Default Bail and COVID-19

(By Nikhil Rohatgi and Ishan Kapoor)

“Any Society that would give up a little liberty to gain a little security will
deserve neither and lose both”
- Benjamin
Franklin
Introduction
This Article suggests and argues in favour of granting default bail sans bail
bonds and surety under S. 167(2) of the CrPC and how grant of such bail can
help in tackling the spread of Corona Virus (COVID-19) in Indian Prisons by
addressing the issue of overcrowding of Indian Prisons.

Provisions related to default bail are enshrined in S. 167 of Code of Criminal

Procedure, 1973 which provides that if investigation of an offence is not
completed and final investigation report is not filed under S. 173(2) CrPC
(colloquially known as a chargesheet) within the stipulated time of 60 or 90
days (the latter for more serious offences), then the accused has an absolute
right to be released on bail.

The Supreme Court in innumerable cases has held that there is no discretion
while granting default bail where the accused satisfies prerequisites for such
grant1 and that the right to bail under S. 167(2) proviso (a) thereto is absolute. It
is a legislative command and not court's discretion. If the investigating agency
fails to file the charge-sheet before the expiry of stipulated time, the accused in
custody must be released on bail. At that stage, merits of the case are not to be
examined2.

1
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67
2
Rajnikant Jivanlal v. Intelligence Officer, (1989) 3 SCC 532
S. 167(2) clearly states that a person released on default bail is deemed to be
released under the provisions of chapter XXXIII of the CrPC, which deals with
bail and bail bonds. Chapter XXXIII contains sections such as S. 440 (which
deals with amount of bond), S. 441 (which deals with sufficiency of surety), S.
442 (which provides that once the bail bond is executed the order of release
would be communicated to the officer in charge of the Jail). These provisions
make it crystal clear that a person entitled to default bail requires to make an
application and further provide suitable surety as deemed fit by the Magistrate.

Problem of Overcrowding and Steps taken by Supreme Court

The Supreme Court in Inhuman Conditions in 1382 Prisons3 formulated a
number of guidelines for reducing the problem of overcrowding in Indian
Prisons and also noted that due to lack of ability to provide security and surety
for their release, many undertrial prisoners are not able to utilize their right to
bail effectively. The Social Justice Bench of the Supreme Court cast a duty
upon the Undertrial Review Committee appointed by it, to ensure that prisoners
who cannot furnish bail bonds due to their poverty are not subjected to extended
incarceration only for that reason.

In 2016 the occupancy rate in prisons was 113.7% which has increased to
117.6% in 2018.4 While the total number of Prisons have decreased since 2016,
there has been an increase of 30 thousand prisoners over the same period. While
the actual capacity of prisons increased by 4.03% the number of prisoners
lodged in various jails has increased by 7.64% during this period. As per the

3
(2016) 3 SCC 700
4
Prison Statistics India 2018 Report published by National Crime Records Bureau (Ministry of Home Affairs)
statistics published in the report - out of the total 4,66,084 prisoners, 3,23,537
are undertrial prisoners which translates to 69.4%. It is pertinent to point that
the number of undertrial prisoners has increased from 2,93,058 in 2016 to
3,23,537 in 2018 which translates to an increase by 10.4%.

During a pandemic such as the Corona Virus (COVID-19), the over- occupancy
of Indian Prisons is a recipe for disaster and unchecked spread of the virus.
Social distancing has been widely considered and proven to be the most
effective way of slowing the spread of the disease after its declaration as a
Pandemic by World Health Organization on 11th March, 2020. Various steps
have been taken by Central Government and various State Governments in
order to ensure social distancing, including a pan-India lockdown and
guidelines on social distancing.

Supreme Court took Suo Motu cognizance5 of the difficulty for prisoners to
maintain social distancing due to Indian Prisons being overcrowded. The
Supreme Court took note that studies have indicated that contagious viruses
such as Corona Virus (COVID-19) proliferate in closed spaces such as prisons
and constituted a High-Powered Committee to tackle the issue of overcrowding
of prisons. It was directed that the High-Powered Committee would determine
which class of prisoners can be released. A suggestion was made by the Hon’ble
Court that prisoners who have been convicted or are under trial for offences for
which prescribed punishment is up to 7 years or less can be released on interim
bail/parole.

Pursuant to the order dated 23.3.2020 passed by the Hon’ble Supreme Court,
High Powered Committees have been constituted in all States and Union
Territories. These Committees have been considering various classes of

5
Suo Motu Writ Petition (Civil) No. 1 of 2020.
prisoners who can be released on interim bail/parole. For example, The High-
Powered Committee for Delhi relaxed the criteria for grant of interim
bail/parole by including under-trial prisoners who are senior citizens and have
been in custody for six months or more and facing trial in a case which
prescribes a maximum sentence of 10 years or less. It also decided that those
under-trials who have been in custody for 15 days and face trial in a case which
prescribes a maximum sentence of 7 years or less should also be considered for
release if the charge-sheet has not been filed yet. Similarly, the Jammu and
Kashmir High Powered Committee has relaxed criteria for grant of parole to
include all those convicted prisoners who have undergone imprisonment for 10
years provided they were convicted only in one case.

The Author is of the opinion that in present circumstances, the class of prisoners
who are otherwise entitled to be released on default bail, but are still
languishing in jail due to their inability to pay bail bond or provide a surety,
ought to be released without insisting on the same. The CrPC itself contains
another provision being S. 436A under which the undertrial can be released
without surety, if he has undergone detention for a period extending up to half
of the maximum period of imprisonment specified for that offence under the
law. This class of persons may be further restricted by not extending the benefit
to persons accused of heinous or serious offences such as offences related to
POCSO Act, TADA, commercial quantity NDPS cases, murder, dacoity etc.

Such a step will not only help in controlling the problem of overcrowding in
Indian Prisons but will also ensure that the rights of the prisoners under Article
21 of Constitution are protected. It would be in keeping with Constitutional
ethos of Socialism as well as Equality, as the persons in the class
aforementioned are only still incarcerated due to their poverty, while more
fortunate under-trials accused of perhaps the same offence are able to avail their
right of default bail.