‘It is imperative that the three-judge bench of the Supreme Court hearing the matter does not sacrifice procedural propriety at the altar of administrative convenience’. Photo Credit: Sushil Kumar Verma
The May 1 order of the Supreme Court of India seeking withdrawal of its judgment in Ritu Chhabria v. Union of India at the urging of the Solicitor-General of India, Tushar Mehta, has become a cause for concern. among legal professionals. Apart from the questionable legality of the Court ‘withdrawing’ its own decision, there is also concern as to how this order will affect the rights of the accused to be released from custody. On May 12, in its interim order, the Supreme Court clarified that courts can grant default bail independently and without relying on the Ritu Chhabria judgment. However, the Court’s decision to suspend the rights of defendants in criminal cases would further erode the constitutional rights of the accused and deviate from the fundamental principles of criminal procedure.
right of default bail
The right to statutory bail, often referred to as default bail, is available to accused persons in cases where the investigating agency fails to complete its investigation within the stipulated time. Under Section 167(2) of the Code of Criminal Procedure (CrPC), the maximum time available to investigators is 60 or 90 days, depending on the gravity of the offence. If the authorities are unable to complete the investigation within this time period, the accused may seek release from custody by applying for default bail under the first provision of Section 167(2) of CrPC. Notably, the ‘default’ feature of this bail comes from the fact that the application is not related to the merits of the case, and is designed to prevent long-term detention of the accused.
The right to default bail has been depicted by the Court in several judgments as an inalienable right, which stems from Article 21 of the Constitution which guarantees the right to life and personal liberty. Therefore, in cases where the investigating officers tried to circumvent this process, the court justified these tactics and refused to extend the custody of the accused. In Achpal v. State of Rajasthan (2018), the court held that an investigation report, even if complete, if filed by an unauthorized investigating officer, cannot prevent the accused from availing default bail. S. In Kasi v. State (2020), the court further held that even during the COVID-19 pandemic, no relaxation would be given to the investigating agencies in computing the maximum prescribed period of investigation, which can lead to additional detention of the accused.
This interpretation is drawn from the history of Section 167 CrPC, which has its roots in the recommendation of the 41st Report of the Law Commission. Under the old version of the CrPC, accused persons could be detained for a maximum period of 15 days. Taking note of the misuse of this provision by the police, who kept the accused in custody for an extended period by abusing other provisions relating to trial, the Law Commission recommended increasing the period for which an accused is detained May go. It came into the CrPC through an amendment in 1978. To counter the powers given to the investigating officers through extended detention, a provision for statutory bail was also introduced to ensure that the accused are not detained for long. ,
no bar here either
Unfortunately, these safeguards guaranteed to the accused were also removed in practice, as the investigating officers regularly filed incomplete or supplementary charge sheets within the period of 60/90 days to prevent the accused from seeking default bail Was. In other cases, the Investigating Officer shall file the charge sheet after a period of 60/90 days but before default bail application is filed by the accused, incomplete or otherwise. The Supreme Court’s judgment in the case of Ritu Chhabria invalidated such illegal actions and held that an incomplete charge sheet filed by the police would not prevent an accused from applying for default bail. The Court emphasized that the preliminary or incomplete nature of these police reports showed that the investigation was not complete.
Most importantly, the Court did not make any fundamentally new propositions in the Ritu Chhabria case. Rather, it was drawn from earlier decisions such as Uday Mohanlal Acharya v. State of Maharashtra, which delineated the constitutional foundation of the right of the accused to obtain statutory bail. Thus, Ritu Chhabria did not create any additional hurdle in the investigation. Rather, highlighting the inalienable nature of the right to seek default bail, the court in Ritu Chhabria simply reiterated that an incomplete charge sheet cannot prevent the accused from seeking release on default bail.
This is further seen in other judgments which have diverged from Ritu Chhabria on questions of fact. For example, in Jasbir Singh (2023), the Supreme Court held that a complete charge sheet filed within time could not be quashed because there was no sanction for investigation. Given these possibilities, it is not clear why the Court would want to consider the possibility of setting aside the judgment on legally tenuous grounds.
The decision is particularly pernicious because the right to default bail, which has so far been interpreted as flowing from the Indian Constitution, may be subject to concerns of ‘difficulties’ potentially faced by the investigating authorities. What makes the matter even more serious is that even the Supreme Court has agreed to defer the decision on default bail for accused across the country, which would have been decided according to Ritu Chhabria. Given the serious implications of this judgment on the constitutional rights of the accused, it is imperative that the three-judge bench of the Supreme Court hearing the matter does not sacrifice procedural propriety at the altar of administrative convenience.
Priti Pratishruti Dash is an assistant professor of law at the National Law School of India University, where she teaches criminal law and procedure.