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  • Writer's pictureIRALR


Updated: May 2, 2021

This article has been authored by Nirvani Bhawsar, a second year student at NALSAR, Hydrebad


In India, the journey of COVID-19 began on 30 January 2020 when the first case was reported. From that point onwards the situation worsened. All the ministries started working towards restraining the virus. State governments ordered closure of gymnasiums, spas, night clubs and theatres. Testing for symptomatic people began. All these steps were followed by the imposition of a voluntary lockdown called janta curfew. Amid all these travel restrictions and lockdowns came the question of physical filing of papers in the courts, physical hearings, period of limitation in all the proceedings, etc. The Supreme Court invoking its power under Article 141 read with Article 142 of The Constitution of India, took “suo-moto” cognizance of the COVID-19 situation in the country and the difficulties in filing petitions, applications, suits, appeals and all other proceedings within their stipulated time period given under the general law of limitation or under Special Laws (both Central and/or State). The Supreme Court issued an order for the extension of such prescribed limitation period with effect from 15th March 2020 to further notice.

Complications arose when in a series of cases the effect of this order on “default bail” or “statutory bail” under section 167 (2) of Code of Criminal Procedure came into question.

Remand Procedure

Right to Life and Personal Liberty enshrined in Article 21 of the Constitution of India is not just a Legal Right, but it is a Human Right which is an essential part of every civilized society and Section 167 of The Code of Criminal Procedure provides the lawful procedure through which this right can be curtailed. This Section deals with the detention of a person in custody for further investigation.

It says, if there is a “well-founded” accusation/information for the suspected crime and the same is conveyed to the Judicial Magistrate then he may permit the detention of the accused in police custody for a maximum period of 15 days (this period is 7 days in case of an executive magistrate), after which his detention could be further extended for a period of 90 days (for crimes which entails a punishment of death, life imprisonment or period of imprisonment exceeding 10 years) or 60 days (for all other crimes) if there is sufficient reason for not releasing the accused.

After the expiration of this time period the detainee can seek bail as a matter of right if he is prepared to and does furnish bail. This whole procedure is called remand procedure and the bail granted is termed as “default bail”.

Timeline of The Cases

8th May 2020 - The Madurai Bench of Madras High Court was presented with the case Settu v. The State in which a petition was filed on the grounds that the final report wasn’t filed within the mandatory time limit and now the petitioner is entitled to default bail under Section 167 (2) of The Code of Criminal Procedure.

The Prosecution took advantage of the Supreme Court order dated 23.3.2020 and argued that even the failure in filing the final report within the stipulated time period would not confer the right of statutory bail to the accused as all the periods of limitation across various laws stood extended.

The court held that extension of limitation period w.r.t the Supreme Court order was only limited to filing of the suits whereas filing final report stands on a different footing altogether. Even though the time limit under this Section is referred to as period of limitation, technically it is not. The denial of default bail would amount to violation of “Right to Life and Personal Liberty” provided under Article 21 of the Constitution of India.

11th May 2020 - Before the Madurai Bench of Madras High Court came the case of S. Kasi v. State Through the Inspector of Police in which the petitioner was booked for idol theft. The petitioner demanded statutory bail as a result of the failure of police to submit the final report within the statutory time period.

The Court held that the Supreme Court order was passed to ameliorate the problems of the litigants and its purpose will be defeated if it is not made applicable to filing of final report on completion of investigation. Also, because the order was extended to “all general laws of limitation” it will be extended to section 167 of CrPC as well.

The court also compared the situation of lockdown with that of National Emergency stating that even the Fundamental Rights like Right to Life and Personal Liberty under Article 21 are diluted during emergency.

The Court also while analyzing the judgement of Settu v. The State termed it “uncharitable” saying that it “mis-interpreted” the spirit of the Supreme Court order.

12th May 2020 - The High Court of Uttarakhand in the case of Vivek Sharma v. State of Uttarakhand held that as the Supreme Court order doesn't explicitly mention “investigating agencies”, they can not be covered within the ambit of the order. Hence, the accused can demand default bail as a matter of right.20th May 2020 - In the case of Mohammed Ali v. State Of Kerala, the court termed the right to default bail as an “indefeasible and crystallized” right of an accused and the Supreme Court order can not be used as a shield to take away the vested right of an accused.

The court also asserted that if it is accepted that the Supreme Court order includes investigating agencies as well, then the same contention would be applied to Section 57 of The Code of Criminal Procedure which requires a detainee to be present before the magistrate within 24 hours from his arrest. Further, the investigating agencies will also get entitled to keep the detainee in the police custody for more than 15 days. This will result in a clear violation of Article 22(2) of the Constitution which will result in serious deprivation of the rights of the accused. 22th May 2020 - The Rajasthan High Court in Pankaj v. State, pointed out the rationale behind this section and stated that an accused cannot be kept in police or judicial custody merely under the guise of or pretext of pending investigation.

The court held that this Section does not put a cap on the time period granted for investigation rather it puts an embargo on the authority of the magistrate to grant further detention. The police may at its own pace investigate but it would not affect the right of the accused to be released on bail if there is a failure to adhere to the timeline.

19th June 2020 - Putting this whole debate to rest, the Supreme Court in an appeal filed for the case of S. Kasi vs State Through The Inspector of Police addressed this issue. In the appeal it was argued that the High Court had inaccurately interpreted that the Supreme Court order would eclipse the right to default bail under Section 167(2) of Code of Criminal Procedure. The court reasserted that it is an indefeasible right which cannot be allowed to be frustrated by the prosecution.

The court stated that there were two reasons behind the Supreme Court order: (i) The difficult situation in the country because of COVID-19 and its impact on filing of petitions/ applications/ suits/ appeals/all other proceedings within the period of limitation prescribed by the litigants. (ii) To prevent lawyers from physically appearing in the court for filing of the aforementioned proceedings.

The order was passed to ameliorate the detrimental effects of COVID-19 as litigants who were seeking remedy stemming from a right would not be able to appear in the court physically to file for the time-barred proceedings. The order only extends to the remedies. Further, invalidating the comparison of lockdown with proclamation of emergency, made by the High Court, the Apex Court said that even during emergency Article 21 can’t be suspended according to the Forty-fourth Constitutional Amendment Act. Lastly, the court also pointed out that the bench has breached the judicial discipline by taking a contrary view to one which was taken by a coordinate bench and terming it “uncharitable”


Personal Liberty is an indispensable Human Right as well as a Fundamental Right that no person can be deprived of except by the procedure established by law. Even after detention, the accused has certain rights which are imperative, Right to default bail being one of them. It is an indefeasible right of the accused and the situation of COVID-19 cannot be used as an excuse to compromise the rights of an accused. The Apex Court has once again addressed the plights of the accused and upheld their fundamental rights, saving them from paying for the delays in the system at the cost of their liberty.

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