Why was lawyer and activist Sudha Bharadwaj given bail, but the co-accused denied the same relief?
The story so far: The National Investigation Agency (NIA) has approached the Supreme Court against a Bombay High Court order granting bail to advocate and activist Sudha Bharadwaj. In its bail order, the court has asked the NIA Court to decide the conditions for her release on December 8. While she was given ‘default bail’, eight others were denied the benefit in the same case. The case highlights the nuances involved in a court determining the circumstances in which statutory bail is granted or denied, even though it is generally considered “an indefeasible right”.
What is default bail?
Also known as statutory bail, this is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody. This is enshrined in Section 167(2) of the Code of Criminal Procedure where it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody. This section concerns the total period up to which a person may be remanded in custody prior to filing of charge sheet.
For most offences, the police have 60 days to complete the investigation and file a final report before the court. However, where the offence attracts death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days. In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.
How does the provision vary for special laws?
The 60- or 90-day limit is only for ordinary penal law. Special enactments allow greater latitude to the police for completing the probe. In the Narcotic Drugs and Psychotropic Substances Act, the period is 180 days. However, in cases involving substances in commercial quantity, the period may be extended up to one year. This extension beyond 180 days can be granted only on a report by the Public Prosecutor indicating the progress made in the investigation and giving reasons to keep the accused in continued detention.
In the Unlawful Activities (Prevention) Act, the default limit is 90 days only. The court may grant an extension of another 90 days, if it is satisfied with a report by the Public Prosecutor showing the progress made in the investigation and giving reasons to keep the accused in further custody. These provisions show that the extension of time is not automatic but requires a judicial order.
What are the laid-down principles on this aspect?
Default or statutory bail is a right, regardless of the nature of the crime. The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time. It includes days undergone in both police and judicial custody, but not days spent in house-arrest. A requirement for the grant of statutory bail is that the right should be claimed by the person in custody. If the charge sheet is not filed within the stipulated period, but there is no application for bail under Section 167(2), there is no automatic bail. In general, the right to bail on the investigation agency’s default is considered an ‘indefeasible right’, but it should be availed of at the appropriate time.
What happened in Sudha Bharadwaj’s case?
In the Bhima Koregaon case, which is under UAPA, the prosecution got the 90-day limit extended to 180 days. Ms. Bharadwaj completed 90 days in prison in January 2019, but the charge sheet was filed only in February. Meanwhile, she had applied for default bail on the ground that the extension given by a Sessions Court earlier was without jurisdiction. The court agreed that only a Special Court could have authorised the extension beyond 90 days. Therefore, she was entitled to statutory bail. However, eight others, who had argued that the court order taking cognisance of the charge sheet was defective, but did not specifically seek default bail, were not given the same relief.