Default Bail In Indian Criminal Law

Update: 2024-04-04 03:00 GMT
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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 ...

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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.


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.

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.

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.

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.

The author is an Advocate on Record at Supreme Court of India. Views are personal.


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