The Supreme Court of India’s order on May 1, seeking to recall its own decision in Ritu Chhabaria vs Union of India upon the insistence of the Solicitor-General of India, Tushar Mehta, that central investigation agencies were ‘facing difficulties’, has caused concern among legal professionals. Besides the questionable legality of the Court ‘recalling’ its own decision, what is of concern too is how this order would impact the rights of the accused to be released from custody. On May 12, in its interim order, the Supreme Court clarified that courts could grant default bail independent of and without relying on the Ritu Chhabaria judgment. However, the Court’s decision to suspend the rights of defendants in criminal cases would lead to further erosion of the constitutional rights of the accused and deviate from fundamental principles of criminal procedure.
Right to default bail
The right to statutory bail, often known as default bail, is available to accused persons in cases when the investigating agency fails to complete its investigation within the stipulated time. Under Section 167(2) of the Code of Criminal Procedure (CrPC), the maximum time available to investigators is 60 or 90 days, depending on the seriousness of the offence. If the authorities are unable to complete the investigation within this time period, the accused can seek to be released from custody by applying for default bail under the first proviso to Section 167(2) of the CrPC. Notably, the ‘default’ characteristic of this bail comes from the fact that the application is unrelated to the merits of the case, and is designed to prevent long-term detention of the accused.
The right to default bail has been characterised by the Court in multiple judgments as an indefeasible right, flowing from Article 21 of the Constitution which guarantees the right to life and personal liberty. Therefore, in cases where the investigating authorities attempted to circumvent this procedure, the Court rightly called out these tactics and refused to extend custodial detention of the accused. In Achpal vs State of Rajasthan (2018), the Court held that an investigation report, albeit complete, if filed by an unauthorised investigating officer, would not bar the accused from availing default bail. In S. Kasi vs State (2020), the Court further stated that even during the COVID-19 pandemic, the investigating agencies would not be allowed any relaxation towards computing the maximum stipulated period of investigation, which could lead to additional detention of the accused.
This interpretation draws from the history of Section 167 of the CrPC, which has its roots in a recommendation of the 41st Report of the Law Commission. Under the older version of the CrPC, accused persons could be detained for a maximum of 15 days. Noting the abuse of this provision by the police, who kept the accused under extended periods of custody by misusing other provisions pertaining to trial, the Law Commission recommended extending the period for which an accused could be detained in custody. This found its way into the CrPC through an amendment in 1978. To counter the powers granted to investigating authorities through extended detention, a provision for statutory bail was also introduced so as to ensure that the accused is not detained in custody for long periods of time.
Here too, not a bar
Unfortunately, these protections that were guaranteed to the accused were also whittled away in practice, as investigating authorities routinely filed incomplete or supplementary charge sheets within the 60/90 day period, to prevent the accused from seeking default bail. In other instances, the investigating authorities would file charge sheets, incomplete or otherwise, after the 60/90 day period, but before the default bail application could be filed by the accused. The Supreme Court’s decision in Ritu Chhabaria delegitimised such illegal practices and held that incomplete charge sheets filed by the police would not bar an accused from applying for default bail. The Court emphasised that the preliminary or incomplete nature of these police reports revealed that the investigation was not complete.
Most importantly, in Ritu Chhabaria, the Court did not lay down any radically new proposition. Rather, it drew from prior judgments, such as Uday Mohanlal Acharya v. State of Maharashtra, which delineated the constitutional foundations of the right of an accused to avail statutory bail. Thus, Ritu Chhabaria did not create any additional hurdles in investigation. Rather, highlighting the indefeasible nature of the right to seek default bail, the Court in Ritu Chhabaria simply reiterated that incomplete charge sheets could not prohibit the accused from seeking to be released on default bail.
This is further seen in other judgments which have deviated from Ritu Chhabaria on questions of fact. For instance, in Jasbir Singh (2023), the Supreme Court held that a complete charge sheet filed within time could not be rejected because the investigation did not have sanction. Given these possibilities, it remains unclear as to why the Court would want to consider the possibility of recalling the judgment on legally tenuous grounds.
This decision is particularly alarming because the right to default bail, which has been interpreted so far as flowing from the Indian Constitution, could possibly be made subservient to concerns of ‘difficulties’ faced by investigative authorities. What makes the matter even more serious is the Supreme Court also agreed to defer decisions on default bail for accused persons across the country which would have been decided as per Ritu Chhabaria. Given the serious implications of this judgment on the constitutional rights of the accused, it is imperative that the three-judge Bench of the Supreme Court hearing this matter does not sacrifice procedural propriety at the altar of administrative convenience.
Preeti Pratishruti Dash is an Assistant Professor of Law at the National Law School of India University where she teaches criminal law and procedure