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: Section 187 of the BNSS

(This is a guest post by Aadi Belhe)

The President gave assent to the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (‘BNSS’) on the 25th of December, 2023. This Act is intended to replace the Code of Criminal Procedure, 1973 (‘Code’) due to its “colonial” nature. Section 187 of the BNSS deals with pre-trial detention in cognizable cases and is the equivalent of section 167 of the Code. This piece argues that the text of section 187 suffers from a fundamental issue brought about by an attempt on the part of Parliament to change the existing legal position on pre-trial custody. Further, I point out that the text of section 187 is such that courts cannot salvage it.

Bewildering Nature of Section 187

The Supreme Court has held in multiple cases such as CIT, Agri. v. Keshab Chandra Mandal and Kanailal Sur v. Paramnidhi Sadhu Khan that the words of a statute must be given effect to, irrespective of the consequences, if their meaning is plain. I would argue that this rule of interpretation cannot be applied to section 187 since a plain reading of this section is impossible.

To discuss the issue, it is necessary to first look at the relevant parts of section 187:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate. 

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. 

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; 

(ii) sixty days, where the investigation relates to any other offence, 

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The issue with section 187 is present in section 187(2) and its interplay with 187(3). A corollary of the power to grant detention “at any time during the initial forty days or sixty days” is that the 15 days of detention ordered under 187(2) need not be the first 15 days of the detention period. In other words, out of the total detention period of 60 or 90 days provided for under section 187, it is not necessary that the first 15 days of detention be ordered under section 187(2). Further, this detention can be in "such custody" as the court thinks fit.

This gives rise to a conundrum, and flowing from it are some serious problems. The conundrum is that now a court has power to grant custody at any time during the first 40 or 60 days of one's detention, such that detention may be from Day 11 to Day 20 only, or this period coupled with Day 25 to Day 28. Which brings the question — what about detention prior to Day 11, and what about the intervening period between Day 25 and Day 28? Section 187(2) seems to assume the existence of some other power-conferring provision under which detention can be ordered during those periods in the first 15 days of detention when the accused is not detained under sub-section (2). Section 187(3) cannot be used to plug these gaps since it becomes applicable only after the 15th day of detention under section 187(2) is over. 

The conundrum may seem a theoretical problem, but is arguably quite a serious problem as it undermines what appears to be the legislative intent behind section 187(2). It can be inferred this intent was to change the position obtaining under Section 167(2) of the Code since it would not have otherwise made Section 187(2) a modified version of section 167(2). Currently, as clarified by the Supreme Court in CBI v. Anupam J. Kulkarni (‘Anupam’), police custody cannot be granted beyond the initial period of 15 days provided under section 167(2). While a division bench of the Court has expressed its reservations regarding the correctness of this view in V. Senthil Balaji v. State, no judgment has overruled Anupam. It would thus seem to be the case that the main purpose behind the changed wording of section 187(2) was to ensure the nullification of Anupam by extending the period during which detention in police custody could be ordered. Get rid of the first fifteen days by expanding it statutorily to the first forty or sixty days. 

If we are correct to assume that this was the intent, it has gotten severely muddied through the drafting of section 187. Sub-clause (2) does not clarify the only detention in police custody is being conceived of, and just says that the court may authorise detention in "such custody" as deemed fit. Similarly, sub-clause (3) does not specify the kind of detention beyond fifteen days i.e., whether detention will be in police custody or judicial custody. Read together then, section 187(2) and (3) make very little sense, because while section 187(2) talks of fifteen day remands up to a certain period (first 40 / 60 days) to possibly take us beyond the first fifteen day logic, sub-clause (3) says that detention beyond fifteen days is possible and to an extent renders 187(2) redundant. 

Courts Cannot Fix the Clause

Arguably, the only sensible way to apply section 187 would be to use it exactly like section 167 of the Code is used. This entails using section 187(2) for the first 15 days of detention and section 187(3) for the rest of the detention period. Still, this would not resolve the problem fully, creating serious gaps which can result in scenarios such as authorising detention in police custody for much more than fifteen days.

The text of the section is such that nothing short of adding or subtracting words from the section is going to clear up this confusion. Thus, this situation fits well within the rule laid down in Bhavnagar University v. Palitana Sugar Mill (Pvt) Ltd. In this case, the Supreme Court had laid down that the wording of a provision can be altered only if restraining from doing so would lead to absurdity or unworkability.

However, this gives rise to a further difficulty. In what manner should section 187 be altered by courts? In Inco Europe Ltd. v. First Choice Distribution (A Firm) (‘Inco’), the House of Lords stated that the driving aim of alteration must be conformity with the purpose of the provision. This case also laid down that courts should keep in mind the wording which might have been used by Parliament had it noticed the error before enactment happened. While not binding on Indian courts, it provides a sound principle of statutory interpretation. As mentioned earlier, section 187 is so incomprehensible that the manner in which Parliament intended to change existing law is not clear. Thus, it is not possible to arrive at any reasonably certain conclusion regarding the words which might have actually been used by Parliament.

However, it has been laid down in cases such as Commissioner of Income Tax v. M/s Hindustan Bulk Carriers that statutory provisions have to be interpreted in such a manner that they are workable in nature. Thus, the Supreme Court will have to give some interpretation to section 187 to make it coherent if a case revolving around that section were to come before it. I would argue that subtracting the words “at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days” from section 187(2) would be the best possible way forward. This would bring the law back to the position under the Code. While this would not be in consonance with the intention of Parliament, it would not be possible for the Supreme Court to do anything else since this intention is itself unascertainable.

Due to the above reasons, it would be best if Parliament itself passed an amendment as soon as possible to rectify section 187. This is unfortunate given the fact that sections like section 187 are going to be heavily used once the BNSS comes into force on 1st of July 2024. It seems probable that the implementation of the BNSS is going to be rough when it comes to the pre-trial stage due to section 187.

Conclusion

Keeping aside the merits of the change which Parliament intended to bring about through section 187(2), it is clear that it has failed to bring it about in a comprehensible manner. The propensity of Parliament to pass poorly drafted laws had been criticised a few years ago by the then Chief Justice of India N.V. Ramana. It is rather perturbing that Parliament is not willing to take such criticism to heart. One can only hope that Parliament soon amends section 187 and does not hastily pass laws in the future, at least insofar as crucial legislations like the BNSS are concerned.

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.