Darnel's case or the Five Knights case is a case of major constitutional importance. King Charles-I had resorted to a forced loan in order to raise revenue without any parliamentary sanction and his agents had detained a number of subjects who refused to contribute. Of those detained five sought their freedom by way of habeas corpus. The court refused to bail the prisoners. This led to the Petition of Right, which dealt with main grievances of the day against Charles – I such as arbitrary taxation, billeting of soldiers, abuse through martial law proceedings, arbitrary imprisonments. From the days of Charles – I the world has come a long way. Human Rights has received attention world over and law makers, courts have become far more sensitive to rights of individuals.
In India, our Constitution framers spent enormous amount of time in drafting the provisions of Article 20, 21 and 22. Much emphasis was laid in the language of these articles and the procedural fairness to be followed in the case of detentions. The Supreme Court of India has written reams on the subject concerning liberty of individuals and the protection to be afforded. Over the years the Supreme Court had expanded with elasticity the meaning attributable to Article 21. Procedural delay attributable to the executive/police became subject matter of Law Commission reports and the procedural law governing Criminal law i.e. the Criminal Procedure Code also got amended in the wisdom of the Parliament. One of the very important provision concerning the rights of an accused in custody is the right of an accused to get "default bail". While considering the rights of an accused, the Law Commission in 1970 had observed as follows :-
Unfortunately, all laws tend to be misused whenever opportunity knocks, and Section 167 of the Code of Criminal Procedure, 1898 was no exception. Since there was a practical difficulty in completing investigations within the 15-day time limit, the prosecution often took recourse to the provisions of Section 344 of the Code of Criminal Procedure, 1898 and filed a preliminary or incomplete report before the Magistrate to keep the accused in custody. The Law Commission of India noted this in its 41st Report (after carefully studying several earlier Reports) and proposed to increase the time-limit for completion of investigations to 60 days, acknowledging that: "14.19. … such an extension may result in the maximum period becoming the rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that."
The view expressed by the Law Commission of India and its proposal is as follows:
"14.19. Section 167.—Section 167 provides for remands. The total period for which an arrested person may be remanded to custody—police or judicial—is 15 days. The assumption is that the investigation must be completed within 15 days, and the final report under Section 173 sent to court by then. In actual practice, however, this has frequently been found unworkable. Quite often, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file before a Magistrate a preliminary or "incomplete" report, and the Magistrate, purporting to act under Section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if such an order could be made under Section 344, as that section is intended to operate only after a Magistrate has taken cognizance of an offence, which can be properly done only after a final report under Section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect. The use of Section 344 for a remand beyond the statutory period fixed under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report, that some time-limit should be placed on the power of the police to obtain a remand, while the investigation is still going on; and if the present time-limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under Section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum period becoming the rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that. We propose accordingly to revise sub-sections (2) and (4) of Section 167 as follows: '167. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days at a time and sixty days in the whole. If he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
(a) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(b) no Magistrate of the Second Class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police.
* * * (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.'"
Taking inspiration from the Law Commission report and interpreting the amended law, the Supreme Court had thereafter consistently upheld the right of an accused to default bail. So much so, the Supreme Court went to the extent of terming that right as an indefeasible one. In Achpal @ Ramswaroop, the Supreme Court held:
"We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period."
Unfortunately a controversy seems to have arisen now in view of differing views by two Learned Judges of the Madras High Court who havesought to interpret the Order of the Supreme Court of India extending theperiod of limitation in all proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended. Unfortunately, this order that deals with extending period of limitation appears to have distracted the attention of the High Court in dealing with rights of an accused under Section 167(2) of the Code of Criminal Procedure, which has nothing to do with the law of limitation. Law of Limitation is a procedural law that extinguishes remedies. It does not deal with rights attached to personal liberties. Section 167(2) is a procedural safeguard to an accused. In the absence of such a safeguard, the executive could devise methods to keep an accused indefinitely in custody without a charge being framed. The very concept of internment without charge is anathema to Article 21 of the Constitution. A needless controversy has now been stirred up and the matter now appears to have been referred to a larger bench of the High Court. Grant of bail is no doubt discretionary. However, that right crystallises into an indefeasible right when the executive fails to charge the accused within the time granted to it. Executive cannot seek to hide behind the order of the Supreme Court that is granted to protect litigants from losing their remedies in a court/tribunal. Executive has no excuses whether it is time of Covid or otherwise to seek extension of time to complete their investigation process and at the same time insist that the accused should remain interned. In the humble opinion of this author, any extension of such internment is non est in law. No Court has the right to grant any extension in law as held by the Supreme Court. The sufferers of this executive inaction would be poorest and those who cannot afford to approach the higher Courts for remedy. They are entitled to be afforded default bail subject to such conditions that the Magistrate may deem fit and proper. We have certainly come a long way from times of Charles -I, wouldn't you agree?
(H.Karthik Seshadri is Advocate practising at Madras High Court and Partner at Chennai-based firm Iyer & Thomas. The author may be reached at [email protected]. Views are personal)
 The Law of Habeas Corpus, Third Edition, Judith Farbey and R.J.Sharpe with Simon Atrill, Oxford University Press
 See (2017) 15 SCC 67
 (2019) 14 SCC 599