BAIL
This appeal was filed before the Supreme Court challenging the judgment of a Single Judge bench of the Madras High Court. In that case, the High Court dismissed the bail application of the accused by interpreting an earlier suo moto order by the Supreme Court to have extended the period of limitation for the investigation of an offence under Section 167(2) of the CrPC keeping in mind the extraordinary circumstances of the COVID-19 pandemic. The question before the Supreme Court was whether such an extension would affect the accused person’s right to apply for default bail.
The Supreme Court held that the learned Single Judge had erred in taking a view that the restrictions imposed by the government during the lockdown must override the right of an accused to seek default bail, despite the police failing to file a charge sheet within the time limit prescribed under Section 167(2) of the CrPC. The Court observed that such a view was not in accordance with law, as the earlier suo moto order by the Supreme Court in no way curtailed the indefeasible right of the accused to seek bail which is akin to the right to liberty of a person enshrined under Article 21 of the Constitution and reflected in provisions such as Section 167 CrPC. The Court observed that the prosecution could file a charge sheet even beyond the 60/90-day period without detaining the accused person. The Court also rejected the High Court’s view that the lockdown announced by the Government was akin to proclamation of Emergency, and observed that in any case, Article 21 rights such as default bail would not be suspended under an Emergency.
Subsequently, in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, another 3-Judge Bench of the Supreme Court referred to S. Kasi in its discussion, and held that the indefeasible right to default bail accruing after 180 days of remand (under the NDPS Act) without filing of police report would not be defeated merely because, subsequent to the filing of such application seeking default bail but before an order could be passed on the same, the investigating agency filed an ‘additional complaint’ against the accused person. The Supreme Court also observed that where the accused has promptly exercised his right under Section 167(2) by applying for default bail and indicated his willingness to furnish bail, he cannot be denied bail on account of delay in deciding his application or erroneous rejection of the same, nor can the Prosecutor defeat the enforcement of the accused’s indefeasible right by subsequently filing a final report, additional complaint or even a report seeking extension of time..
In this case, a Public Interest Litigation (PIL) was filed by the National Alliance for People’s Movement challenging the categorisation of prisoners eligible for release on interim bail on account of spread of the COVID-19 pandemic in prisons by the High-Powered Committee (HPC) in Maharashtra. The HPC had categorised inmates into three categories – undertrial prisoners/prisoners facing a maximum punishment of 7 years or less, inmates undergoing a sentence above 7 years, and undertrial prisoners/prisoners convicted of serious economic offences and offences under Special Acts such as the Narcotic Drugs & Psychotropic Substances Act (NDPS Act), Unlawful Activities (Prevention) Act, 1967 (UAPA) etc. The petitioners contended that these categorisations were unreasonable and that the decision to temporarily release prisoners must be considered on a case-by-case basis. Further, they argued that prisoners convicted of life sentences must also be eligible for release without insisting that they would only become eligible if they had been released in the past or at least twice on furlough or parole.
The bail applicant in this case was accused of coercing a minor into having sexual intercourse with him by threatening to publicize her private pictures taken without her consent. The applicant contended that he was eligible for release on bail since the investigation was complete and the charge sheet had been filed. However, the prosecution submitted that the framing of charges would trigger the application of Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act), and the court must presume the applicant to be guilty of the offence and deny bail, until proven otherwise.
The Court had to determine the appropriateness of classification of of inmates by a High-Powered Committee in Maharashtra as per which they would be granted interim bail in an attempt to decongest after the spread of the COVID-19 pandemic
The Supreme Court held that the categorisation by the HPC cannot be termed unreasonable as the exclusion of certain categories of prisoners who were charged with serious offences was done with a view to prevent adverse effects on society at large. Further, prisoners serving a jail term of more than 7 years were not precluded from seeking ordinary bail in accordance with the law. The Court emphasised that the need to claim such interim relief arose due to the unprecedented circumstance of the COVID-19 pandemic and that the consideration for interim bail was not in the nature of a statutory right to bail based on legal considerations but in the nature of human right to safeguard health and decongest prisons. It observed that the pandemic could not be treated as a fortuitous situation to secure bail which would be otherwise prevented by the law. The Court clarified that if the release of the presently eligible categories of prisoners and the setting up of additional prisons do not achieve the purpose of reducing overcrowding in prisons, it would be possible for the HPC to modify the guidelines for the release of prisoners.
This case discusses the issue of default bail and the extension of maximum period for filing of chargesheet in UAPA cases.
The accused in the present case was remanded to custody by a Sub-Divisional Magistrate. After 90 days, an application for default bail was made by him but was dismissed. The question before the Court was whether the magistrate had the authority to extend the maximum period for investigation under the UAPA Act and whether the right to default bail would be extinguished upon the filing of the charge sheet, if an application for such bail was submitted but not decided.
The Supreme Court held that the right to default bail is not merely a statutory right under Section 167(2) of the Code of Criminal Procedure but is a part of the procedure established by law under the fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution. The Court opined that so long as an application for default bail is made on the expiry of the period of the 90-day period, which need not be in writing before the charge sheet is filed, the right to default bail becomes an indefeasible right of the accused under Section 167(2). Further, the magistrate has no power to grant an extension on the maximum period for filing of chargesheet, the power for which vests only in either the Sessions Court or the Special Court so designated. On the question of which court was competent to try the case, the Court held that in the absence of any designated Court being specified through a notification issued by the Central or State government, it would be the Court of Sessions alone that can try the matter.
This case discusses the right to default bail.
The appellant in this case was arrested and remanded to judicial custody for allegedly committing an offence punishable under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act). Upon the completion of the 180-day remand period, the appellant was granted bail by the trial court on the ground that the charge sheet had not been filed within the period prescribed under the law. This order of the trial court granting bail was set aside by the High Court on the ground that an additional complaint had been lodged against the accused during the course of the bail application, and before the court could hear the matter. The matter came up to the Supreme Court on appeal.
The Supreme Court held that the indefeasible right to default bail is exercised on the submission of the application to the court. The Court held that the right cannot be defeated by submitting the chargesheet before the application is disposed of or before the accused has furnished the bail bond, or by requesting an extension after such application has been made. In addition, the Court impressed upon the need for the counsel for the accused and the magistrate to inform the accused of the availability of this right once it accrues to them. The Court emphasised that in matters of default bail, the courts must not adopt a rigid or formalistic approach as the safeguard of default bail is intrinsically linked to an accused person’s fundamental right to life and personal liberty under Article 21 of the Constitution. The Court opined that the intent of the legislature was to balance the need for prescribing sufficient time limits to complete investigation with the need to protect the civil liberties of an accused person.
This case is on the question whether protection under Sec. 436-A of the CrPC is available during appeal.
The petitioner in this case was convicted for various offences under the Indian Penal Code (IPC) and sentenced to terms of imprisonment ranging from three to ten years. During the pendency of the appeal , the petitioner sought the suspension of his sentences and release on bail. This application was rejected by the High Court. On appeal to the Supreme Court, the petitioner contended that he was eligible for release under a liberal interpretation of Section 436A of the Code of Criminal Procedure which lays down the maximum period for which an undertrial prisoner can be detained. The State argued that this provision had no application in the present case.
The petitioner’s plea that an appeal is an extension of the trial was rejected. The Court analysed Section 436A of the Code of Criminal Procedure in detail and held that the benefit of such a provision can only be extended to an undertrial prisoner and not a convicted prisoner. As per this provision, only persons who had undergone detention for a period greater than one half or more of their maximum prescribed punishment during “investigation, inquiry or trial” were eligible for release without a personal bond or sureties.
The present petition had been filed challenging the grant of default bail under Section 167(2) of Cr.P.C. to a person accused of offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), without hearing the informant under Section 439(1)(A) Cr.P.C
The Kerala High Court held that the right of an accused to seek bail under Section 167(2) accrues upon the default of the IO in concluding the investigation within the requisite time. This right under 167(2) is an indefeasible right unlike Sections 437, 438 and 439 where grant of bail is a matter of judicial discretion. The Court also held that the mandate of hearing the victim/informant, as provided under Section 439(1)(A) Cr.P.C. is not meant for bail application under Section 167(2) and Court hearing the victim in case of default bail will only be a mere formality.
In the course of the proceedings, the Court also observed that in several documents and pleadings produced before the High Court, the identity of the victim had been disclosed either directly or indirectly. The Court noted that there is no system in place to maintain victim anonymity in POCSO cases. According to the Court, there was no procedure to ensure the disposal of documents produced in sealed covers after final disposal of the case and it was found that the registry had been insisting on copies of documents that reveal the identity of the victims. In this regard, the Court issued guidelines to be followed to maintain victim anonymity. The key points are as follows:
In determining the identity of the victim, the criteria that can be used shall include the entity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim etc.
In all proceedings instituted by or on behalf the of victim, the documents in which the identity of the victim is disclosed shall be filed in sealed covers.
The registry shall designate an officer for the proper custody of these sealed covers and provide the officer the necessary infrastructure required for keeping safe custody of these documents. Such an officer shall be bound by the highest standards of confidentiality.
The registry shall forward these sealed documents in a self-sealing envelope/bag of the appropriate size, preferably having a tamper proof seal and after affixing specific details and signatures on it.
If these sealed documents are opened by the court for perusal during the trial, after the procedure, they shall once again be freshly sealed and labelled.
The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties.
Lawyers appearing against the victims in the case shall be allowed to peruse the sealed cover documents only with the permission of the court and in a manner that follows the aforementioned guidelines.
Section 43D(5) of the Unlawful Activities Prevention Act, 1967 (‘UAPA’), requiring courts to deny bail when reasonable grounds exist for the belief that the suspect is guilty.
The Court held that the limitations on granting bail under Section 43D(5) do not oust constitutional courts’ ability to grant bail in case of fundamental rights violations. Upon coming to this conclusion, the bench opined that statutory provisions against the grant of bail would not apply when there is no likelihood of the trial being completed within a reasonable time and where the respondent has already undergone incarceration for a period exceeding a substantial part of the prescribed sentence. [Para 18] Hence, although Section 43D(5) allows courts to refuse bail, a balance must be struck between protecting the appellant’s right to lead evidence and prove the charges beyond any reasonable doubt and the respondent’s rights under Part III. [Page 12]
The Court’s holding in Najeeb is a concession that the practice of bail under UAPA’s provisions may operate in a way that impermissibly infringes the accused’s fundamental rights. Thus, while the decision in Najeeb takes a welcome step by allowing constitutional courts to enforce fundamental rights by ignoring the statutory provisions – it leaves one wondering what that means for the constitutionality of the statutory provision itself, and why non-constitutional courts are constrained by these provisions despite them admittedly producing unconstitutional outcomes.
Section 12 of the Juvenile Justice (Care and Protection of Children) Act (‘JJ Act’) stipulating the conditions under which a juvenile offender can be granted or denied bail.
The Court held that the lower courts did not satisfy the conditions stipulated under Section 12(1) of the JJ Act as there were no reasonable grounds for the lower court’s belief that the juvenile would come in contact with known criminals or some other moral, physical or psychological danger that would defeat the ends of justice. [Para 8] The Court opined that the JJ Act contemplated granting bail to the child in conflict with the law irrespective of the gravity of the offence alleged – and the decision to deny bail has to be based on the circumstances revealed in the social investigation report. The social investigation report is aimed at understanding the child’s circumstances, living conditions, and other factors that could have contributed to the offence. A thorough assessment of the report is not meant to discover evidence regarding the alleged offence, but for courts to scrutinise a juvenile’s emotional, physical, socioeconomic circumstances, including information received from neighbours, family members and probation/child welfare officers regarding the rehabilitation of the child [Paras 15-16].
The decision marks a progressive step towards mandating evidence-based assessment of bail decisions in cases involving children in conflict with the law. However, the severe shortage of Probation Officers in juvenile homes, the meagre pay given to them, and the strain from heavy caseload are very real infrastructural problems that plague the rehabilitation ideals of juvenile homes.
Guidelines on gender sensitivity in bail decisions in cases of sexual violence.
The appeal stemmed from an order of the Madhya Pradesh HC granting bail to an accused of sexual harassment on the condition, inter alia, that he would request the victim to tie a rakhi on his wrist.
Terming the High Court’s order as “wholly unacceptable,” the Supreme Court rejected the use of reasoning trivialising the trauma of the survivor or using gender stereotypes while deciding cases of sexual violence. [Paras. 33, 42, 45] In doing so, the Court issued several guidelines for imposing bail conditions. The guidelines require courts to protect survivors from being contacted or harassed by the accused, immediately inform the survivor of the grant of bail to the accused, and avoid reflecting patriarchal notions about women in bail conditions. While setting aside the impugned order, the Court held that under no circumstances can courts entertain compromises or mediation between the accused and the survivor or rely on stereotypical language about women. [Paras. 44-45]. Importantly, the Court recognised the need to train members of the profession, including judges, in gender sensitivity – and directed BCI and the National Judicial Academy to take requisite steps.
Even though the decision in Aparna Bhat is an isolated instance of institutional self-critique, it is a welcome step towards a more progressive and sensitised judiciary, especially if the gender sensitisation programmes become a matter of reality in judicial academies and universities. University curriculum have courses on feminist legal thought only as electives, if at all. And this has remained true despite continued evidence of influence of ‘rape myths’ and other stereotypes in judicial decision-making in cases of sexual assault and rape, as argued recently by Tarika Jain and Shreya Tripathy for the P39A Criminal Law Blog.
Temporary protection from coercive action to an accused in an order rejecting their anticipatory bail application.
The Court noted that the only guidance provided for a case where an application for anticipatory bail is rejected is in the proviso to Section 438(1), CrPC per which it is open to the police to arrest the applicant. [Para 19] However, noting that the interpretation of Section 438 implicates an accused’s Article 21 rights, the Court held that it cannot be interpreted to place limits on the High Courts’ inherent powers under Section 482 CrPC [Para 20, 21] The Court held that there may be exceptional circumstances – such as the accused being the primary caregiver or breadwinner of their families and needing to make arrangements for their care – where High Courts can grant protection to the accused from arrest for a specific period despite rejecting the application for anticipatory bail. [Para 24] The Court observed that an order exercising such discretionary power must be reasoned and narrowly tailored to account for the interests of the accused and the concerns of the investigating authority. [Para 25]
The ratio of the case seems to be progressive in locating the power to limit coercive action in Section 482, CrPC, thus allowing High Courts to go beyond Section 438, CrPC. However, it is notable that the Court ultimately rejected relief on grounds that the relief granted by the High Court for 90 days was too long, and no independent analysis was made under the Supreme Court’s own inherent powers to consider whether a similar relief for a shorter duration may be granted. Our concern with locating this limitation on coercive action as an exercise of inherent jurisdiction, as opposed to reading it as an anticipatory bail relief granted for a limited period, is precisely the nebulous boundaries of ‘inherent powers’ and the often unguided way in which they are (or are not) exercised. Further, while anticipatory bail may be granted by both the Sessions and the High Courts, freedom granted in exercise of inherent jurisdiction cannot be granted by Sessions Courts at all.
Grant of bail under Section 12 of the Juvenile Juvenile Justice Act, 2015 (JJ Act) to a child in conflict with the law (CICL) over 16 years of age.
The Court referred to the Supreme Court’s directions in Re: Contagion of COVID 19 Virus in Children’s Homes (2020) 15 SCC 280 regarding the release of children from Observation Home, subject to the risk of exposure to psychological/moral/physical danger as provided under Section 12, JJ Act. The Court clarified that the distinction between CICLs below and above the age of 16 years is only provided with respect to inquiry by the Juvenile Justice Board or trial by the Children’s Court under Sections 15 and 18(3) of the JJ Act, and that there is no such distinction when it comes to grant of bail under Section 12 of the Act. [Para 13] Thus, age is an irrelevant factor in the decision of release.
The COVID-19 pandemic has only highlighted the existing vulnerability of children in conflict with the law, particularly of those above the age of 16 years who the law denies the right to be read as a ‘child’. Even as the trial processes themselves treat these children as ‘adults’, it is imperative that their bail decisions be determined by the relaxed standards laid down in the JJ Act to prevent victimisation of the undertrial CICL and to also protect them from the recidivism encouraged by prolonged life in incarceral settings.
Interpretation of the 90 day remand period under Section 167, CrPC.
Court held that at the time of remand under Section 167, the Magistrate is duty bound not to order further detention if the requirements of arrest under Section 41 CrPC are not met [Para 103]. The Court further held that a writ of habeas corpus can lie against an order of remand under Section 167 only if the order is absolutely illegal, afflicted with lack of jurisdiction, or passed in an absolutely mechanical manner. [Para 63] In addition, it was held that superior courts can also exercise remand powers; and the broken periods of custody would cumulatively be considered towards the statutory period of 90 days after which the accused becomes entitled to default bail [Para 67]. Needless to say, actual detention undergone will be counted towards this period even if the order leading to that remand was itself held to be defective [Para 90]. At the stage that the Magistrate is considering the remand report under Section 167, the accused can file an application for bail before the Court of Sessions or High Court under Section 439 even though an application under Section 397 does not lie against the remand. [Para 60] The Court also commented on transit remand, holding that such remand is like police custody under Section 167 and also would be counted towards the statutory period. [Paras 76, 78] As for house arrests, the Court held that it is a form of custody and may be ordered as such under Section 167, CrPC [Para 138-139]. However, the Court held that the High Court had not intended to pass the order of house arrest as an order of custody; rather, it was passed as a softer alternative to ‘actual incarceration’. Since this was the case, in the present facts, the order of house arrest was not one of remand passed under Section 167, CrPC and will therefore not count towards the statutory period [Paras 134, 136].
The decision, while acknowledging the general custodial nature of house arrests, has carved out an exception for cases where the Courts passing the arrest order did not intend for the order to be one of custody, and instead intended it as a softer alternative to incarceration. It is arguable that, in all cases, an order for house arrest is a softer alternative to ‘incarceration’ as traditionally understood. Nevertheless, that should not change its fundamental character as an order of custody. This underlying doctrinal confusion comes out in the order of the Bombay High Court granting bail to Sudha Bhardwaj where, again, the period of house arrest was excluded from the computation of the period under Section 167 by relying on the ruling in Gautam Navlakha. By basing its decision on the ‘intention’ of the judges passing the order, and not the order itself, the Court seems to have gone beyond the realm of adjudication
Whether anticipatory bail applications under Section 438 of the CrPC are maintainable in cases under the Juvenile Justice Act, 2015 (‘JJ Act’)?
The Court held that the ‘apprehension’ of a child in conflict with the law as provided for in Section of the JJ Act is at par with the ‘arrest’ of a person as provided for under CrPC. Further, the language of Section 12 of the JJ Act, which makes provision for granting bail to children in conflict with the law, does not bar the child’s right to seek anticipatory bail. [Para 13] The objective of the JJ Act was to benefit children, and it cannot be used to curtail their liberties [Para 16]. Thus, the applicant’s anticipatory bail application was considered maintainable. [Para 20]
Section 438, CrPC provides for anticipatory bail where ‘any person has reason to believe that he may be arrested’. Section 12 of the JJ Act, 2015 only provides for ‘apprehension’ of the child in conflict with the law, not their ‘arrest’. The Gujarat HC pierced through these semantics and looked at the crux of the matter – liberty – and held that arrest and apprehension are at par. This interpretation, however, did not find favour with two Punjab and Haryana and Telangana High Courts decisions passed in 2021. They, absurdly, hold that such an anticipatory bail application is not maintainable since an accused under the JJ Act, 2015 cannot apprehend ‘arrest’ at all, highlighting the need for a final resolution of this issue by the Supreme Court.
Whether a request made by the Investigating Officer (‘IO’) may substitute the Public Prosecutor’s report required to extend the detention period of the accused beyond 90 days under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act (‘UAPA’)?
The Court examined Section 43D(2)(b) in consonance with the Supreme Court’s decision in State of Maharashtra v. Surendra Pundlik Gadling to conclude that the status of a Public Prosecutor was that of an independent statutory authority and not as a part of the investigating agency. [Para 7] The mandate of a Prosecutor requires them to scrutinize the reasons given by the IO for extending the detention period and check the IO’s discretion [Para 8], and thus the IO’s request cannot substitute the requirement of the Prosecutor’s report.
A prosecutor is supposed to act, not as a partisan representative, but as an independent officer of court, and has therefore been designated under Section 43D(2)(b). However, prosecutors themselves often conflate these in an adversarial system – and there is rising concern of the dwindling independence of prosecutors from the investigating authorities, diminishing the safeguard in Section 43D(2)(b).
Accused’s right to release on default bail under Section 167(2), CrPC.
The Court held that, where the maximum period for investigation (60 or 90 days) under Section 167(2) elapses without filing of a chargesheet, the accused acquires an indefeasible fundamental right to default bail. [Para 18 – 21] Further, the relevant Court is required to apprise the accused of this right on the 60th and 90th days of custody. Relying on the Supreme Court’s decision in Rakesh Paul, where an oral application was considered to constitute ‘availing’ the right to be released on default bail, the Court held that even an email asking for a bail hearing will be considered to be sufficient exercise of this right [Para 27]. In this case, the email was sent on the same day as the filing of the chargesheet. However, since the Status Report did not contain the time of filing the chargesheet, it could not be decided whether the email was received before the chargesheet was filed. [Para 30] However, the Court considered it a mere procedural technicality and upheld the accused’s right to be released on default bail. [Para 33,34]
In a welcome trend, recent jurisprudence has focused on moving the law of default bail away from procedural technicalities towards a framework that respects the linkages between the provision for default bail and the accused’s right of personal liberty under Article 21 of the Constitution. The stress on removing procedural hurdles put by decisions like Rakesh Paul and Abhishek needs to be replicated across cases. In particular, the recent order of the Bombay HC granting bail to Sudha Bhardwaj while denying it to other co-accused persons raises questions on the requirement that the accused ‘avail’, orally or in writing, of their ‘indefeasible’ right to be released (see here).
Simultaneous filing of charge sheet and application for default bail.
The court held that it is a misconception that time is a deciding factor for the grant of default bail if the bail application and the charge-sheet are filed on the same day. The right to file for default bail is accrued to the petitioner after the expiration of the investigation period, i.e. on the 181st day. However, the charge-sheet has to be filed before the expiration of the 180-day period. [Para 15 – 17] Thus, even if the charge-sheet is filed before the bail application on the day the right is accrued to the accused, the bail application can be admitted. However, if the charge-sheet is filed subsequent to the accrual of the right, which was not exercised by the accused, then the bail application would not be heard. [Para 18] The date of expiry of the period in Section 167(2) had been a court holiday in this case, and the prosecution had relied on Section 10 of the General Clauses Act to argue that an action done on the next working day is deemed to be an action done on the day itself. The Court ruled that the General Clauses Act would not apply to the investigating agencies for filing charge-sheets, and the extension of remand can only be done in accordance with Section 167(2) C.r.P.C. [Para 35,38]
This ruling clarifies an important and controversial point of law with respect to default bail under Section 167(2). Various rulings by different fora before have come to the opposite conclusion – that, in case of simultaneous filing, it would be the chargesheet that would prevail. There is a need for an Apex Court ruling to bring consistency into this aspect of the law, in a way that is compatible with personal liberty.
