rightly said by Justice Gupta” the Code was initially enacted in the year 1898. We are now in the year 2017. 119 years have elapsed. There have been huge technological advancements. We have moved from horse-carts to the space age. From telegraph, we have moved to the fast-changing vistas in the field of telecommunications including internet, wifi etc. Scientific investigation is the need of the hour”.
Nihit Chauhan and Kirti Tandon are LL.M. students at Maharashtra National Law University Mumbai