(This is a guest post by Raunaq Jaiswal and Eesha Mohapatra. Views are personal)
That procedure is the handmaiden of justice, and any interpretation of a rule of procedure which eludes substantive justice is not to be followed is a now well settled principle of law. Procedural Law can never be a tyrant. So naturally, when a person is arrested on mere suspicion, procedure dictates they have to be produced before a magistrate. But when the handmaiden of justice metamorphosizes into a tyrant, it is difficult to tell, because understanding procedure and applying it to do substantive ‘justice’ is easier said than done. Procedure was arguably there as a letter of law when ADM Jabalpur is being decided, yet justice is arguably not. When procedure is a handmaiden, and when it is a tyrant is definitely a case of blurred lines.
One such statutory provision which encapsulates this blurring of line is Section 167(2) of the Code of Criminal Procedure, 1973. This provision encapsulates one of the most important handmaidens of justice—the procedure for ‘default bail’. The procedure for default bail sits uncomfortably with the principle of presumption of innocence to begin with, but both these procedures are meant to serve the dialectics of Lady Justice. It sits at odds with the principle of presumption of innocence because a strict reading of the principle would iterate that an accused person should not be spending even a day behind the bars as this would be an unconscionable interfere with their guarantee of presumption of innocence. This balance between the State’s duty to protect, against the individual’s right to liberty has not always been there, and it arguably took a state of emergency for the Government to reform the law of pre-trial detention.
Consider if such a procedure is allowed to be circumvented, as in the case of Mantoo Majumdar [AIR 1980 SC 487] — where Justice Krishna Iyer famously wrote that Art. 21 of the Constitution and s. 167(2) of the Criminal Procedure Code, are dead letter for each petitioner, two people who were kept behind the bars for nearly eight years. Their personal liberty was “subverted by the police, prison officials and the magistracy…[and the] State did not even furnish the basic facts about the imprisonment of the petitioners, the offences for which they were kept in judicial custody…”.
If what happened in Mantoo Majumdar continues to happen today, then a person may be accused of a crime and subsequently arrested on mere suspicion—and procedures such as investigation and chargesheet are not submitted on time, then the accused person’s liberty are abrogated indefinitely, i.e., a person is assumed to be guilty without being tried.
Liberty after Mantoo Majumdar
Mantoo Majumdar’s case could very well have been our own ‘never again’ moment, and we should have had better procedural safeguards against abuse of government machinery then and there. However, as a recent report published in this forum would indicate, that has not been the case. In theory at least, the rule of default bail imbibes a sense of necessity and urgency on the investigating officers to finish an investigation on time—which may result in a person being in custody (read behind the bars) for 60/90-day period on basically a mere assertion by the police—and if during this time the investigating officers cannot file the chargesheet, then the procedure dictates that after the 60/90-day period is over, and the chargesheet has not been filed, the accused person should be give default bail.
In practice, this simple rule has encountered quite a few interpretative difficulties, and different benches of the Supreme Court have added some variations to its interpretation over time. Illustratively, these relate to the matter and form of interpretation—relating to the principles for the computation of time in the 60/90-day clause; the meaning of ‘chargesheet’ and so forth. The point to note here is that a simple procedural rule, meant to aid justice has been made difficult in practice. Sanjay Dutt’s case (1994) had sought to rectify these muddied waters of the procedure to obtain default bail. They held that the accused’s right to default bail is indefeasible, and an accused can avail their right of default bail, if the investigating officers have not filed charge sheet (challan) before the end of the 60/90-day period. If they have filed the chargesheet by this period, then the accused can apply for other kinds of bail as per the CrPC.
The true meaning of “availed off” in Sanjay Dutt was the next ground of contestation. These lead us to some specific instances where the investigating agencies are filing the chargesheet at the very last moment of the 60/90-day period—and the contention of the public prosecutor in these circumstances is that since the chargesheet has been filed, it should have more weight than the application to enlarge the accused on default bail. In Uday Mohanlal Acharya, the Supreme Court had to adjudicate in one such case. In this matter, the Court held that the expression “if not already availed of… must be understood to mean…when the accused files an application and is prepared to offer bail on being directed.” It is however from the dissenting opinion of Justice Agarwal in Uday Mohanlal Acharya that a small lacuna in interpretation is created. Justice Agarwal suggests that Sanjay Dutt’s ‘if not availed off’ should be interpreted to connote “that if the challan is filed before any order directing release on bail is passed and before the bail bonds are furnished, the right under Section 167(2) would cease to be available to the accused”.
On a plain reading of the dissent, the personal liberty of an accused could be constrained beyond the 60/90-day period if a magistrate, for example, had not heard the default bail even on the 97th day, and in the meanwhile, a chargesheet has subsequently been filed. What is important to note in Justice Agarwal’s dissent is the constraining effect it would have on personal liberty of the construct of procedure is the handmaiden of justice, and it is meant to serve substantive justice. This dissenting opinion, based on a personal liberty constraining interpretation, was impliedly accepted by the Court in Pragyna Thakur (2011). By accepting this proposition, Pragyna Thakur’s ratio automatically came in conflict with Sanjay Dutt’s ratio.
Overturning Liberty Through a Flawed Precedent
The flawed interpretation of default bail procedure in Pragnya Thakur persisted for nearly a decade, during which numerous courts denied default bail to accused persons, relying on the incorrect reasoning (of the Pragyna Thakur ruling). In the meantime, another two-judge bench of the Supreme Court in Union of India v. Nirala Yadav (2014) had observed that the law laid down in Pragnya Thakur was incorrect and bad. However, it wasn’t until 2020, when a three-judge bench in the case of M. Ravindran v. Intelligence Officer, DRI, rectified this error and declared the Pragyna Thakur decision to be per incuriam, reaffirming the legal position established in Sanjay Dutt: that once the 60/90-day period for filing the chargesheet expires, the accused’s right to default bail becomes automatic, and the subsequent filing of the chargesheet does not invalidate this right.
However, despite the Supreme Court’s clear ruling in Ravindran, this correction has not fully permeated the district judiciary which continues to apply the erroneous Pragyna Thakur interpretation, thus creating a significant gap between Supreme Court doctrine and the trial court practice. This has resulted in denial of default bail unjustly leading to prolonged incarceration of individuals who should have been granted bail as a matter of right.
For instance, the Guwahati Hight Court in 2021 and various other district courts across the nation such as the Additional Sessions Judge, Bombay (2021), Chief Judicial Magistrate, Prayagraj (2022), the Judicial Magistrate, Allahabad (2022) appear to have denied default bail to the accused persons relying on Pragnya Thakur. This troubling pattern indicates that despite clear and authoritative guidance on the correct interpretation from the Supreme Court, lower courts are either unaware of per incuriam rulings or choose to disregard the careful application of the applicable legal precedents. To wit, the rule has been that procedure is the handmaiden of justice. Here there is a clear pattern where the ends of substantive justice are being defeated by procedure.
This brings us to an important problem which currently overwhelms the Indian Supreme Court, namely how their judicial opinions are not percolating down to the district court level again. Previously in Shreya Singhal (2015), the Supreme Court had held Section 66-A of the IT Act to be unconstitutional—only to find later that fresh cases were still being instituted under the said unconstitutional statute. These cases were essentially being filed and argued in ignorance of the law laid down in Shreya Singhal. In a similar fashion, the Supreme Court had held a part of Pragyna Thakur to be per incuriam—but we saw a similar pattern of misapplication emerging again.
This misapplication creates inconsistency, uncertainty and catalyses the metamorphosis of handmaiden of justice into tyrannical deprivation of the accused person’s liberty beyond the procedure established by law. Resultantly, we have a paradoxical bail jurisprudence—where the right to obtain default bail has been iterated to be a part of right to life under art. 21, yet the procedure to obtain default bail has been made a marketplace of uncertainty.
Where Do We Go from Here?
In a country like India, where the judicial process is often slow and cases can drag on for years, the denial of default bail can mean years of imprisonment without trial. This attacks the very essence of justice, as individuals who have not yet been proven guilty are effectively punished by the system. The persistence of this issue raises a fundamental question: where do individuals turn when the courts themselves are responsible for perpetuating injustice? Not every accused has the resource or the privilege to approach the top court when the lower courts fail to uphold their indefeasible right to bail. It is hardly a surprise that the plaintiffs in most authoritative bail cases are what one would term as elites, who have employed the legal doyens of the day. Not everyone has the privilege to do that.
This issue certainly calls for internal introspection, and stronger mechanisms of judicial accountability, especially in cases where personal liberty is at stake; and ideally greater efforts to ensure that Supreme Court rulings are uniformly applied across the country. One potential solution is for the Supreme Court to take a more proactive role in monitoring the implementation of its rulings through a judicial audits. This could involve issuing specific directives to lower courts or creating mechanisms for reviewing cases where lower courts are found to be applying outdated or incorrect precedents. Additionally, the National Judicial Academy as well as all State Judicial Academies through regular training of judges at all levels shall ensure that they are aware and updated of the recent Supreme Court rulings. It is as bleak a situation as it gets for a person who is accused of an offence. However, we hope that we may have our ‘never again’ moment soon, and hopefully, the future generations may not have to encounter a matter like Mantoo Majumdar or ADM Jabalpur.
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