If criminal procedure is an exercise of the law regulating how power (the State) can take away an individual's liberty to compel her to participate in the criminal process (as Foucault suggests), then Section 167 perhaps is the most important provision in the Indian Criminal Procedure Code of 1973 [Cr.P.C.]. In a country rampant for high rates of pre-trial detention, this provision limits how long such detention can (ordinarily) last during an investigation after arrest. The primary limit of 24 hours is honoured only in breach, and from there we move to steep cliffs: limits are placed at sixty days and ninety days depending on the kind of allegations initially levelled. If the police do not complete an investigation within this time by filing a Final Report / Chargesheet, then the accused is entitled to bail. This is popularly called 'default bail'.
Here, the devil is in the detail, and I've fleshed it out below to highlight the interpretation issue that arises:
- Detention can last up to ninety days for offences punishable with death, imprisonment for life, or imprisonment for a term not less than ten years;
- Detention can last up to sixty days for any other offence.
Now, how do we construe the phrase "imprisonment for a term not less than ten years"? Does it include offences punishable with a term from zero to a maximum of ten years as well, or does it only cover offences with at least a ten year prison term? I have briefly discussed this issue on the Blog, and very recently it was taken up by a three judges bench of the Supreme Court in Rakesh Kumar Paul v. State of Assam [SLP (Crl.) 2009 of 2017, hereafter Rakesh Kumar Paul]. A two judge majority held that only offences punishable with at least a term of ten years imprisonment could lead to detention for up to ninety days. The majority also held that it is not really necessary to file a specific application under Section 167 Cr.P.C. for being released on default bail, oral arguments could cover it too without specific written averments. In fact, the majority suggested that a court was required to assess the circumstances and apprise an accused if she was entitled to default bail and grant bail if an accused could furnish sureties. In this post, we focus on the first of these issues in detail.
Why was a bench of three judges hearing the issue? Because two different division benches had come to seemingly different conclusions in Rajeev Chaudhary v. State [AIR 2001 SC 2369] and Bhupinder Singh v. Jarnail Singh [(2006) 6 SCC 277]. In Rajeev Chaudhary, it appears that the Court held that offences must have at least a ten year term (I say 'appears' as the procedural history is dodgy and the majority and minority in Rakesh Kumar Paul fence over what the decision actually held; the majority found it prescribed a mandatory minimum while Pant, J. suggested the holding was ambiguous). As against this, in Bhupinder Singh the bench made obiter remarks implying that a mandatory minimum was the incorrect interpretation (Obiter, since the offence there was punishable under Section 304-B IPC with punishments ranging from a mandatory minimum of seven years to life imprisonment, thus placing it squarely within the ninety days column).
In Rakesh Kumar Paul, the allegations were under Section 13(1)(c) of the Prevention of Corruption Act 1988 which carries punishments ranging from a mandatory minimum of four years to a maximum of ten years. The Petitioner had filed a bail application after completing over sixty days in custody, which was dismissed. No Final Report / Chargesheet had been filed yet, but one was filed before expiry of the ninety day period. The High Court also dismissed the plea for bail. No specific averments were initially made in the bail application on 'default bail' but the plea was purportedly raised during oral argument, and addressed by the courts which held that an offence punishable up to ten years imprisonment was part of the ninety days category. Since the police filed a Final Report / Chargesheet within ninety days, there was no merit in the default bail claims.*
Majority v. Minority in Rakesh Kumar Paul
Lokur, J. has written the main majority opinion with which Gupta, J. concurs, while Pant, J. penned a dissent. Their conclusions have been mentioned above, but how did they arrive at these? The majority bases the holding on two prongs: (i) tracing the statutory history of Section 167, and (ii) locating this within a larger argument that personal liberty is prized under the Constitution and the Cr.P.C. The development of Section 167 Cr.P.C. unarguably shows how the provision came in 1973 to remedy a problem caused by the tight limits of a fifteen day detention period under the 1898 Code which were never honoured. The sixty - ninety day distinction came in through subsequent amendments in 1978, and Lokur, J. considered the text of the Amendment Bill (ultimately not fully incorporated) which read "imprisonment for not less than ten years or more" to conclude that the legislative intent was to only have offences with a clear sentence of at least ten years. He then grounds his argument in the idea that the Constitution and Cr.P.C. stress on preserving individual liberty, and a broader reading of Section 167 Cr.P.C. would defeat this larger objective. Both judges suggest that their interpretation honours the idea that only serious offences get the possibility of lengthy detention.
Before moving on to the minority opinion, a word about the concurrence by Gupta, J. According to him there is no ambiguity in the text of Section 167 Cr.P.C. which bars resorting to external aids to interpret the provision (for some reason the opinion keeps referring to the 1898 Cr.P.C. in this context and how 117 years have passed since the enactment without appreciating that Section 167 never existed in the erstwhile Code). However, he expressed concurrence with the reasoning of Lokur, J. which did not think so. This makes it difficult to understand the place of the concurrence itself.
The minority opinion does not think that the text is clear and again revisits the legislative history to draw legislative intent. But now Pant, J. turns to the speeches of the particular member of Parliament who moved the Amendment Bill in both houses of Parliament. He emphasises a count given by S.D. Patil that specifies to which offences would the ninety days clause apply - which lists out thirty-six offences as punishable under the category of "imprisonment for not less than ten years". Scanning the Indian Penal Code 1860 [IPC], Pant. J. demonstrates how this could only be if we include offences that also have a maximum of ten years imprisonment. Therefore, he disagrees with Lokur, J. that the legislative intent pointed to the opposite conclusion and finds that the plea for default bail ought to be dismissed in the present case.
Evaluating the Decision
The majority decision in Rakesh Kumar Paul is, unfortunately, rather problematic when one goes beyond the rhetoric of individual liberty that it offers. For this comes at the expense of engaging with the legal issue at hand. A broader problem is that while Gupta, J. agrees with the conclusions of Lokur, J., his reasoning on this issue differs materially but this remains unacknowledged and thus makes his concurrence carry a different weight. I highlighted one conflict above. The other comes when the judges compare the views in Rajeev Chaudhary and Bhupinder Singh. Lokur, J. suggests there is a conflict and specifically agrees with the view in Rajeev Chaudhary while Gupta, J. (correctly) finds there was no conflict, as the remarks in Bhupinder Singh were at best obiter.
The deeper problem with the majority opinion is the lack of intellectual rigour on display. Any law student will tell you that Pant, J. did not uphold the canon of statutory interpretation which says that the views of a large legislature cannot be attributed to the voice of a single participant in the house. Further, the minority opinion does not offer an explanations on why the words were dropped either. But the mere presence of those speeches in the minority opinion severely lessens the credit of the majority opinion. Not only does it convincingly show there is an ambiguity, but also shows us that Lokur J. did not fully engage with the legislative history before speculating on legislative intent. That doubt is damaging and one then can't stop wondering what else was missed out by the majority.
While I firmly believe that the possibility of pre-trial detention must be narrowly construed, the sad truth is that currently Section 167 Cr.P.C. does not allow this. The majority does not engage with the most important point made by the minority - that no offences in the IPC ever prescribed a minimum of ten years imprisonment. Which begs the question that why would the legislature use a language to describe the kind of offences that our penal code has never seen. Following the majority logic leaves out some serious offences - Attempt to Murder punishable under Section 307 IPC for instance - and therefore betrays the logic of the sixty - ninety day distinction being tied to the gravity of the offence which both majority opinions adopt.
Given that there was no prevailing conflict between the views of the Supreme Court in Rajeev Chaudhary and Bhupinder Singh, we can say that the Court has simply upheld the view in Rajeev Chaudhary by a 2-1 split in the present case. Sadly for us, the majority opinions lack conviction on the issue that was under discussion. Both Lokur, J. and Pant, J. hinted at the language of Section 167 Cr.P.C. being problematic, and it is apparent that the problems will persist without clear legislative intervention. Given how this opinion has simply upheld status quo - for Rajeev Chaudhary had already curbed the powers of investigative agencies on this front, it is unlikely that this will happen. Teleologically, perhaps that is for the best after all.
On another note, the majority opinion does warrant applause for liberalising the regime of default bail by placing a greater onus on the courts. It has long been acknowledged how accused persons continue to languish in custody despite being entitled to default bail, only because of poor legal assistance. While I have often seen trial courts apprising accused person's of their rights, a strict honouring of the Court's observations in Rakesh Kumar Paul can certainly further the cause.
*The Petitioner had also made an argument trying to construe the maximum period of punishment as seven years using the Lokpal and Lokayuktas Act 2013, which was roundly rejected by all courts hearing the case.