HARMONY BETWEEN RIGHT TO PERSONAL LIBERTY AND POLICE STUDY FOR INVESTIGATION |CrPC Notes

WHAT IS 167(2) UNDER CrPC?

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days.

The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

WHAT IS 309 UNDER CrPC?

Power to postpone or adjourn proceedings

 In every inquiry or trial, the proceedings shall be continued from day to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded; 

Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.

PERSONAL LIBERTY AND POLICE CUSTODY FOR INVESTIGATION

The Constitution of India under Article 21 guarantees the right of personal liberty to every person and must not be deprived of such right except according to the procedure established by law. The issues such as the meaning and content of personal liberty and the nature and scope of the protection of ‘the procedure established the law were destined to be expounded by the Supreme Court through the judicial process. 

The first stage where the accused loses his personal liberty is where the arrest is made by the police pursuant to registration of an FIR against him. The second stage is where the accused is denied bail by the court and the third stage where the personal liberty of the accused is taken away is when he is denied suspension of sentence and bail after his conviction in a pending appeal.

‘Procedure Established by law’ is a phrase taken by the British Constitution. As per this phrase, any right of an individual can be taken away by law. The law can take away an individual’s right to personal liberty only according to the procedure which has been established by the law. This principle does not assess if the laws made by the Parliament are fair, just, and not arbitrary.

The procedure established by law can be valid for the purpose of taking away the right to personal liberty of the individuals even if it is different from the principles of justice and equity. Thus, the laws made by the legislature need to be fair and just in order to protect the individual against any arbitrary action of the executive.

Police custody means that an accused stays in the lock-up of a police station or at least in the physical custody of the investigating agency probing the concerned matter. On the other hand, judicial custody implies that the accused is lodged in jail and is under the custody of a magistrate.

The power of a court to remand an accused to custody is governed by a number of provisions of the CrPC, these being Sections of these 167(2), 209(b) and 309(2). Each provision is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody.

The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under S.309(2) relates to a stage after cognizance and can only be sent to judicial custody.

• Bikram Jit Singh v. State of Punjab

A three-judge bench of the Supreme Court comprising of Justices Rohinton Fali Nariman, Navin Sinha and KM Joseph has held in the case of Bikram Jit Singh v. State of Punjab⁷ that right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the CrPC, but that it is part of the procedure established by law under Article 21 of the Constitution of India Therefore, it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.

• 41st Law Commission

In 1973, through the 41st Law Commission, Parliament made a provision for anticipatory bail. The purpose behind it was to avoid unnecessary arrests and harassment of individuals who were under arrest. It was seen before the 41st Law Commission that the personal liberty of individuals was infringed as per the procedure of law.

The accused in India is said to be innocent until he is proven to be guilty. In order to protect the interests of the accused and safeguard his personal liberty, the Parliament made a provision for the anticipatory bail.

• State Rep. by the C.B.I vs. Anil Sharma

In 1997, in the case, State Rep. by the C.B.I vs. Anil Sharma, the Supreme Court cancelled the anticipatory bail which was granted by a High Court and held that “custodial interrogation is qualitatively more elicitation-oriented” than when an accused has anticipatory bail. The reality of the use of third-degree methods was completely ignored in this case, and was held that “such an argument can be advanced by all accused” as the court had immense faith in “responsible police officers”.

• DK Basu vs State of West Bengal

In contradistinction to the aforementioned case, in the same year, the court in the case of DK Basu vs State of West Bengal observed that the worst forms of violation of human rights take place during the process of investigations of the accused by the police officers. Yet, the court even while giving directions to safeguard individuals from the abuse of authority, held that the freedom and personal liberty of an individual must yield to the needs of the State’s security.

The argument of the needs of “security of the State” which was given by the court has long been used for restricting the personal liberty of citizens. The presumption of innocen ce is ignored, and for many offenses, the accused has to prove innocence even for getting bail. Preventive detention laws are also used excessively and at the convenience of the police officers despite inbuilt safeguards by law.

CONCLUSION

The concept of personal liberty is a constitutional commitment for which the principle of Criminal Law revolves around Natural Justice. According to it, even the accused person has to be treated with human treatment. The accused person also has certain rights under the Indian Constitution.

An accused person has certain rights and such rights should not be violated even during the course of any investigation; inquiry or trial of offense with which he is charged, and he should be protected against arbitrary or illegal arrest.