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November 19, 2020
All Articles by: Mr. M. GOVINDARAJAN       View Profile
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Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.

Types of bail

There are three types of bail prevailing in criminal jurisdiction.  They are regular bail, interim bail and anticipatory bail.

Regular bail is granted to a person who has been arrested or in police custody under section 437 and 439 of Criminal Procedure Code (‘CrPC’ for short).  Interim bail is granted to an accused for a short period of time and it is granted under section 438 of the CrPC either by Sessions Court or High Court.  Anticipatory bail is granted to a person who is in apprehension that he may be arrested by the police for a non bailable offence.

Default bail

Section 57 of CrPC provides states that a person who is arrested without a warrant cannot be detained in custody beyond a period of 24 hours. Such a person has to be produced before the concerned Magistrate. The period of custody can go beyond 24 hours if specified so by a special order granted under section 167.

Bail granted by default due to non-completion of investigation, is called default bail. Bail is often granted depending on various factors, but under Section 167(2).

Section 167(2) of the Code of Criminal Procedure (CrPC) provides that  the Magistrate to whom an accused person is forwarded may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole; and 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.

Section 167(2) (a) of the Code provides that the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

  1. 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
  2. 60 days, where the investigation relates to any other offence, and, on the expiry of the said period of 90 days, or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Right to default bail

The right to default bail is also an absolute and indefeasible right of the accused.

In ‘RAKESH KUMAR PAUL VERSUS STATE OF ASSAM - 2017 (8) TMI 1526 - SUPREME COURT, the accused was charged with an offense under Section 13(1) of the Prevention of Corruption Act. The said offense was punishable by ‘imprisonment for a period of not less than four years, but that can be extended to ten years’. The State argued that since the accused might end up with imprisonment of up to 10 years, the date on which the accused can request a default bond would begin after completion of 90 days. However, the Apex Court was of the view that the accused in this case had fulfilled all the requirements to seek default bail under section 167(2) of CrPC.   The Court held that the 90 days criterion is only for offenses punishable with death, life imprisonment, or imprisonment of a minimum of 10 years. For offenses that are punishable with minimum imprisonment that is less than 10 years and where the maximum punishment is not death or life imprisonment, then the accused become entitled to the right to default bail after the expiry of 60 days on the failure of filing of charge-sheet.

Section 167(2) lays down the provisions regarding this right. This section provides a specified period beyond which the accused cannot be kept in custody. On the expiry of such a period, if the police has not completed its investigation and filed the charge-sheet, the accused can seek default bail. This right accrues from the failure of the police. It acts as an incentive for the police to do timely investigations while also protecting the right to liberty of the accused.  It would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’, to at least apprise him or her of the indefeasible right.

In ARVIND KUMAR SAXENA VERSUS STATE’ -  2018 (3) TMI 1886 - DELHI HIGH COURT, The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation, indicating thereby that the investigation was not complete and did not set completed till submission of the charge-sheet on 20.09.2017 cannot be overlooked and thus cannot extinguish the indefeasible right of ‘default bail’ to the petitioner.

Fundamental right

In ‘Bikramjt Singh v. State of Punjab’ - Crl. A. No. 667 of 2020, decided on 12.10.2020, the Supreme Court observed as under:  ‘We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, 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.

Obligation of Magistrate

In HUSSAINARA KHANTOON & ORS. VERSUS HOME SECRETARY, STATE OF BIHAR, PATNA - 1979 (4) TMI 159 - SUPREME COURT, the Supreme Court held that when an under trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the under trial prisoner that he is entitled to be released on bail.  The State Government must also provide at its own cost a lawyer to the under trial prisoner with a view to enabling him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the under trial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail.

Safeguard of default bail

The Supreme Court in a recent decision in M. RAVINDRAN VERSUS THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE - 2020 (10) TMI 1105 - SUPREME COURT, explained the provision of Section 167(2) of the Cr.PC in the context of Article 21 of the Constitution of India and held that the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.

No formal application required

In ‘SUBHASH BAHADUR @ UPENDER VERSUS THE STATE (N.C.T. OF DELHI) - 2020 (11) TMI 511 - DELHI HIGH COURT, the High Court observed that  the petitioner was arrested on 10.01.2020 and his detention in custody for a period of sixty days expired on 10.03.2020. Concededly, the petitioner became entitled to a bail in default under the Proviso (a) to Section 167(2) of the Cr.PC. Although the petitioner had moved bail applications twice, the same were rejected. Concededly, an indefeasible right had accrued to the petitioner for being released on default bail and there is no dispute that if an application mentioning the said provision was made, the petitioner would necessarily have to be released on bail.  The prosecution submitted that since the petitioner did not avail of his indefeasible right for default bail, the same was lost on the charge sheet being filed on 14.09.2020.  It was further contended that it would be necessary for an accused to apply for bail specifically mentioning the provisions of Section 167(2) of the Cr.PC and any application moved under Section 439 of the Cr.PC could not be construed as the accused availing of his indefeasible right to default bail.

The High Court analyzed the provisions of section 167(2).  It observed that a plain reading of the proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail ‘if he is prepared to and does furnish bail’. Thus, in cases where the statutory period of 60 days or 90 days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application.   If in substance the essential conditions as set out under the proviso (a) to Section 167(2) of the Cr.PC are met and complied with there would be no justifiable reason to detain the accused. 

In this case the petitioner had, unequivocally, stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required.

The Supreme Court allowed the application and directed that the petitioner is to be released on bail on his furnishing a personal bond in the sum of ₹ 10,000/- with one surety of an equivalent amount to the satisfaction of the concerned Trial Court/Duty Magistrate. This is also subject to following further conditions-

  • the petitioner shall provide a mobile number to the concerned SHO/IO and ensure that he is reachable at all times;
  • the petitioner shall not leave the National Capital Territory of Delhi without prior intimation to the SHO/IO and without informing him the address of his destination;
  • the petitioner shall mark his presence before the Duty Officer (PS Alipur) on the first Monday of each calendar month; and
  • the petitioner shall not contact the victim, his family members, or any of the witnesses.


By: Mr. M. GOVINDARAJAN - November 19, 2020



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