A Court recall that impacts the rights of the accused

The article discusses the concerns raised by legal professionals regarding a recent Supreme Court order rights of the accused. The order aimed to recall the Court’s own decision in a specific case, raising questions about its legality. The recall of the decision is also concerning in terms of the rights of the accused to release from custody. (Source: The Hindu, 16th May 2023)

What is the Context?

The recent Supreme Court order has raised concerns among legal professionals. The order sought to recall the Court’s own decision in the case of Ritu Chhabaria vs Union of India, upon the insistence of the Solicitor-General of India, Tushar Mehta. The Solicitor-General claimed that central investigation agencies were “facing difficulties.” The recall of the Court’s decision raises questions regarding its legality. On the other hand, it is also of concern to rights of the accused to release from custody.

What clarification did the Supreme Court provide in its interim order on May 12?

In its interim order on May 12, the Supreme Court clarified that courts have the authority to grant default bail independent of and without relying on the Ritu Chhabaria judgment. This clarification was made to address the concerns regarding the impact of the Court’s decision on the rights of the accused to release from custody.

What is the right to default bail and when is it applicable?
  • Default bail, or statutory bail, is available to the accused when the investigation exceeds the specified time.
  • Section 167(2) of CrPC sets a maximum investigation time of 60 or 90 days, depending on the offense.
  • If investigation surpasses time limit, accused can apply for default bail under first proviso.
  • Application for default bail focuses on preventing prolonged detention, regardless of case merits.
How has the Supreme Court interpreted the right to default bail?

The Supreme Court has characterized the right to default bail as an indefeasible right. It emanates from Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty.

  • Court condemns authorities’ attempts to bypass procedure and extend accused’s custodial detention in various judgments.
  • In Achpal vs State of Rajasthan (2018), Court ruled unauthorized investigating officer’s report doesn’t restrict default bail.
  • In S. Kasi vs State (2020), Court emphasized investigating agencies cannot extend investigation period, even during pandemic.
What is the historical background of the provision for default bail in the Code of Criminal Procedure (CrPC)?

The provision for default bail in the Code of Criminal Procedure (CrPC) has its origins in the 41st Report of the Law Commission. The Law Commission recommended extending the period of detention and introducing the provision for statutory bail to counteract the abuse of power by investigating authorities. These authorities had misused the provision for detaining accused persons for a maximum of 15 days prior to the amendment in 1978. Furthermore, the police had exploited other trial-related provisions to extend the custody of the accused. While investigating authorities carry out their work, they ensure that the provision for statutory bail prevents subjecting the accused to prolonged detention. This provision serves as a safeguard against extended periods of custody.

In practice, how has the undermining of the protections provided by default bail occurred?

In practice, regrettably, the undermining of the protections guaranteed by default bail has occurred. Investigating authorities frequently filed incomplete or supplementary charge sheets within the 60/90-day period to prevent the accused from seeking default bail. In other instances, charge sheets, whether complete or incomplete.

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