Recently, a Division Bench of the Supreme Court delivered its judgment in Central Bureau of Investigation v. T. Gangi Reddy [Crl. Appeal No. 337 of 2023, decided on 16.01.2023; "Gangi Reddy"]. The CBI had gone up to the Supreme Court against an order of the Andhra Pradesh High Court from March, 2022, and what it wanted was to cancel the bail of the Respondent, who was one of multiple accused persons in the case concerning the murder of a former minister, Y.S. Vivekananda Reddy.
Petitions challenging bail, either because bail orders are unreasoned or because the accused violated the terms of bail, are quite common. What made Gangi Reddy different (not unique) was that the bail order in question was what is colloquially called 'default bail' — bail granted under Section 167(2) of the Criminal Procedure Code, 1973 ["Cr.P.C."] because police failed to complete the investigation within the specified timeframe, which in cases of murder is ninety days.
The CBI contended that the High Court was wrong in concluding that default bail could not be cancelled for considerations such as the factual merits of a case [Paras 1-2, Gangi Reddy]. The Supreme Court agreed with the CBI, invoking a line of precedent stretching back to 1977, and set aside the High Court's order directing it to reconsider the CBI's plea.
Well, this is what the proceedings look like if we take a bird's eye view. Once we opt for a close-up, things start to appear less straightforward.
The Contentions in Gangi Reddy
The High Court's order dismissing the CBI's plea for cancellation of bail is available online. It is a lengthy order, and extracts the submissions of the CBI in detail, which were largely premised on demonstrating to the court that allowing the accused to remain on bail posed a real and perceptible threat of his tampering with evidence and harassing prosecution witnesses. The High Court dealt with these submissions at length and found that there was insufficient material to suggest that the accused was engaging in such conduct.
So, at least upon a perusal of the order itself, the issue that the CBI placed before the Supreme Court was not directly in issue before the High Court at all. There is no sentence to suggest that High Court had, in as many words, held that an order of default bail cannot be cancelled upon considering the merits of the case at a later stage.
At best, what we can do is infer the High Court said this by reading its discussion on the law regarding bail, where the court did not make the effort to positively state this proposition and merely noted that bail can be cancelled due to circumstances suggesting the accused misused his liberty.
For reasons that are, therefore, unclear, the proceedings took an abrupt turn at the Supreme Court where not only did the CBI base their case upon a tangential finding in the impugned order, but even counsel for the respondent do not appear to have tried any course correction and instead justify an imaginary stand attributed to the High Court.
Peculiar indeed.
A Subtle, and Incorrect, Shift in the Legal Position
Gangi Reddy professes to stick to precedent in arriving at its conclusion, which requires to be reproduced in full:
"The issue involved in the present appeal is answered in the affirmative and it is observed and held that in a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody." [Emphasis mine]
Again, at a bird's eye level, there is not much different in what the Court has held here to what was held in Bashir & Anr. v. State of Haryana [AIR 1978 SC 55] when the issue first came before the Supreme Court. Bashir, Raghubir Singh [AIR 1987 SC 149], Rajnikant Patel [AIR 1990 SC 71], Aslam Babalal Desai [AIR 1993 SC 1], and now Gangi Reddy, all sing in unison that the mere filing of a chargesheet is not a good enough basis to cancel bail granted under Section 167(2), Cr.P.C. So far, so good.
The problem emerges when we look at what all of these decisions prior to Gangi Reddy had said about what might actually be good grounds to cancel the bail granted under Section 167(2). It starts with Bashir, where the Court held that:
"The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a nonbailable offence and that it is necessary that he should be arrested and committed to custody." [Emphasis mine]
The test, if it can be called one, was that the court "should consider it necessary" to cancel bail, and one of the circumstances which could deem it necessary was the emergence of sufficient grounds that the accused had committed a non-bailable offence and that his arrest was necessary. Not 'or' the arrest is necessary, but a twin condition, requiring separate findings on why the arrest was necessary.
Then comes Raghubir Singh, where the Court held that:
"The order for release on bail may however be cancelled under s. 437(5) or s. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to s. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed." [Emphasis mine]
Again, a recognition that there is an additional ground for seeking cancellation of bail when it comes to an order under Section 167(2), but framing it as not merely being the emergence of reasonable grounds that the accused committed an offence but an additional requirement that this makes his arrest necessary. As the Court itself noted, in such cases "one would expect very strong grounds indeed".
Which brings us to the judgment in Aslam Babalal Desai, the only Three Justices' Bench decision in this line of precedent where, remarkably, all three Justices penned different opinions. On an outcome basis, it is recorded as a 2-1 split where Ramaswamy J. in his separate opinion (startlingly bereft of clarity) agrees with Ahmadi J.'s opinion, and Punchhi J. dissents.
What exactly is the dissent regarding? It is about equating bail under Section 167 with one under 437 or 439 — the minority disagrees with treating the deeming fiction in Section 167 this way, and insists that a default bail cannot be deemed as being the same one on merits. For the minority, it is because default bail is different that there is a separate, "singularly sufficient", ground for cancelling such bails: emergence of sufficient grounds to believe the accused committed the offence and that his arrest is necessary. Therefore, the "strong grounds" referred to in Raghubir were nothing but the merits of a case.
Ahmadi J. gave the deeming fiction its fullest expression, finding that Section 167 was the manifestation of the legislative anxiety when it came to pretrial detention and personal liberty. This led him to conclude that while default bail under Section 167 could, naturally, be cancelled too, it could not be "interfered with lightly" on the grounds of filing a chargesheet. Rather, to cancel bail there must be "special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime." [Emphasis mine]
The majority and minority both agree that the merits matter when entertaining a cancellation of bail that was granted under Section 167(2). Where they differed was whether the merits are "singularly sufficient" — the majority clearly said that the special reasons to cancel bail must be besides the fact that today there is a chargesheet which reveals the commission of a non-bailable crime.
Finally, we can return to Gangi Reddy. Take a close look at how the Court now framed the special reasons / strong grounds issue in the extract that was reproduced above: "special reasons being made out from the chargesheet that the accused has committed a non-bailable crime ... strong case is to be made out that the accused has committed a non-bailable offence and he deserves to be in custody." This is clearly not what was held by the majority in Aslam Babalal Desai, but speaks to the minority.
This incorrect attribution of what was the actual holding in Aslam Babalal Desai is even more pronounced at Para 9 of Gangi Reddy, where while summing up this earlier judgment the Court notes that bail cannot be cancelled on the mere filing of a chargesheet but upon "making out a special and strong ground that commission of non-bailable crime is disclosed from the chargesheet." With the greatest respect, this is not what the Court held, but only what the minority held in that case.
Even in its reasoning, the Court in Gangi Reddy is inspired not by the majority but the minority in Aslam Babalal Desai. Where the majority saw Section 167 as an expression of legislative anxiety that merited the fullest protection of the courts, the minority opinion of Puncchi J. spoke of how bails under this clause could be "managed through a convenient investigating officer, however heinous the crime" and decried the resultant injustice if courts were denied powers to cancel such bails. Fast-forward thirty years to Gangi Reddy, where the bench was eager to emphasise the perils of limiting the powers of court to cancel bails given that there would be cases where the accused "manages through a convenient investigating officer ... not to file the chargesheet ... giving a premium to illegality and / or dishonesty."
Post-Script: Course Correction in an Alternate Reality
It is unclear whether the Supreme Court in Gangi Reddy even had to decide the issue of whether the merits of the case disclosed in the chargesheet cannot be considered in a plea for cancelling a default bail order that is passed under Section 167(2). Nevertheless, it took up the issue, and reiterated the existing position that merely filing a chargesheet was not good grounds to cancel a default bail order.
However, much like all the earlier occasions on when it considered this issue, the Supreme Court in Gangi Reddy was remarkably unclear in what can be good grounds to cancel an order of default bail. If anything, it appears that the Court has preferred a subtle, yet incorrect, shift in the legal position by relying upon the view of a minority opinion in an earlier decision as against what the decision had actually held. Therefore, Gangi Reddy requires reconsideration.
In an alternate reality, where such a reconsideration does occur, one would hope that the Court takes a long hard look at what prompts this confusion — locating the power to cancel bail under Section 437(5) and not only under Section 439(2). By extension, it would mean not equating a bail order with granting bail under Section 437, but under Section 436. This is not outlandish, but what giving fullest expression to the deeming fiction would look like, and a view that was endorsed by the Division Bench of the Delhi High Court in Noor Mohammad [ILR 1978 Del 442].
Unlike the approach in Gangi Reddy which views Section 167(2) bail orders as a mere technicality that should be treated with suspicion and cast aside at the first available opportunity, Noor Mohammad gives us a glimpse of just how significant the introduction of this clause was within the criminal justice landscape at the time, and why courts stood up to ensure that it was given the fullest protection.
That is the subtle, and necessary, shift in the legal position we require.
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