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Default Bail In Indian Criminal Law
Gaurav Sharma
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4 Apr 2024 8:30 AM
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Bail laws play a decisive role in the history of Criminal jurisprudence. It acts as a
serving mechanism to uphold individual rights, considering the manifest of
legislative mandate, which significantly impresses upon the need for expeditious
completion of the investigation in order to prevent laxity on that behalf and
forthwith embodied the necessity and scope of such statutory exercise, keeping in
mind the basic principles evolved in the process of interpretating the expression
'indefeasible rights' accrues in favour of the accused, to effectively place the
enabling provisions to be in consonance with the very law of the land. The framers
of the Code have viewed of default as one of the legal parameters for initiating
certain checks and balances upon the State power without jeopardizing the
objectives of arrest. Moreover, it is the interest of justice and the freedom of
individual, which must be secured within the meaning of 'rule of law'. In view
thereof, the concept of default bail, also known as statutory bail or compulsive bail,
has been introduced under Section 167 of the Code of Criminal Procedure, 1973
(hereinafter referred as Cr.P.C). However, before analyzing the outcome of this
provision, it is immensely essential to know and understand the importance of
Section 57 of the aforesaid act. As per this section, if the arrest is without warrant,
the detainee cannot be kept in the custody of officer in charge for beyond the
period of 24 hours except by the special order of the Magistrate. In other words, the
time period for completing investigation by the investigating officer in charge is
envisaged as 24 hours. But, the Criminal Law in India has given some
allowance/relaxation to the investigating agencies/state machineries. It is in this
context the underlined idea of default bail has to be understood.
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Analysis:
The incarceration of accused pending trial is contemplated as indispensable when
there is reasonable apprehension against such person to subvert the case by
tampering with evidences or might poses a flight risk if stands released. In absence
of such apprehensions, it is judiciously considered the correct way of releasing the
undertrials in order to uphold the fairness and effectiveness in the process of
delivering justice.
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Section 167(2) of the Cr.P.C enumerates the outer limit i.e., the maximum period
within which the police report has to be filed after the completion of investigation.
Moreover, the aforesaid provision has also prescribed the classification of offence
depending upon the nature of offence and its duration based upon gravity,
resulting in bifurcating the length of investigation into 60 and 90 days respectively.
In addition to this, cases falling under special laws like Unlawful Activities
(Prevention) Act, 1967 (UAPA) and Narcotic Drugs and Psychotropic Substances
Act, 1985 (NDPS), etc. the investigation can go up to 180 days. This act as a barrier
for the undertrials and their quest for liberty. Moreover, the applicability and the
manner of computation of such 60/90/180 days have to be from the date of remand
and not from the date of arrest. After the completion of the above-mentioned
period, if the chargesheet has not been filed, the applicant accused is entitled to be
enlarged on bail. It is an indefeasible right of an accused person to get a default
bail after the completion of the maximum period provided in the statute book. Such
cases are not to be examined on merits after the lapse of mentioned time period.
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Furthermore, there is a distinct treatment of bail jurisprudence in special laws vis-à-
vis general offences, considering its ramifications on the society. This aspect is
pivotal in changing the approach from bail as rule to custody as rule in cases
concerning the special statute.
Additionally, there are also provisions for granting default bail for non-completion
of trial. Section 437 (6) of the Cr.P.C, is one such provision, wherein a non bailable
offence triable by the magistrate to claim bail if the trial is not concluded within 60
days from the first date fixed for taking evidence in the case and the accused
remains in custody during the whole of the said period. Thereafter, upon the
satisfaction of the magistrate, such person is entitled to be released on bail.
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Relevant Judgments:
Rakesh Kumar Paul v. State of Assam (AIR 2017 SC 3948): The Supreme Court
held that where minimum sentence is laid down, sentencing court has no
option but to impose sentence “not less than”…..which means offence
punishable with minimum 10 years of imprisonment in which case period of
investigation would be 90 days. However, in the instant case the term “may
extend up 10 years” is a maximum sentence and the not the minimum.
Therefore, the person was entitled to default bail since statutory period of 60
days for filing the chargesheet had expired.
Hussainara Khatoon And Ors v. Home Secretary, State of Bihar (1980 SCC 108):
The Supreme Court has stated that when an undertrial who has been in
detention for 90 or 60 days, as the case may be, is produced before a
magistrate, he is bound to inform the accused that he is entitled to bail as
provided by proviso (a) of section 167(2) of the Code of Criminal Procedure,
1973. Further, it was also held that the state is bound to provide free legal aid
to enable the accused to exercise that right and the magistrate must ensure
that he is so provided. It is a constitutional mandate which binds every
magistrate and every state government.
Uday Mohanlal Acharya v. State of Maharashtra (2001 5SCC 453): The
Supreme Court held that the accused has an indefeasible right to be released
on bail when the investigation is not complete within the specified period. It
was further stated that the accused's right to default bail cannot be defeated
by the subsequent filing of chargesheet.
Directorate of Enforcement v. Deepak Mahajan (1994 3SCC 440): The Supreme
Court while dealing with the term 'police officer' under section-167 has held
that every law is designed to further the end of justice and not to frustrate the
same on mere technicalities. It laid that though the function of the courts is
only to expound the law and not to legislate, nonetheless, the legislature
cannot be asked to sit and resolve the difficulties in implementation of its
intention and the spirit of the law. In such circumstances, it is the duty of the
court to mould or creatively interpret the provisions of the legislation to
remove difficulties by liberally interpreting the statute.
Recently, in a case of Enforcement Directorate V. Kapil Wadhawan, (2023) the
Supreme Court while answering a reference on a significant aspect of law held
that the day of remand is to be included for considering a claim for default bail.
Moreover, it explicitly stated that the remand will be calculated from the date
when the magistrate remanded the accused.
From the discussion hereinbefore, it is abundantly clear that the provision of
default bail under 167(2) of the Cr.P.C is no longer res integra. The strict adherence
to the provisions is meant to safeguard the rights of the individual. Moreover, the
magistrate has no power to authorize detention beyond the stipulated period of
60/90 days as the case may be. Nonetheless, under Section 173(8), the officer in
charge can conduct further investigation even after submitting of the final report
under Section 173 (2) of Cr.P.C. Thus, if all these relevant provisions are read in
tandem, the necessary corollary is that what is required is the completion of
investigation and not merely the filing up of report. In this regard, it is essential to
understand the basic purpose and intention of the legislature as provided under
Section 167 of Cr.P.C. Moreover, the new amendments in criminal law through
Bharatiya Nagarik Suraksha Sanhita, 2023 has extended the power of magistrate
for the detention of accused in police custody beyond the period of first 15 days at
anytime during the initial forty days or sixty days out of the detention period of
60/90 days as the case may be. This legal position reflects more free hand given to
the state machinery with an endeavor to ensure sufficient interrogation time.
However, such power must not be abused to unnecessarily conceal the lapses and
ignorance in investigation. According to the data of National Crime Records
Bureau, more than 3/4th of the under trial are languishing in jail. Such unchecked
tendency along with emerging challenges have to be dispensed with far more
effective strategies. The criminal justice system is an instrument of state and a key
index of the state of democracy. Henceforth, it is suggested to the state machinery
should be far more cautious in charging people under various criminal statute. The
purpose of arrest must reflect the idea of 'justice' rather than the 'power'. The aim
of imprisonment should not merely be seen as 'deterrence' but also 'reformation'. In
view thereof, it is suggested to have proper sensitization among the other
stakeholders in the criminal justice system.
