Why The Supreme Court’s Order On Extension Of Limitation Should Not Apply To “Default Bail” Under Section 167 (2) Cr.P.C.

The COVID-19 pandemic has bought with itself unprecedented challenges for the judiciary. This has made the task of striking a balance between upholding the rule of law and preserving basic human rights, tougher than ever before.

Bail is the principal right of an accused. The need to protect personal liberty is enshrined in the Indian Constitution through Article 21 and has been upheld by the Courts of our country from time to time. Perhaps, the strictest safeguard of the rights of an accused presents itself in the form of Section 167 (2) of the Criminal Procedure Code, 1973, which provides for what has come to be known as “ Default Bail ”. This section provides for the indefeasible right to bail, in cases where the police has failed to present a charge-sheet under Section 173 Cr.P.C., within the statutory time period ( 90 days when the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days when the investigation relates to any other offence ), provided of course that the accused is prepared to and does furnish the bail amount.

On March 23, 2020, while exercising it’s power under Article 142 read with Article 141 of the Constitution of India, the Supreme Court directed that the period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not, shall stand extended ( w.e.f. March 15, 2020 ) till further orders.[i] The Apex Court took cognisance of the difficulties being faced by litigants and lawyers on account of the lockdown across the country, with respect to filing petitions, appeals, applications, etc. within the period of limitation prescribed and felt that such relief was the need of the hour.

Now, does this order of the Apex Court apply to the 60 / 90 day limitation period to file a charge-sheet as mandated by Section 167 (2) Cr.P.C., in default of which bail must be granted? This has been answered in two conflicting orders of the Madras High Court.

On May 08, 2020, in Settu V/s The State[ii], a single-judge bench of Justice G. R. Swaminathan granted default bail to an accused who had allegedly committed an offence under Section 392 read with 397 of the Indian Penal Code. During the hearing, the prosecution placed reliance on the March 23 order of the Apex Court extending the period of limitation under various laws. The court while relying upon Achpal V/s State of Rajasthan[iii] ( discussed later ), disagreed with the prosecution and held that the Apex Court’s order does not deal with Section 167 (2) Cr.P.C. and delay in filing a final report under Section 173 Cr.P.C. cannot be condoned. However, the Court clarified that the benefit of the Supreme Court’s order should extend to investigations under special laws.

In approximately 72 hours, in S. Kasi V/s The State[iv], the High Court was faced with a similar situation, but this time its decision was different. A single-judge bench of Dr. Justice G. Jayachandran dismissed a bail petition filed by the accused who was arrested for offences under Sections 457 (2), 380 (2), 411 (2) and 414 (2) of the IPC. The court held that “ In view of the order passed by the Honourable Supreme Court extending the limitation, the time prescribed for completing investigation under Section 167(2) gets eclipsed. ” The Court went on to state that “ the wings of the investigating agency are clipped; their legs are tied.” as law enforcing agencies are implementing the lockdown in the country and are therefore unable to complete the investigation within the stipulated time period.

Consequently, on May 12, 2020, the Hon’ble Chief Justice of the Madras High Court has constituted a Division Bench, in order to settle the following question:

“ Whether the orders passed by the Apex Court on 23rd March, 2020 and 6th May, 2020 in Suo Motu Writ Petition (Civil) No.3 of 2020 also apply to the proceedings under Sec.167(2) Cr.P.C. and consequently which of the two opinions expressed by the learned single Judges in the case of Settu (supra) and Kasi (supra) lays down the law correctly ? ”[v]

It is respectfully submitted that the view taken in Settu seems to be more in consonance with the view taken by the Apex Court on the denial of “default bail ” in multiple judgements and is also more suitable to the present circumstances, except with regard to what has been held regarding the applicability of the Supreme Court’s order to special laws.

What The Supreme Court Has Held On Denial of “ Default Bail ”:

The Apex Court has consistently upheld the right of an accused to default bail.

In Hitendra Vishnu Thakur V/s State Of Maharashtra[vi], while considering Section 20 (4) (b) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( Under TADA, the designated court has the power to grant bail by default when the investigation is not completed within 180 days of the arrest ) read with Section 167 (2) Cr.P.C., a two-judge bench of the Apex Court held,

“The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation.”

In Sanjay Dutt V/s State Through C.B.I. Bombay[vii], while hearing another matter related to the Terrorist and Disruptive Activities (Prevention) Act, 1987, a Constitution Bench has held that,

The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith.

In Achpal V/s State Of Rajasthan (Relied upon in the May 8, 2020 order in Settu), the Supreme Court was faced with a situation in which a charge sheet was presented within the stipulated time period, however, it was returned due to a technical default. In actual effect, even on the 90th day after the arrest, no charge sheet was presented. A two-judge Bench opined as follows,

The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality.

The above-mentioned judgements are just a few amongst a panoply of judgements of the Apex Court in which the importance of granting default bail has been considered. It is clear that the Supreme Court has throughout been averse to the extension of the period of investigation provided for under the Cr.P.C.

Why The Apex Court’s Order Should Not Apply To Default Bail Under Special Laws:

In it’s May 08 order in Settu,  the Madras High Court while holding that the Apex Court’s order regarding limitation would not apply to investigations under Section 167 (2) Cr.P.C., also clarified that this interpretation would not be applicable to cases involving offences under special laws such as the Unlawful Activities ( Prevention ) Act, 1967 and Narcotic Drugs and Psychotropic Substances Act, 1985.

Offences under special laws are of a serious nature and therefore these acts provide for longer pre-investigation detention periods along with the possibility of an extension. However, there are certain pre-conditions to the grant of extension of detention without bail. These conditions must be fulfilled and the Apex Court’s order extending limitation under special laws should not alone be sufficient to deny bail once the maximum detention period is served.

All those accused of offences under these special laws are not necessarily guilty and that is precisely why the Legislature has provided safeguards, notwithstanding the grave nature of the offences. For instance, Section 36 (A) (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads:

36A. Offences triable by Special Courts:

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”: Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

Therefore, it is imperative that the Public Prosecutor must file a report on the progress of the investigation and give cogent reasons as to why the period of detention must be extended and the Court must be convinced. Even then, detention cannot extend beyond a period of one year.

There are similar provisions in other laws as well, such as Section 43D of the Unlawful Activities (Prevention) Act, 1967. The Court must consider the merits of each case, before granting an extension of detention. If such non-fulfilment of requirements is condoned by taking cover under the recent order of the Apex Court and default bail is denied, it would result in grave injustice for an accused.

Moreover, one cannot help but consider the often-resorted practice of falsely accusing someone of having committed offences under special acts like the NDPS Act, 1985 for the sole purpose of harassment, as they provide for longer periods of detention.

Decongesting Prisons:

India has over 4.5 lakh inmates in jails, about 17 % more than their capacity[viii]. Our prisons serve as an extremely dangerous zone for the spread of COVID-19 due to their unsanitary and overcrowded conditions. Decongesting prisons should be amongst the topmost priorities. One of the biggest advantages of granting bail when it is due is that it avoids overcrowding of prisons.

In light of the recent directions of the Apex Court[ix], many High Courts and Subordinate Courts are granting bail to prisoners, on account of the danger posed by the virus in prisons. The Supreme Court has directed that each State / UT shall constitute a High- Powered Committee “ to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. ” The criteria for granting parole or interim bail should be based upon the nature of the offence, the number of years to which the convict has been sentenced or the severity of the offence with which the accused is charged with and if he is facing trial or any other relevant factor.

The task on the hands of the Court is a herculean one. The danger to public safety has to be balanced with the right of an accused / convict to safe and habitable living conditions. No doubt, it can be difficult to grant bail in such a situation when the law does not categorically provide for it, however, where the law does provide for bail ( as it does under Section 167 (2) Cr.P.C. ), it mustn’t be denied. If the Apex Court’s order is applied to the maximum pre-charge detention period provided for by Section 167 (2) Cr.P.C., it will be akin to going against the tenor of the order of the Apex Court suggesting the release of prisoners.

Final Word:

It is pertinent to note that the Supreme Court’s order was passed keeping in mind the challenges faced by litigants because of the nationwide lockdown and “to ensure that lawyers/litigants do not have to come physically” to Courts / Tribunals to file petitions, applications, etc. There is absolutely no mention of the police or the 60 / 90 day period provided for under Section 167 (2) Cr.P.C and therefore, extending the benefit of this order to the provision for default bail, may not be justified.

Deprivation of liberty is grave, especially for one who has not been found guilty and pre-trial restraints of liberty should be limited to only what is necessary and to matters in which it is provided for by law. The Division Bench of the Madras High Court which has been constituted to settle this question has an opportunity to once again uphold the rule of “ Default Bail ”. Even more appropriate, would be a clarification on the question by the Supreme Court itself, lest other High Courts too begin to deny bail by relying on the March 23 order of the Apex Court.

As Lewis Mumford, the eminent American historian and sociologist once remarked, “ A man of courage never needs weapons, but he may need bail.”

[i] Suo Motu Writ Petition (Civil) No(S).3/2020 ( In Re : Cognizance For Extension Of Limitation ): Order dated March 23, 2020.

[ii] CRL OP(MD). No. 5291 of 2020: order dated May 08, 2020

[iii] (2019) 14 SCC 599

[iv] CRL OP(MD). No.5296 of 2020

[v]Default Bail u/s 167 (2) CrPC – Order of Reference by the Hon’ble The Chief Justice ”: Order dated May 12, 2020

[vi] (1994) 4 SCC 602

[vii] 1994 (5) S.C.C. 410

[viii] National Crime Records Bureau: Prison Statistics India – 2018 .

[ix] Suo Motu Writ Petition (C) No. 1/2020 In Re : Contagion Of Covid 19 Virus In Prisons, dated March 23, 2020.


Farhad Singh Kohli


Farhad Singh Kohli is a fourth-year student from Government Law College, Mumbai. He can be contacted at farhadsinghkohli@gmail.com and @FarhadKohli on Twitter.

One response to “Why The Supreme Court’s Order On Extension Of Limitation Should Not Apply To “Default Bail” Under Section 167 (2) Cr.P.C.”

  1. Nice article. Thanks for sharing. Keep posting. What is the Law of Defamation in India?


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