The objective of criminal law is to shield the society against the ones committing crimes and the ones breaking the law in place by creating a threat of punishment to prospective lawbreakers as well as the ones who may attempt to commit the offence by making them undergo the punishment as prescribed by the law for such offence committed by them. Thus, criminal law is a mixture of substantive criminal law and procedural criminal law. The main texts governing the same are Indian Penal Code, 1860 and Criminal Procedure Code, 1973 respectively. The main objective of the Criminal Procedure Code, among the other aims sought to be achieved, is to ensure a fair trial where none of the rights granted to the accused are compromised.
As per the provision of Section 167 (2) (a) of the Criminal Procedure Code, 1973, the maximum period of detention that can be authorized during investigation is 90 days or 60 days, depending on the kind of the offence. If the charge-sheet is filed within the 90 days/ 60 days period, then investigation comes to an end and Section 167 of the CrPC becomes inapplicable to the accused. But if the charge-sheet is not filed within 90 days/ 60 days, the investigation can continue beyond 90 days/ 60 days, no doubt, but as per paragraph (a) of the proviso to Section 167 (2) of the CrPC, the accused acquires an indefeasible right to be released on bail, provided he is prepared to furnish bail as directed by the Magistrate. The bail so granted is known as “default bail” as it is granted to the accused due to a delay on part of the investigating agency in filing of the charge-sheet within the stipulated period prescribed by law. It is also referred to as “statutory bail” or “compulsive bail”.
TIMELINE OF THE CORNAVIRUS PANDEMIC
On December 31, 2019, Chinese authorities informed WHO’s China office of pneumonia like cases in Wuhan City, Hubei province, China, with unknown causes. Since its emergence, the disease rapidly spread to various countries and on January 30, 2020, WHO Director-General, Tedros Adhanom Ghebreyesus declared the 2019-nCoV outbreak as a public health emergency of international concern. Subsequently, on March 11, 2020, he declared the global COVID-19 outbreak as a pandemic. 50 days after the virus was first reported in India, a 14-hour compulsory lockdown called ‘Janata Curfew’ was observed in India on March 22, 2020 and keeping in view the seriousness of the Covid-19 disease, the Prime Minister of India, Mr. Narendra Modi announced a lockdown of 21 days i.e. till April 14, 2020, for the country’s 1.3 billion residents and it was the largest lockdown announced since the onset of the coronavirus outbreak. Thereafter, on April 14, 2020, the nationwide lockdown was extended till May 3, 2020 which was furthermore extended till May 17, 2020. By this time, India with over 85,940 cases overtook China in terms of the number of cases reported leading to a further lockdown till May 31, 2020, making it one of the longest lockdowns any country had ever imposed.
Finally, after an extended 75 days of lockdown, on May 30, 2020, it was announced that lockdown restrictions were to be relaxed from then onwards, except for the containment zones. The process of ‘unlock’ began in the nation from June 8, 2020 and services started to resume in a systematic and phased manner. Furthermore, the Prime Minister clarified that the phase of lockdown had finished in the nation and that the process of ‘unlock’ had now begun.
GUIDELINES DURING THE PERIOD OF LOCKDOWN
The lockdown imposed in the entire nation restricted the movement of people as well as suspended all transport services – air, rail and road. Only the transportation of fire, police, essential goods and emergency services were permitted along with food shops, banks, ATMs, petrol pumps and other essential commodities and their manufacturing. Hospitality services, educational institutions as well as industrial establishments were suspended in toto. The Home Ministry, Government of India stated that an individual shall face imprisonment for up to a year, if there is a violation of the restrictions.
THE GUIDELINES DURING PHASED UNLOCK IN THE COUNTRY
Thereafter, the first phase of reopening namely, “Unlock 1.0” began and permitted hotels and restaurants, shopping malls and religious places to reopen from June 8, 2020 with lifting the restrictions on inter-state travel while still banning large gatherings. A night curfew from 9 p.m. to 5 a.m. was in place throughout the country. State governments, also had the discretionary power to impose restrictions on any and all activities as considered suitable by them.
In Phase II which began on July 1, 2020 as per the guidelines and instructions of the Ministry of Home Affairs and the National Disaster Management Authority, night curfews would still be in place but were reduced to 10 p.m. to 5 a.m. State borders were open to everyone, thereby, facilitating inter and intra state travel, though, international travel of only a limited amount was permitted. Educational institutions, metros and recreational activities were still not allowed to operate till July 31, 2020.
Finally, Unlock 3.0 got done away with night curfews. It allowed gymnasiums and yoga studios to start operations from August 5, 2020. The educational institutions were still not permitted to re-open. All inter and intra state travel and transportation were permitted as well as the permission to celebrate Independence Day with social distancing was provided for. The states of Maharashtra and Tamil Nadu were still in lockdown.
From September 7, 2020 i.e. Unlock 4.0, metro rail facility was permitted to resume operation in a graded manner. Marriage functions were allowed but with a limited gathering of up to 50 individuals and funereal ceremonies could take place with up to 20 people. A crowd, not exceeding 100 people were permitted to attend religious, entertainment, political, sports and academic functions and gatherings.
Cinema halls had been closed all this while and major relaxation during Unlock 5.0 came for the cinema halls. They could now finally be re-opened from October 15, 2020 but only half of their seating capacity was to be occupied at one point of time. Also, swimming pools that were used for providing training to sportsperson were allowed to open.
LEGAL ANALYSIS AND LITERATURE
The question as regards the rights of an accused who is in custody during the time of the on-going pandemic was put at rest by the observations of eminent judges and decisions rendered in various cases by the Indian judiciary and the same is summarized hereafter.
In the case of Achpal @ Ramswaroop & Another v. The State of Rajasthan, Supreme Court solidified the law regarding the rights of an accused who is in custody and where the investigation has not been completed within the period as prescribed under Section 167 (2) of the Code. It held that such delay would accrue an indefeasible right in favor of the accused and thereby, he shall be released on bail as the delay is on part of the investigating agencies.
Thus, the principle legislated in the above-mentioned case have been consistently followed by the Court in other cases such as State of W.B. v. Dinesh Dalmia; Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another; Union of India v. Nirala Yadav and Ranbeer Shokeen v. State (NCT of Delhi) and therefore, must be considered an ingrained principle of law.
The controversy regarding the question under scrutiny began when the bench of Supreme Court comprising of the Chief Justice of India S A Bobde, Justices L Nageshwara Rao and Surya Kant passed an order on March 15, 2020 with the objective of reducing physical filings in courts and tribunals across the countries during the COVID-19 pandemic in a suo moto case and invoked the special powers under Article 142 of the Constitution of India which shall be binding on all courts/tribunals as per Article 141 and stated,
“To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings”
Hence, the question before the court was whether this order of the Supreme Court will extend the time for filing final report or not. Justice G R Swaminathan presiding in the Madras High Court in the case of Settu v. The State held that the executive cannot take advantage of the order of the Supreme Court to call for an additional period for filing of the final report and observed that the general order passed by the Supreme Court to extend the period of limitation for filing cases in view of the COVID-19 lockdown will not affect the right of an accused to default bail under Section 167 (2) of the Code of Criminal Procedure as a contrary interpretation to this would defeat the fundamental right to personal liberty of a person enshrined under Article 21. Personal liberty is the most precious of all the fundamental rights and must be safeguarded at all costs.
The scope of the term ‘limitation’ in reference to Section 2 (j) of the Limitation Act was initially scrutinized by Justice Swaminathan and he noticed that “period of limitation” pertains to the time period prescribed for any suit, appeal or application. In this context, the judge examined that Section 167 (2) cannot be construed as prescribing any period of limitation for investigation as it did not cease the filing of final report even after the period of 60/90 days and the effect of expiry of the period under Section 167 (2) is just the accrual of rights to the accused for default bail. Thus, the court observed that Section 167 of CrPC cannot be interpreted to contain the period restricting the filing of final reports.
Putting emphasis on the inherent and indefeasible right of an accused to be released on default bail after the expiry of a 60 or 90 days period of custody, depending on the case, Justice Alok Kumar Verma of the Uttarakhand High Court on May 12, 2020 held that the general order passed by the Supreme Court to extend the period of limitation for filing cases in view of the COVID-19 lockdown will not affect the right of an accused to default bail under Section 167 (2) of CrPC and the Court had not extended the 60 days/ 90 days period of police investigation.
In another case, the Kerala High Court also upheld that the Supreme Court order dated March 23, 2020 does not affect the right of an accused to default bail under Section 167 (2) of CrPC and agreed with the judgment of the Madras and Uttarakhand High Court. The Bench of Justice Raja Vijayaraghavan V. held that the provisions of the CrPC do not empower anyone to extend the period, within which investigation must be completed and clarified that a reading of the general order passed by the Supreme Court to extend the period of limitation for filing cases would show that those directions were issued to eliminate difficulties faced by the litigants and the lawyer and are applicable to petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws.
However, taking a contrary view in S. Kasi v. State through The Inspector of Police, Justice G. Jayachandran observed that to hold the SC order not applicable to the time period for filing final report amounts to mocking the Apex Court and stated that the accused cannot take undue benefit of the situation where there are limitations put on the investigating agency’s right of movement. He added that the myopic reading of the order in view of the lockdown will amount to judicial indiscipline. He believed that the lockdown announced by the Government is akin to proclamation of emergency as aggression is being faced, not by human agencies, but by micro-organs and the whole nation has accepted the restrictions for wellbeing of mankind. He held that the period of limitation for investigation under Section 167 CrPC would also deem to stand expanded, keeping in mind the unprecedented situation of the Covid-19 pandemic.
Accordingly, the Chief Justice of the Madras High Court, Justice AP Sahi constituted a Division Bench for arriving at an answer with regard to the reference as to whether the Supreme Court’s order dated March 23, 2020 for extension of limitation during the lockdown period, is applicable to police investigation under Section 167 (2) of the CrPC for default bail or not as two conflicting views was adopted by two single Judges of the High Court. The reference was placed for consideration before a Division Bench presided over by Justice PN Prakash at Madurai Bench itself.
The confusion and uncertainty regarding the March 23, 2020 order to Section 167 (2) of the CrPC was affecting a loads of inmates as they were not being released by the magistrates as per the mandate of the law and thereby, a plea to clarify the same was filed in the Apex Court of the country. A Bench lead by Justice Ashok Bhushan of the Supreme Court said that the perspective of the high court stating that the limitation on movement levied during the period of lockdown shouldn’t give the default right to an accused for bail when the charge sheet has not been filed within the time prescribed under Section 167 (2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law. The lockdown announced by the government due to COVID-19 is not akin to the proclamation of Emergency.
In another recent case, the Hon’ble High Court of Rajasthan also brought forward an analysis of the effect of Supreme Court’s order dated March 23, 2020 pertaining to the extension of the amount of limitation for all general and special laws by the Apex Court of India. The vital issue that the High Court was confronted, in the instant case, inter alia, was also whether the extension of period of limitation as pronounced by Supreme Court in the impugned order would be applicable on investigating agencies and investigating procedures and statutory bodies. The Court after hearing the contentions of both the parties observed that on merits, there is no concrete reason to interfere with the finding recorded by the Board. The Board was justified in reaching to a conclusion that if the accused is not handed over to the guardian or released on bail, he is likely to go in company or in association of known criminals and the same would expose him to crimes of like nature, posing a greater danger. The Court opined that the legislative intent behind Section 167 of CrPC is not to supply an outer deadline within which the investigation is required to be completed, rather it prescribes the consequence of such failure to finish the investigation within the stipulated time. The underlying intention or idea behind this provision, is that an accused can’t be kept in police or judicial custody merely under the guise of or pretext of pending investigation. The provision just puts a limit on the facility of the Magistrate to increase the amount of detention beyond a period of 60 to 90 days as the case may be, though, the police is at freedom to carry out their investigation at their own speed as deemed appropriate by them.
Thus, it can evidently be seen from the judgments passed by the various courts that criminal jurisprudence has focused on a socially sensitized judicial mechanism wherein certain rights ensuring justice and liberty are statutorily and constitutionally bestowed upon the accused that may be availed by them. Therefore, it can be concluded that though a nationwide lockdown had been imposed in the entire country and a delay in the investigation could have occurred but it does not snatch the right of default bail of the accused and he/she may apply for it and the same has to be granted by the court.
The Indian Penal Code, 1860, Act No. 45, Acts of Parliament, 1860 (India).
The Criminal Procedure Code, 1973, Act No. 2, Acts of Parliament, 1974 (India).
2019-nCoV outbreak is an emergency of international concern, WORLD HEALTH ORGANISATION EUROPE (Jan. 31, 2020), https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/01/2019-ncov-outbreak-is-an-emergency-of-international-concern.
WHO announces COVID-19 outbreak a pandemic, WORLD HEALTH ORGANISATION EUROPE (Mar. 12, 2020),https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a-pandemic?
Achpal @ Ramswaroop & Another v. The State of Rajasthan, (2019) 14 SCC 599 (India).
State of W.B. v. Dinesh Dalmia, (2007) 5 SCC 773 (India).
Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another, (2009) 17 SCC 631 (India).
Union of India v. Nirala Yadav, (2014) 9 SCC 457 (India).
Ranbeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405 (India).
RE: Cognizance foe Extension of Limitation, 2020 SCC OnLine SC 343 (India).
Settu v. The State, ICL 2020 Mad. 20 (India).
Vivek Sharma v. State of Uttarakhand, First Bail Application No. 511/2020 in the High Court of Uttarakhand at Nanital on May 12, 2020 (India).
Right to Default Bail Under Section 167(2) CrPC Not Affected by SC Order Extending Limitation: Madras HC, LIVE LAW, (May 8, 2020, 7;18 PM), https://www.livelaw.in/top-stories/right-to-default-bail-under-section-1672-crpc-not-affected-by-sc-order-extending-limitation-madras-hc-156450?infinitescroll=1
Mohammed Ali v. State of Kerala & Anr., BA No. 2856/2020 in the High Court of Kerala at Ernakulum (India).
[Default Bail] Madras HC Constitutes DB to Settle Conflicting Views on Applicability of SC Order Extending Limitation on Section 167(2) CrPC, LIVELAW NEWS NETWORK, (May 13, 2020, 9:48 PM), https://www.livelaw.in/news-updates/default-bail-madras-hc-constitutes-db-to-settle-conflicting-views-on-applicability-of-sc-order-extending-limitation-on-section-1672-crpc-156724
Lockdown not akin to Emergency, Default Bail an indefeasible right on Non- Submission of Chargesheet:SC,News18, (June 20, 2020, 1:44 PM), https://www.news18.com/news/india/lockdown-not-akin-to-emergency-default-bail-an-indefeasible-right-on-non-submission-of-charge-sheet-sc-2678517.html
Pankaj v. State, S.B. Cr. Rev. Petition no. 335/2020 at Madras High Court (India).
Priya Adlakha and Kritraj Sadana, India: Effect Of Supreme Court’s Order Extending Limitation On Right To Default Bail Under Section 167(2) Of Cr.P.C., MONDAQ (Jun. 30, 2020), https://www.mondaq.com/india/crime/959746/effect-of-supreme-court39s-order-extending-limitation-on-right-to-default-bail-under-section-1672-of-crpc