"Intricacy of Bail in the Pandemic"

This Article is written by Nikhil Meena, a Student at Rajiv Gandhi National University of Law.

After the commission of an offence, the accused is arrested by the police for the purpose that, he can be made available easily at the time of trial and can be punished. But, considering that there is another way by which this object can be achieved without keeping the accused in custody then that would safeguard the personal liberty of the accused with securing the interest of justice. The drawback of arrest and detention is the personal liberty being curtailed and violation of Article 21 of The Indian Constitution. For instance, a person can be arrested and detained in the custody for a whole year and in the final hearing the person being acquitted will still be called curtailment of his personal liberty and miscarriage of justice, further, it would be in contradiction to principles of natural justice. The drawback was overcome by adopting the reformative theory which made the concept of “bail and bonds” came into existence. The provision of bail granted the person his freedom and liberty and at the same, it secured the interest of justice by committing the person at the court’s beck and call. This article will shed a light on the effect of the right of bail of an accused person during the coronavirus pandemic situation.

Justice delayed is justice denied is a legal maxim popularly interpreted in India in the case of Hussainara Khatoon vs. The State of Bihar, that being said, the efficiency of bail procedure was affected due to delayed proceedings during the coronavirus pandemic situation.

In the case of S. Kasi vs State[1] on 11 May 2020, the bail application was dismissed by the Madras High Court even though default bail is a legal, fundamental and indefeasible right of an accused under Section 167(2) of CRPC.[2]

In another case of Subhash Chander vs State of Haryana[3] on 21 July 2020, the applicant was denied default bail by the Punjab and Haryana High Court. In both the cases, the police filed the charge sheet under section 173 beyond the limitation period mentioned in section 167 of CrPC and therefore the applicants deemed to be granted default bail were denied such right as the court sought the order dated March 23, 2020, which extended the limitation period due to coronavirus pandemic.[4] However, the law says that an accused in the course of an investigation cannot be put into custody for more than 60 days for offences punishable with less than 10 years, and 90 days with offences punishable with more than 10 years, given that the investigation agency didn’t file the charge sheet in the given stipulated time as per section 167 of CrPC. This led to the controversial topic of default bail controversy during coronavirus pandemic which took away the right of an accused to be granted default bail which in sense is wrongful confinement given that the pandemic situation will cause a long delay in investigation and proceedings and repercussion of which will have to be faced by an accused by being in the custody for a prolonged period.

However, intricate the provisions of bail are in Indian Criminal jurisprudence, it is to be interpreted as a subject of personal liberty which is an indefeasible right. The goal of CRPC is to encompass reformative law which tends to reform people which would ensure the persons act in the society to be in order, end result of which is only societal justice. Article 21 of The Indian Constitution ensures the life and personal liberty of a person which cannot be taken away except by the procedure established by law, terming its judgment in ADM Jabalpur, the Supreme Court laid observations on this topic. The default bail is not only a statutory right as contemplated in Section 167(2) of CrPC, but it is also a procedure established by law under Article 21 of The Indian Constitution, therefore, to be granted release on bail is a fundamental right once the requirements under section 167(2) are fulfilled, as held by the bench of 3 Judge in the Supreme Court.[5] Lockdown is not to be considered in similarity to the Emergency and that the right to life and personal liberty can only be taken away with due process of law, as held by the Supreme Court. The bench comprising Justice M.R. Shah and V. Ramasubramanian clarifies that the order of extension of limitation period due to coronavirus pandemic dated March 23, 2020 cannot be interpreted as an extension to the period of filing charge sheet in Section 167(2) of CrPC. Therefore, on the above observations, the Supreme Court set aside the judgement of Madras High Court in case Hussainara Khatoon vs. the State of Bihar and directed the release on default bail of S Kasi.

Section 167(2) provides safeguard to an accused from wrongful confinement, custodial violence, torture etc. It makes sure that the accused is not subjected to abuse of power of detention by the custodial authority. Without this safeguard, the authority could devise methods to keep an accused in custody for an indefinite amount without charge even being framed, it would be totally against Article 21 and the main goal of reformative law of CRPC. Even though the bail in non-bailable offences is discretionary but the default bail is an absolute and indefeasible right that is granted when the stipulated time is completed.[6] Bail is a complex procedure and not understandable by the poorer sections which is a major reason behind the increase of undertrial prisoners, coronavirus pandemic should not be made another factor of failure of efficiency in the judicial system.


[1] S. Kasi v State, (2020) S.C.C. Online S.C. 529 [2] Vaman Narain Ghiya v State of Rajasthan, (2009) 2 S.C.C. 281 (India) [3] Subash Chander v State of Haryana, (2014) 13 S.C.C. 193 (India) [4] (2020) S.C.C. Online S.C. 343 (India) [5] Munish Chandra Pandey, Right of Default Bail for Accused Suffers amid Coronavirus Pandemic, INDIA TODAY, (Nov.12, 2020, 3:23 PM), [6] Union of India v Nirala Yadav, (2014) 9 S.C.C. 457 (India)


Disclaimer: This article is an original submission of the Author.

NLR does not hold any liability arising out of this article.