Guest Post: LIberty 'Defaulted' — The Unraveling of Section 167(2) in Our Lower Courts

(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.

Guest Post: How Long is Too Long? - On the Maximum Period that an Undertrial Prisoner can be Detained

(This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as 'undertrials' since 2018 and 2020, respectively. This piece is being published simultaneously with the Indian Constitutional Law and Philosophy Blog)

Dedicated to the fellow undertrial prisoners languishing in the prisons of India with the hope that the system would sooner than later wake up to their plight; and that one day prisons, if not still obsolete, would at least have become places where those proven guilty are held, and not places that incarcerate those who are presumed to be innocent.

The primary author would like to thank his co-defendants, Arun Fereira and Vernon Gonsalves, for the enriching discussions – stolen at times in the corridors of the court, at times on the drives to and from the court, and at times in the ‘After’ hours; Vernon, for his characteristically incisive remark ‘You need to think more!’ after going through – what I now realise was – a much cruder earlier version of this piece even before BNSS had kicked in; and Arun, whose name may have been among the authors had their Lordships not set him free, for owning the idea that the Code should have more provisions for statutory bail. Needless to say, neither of them is to shoulder the shortcomings of this piece.

Introduction

“How long is too long a period of incarceration as an undertrial for a court to conclude the right of speedy trial is defeated?”

This was a question raised by the Delhi High Court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, in the context of grant of bail for an undertrial prisoner. We raise a similar question regarding the maximum period of detention permissible by law for an undertrial prisoner. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Section that deals with the question of the maximum period that an undertrial can be detained, largely reproduces the language of its predecessor, Section 436-A of the Code of Criminal Procedure, 1973 (CrPC), the clause that no person should be imprisoned for a period exceeding the maximum period of punishment specified for his offence.

This essay argues that the existing law, which allows a person to be detained for a period equal to the maximum period of imprisonment specified as punishment for his offence only serves to legitimise the award of “surrogate punishment” equivalent to the maximum punishment to that person, without conducting trial and determination of the question of guilt or innocence of that person according to procedure established by law. Such a law has no place in the statute book if presumption of innocence is one of the cornerstones of criminal jurisprudence.

Further, if “bail, not jail” were followed in letter and spirit, the question of prolonged pre-trial detention would not arise. In practice, however, the combination of the question of ‘prima facie guilt’ – another principle that goes against the presumption of innocence – and the tripod test of the possibility of the accused tampering with the evidence, influencing witness and / or evading trial, together conspire against the grant of bail. In such circumstances, it is only those who can afford to hire expensive lawyers and knock the doors of the Constitutional Courts who can manage to secure bail. For the rest jail becomes the rule.

In such a scenario an act of balancing is called for. We argue for a judicial reading of the BNSS that will provide us with the framework of finding such a balance.

We set out by drawing a comparison between Section 479 of BNSS and its predecessor Section 436-A of CrPC. It can be seen that far from being an improvement on Section 436-A of CrPC with respect to reducing the period that an undertrial prisoner can be detained, Section 479 of BNSS is more restrictive in its application. Be that as it may, what makes Section 479 of BNSS problematic are certain anomalies we discuss below. We shall first take a look at Section 436-A of CrPC and then go on to Section 479 of BNSS before putting forth our suggestions regarding the maximum period of detention for an undertrial prisoner.

Section 436-A of CrPC

Section 436-A of CrPC was inserted in 2006, as it was found that there were undertrial prisoners detained in jails for periods beyond the maximum period of imprisonment provided for the alleged offence. It may be noted that in spite of this, undertrial prisoners are still languishing in prisons for periods longer than the maximum punishment specified for their offence, as in the case of Dipak Joshi in West Bengal, who came out of prison after 42 years following the intervention of the Calcutta High Court.

Apart from the stipulation that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence, Section 436-A of CrPC also has a provision that a person who has undergone detention for a period extending up to one half of the maximum period of imprisonment specified as punishment for his offence may be released if the punishment of death is not one of the punishments specified for the offence in question. In the prison parlance, this provision is referred to as ‘half ground’, and we shall use this term to refer to this clause. Unlike the maximum period of detention, the provision of half ground was not a statutory obligation and was subject to the Court’s discretion after hearing the Public Prosecutor.

In this article we shall be limiting our discussion to offences under the Indian Penal Code, 1860 (IPC) while discussing CrPC and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) while discussing BNSS. There are twelve offences in IPC for which death is specified as one of the punishments, and these offences were outside the purview of operation of 436-A for the purpose of half ground.

Section 479 of BNSS

Section 479 of BNSS corresponds to Section 436-A of CrPC. Unlike in the case of most sections, where BNSS just copies the CrPC provisions, in the case of Section 479 there are a few changes and considerable additions. There are three sub-sections to Section 479 of BNSS. While sub-section (1) reproduces the contents of Section 436-A of CrPC with some slight modifications and additions, sub-sections (2) and (3) are entirely new. We shall look at each of the sub-sections one by one.

Sub-section (1) of Section 479 of BNSS

In sub-section (1) of Section 479 of BNSS, offences punishable with death and imprisonment for life are mentioned to be excluded from the “half ground.” On our count, there are as many as 75 offences under BNS that have death or imprisonment for life as one of the punishments. While Section 436-A of CrPC excludes only 12 offences of the IPC from the ambit of half ground, BNSS excludes 75 offences from its ambit. If only offences punishable with death were excluded, by our count 16 offences of BNS would have been excluded from half ground.

As per Section 6 of BNS (which is almost a replica of Section 57 IPC), imprisonment for life is to be reckoned as equivalent to imprisonment for a period of twenty years for the purpose of calculating fractions of terms of punishment. So, for the purpose of “half ground,” a person who has been detained for an offence for which imprisonment for life is (and death is not) one of the punishments specified under the relevant law, that person would ordinarily have been eligible to be released on “half ground” after ten years in custody. However, that door is closed for such people under BNSS.

If BNSS takes a tougher view of offences punishable with imprisonment for life, as it considers them to be offences of a serious nature and wants to show no leniency towards persons accused of such crimes, there is hardly any room for argument. However, a look at Section 474 of BNSS (which corresponds to Section 433 of CrPC), which deals with the power of the government to commute sentences, would make us doubt this. As per clause (a) of Section 474 of BNSS, imprisonment for life can be commuted to imprisonment for a term of not less than seven years. That is to say, if you are convicted for imprisonment for life, you may stand a chance of being freed after spending seven years in prison provided you are in the good books of the government of the day; however, for the reasons set out above, if you are detained as an undertrial prisoner you are not eligible to be released even after spending ten years in prison.

So, rather than treating serious offences with iron gloves, BNSS seems to leave it to the whims of the executive rather than to the wisdom of the judiciary. What this implies for hapless prisoners who cannot afford to engage lawyers to file bail applications on their behalf is that pleading guilty and begging for the mercy of the executive in the form of commutation to a term of seven years of imprisonment would be a more attractive option than languishing endlessly in prison as an undertrial prisoner.

Apart from the “half ground,” BNSS introduces what we shall call ‘one-third ground’ for first time offenders. A first-time offender can be released if he has undergone detention for a period extending up to one-third period of the maximum punishment specified for his offence under the relevant law. The parenthetical clause explains that a first-time offender is a person “who has never been convicted for any offence in the past.” Let us not overlook the inappropriacy in using the term ‘offender’ for a person yet to be proven guilty. The possibility of getting bail after having spent one-third of the maximum period of punishment raised the hopes of so many prisoners who have been behind the bars for years. Their hopes were further raised with the possibility of the retrospective application of Section 479 of BNSS following the ruling of the Supreme Court in W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons. It is not surprising that they missed the fine print that said offences that have imprisonment for life as one of the punishments are excluded from the ambit of Section 479 of BNSS. (Ed Note: A similar conclusion was made on the Proof of Guilt Blog here).

Sub-section (2): More than one offence and multiple cases

Sub-section (2) of Section 479 of BNSS is a non-obstante clause that says a person who has more than one offence or multiple cases pending against him is not eligible to be considered to be released, neither on the basis of one-third ground, nor on the basis of half ground. Section 436-A of CrPC had no such restriction.

“Offence” is defined in Section 2(q) of BNSS (a replica of Section 2(n) of CrPC). It says “any act or omission made punishable by any law for the time being in force…” As per sub-section (1) of Section 243 of BNSS (equivalent to Section 220 of CrPC), a series of acts connected so as to form the same transaction can lead to more offences than one being committed. Sub-section (3) of Section 243 of BNSS states that if an offence falls within two or more separate definitions by which offences are defined under any law, the person may be charged with each such offence.

Illustration (1) pertaining to sub-section (3) of Section 243 of BNSS says if a person wrongfully strikes another person with a cane, he may be separately charged with and convicted of offences under sub-section (2) of Section 115 (i.e. voluntarily causing hurt) and Section 131 (i.e. punishment for assault or criminal force other than on grave provocation) of BNS. This would mean that on a literal reading of Section 479 of BNSS, a person who strikes another with a cane would be ineligible to be considered to be released on the basis of one-third or half ground even if the person is a ‘first time offender’.

A combined reading of sub-sections (1) and (2) of Section 479 BNSS gives us a peculiar situation. The condition in sub-section (1) that a person should be a first-time offender is applicable only for the one-third ground and not for the half ground. Or, in other words, if you have a previous conviction, you cannot be considered to be released on the basis of one-third ground, but you can be released on the basis of half ground. Well and good. Now consider this: as per sub-section (2) of Section 479 BNSS, a person who has multiple cases pending against him (or even more than one offence against him in a single case) cannot be considered either for one-third ground or for half ground. That is to say, BNSS takes a more considerate view of a person who has a previous conviction than of a person who is yet to be proven guilty but has more than one case pending against him in that the former is eligible to be released on half ground, but not the latter. Does this not eviscerate the presumption of innocence?

Sub-Section 3: A silver lining

Sub-section (3) of Section 479 of BNSS is indeed a welcome addition as it casts a duty on the Jail Superintendent to make an application to the Court to release a person who has completed one half or one-third of the period mentioned in sub-section (1), as the case may be. Under the previous scheme, it was left to the accused to move court. Often the persons were hardly aware of such a provision or would not have the legal support to make such an application.

Applying the Law

Having gone through Section 479 of BNSS, which deals with the maximum period that an undertrial prisoner can be detained, we shall turn to two related issues: (1) How to reduce the number of undertrial prisoners in the prisons? and (2) How to ensure that an undertrial prisoner does not get incarcerated for too long a period? Albeit related, these two questions are distinct, and different steps need to be taken to tackle them effectively.

The ABC of reducing the number of undertrial prisoners

If the number of undertrial persons in the prisons is to be reduced, the three necessary steps are:

A: Avoid arrest unless necessary;

B: Bail to be granted unless circumstances warrant otherwise;

C: Conduct speedy trial.

In spite of the repeated pronouncements of the Supreme Court about the need for the police to be judicious in the use of the power to arrest, BNSS makes only a feeble attempt to strengthen the safeguards offered by CrPC. Sections 41, 41A, 41B, 41C and 41D of CrPC, which deal with arrest, are reproduced and renumbered as Sections 35 to 38 of BNSS. The only additional protection BNSS offers – and what perhaps justifies renaming of the Act as “Nagarik Suraksha” – is the addition of sub-section (7) of Section 35, which stipulates that prior permission of an officer not below the rank of Deputy Superintendent of Police is needed to arrest a person who is infirm or above sixty years of age, for an offence punishable with less than three years of imprisonment.

There are at least more than one hundred offences in BNS (just as was the case with IPC) that have a punishment of imprisonment for a maximum period of less than three years. However, barring roughly half a dozen of the rest are all bailable and non-cognizable offences. Therefore, the introduction of sub-section (7) of Section 35 of BNSS may hardly make a practical difference. Moreover, experience shows that in order to circumvent provisions like those of Section 35(7), police may easily add a Section that provides for punishment of three years or more and may also get away with it.

Going into the issue of grant of bail is beyond the scope of this piece. Some of the recent judgements of the Supreme Court that have upheld the right to life of the undertrial prisoner and granted bail upholding Article 21 as an effective means against the prolonged incarceration and award of surrogate punishment seem to offer a beacon of hope. However, as noted by Abhinav Sekhri in his blog post [‘A curious Constitutionalism’ dated July 19, 2024], it is still as though prolonged incarceration of an undertrial prisoner and the issue of grant of bail are issues only the highest Court has to concern itself with. For those who cannot afford to reach that level, there still isn’t much scope for hope.

The culture of seeking adjournments and postponements are usually cited as the main causes of delay in judicial proceedings. Section 309 of CrPC that dealt with powers of the Court to postpone or adjourn proceedings presents a curious case. The Section said that proceedings in every trial or enquiry should be conducted on a “day-to-day” basis and postponement of the commencement of trial or adjournment beyond the following day is to be resorted to only if necessary, and the reasons for the same have to be recorded. However, postponement of the commencement of the trial for months and years and adjournments of proceedings have become the norm rather than exception. There is also a stipulation that trial in offences related to rape should be completed within a period of two months from the date of filing of the chargesheet, which would be a miracle in our trial courts.

Apart from the time limit of 60 / 90 days for the completion of investigation, CrPC had no time limit specified for the framing of charges, commencement and completion of trial, or the delivery of the judgment. BNSS, on the other hand, sets a time limit of “sixty days from the date of first hearing on charge” for framing of charges in Sections 251 and 263 (corresponds to Sections 228 and 242 of CrPC, respectively) and a period of forty five days for pronouncement of judgment after conclusion of the trial in Section 392 (which corresponds to Section 353 of CrPC). The efficacy of these steps, however, will have to be tested in practice as no remedies are prescribed in the eventuality of these limits not being observed. There is hardly any reason to assume that the time limits introduced in BNSS will not remain a dead letter, like the clause about “day-to-day” trial and the sixty day limit for the completion of trial in offences related to rape, which were part of Section 309 of CrPC; or that Section 346 of BNSS will ensure framing of charges and commencement of trial without undue delay. It has to be underlined that no time limit has been specified as to when “hearing on charge” should commence after the filing of the chargesheet.

In reality, as observed by the Bombay High Court while granting bail to the accused in a POCSO case in which charges were not framed even after five years, once the chargesheet has been filed the case is often kept on the back burner and the investigation agency and the court forgets all about the accused after remanding him to judicial custody. The remand gets mechanically extended from time to time in most cases, without the accused person being produced before the court either physically or through video conferencing. This process goes on for months or even years. In order to curb this, effective checks should be built into the system similar to the statutory bail granted to the accused in case investigation has not been completed within the stipulated time. We turn to this issue in the next section.

How Long is too Long

As we argued right at the outset, a law that states no undertrial prisoner shall be detained for a period exceeding the maximum period of imprisonment specified as punishment for his offence is an anathema to the principle of presumption of innocence, as it only legitimises the detention of the undertrial prisoner to a period equal to that of the maximum period of imprisonment specified as punishment for that offence. It thereby provides for inflicting surrogate punishment on those who are considered to be innocent until proven guilty by procedure established by law. The question, then, is how long a period of incarceration is too long for an undertrial prisoner?

In an ideal world, no person should be punished until proven guilty. And without mincing words let us admit that the label ‘judicial custody’ does not make detaining an undertrial person within the confines of a prisonhouse qualitatively very different from punishment. Nevertheless, setting idealism aside, we may still arrive at a reasonable period for which an undertrial prisoner can be detained by confining ourselves to the four corners of BNSS. In order to arrive at such a figure, we need to turn our attention to another Section of BNSS – Section 474 (which corresponds to Section 433 of CrPC) that deals with the power of the government to commute sentences.

Unlike most other Sections, Section 474 of BNSS is a considerable improvement upon its counterpart, namely Section 433 of CrPC. Sentences can be commuted as given below as per Section 433 of CrPC:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not exceeding fourteen years;
• rigorous imprisonment to simple imprisonment; and
• simple imprisonment to fine.

Section 474 of BNSS offers the following possibilities for the commutation of sentence:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not less than seven years;
• imprisonment for seven years or more to imprisonment for a term not less than three years;
• imprisonment for a term less than seven years to fine; and
• rigorous imprisonment to simple imprisonment.

As is evident from a glance at the above, BNSS takes a much more liberal view with respect to conviction, in cases where the power to show leniency and commute sentences is vested in the hands of the executive. If we consider the arithmetic behind the calculation involved in arriving at the number of years to which terms of sentences of imprisonment are commuted, we can see that it hovers around one third of the sentence. For instance, imprisonment for life is reckoned as equivalent to imprisonment for twenty years for the purpose of calculating fractions of terms of punishments (as per Section 6 of BNS / Section 57 of IPC). So, one third of imprisonment for life is six years and eight months. Similarly, one third of seven years is two years and four months. If after conviction, the term of sentence can be commuted to its one third at the sweet will of the executive, we propose that the same formula can be adopted in fixing the maximum period for which an undertrial prisoner can be detained.

We propose that seven years be fixed as the upper limit beyond which a person in custody as an undertrial for an offence punishable with imprisonment for life or death cannot be detained. Similarly, for offences punishable with imprisonment for seven years or more, the maximum period that a person can be detained should be three years (in line with clause (c) of Section 474 of BNSS). Since there is no term of imprisonment specified in the case of commutation of conviction for a term of less than seven years in Section 474 of BNSS, we could follow the principle of one third of the maximum punishment in such cases. For instance, the maximum period that a person can be detained for an offence punishable with three years of imprisonment can be fixed as one year.

As the Supreme Court has reiterated in some of the recent judgements, the right to life of the accused cannot be obliterated, no matter how serious the alleged offence. An accused has the right to speedy trials and if the State and the Court cannot provide it to him, they have no right to detain him for a prolonged period and award surrogate punishment, but have to release him after a reasonable time. The bogey of the possibility of tampering with the evidence, influencing witnesses, and flight risk cannot be grounds that trump presumption of innocence and right to life. And fixing the maximum period that an undertrial can be detained as a period equivalent to one third of the punishment for the offence is only a small step to show that fundamental rights are taken seriously and are not to be trampled upon indiscriminately.

Similarly, there is no reason why presumption of innocence should be whittled away due to the subsequent conduct of a person who has been found guilty on a previous occasion. A law that treats a person harshly on the basis of previous conviction when he is yet to be proven guilty on a subsequent occasion is just a legal garb for the prejudice that operates against a who has been found guilty once. It may make sense to treat a person harshly on a subsequent conviction – as in the award of enhanced punishment, but not when the person is yet to be proven guilty. Therefore, the upper limit on the maximum period for which an undertrial can be detained should apply uniformly to all undertrial prisoners regardless of whether they have been convicted earlier or not.

If the clause about the maximum period an undertrial prisoner can be detained has to be implemented effectively, it has to be raised to the level of a statutory obligation on the lines of Section 187 of BNSS (which is pari materia Section 167 of CrPC), which leaves no discretionary power to the Magistrate. If the right to be freed when the investigation is not completed within the stipulated time is a fundamental right and not merely a statutory right as held in Vikramjit Singh v. State of Punjab (2020) 10 SCC 616, the right to be freed if the trial is not concluded within a reasonable time can be no less in stature. The option of continuing detention after hearing the Public Prosecutor would virtually close the doors of bail as Magistrates more often than not get persuaded by rhetoric of Prosecutors, who at times act as though they were Police Prosecutors rather than Public Prosecutors.

In the current scenario, as there is no statutory limit specified for the conclusion of trial, it is left to the Constitutional Courts to intervene and adjudicate on the question whether the right to life of the accused person has been violated due to prolonged incarceration without trial. And this would happen only in the case of those who can afford to reach up to the Constitutional Courts. As it is left unspecified, the interpretation of what ‘reasonable time period’ is varies according to the vagaries of the varied Benches. It also depends often on how soon or late the file of the accused person reaches before a sympathetic Bench. If in some cases it is a matter of a year or two, in some cases it is nine or ten years or even more. Specifying the outer time limit for the conclusion of trial in the statute would not only make it uniformly applicable, but it would also make it enforceable at the level of the trial court and thereby within the means of those who cannot afford to know the doors of the Constitutional Courts.

Conclusion

The proposal to have parity between the term of imprisonment to which sentences of imprisonment can be commuted and the maximum period for which an undertrial prisoner can be detained – both in proportion to the sentence for the offence in question – cannot be repugnant to the spirit of justice the new laws are supposed to usher in. Mandatory release of an undertrial prisoner after the stipulated time period is only part of the commitment to conclude the trial within that time frame, and thereby ensuring justice to both the accused person and the victim of the crime. Keeping an undertrial person in prison endlessly and awarding surrogate punishment is justice to neither parties. And the new criminal laws are all about ushering in an era of justice, aren’t they?

Retrospective Application of BNSS and the Supreme Court Order in 1382 Prisons

Since 2013, the Supreme Court has been seized of a public interest litigation concerning prison conditions [W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons]. Over the course of a decade, it has passed a slew of orders which, it hopes, would ameliorate prison conditions. A key priority has been to try and decongest prisons, which are notoriously overpopulated.

In this vein and with this intent, on 13.08.2024, the Amicus Curiae assisting the Court had directed the judges to Section 479 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS]. More specifically, the first proviso therein, which stated that first-time offenders would be entitled to release from custody if they had spent up-to one-third of the maximum possible sentence. This clause, the Amicus submitted, "needs to be implemented at the earliest and it will help in addressing over-crowding in prisons."

The Court asked the Union Government to get instructions, and it heard the case next on 23.08.2024. The Union Government Counsel stated that "instructions" had been obtained from the relevant department to the effect that Section 479 of the BNSS "would apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July 2024, the date when the newly minted legislation has come into effect." 

This led the Court to observe that:

"... Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the Code of Criminal Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this Court had called upon the learned Additional Solicitor General to obtain instructions from the Department and submit a clarification regarding application of the said provision to all undertrials across the country. ... 

In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails which is the primary focus of this Court in the present petition." [Emphasis supplied]

Considering how the issue of BNSS provisions applying to pending cases has been vexing many judges, lawyers, and laypersons, the Supreme Court's intervention is an important moment in the brief history of the new law, and one which should be studied carefully. In this post, I will try to explain why I think the order is arguably a misstep, and ought to be clarified by the Court going forward.

Court Fails to Explain its Reasoning

A previous post offered certain thumb rules on how to navigate the retrospective application of BNSS. The one, basic rule, when it came to applying procedural laws it argued, was that procedural laws by default are applicable retrospectively, unless they disturb vested rights of parties to their detriment. When it came to the BNSS, the legislature had decided to carve out a larger category of exceptions through Section 531 (following the formula adopted in 1973), which specified a swathe of situations where BNSS would not apply in existing cases. Nevertheless, these were exceptions, and show that the BNSS is intended to be made applicable even to pending criminal cases, albeit not at a particular stage of a case and gradually. 

It is important to keep this thumb rule in mind when we consider retrospective application of Section 479 BNSS. The Supreme Court correctly noted that this clause closely corresponded to Section 436A of the erstwhile Criminal Procedure Code of 1973. Both speak about a right of default bail conferred to persons in custody for up to one-half of the maximum possible sentence they can serve. But it appears that neither on 13.08.2024 nor on 23.08.2024 was the next, logical question raised i.e., whether Section 436A was an ordinary procedural law or had it conferred vested rights upon persons which could not be disturbed to their detriment? Surprisingly, both the orders did not refer to Section 531 BNSS either, to try and use the statutory formula for applying its provisions retrospectively. 

On 23.08.2024, as extracted above, the Court noted that Section 479 BNSS appeared to be "more beneficial" than its predecessor, Section 436A CrPC. Thus, even though it did not provide any framework to explain its thinking, one would argue that the Court was following the same approach i.e. considering whether or not the new provision is more beneficial to determine whether it can be made retrospectively applicable. What went unsaid is the Court's appreciation that 436A conferred a vested right, which I would argue is the correct appreciation of that clause. Section 436A conferred an enforceable right upon all persons in custody which began to operate from the first moment in time a person was placed in custody. It was Parliament's belated attempt to reconcile lengthy undertrial detention with the letter of Article 21 of the Constitution, two decades after the Supreme Court had paved the way through Hussainara Khatoon and other cases.  

Before we can discuss whether the Court was correct in its fleeting assessment of Section 479 BNSS being more beneficial, it is important to flag the issue which arises because of the Court's refusal to spell out its reasoning. Today, the lack of detail in the order dated 23.08.2024 can lend itself to a school of thought where all provisions of the BNSS are now sought to be tested on the anvil of their supposed beneficial nature before we can decide whether they are retrospectively applicable. That, I would argue, is incorrect, and contrary not only to Section 531 of the BNSS but also Section 6 of the General Clauses Act 1897. The general rule of applying procedural laws retrospectively has not been altered to such a great extent in the BNSS, and courts hopefully will remain cautious going forward.

Section 479 BNSS is not "More Beneficial" than 436A CrPC

Now, returning to whether Section 479 BNSS is "more beneficial" than Section 436A. Is that true? 

Section 436A CrPC provided default bail to persons held in custody under any law except for offences in which death was one of the punishments, where such persons had spent up to one-half of the maximum period of imprisonment. It also provided that a court may order continued detention for longer than this period, upon giving reasons in writing, but no court could permit the detention of persons for longer than the maximum period of imprisonment provided. Delays caused by the accused would be excluded from computing the period of detention.    

Compared to its predecessor, Section 479(1) BNSS expands the category of offences in which the default bail right will not accrue, specifying that even offences punishable with life imprisonment are excluded, and retains the earlier language about allowing courts to permit longer detentions. Section 479(1) retains the one-half formula, but ameliorates it through a proviso which says that a first-time offender can be released after serving up to one-third of the maximum possible sentence. This is what prompted the Court to view the new law as more beneficial than the old one. 

However, to close our review of Section 479 BNSS only after reading Section 479(1) would mean wishing away the fact that this provision contains two more sub-clauses, which find no mention anywhere in either the order dated 13.08.2024 or 23.08.2024. While Section 479(3) pertains to the enforcement of the right, Section 479(2) is integral to the scope of the right conferred by Section 479(1). It carves out an entirely new category of exceptions to create new situations where the right would not accrue to persons, and states that "where an investigation, inquiry or trial in more than one offence or in multiple cases are pending" against a person, that person "shall not be released on bail" by the Court.     

I would argue that Section 479(1) BNSS read with its new proviso is certainly more beneficial than what was earlier provided under Section 436A. Ordinary rules of statutory interpretation would mean that even if the Union of India did not give these so-called instructions, the beneficial aspects of Section 479(1) had to inure to the benefit of all persons in custody retrospectively who met the criteria. One wonders why the Court even bothered with that exercise which was sheer gloss.

However, at the same time, the whole of Section 479 BNSS is undoubtedly not more beneficial than its predecessor. It obviously worsens the position of persons who are in custody as on 01.07.2024 if applied retrospectively. Simple examples will do — X was in custody for more than 15 years in a case under Section 307 IPC; Y has spent 5 years in custody as of 01.07.2024 in a case where the chargesheet invoked more than one offence but the maximum imprisonment in the offences was 10 years; Z has spent 5 years in custody as of 01.07.2024 in two cases, in both of which the offences involve a highest possible sentence of 10 years. All of them were just about to file for default bail. But because of Section 479 BNSS applying retrospectively, none of them would be entitled to do so, since Section 479(1) deprives any person accused in a case of life imprisonment with the benefit, and 479(2) denies this right to any person in case involving more than one offence or against whom multiple cases are pending. 

Conclusion

What has the Supreme Court done with its orders in 1382 Prisons? It has not merely clarified (which is all that it needed to do) that Section 479(1) BNSS with its proviso applies to everyone in custody even prior to 01.07.2024. Instead, it has conferred its blessing on the retrospective application of the entirety of Section 479 BNSS, and in doing so has unequivocally worsened the position of all persons, in a manner entirely contrary to law. That too in a public interest litigation where nobody potentially affected by this retrospective application of the law was being heard.

There is any easy way out. Even though the terms of order dated 23.08.2024 are broadly worded, nothing apart from Section 479(1) and giving the fullest application its beneficial proviso was in the mind of the Court when it passed these orders. The bench could clarify the order to make it clear that nothing ought to be construed as conferring retrospective application to all of Section 479 BNSS. If not, then it would fall upon a different bench to clarify this issue which will surely come up to the Supreme Court sooner rather than later.

Guest Post: The Supreme Court, Default Bail, and the Question of 'Incomplete' Chargesheets

(This is a guest post by Kartik Kalra)

The Supreme Court delivered its judgment in Central Bureau of Investigation v. Kapil Wadhawan on January 24 ('Wadhawan'). It held that the Respondent-accused’s previous release on default bail sanctioned by the trial court, and affirmed by the Delhi High Court, was incorrect, as these findings were based on an incorrect appreciation of the “sufficiency” or “completeness” of the police investigation when assessing applications u/s 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”). 

In this post, I propose that the Court’s prohibition on assessing the investigation (through the report commonly called a 'chargesheet') for examining its completion constitutes a breach of the state-citizen compromise underpinning default bail. Given the crucial nature of pre-trial liberty in contemporary criminal procedure, I propose that a high-scrutiny enquiry into a chargesheet's sufficiency (and thereby, an investigation’s completeness) must be undertaken by courts at the stage of assessing default bail, as a bureaucratic assessment of the bare-bone, physical filing of a charge-sheet substantially endangers civil liberties.

I make this argument in the following manner – first, I discuss the facts in Wadhawan, noting similarities with the currently “recalled” judgment of the same Supreme Court in Ritu Chhabaria v. Union of India. Second, I discuss the judgment in Wadhawan, arguing that the Court trivialised aspects of the chargesheet’s “incompleteness” highlighted by courts below, to seemingly doctrinally forbid an enquiry into a chargesheet’s sufficiency. Third, I propose that the present political economy of pre-trial detention – where prolonged incarceration constitutes punishment for pre-trial detainees – necessitates high-scrutiny enquiries into charge-sheets’ contents by courts authorising default bail.

Ritu Chhabaria Analogue: The Problem of Judicial Scrutiny into Chargesheets

Wadhawan arose with filing applications for default bail u/s 167(2) of the CrPC, which mandates the accused’s release from pre-trial detention if the police have not completed investigation within sixty or ninety days of remand. This aspect of completing an investigation is reflected by the investigating agency filing a chargesheet under Section 173 of the Code. 

In Wadhawan, the investigating agency (the CBI) filed a chargesheet within the stipulated time (which, the trial court had held after arguments, was ninety days). The trial court even took cognizance of offences on its basis. After this, the accused filed applications for bail under Section 167(2), arguing that the investigation was incomplete, and the chargesheet was nothing but a means to frustrate the right to default bail.

The issue, therefore, concerned the chargesheet’s contents, and deliberating the completeness or lack thereof of the investigation by the CBI. A materially similar issue arose before the Court in Ritu Chhabaria – there, the police filed a chargesheet, which the Court found incomplete, and held that it did not disentitle the accused from being released. The opinion discouraged other courts from “mechanically accepting incomplete chargesheets”, prompting an enquiry into its contents, which would enable a court to determine the investigation’s completeness (¶33). Of course, the opinion has since been “recalled” by the Supreme Court itself in Directorate of Enforcement v. Manpreet Singh Talwar, forbidding courts from relying on Ritu Chhabaria, but not specifically depriving courts from considering the argument therein (which was not novel at all). 

This enquiry into contents of a chargesheet is important to preserve the moral value of pre-trial detention, for the scheme of sixty/ninety days under section 167(2) is designed with the notion that detention without probative material pointing to the accused’s guilt must be for a limited duration. Disingenuous chargesheets aiming to pin guilt on the accused preliminarily, awaiting (a long) process of trial, must be deeply scrutinised by courts. 

Antony Duff, for example, notes that the legitimacy of pre-trial detention lies in citizens’ obligation to account for the reasonable fears their status as an “accused” generates in others’ minds by agreeing to a degree of social exclusion, especially when the alleged offences are heinous in nature. When, however, no attempt is made to enquire into an accused’s guilt, and probative material pointing thereto is lacking even after the completion of sixty/ninety days, the accused’s obligations to account for social fears must be recognized as having diminished, for they are – overall – presumed innocent of having committed the offence.

The above, of course, is without prejudice to one’s release prior to the completion of these sixty/ninety days, which is done through ordinary bail. The extent of one’s obligation to account for social fears reduces if it can be demonstrated that they would dissociate from, and enable the peaceful completion of the fact-finding process, for it has been shown that they pose no great social risk to warrant pre-trial detention. In case, however, one has been unable to obtain bail due to, for example, the court’s assessment of the accused’s likely involvement in the offence, the sixty/ninety duration is the maximum period – without additional probative material pointing to their guilt in the form of the charge-sheet – for which they can be detained. The completion of these days is deemed a sufficient discharge of one’s obligation to account for social fears, which would be trumped by their presumption of innocence.

Courts must, therefore, enquire deeply into the police’s fact-finding process, represented through the charge-sheet, to determine whether the guilt being preliminarily pinned on the accused has been arrived at through a genuine fact-finding process, or it is merely a disingenuous attempt to “scuttle” – as noted in Ritu Chhabaria – the accused’s release.

The Instant Case: Trivialising “Incompleteness” to Forbid Sufficiency Enquiries

The allegations in Wadhawan were of bank fraud — alleged misappropriation of loans taken from banks by diverting proceeds for various purposes into various companies. The charge-sheet filed within ninety days – the accused claimed – was nothing but “a subterfuge or ruse to defeat the indefeasible right…u/s 167(2)”. The trial court agreed, holding that the investigation, both into allegations against the accused as well as other persons and companies, was incomplete, and such a chargesheet could not defeat default bail (¶40-42). The Delhi High Court concurred, holding that this assessment was correct, and “substantial investigation even qua the present accused persons [was] incomplete” (¶31). It also analysed the chargesheet’s contents independently, holding that the “material collected by the investigating agency so far… falls too short” (¶31). Its remarks align with the underlying purposes of pre-trial detention discussed above, emphasising on the wrongfulness of authorising detention without probative material pointing to the accused’s guilt:

33. …[I]n the report filed by the investigating agency there should be sufficient evidence to bring home the guilt of the accused. The purpose should not be merely to detain the accused…The detention during investigation or trial cannot be turned into a punitive detention. It is also a settled proposition that further investigation can be conducted only after the investigation is complete.

Given the insufficient probative material pointing to the accused’s guilt, which was reflected in an incomplete chargesheet, the High Court refused to authorise further pre-trial detention.

This entire line of enquiry into a chargesheet’s contents, however, has been disagreed with by the Supreme Court, which appears to place greater emphasis on the ritualistic filing of a chargesheet as against a deeper enquiry into its contents to decide the issue of default bail. The Court, I argue, does this in two ways – first, it modifies the flaws of the instant chargesheet, trivialising them to justify default bail’s general legal unavailability after any chargesheet has been filed; second, it holds that a flawed or incomplete chargesheet (especially where the alleged incompleteness is minimal, like the instant case) is – for all purposes – a chargesheet, which is all the responsibility that Section 167(2) envisions placing on the investigating agency’s part.

The instant chargesheet, it holds – contrary to the Special Judge (CBI) and the High Court – did not suffer from any major flaw, having only two minor errors – first, investigation was pending against a few co-accused but complete against the accused; and second, only a few documents were missing in the chargesheet (¶19-20; 23). These observations, it must be noted, deviate from the factors cited by both lower courts to conclude the investigation’s incompleteness, which noted the investigation’s substantive incompleteness against the accused in the instant case, as well as many aspects of the CBI’s allegations being uninvestigated. The Supreme Court, by departing from factors causing the chargesheets to be incomplete, trivialises the factors causing incompleteness, which it subsequently invokes to bar an enquiry into charge-sheets’ contents as a matter of law:

22. …The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 173 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases…

In this way, the Court’s trivialisation of the instant chargesheet’s flaws transforms into a general legal prohibition on enquiring into its contents. Though I cannot comment on whether the charge-sheet in the instant case was, in fact, complete, it must be noted that the Supreme Court – leave offering reasons to depart from concurrent findings of fact of two lower courts – does not even acknowledge this departure: both courts below held the chargesheet disclosed an incomplete investigation into the accused, while the Supreme Court held the same investigation was complete, with only allegations against the co-accused remaining pending. Further, the Supreme Court did not engage with the High Court’s reasoning proposing the necessity of substantial probative material in the chargesheet pointing to one’s guilt, holding the physical act of filing a document titled “chargesheet” sufficient to defeat the accused’s release. This unfortunate conceptualisation of state-protective criminal procedure is exacerbated in the contemporary economy of pre-trial detention, where bail adjudication acquires centrality.

On the Necessity of High-Scrutiny Enquiries into Charge-Sheets at the 167(2) Stage

The centrality acquired by bail adjudication in contemporary criminal procedure, as has been noted, arises from the extraordinary duration taken by full-fledged criminal trials, which take, on average, between three and nine years (91). In such a situation, for accused persons whose guilt has not been conclusively established through procedurally-sound processes of trial, liberty at the pre-trial stage is crucial. Such liberty, however, is determined based on a court’s weighing of likelihoods: bail adjudication generally involves factual enquiries into the likelihood with which one committed the alleged offence. This line of questioning, which aims to enquire into the factual guilt of the accused to adjudicate on bail, has become the norm, likely to result in skewed rejections of bail whenever a court deciphers a semblance of one’s involvement.

Given the uncertainty involved in bail adjudication that is likely to play against the accused, default bail – where the accused possesses an assured release in the absence of probative material pointing to their guilt – must be held to this basic minimum standard, where this material is, in fact, shown to be in existence at the moment of assessing default bail’s availability. Despite Chhabaria having been “recalled” by the Supreme Court, many courts do seek to uphold this basic minimum: in Fakhrey Alam v. State of Uttar Pradesh, for example, the Supreme Court released an accused on default bail in an alleged UAPA offence, as chargesheets were “preliminary” or “supplementary” in character (¶11); and in Chitra Ramkrishna v. CBI, the Delhi High Court found that filing of “incomplete/piece-meal charge sheet[s]” could not defeat default bail (¶43).

In case the enquiry at this stage is confined solely to the timely filing of a physical document titled “chargesheet”, without a deeper scrutiny into its contents that aims to decipher the genuine collection of probative material, it would tilt the already skewed balance of criminal procedure further towards the state. It would mean that an unsubstantiated semblance of guilt is sufficient to warrant pre-trial detention by rejecting regular bail, and that a chargesheet premised on an “incomplete” investigation – that has not sought to, or been unable to genuinely determine the accused’s involvement – also enables the same, lengthy pre-trial detention. This constitutes a large normative hole in pre-trial detention’s underpinnings.

The pre-trial detention stage, as noted above, can be conceived of as a conscientious citizen’s accommodation of reasonable social fears emanating from the fact of an allegation having been made against them – especially when the alleged offence is heinous in character – to separate from society for a duration that enables a proper fact-finding. This compromise, however, becomes unreasonably stretched when one is expected to undergo pre-trial detention despite the demonstration of tangible reasons why such social fears are unwarranted (in regular bail, for example, where one shows that they would peacefully dissociate from an investigation), and a breach on the state’s part to genuinely undertake fact-finding into the accused’s involvement with the offence. In case the state alleges one’s involvement for the sole purpose of preventing release, without possessing a genuine, objective belief in their guilt, it would be difficult to justify the accused’s corresponding obligation to undergo pre-trial detention. When the state’s propensity to breach the compromise underpinning pre-trial detention becomes codified into law by the Supreme Court – which authorises it to defeat accused persons’ release without having fulfilled its end of the bargain – pre-trial detention becomes an avenue of untrammelled state power, wholly unreflective of the state-citizen compromise.

Conclusion

On this basis, therefore, I submit that the Supreme Court’s judgment in Wadhawan constitutes a breach of the pre-trial detention compromise, seemingly forbidding enquiries into the state’s fulfilment of its duty to investigate, and to genuinely express its belief in the accused’s guilt. The Court, instead of assessing the tasks to be fulfilled by the police that are expressed through the chargesheet, prizes the mere filing of the document, finding it sufficient for denying release. The Court does this by trivialising the flaws of the chargesheet, holding them insufficient to warrant the release, meshed with suggesting a general prohibition from enquiring into a chargesheet's contents.

The Doctrinal Discomforts of Default Bail (poked by Ritu Chhabaria)

As the Indian Constitutional Law and Philosophy Blog discussed what seems like an eternity ago (it was only twelve days), a peculiar set of events had unfolded in the Supreme Court where a judgment passed by a Division Bench on 26.04.2023 was challenged by adopting a hitherto unknown process of a 'recall' application. The application had not yet cleared the registry to make it to the list of matters was therefore 'mentioned' orally on 01.05.2023 before a Division Bench comprising the Chief Justice, who directed that it shall be reconsidered and in the meantime not given effect to. 

There are rumours about the alleged procedural irregularities associated with the progress of the original case till its ultimate judgment. One does not know enough and therefore cannot comment on whether it was these set of circumstances which prompted the Supreme Court to adopt this unprecedented route thus far. But two wrongs never do make a right. Here, I take a different approach, and engage with the legal issues instead.

The judgment in question was Ritu Chhabaria v. Union of India [W.P. (Crl.) 60 of 2023 ("Ritu Chhabaria")]. The issue that it dealt with was that of bail under Section 167(2) of the Criminal Procedure Code 1973 [Cr.P.C.], or what is popularly called 'Default Bail'. It is a species of bail which accrues as a right to a person detained in custody during an investigation, and where the investigating agency fails to complete its investigating by filing the police report within the stipulated time-period of 60 or 90 days (depending upon the seriousness of the alleged crime). 

More specifically, the issue in Ritu Chhabaria was determining what amounts to completing investigation for purposes of extinguishing the right under Section 167(2). If triggering this right can be circumvented by police simply filing any collection of papers in court before expiry of the 60 / 90 day period, it renders default bail completely anodyne and illusory. It also undercuts the very intent behind incorporating this set of provisions in the first place: As Ritu Chhabaria and several decisions in the past have pointed out, the point was to try and curb the then-rampant habits of police to file 'preliminary chargesheets' at the end of 15 days (the earlier time limit) only to keep undertrials behind bars. The 1973 Code raised the limits by a wide margin, but this was done while incorporating default bail to ensure that undertrial incarceration is not oppressively long.

Herein lies the problem in this oft-retold tale of Section 167 being a means to rein in bad police practices. The tale is incomplete, giving us only half the picture, because by a sleight of hand it wants us to forget that the process of keeping a person behind bars is not a one-man show but a tag-team event. It needs both the police and the courts. The police will ask for custody, but it is the magistrate who must sanction it, and the tragedy of incessantly and oppressively long undertrial incarceration was as much a product of judicial apathy to personal liberty and treating bail as linked to the merits of a case. To sum up, the introduction of Section 167 was not only to deal with bad police practices, it was also to curb bad judicial practices by taking away fuzzy discretion and introducing a concrete rule for bail.      

You cannot change the stripes on a tiger as they say, and in a way that is the story of what has followed. The time limits were seen as insufficient by many and prompted the Supreme Court to label Section 167 as a 'paradise' for criminals in its first foray into the statutory provision. The sense of panic at the thought of countless 'criminals' being let loose led to amendments in 1978 increasing 60 days to 90 days for a subset of offences carrying higher sentences. In parallel came litigation before high courts where accused persons challenged rejections to their bail applications on grounds that what the police had done was nothing other than file a 'preliminary chargesheet' even at the end of 60 / 90 days. Since the late 1970s till today, we have had courts — both High Courts and the Supreme Court — adopting myriad approaches to deal with this perceived problem of letting the criminals go on a 'technicality'. 

What connected all of these approaches was that all of them concurred in rejecting a bright-line approach that required an investigation to be complete in all respects at the end of the 60 / 90 days period. The stakes were simply seen as too high for the result to be decided on a rule, and so courts did what they do best and brought in wriggle room to make individualised decisions. Instead of demanding complete investigations, the judiciary substituted that rule with one that retained a measure of discretion for itself. Determine for yourself, magistrates were told, as to whether the document before you suggests the investigation is more or less complete. If so, reject the default bail. The result was to open a new arena of litigation within the matrix offering both the accused and police an opportunity to challenge unfavourable orders, and ensure that there can never be a settled law on the point.      

Ritu Chhabaria was the latest chapter in this history and, in that regard, offered an entirely unremarkable conclusion when it observed that any chargesheet or complaint filed without completing the investigation would not extinguish the right to default bail. Rather, the problem I would argue is what the judgment can be seen to stand for — a harkening back to a stricter rule of default bail requiring the agencies do more within the stipulated time period and restore some measure of importance to default bail. This is clearer if we look at the facts, which do not involve an alleged incompleteness because of some forensic reports not being filed, but question the very nature of the investigative exercise conducted which, to the court, was hopelessly short of the standard it considered to be required by Section 167.  

A stricter, more bright-line, rule of default bail in respect of completeness of investigations is a past which is certainly not appreciated by the police and other agencies which continue to decry the shortness of time to complete investigations, never fully answering the more pointed question — why does this require the continued incarceration of the individual as well? But as I suggest, a bright-line approach to default bail is not one that the courts are too fond of either, because they never came around to fully accepting the radical premise behind a concept of bail completely de-linked from the merits of the case (as argued elsewhere on the log). These are serious allegations, and continued incarceration of undertrials is presumably a small price to pay to make sure that courts can apply their mind to these facts to get it right. 

History would suggest that the Supreme Court in reconsidering Ritu Chhabaria will nudge the pendulum back to the perceived centre on this issue. Old habits die hard, after all.

Section 167, 'Default Bail', and its Cancellation

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.