Provision of Default Bail: An Analysis – By Parthiv K. Goswami

Under the Code of Criminal Procedure, 1898 (“Old Code”), a person arrested without warrant could not be detained by a police officer for a period exceeding 24 hours as per Section 61 of the Old Code. Section 167(1) of the Old Code required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within a period of 24 hours as fixed by Section 61 and if there were grounds for believing that the accusation or information were well grounded.

Section 167(2) of the Old Code provided:

“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 authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in a whole. If he has not 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:…”

Thus, the legislative expectation, as noted by the Supreme Court, was that the investigation would ordinarily be completed within twenty-four hours. The said legislative expectation continues even today. Moreover, Section 167 of the Old Code was premised on the conclusion of investigations within twenty-four hours or within 15 days on the outside, regardless of the nature of the offence or the punishment.

As noted by the Supreme Court in Natabar Parida vs. State of Orissa[1], there was no other provision which in clear or express language conferred the power of remand to a Magistrate beyond the said period of 15 days in a whole during the pendency of investigation and before taking cognizance on the submission of the chargesheet. Section 344 of the Old Code, however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause.

The explanation to said Section 344 of the Old Code reads as follows –

“If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.”

Though there were divergence of opinions amongst the High Courts, the Hon’ble Supreme Court in two judgments, namely, A. Lakshmanarao vs. Judicial Magistrate, First Class Parwatipuram[2], and Gouri Shankar Jha vs. State of Bihar & Ors.[3] held that though Section 344 appeared under Chapter XXIV dealing with enquiries and trials, it does not mean that it does not apply in cases where process of investigation and collection of evidence is still going on. The Supreme Court in Gouri Shankar Jha (supra) explained that under Section 167, a Magistrate can order custody for a period at the most of 15 days in a whole and such custody can either be police or jail custody. However, under the said Section 344, a Magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided sufficient evidence has been collected to raise suspicion that such an accused may have committed an offence and it appears likely that further evidence may be obtained by granting a remand. The custody under the said section 344, however, was restricted to only jail custody.

As noted in Aslam Babalal Desai vs. State of Maharashtra[4], the Law Commission in its 41^st Report made a proposal to increase the time limit for completion of investigations to 60 days. However, at the same time, it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of filing a preliminary charge-sheet and seeking remand under Section 344 may not be curbed. The Joint Select Committee, therefore, felt that the maximum period within which the investigation must be completed must be provided in the statute and a right should be conferred on the accused for being released on bail if investigation is not completed within the prescribed period. It, therefore, while retaining sub-section (2) of Section 167 in the same language, introduced the proviso prescribing the outer limit within which the investigation must be completed and on failure thereupon, conferring a right upon the accused to be released on bail, which shall be deemed to be one under the provisions of Chapter XXXIII of the Code.

As noted in Raghubir Singh & Ors. vs. State of Bihar[5], the reason for the introduction of the proviso was stated in the Statement of Objects and Reasons, the relevant part of which was quoted in the above case and reads as follows:

“At present Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. The practice of doubtful legality has grown whereby the police file a “preliminary” or incomplete charge-sheet and move the court for a remand under Section 344 which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution to the problem would be to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds exist for granting such detention.”

Further, in M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence[6], the Supreme Court noted that the Statement of Objects and Reasons of the Code of Criminal Procedure, 1973 showed that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission:

“3. The recommendations of the Commission were examined carefully by the Government, keeping in view among others, the following basic considerations:—

(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.”

The Code of Criminal Procedure, 1973 (“CrPC,1973”) was enacted on and from 1^st of April, 1974 repealing the Old Code. Section 41 of the CrPC, 1973 empowers any police officer to arrest any person without the order of magistrate or without a warrant in cases catalogued from (a) to (i) of sub-section 1 thereof. Further, under Section 57 of the said CrPC, no police officer shall detain a person in custody, arrested without a warrant, for a period longer than 24 hours unless there is a special order of the Magistrate under Section 167. Section 167 of the CrPC,1973, appearing in Chapter XII bearing the heading “Information to the police and the power to investigate”, has made some drastic departure from the Old Code. Similar is the position in regard to Section 309 of the CrPC, 1973 corresponding to Section 344 of the Old Code.

While retaining the provision of forwarding the accused to the nearest Magistrate  and while authorising the Magistrate to remand the accused to either police or judicial custody for a period not exceeding 15 days, proviso (a) had been added to sub-section (2) of Section 167.

Section 167(2) along with proviso (a) of the CrPC,1973 is reproduced hereinunder –

“ …..

Provided that –

The expression “the Magistrate” in the proviso would mean the Magistrate having jurisdiction to try the case.

Section 309(2) of the new Code states as follows :

“If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time. …”

Thus, the law as engrafted in proviso (a) to Section 167(2) and Section 309(2) of the new Code confers the power of remand to judicial/jail custody during the pendency of investigation only under the former and not under the latter. Section 309 (2) of the new Code is attracted only after cognizance of offence has been taken or commencement of trial has proceeded. Section 309 (2) of the new Code merely enables the Court to remand the accused if in custody. It does not empower the Court to remand the accused if he is already out on bail. Further, it does not enable the Court to cancel a bail as it were.

The concept of default or statutory bail, was, thus, introduced for the first time through the proviso (a) to 167 (2) of the CrPC, 1973. The said proviso provides that the Magistrate may authorize detention of the accused person, otherwise than in custody of police (i.e., in judicial custody), beyond a period of 15 days provided in sub-section (2) on satisfaction of existence of adequate grounds for doing so, but no Magistrate shall authorize the detention of the accused person for a total period exceeding 60 days and upon failure of the prosecution to file chargesheet before expiry of the said period of 60 days, 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 section shall be deemed to have been released under the provision of Chapter XXXIII for the purpose of that chapter.

A few years later in 1978, a need was felt to amend Section 167 of the new Code by not only extending the period for completing the investigation but also relating that period to the offence and the said provision has not been changed since.

The relevant part of Section 167(2) of the new Code, as amended, reads as follows:

“167. Procedure when investigation cannot be completed in twenty-four hours.—

……

Provided that—

and, on the expiry of the said period of ninety days, or sixty 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;…

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. …”

The said Explanation I has been interpreted by the Supreme Court to mean that even though the period had expired, the accused would be deemed to be in legal custody till he does not furnish bail.[7]  However, the Supreme Court has ruled that expression ‘the accused does furnish bail’ in Section 167(2) and Explanation I thereto cannot be interpreted to mean that if the accused, in spite of being ready and willing, could not furnish bail on account of the pendency of the bail application before the Magistrate, or because the challenge to the rejection of his bail application was pending before a higher forum, his continued detention in custody is authorized.[8]

Indefeasible right of bail under the proviso of Section167(2)

The Supreme Court of India, in a catena of cases, has, unequivocally held that an indefeasible right accrues to an accused on the failure of the prosecution to file the charge-sheet within the period specified under the proviso to sub-section (2) of Section 167 of the CrPC and the said right can be availed of by an accused if he/she is prepared to offer and does furnish bail. Such indefeasible right must be exercised and enforced by the accused with promptitude on the failure of the prosecution to file the chargesheet within the said stipulated period. The right to default bail, as has been held by the Supreme 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 said proviso to Section 167(2) are fulfilled.

In the case of Natabar Parida vs. State of Orissa[9], the Supreme Court held as follows:

“8. … But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy — murders, dacoities, robberies by inter-State gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a “paradise for the criminals”, but surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature.”

Thereafter, in the case of Raghubir Singh vs. State of Bihar[10], the Supreme Court held:

“20. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days. A person released on bail under the proviso to Section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to Section 167(2) itself. …”

The said position of law has been consistently followed by the Supreme Court in a number of cases which will be referred to hereinafter, including in the recent cases of Rakesh Kumar Paul vs. State of Assam[11], Achpal & Anr. vs. State of Rajasthan[12], S. Kasi vs. State[13], Bikramjit Singh vs. State of Punjab[14] and M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence[15].

In the above context, the Three Judge bench of the Supreme Court in Bikramjit Singh (supra) held as follows:

“22. …It has already been seen that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. …”

28. …A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

29. …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. …”

Necessity of filing of formal application for availing Default / Statutory Bail

Though the earlier view was that an accused must file a written application seeking default bail, the position of law in the said regard has undergone a change in recent times and the Supreme Court has now held that even an oral application by an accused seeking default bail would suffice since it deals with the personal liberty of an individual.

In Hitendra Vishnu Thakur v. State of Maharashtra[16], the Supreme Court held as follows:

“21. …In our opinion an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating/prosecuting agency. …”

However, in Rakesh Kumar Paul vs. State of Assam[17], the Supreme Court through the majority judgment of Justice Madan B. Lokur has held that even an oral application by an accused seeking ‘default bail’ would suffice since it deals with the personal liberty of an individual and further held as follows:

“Procedure for obtaining default bail

40. …… Therefore it is not as if the petitioner did not make any application for default bail — such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence.The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail.

41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

…

Justice Deepak Gupta in his concurring judgment held as follows:

“82. …….. The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge-sheet after the accused has offered to furnish bail.”

In the recent case of Bikramjit Singh vs. State of Punjab[18], the Three Judge bench of the Supreme Court after noticing the relevant paragraphs of the majority judgments delivered by both Justice Madan B. Lokur and Justice Deepak Gupta as well as the dissenting view of Justice Prafulla C. Pant held as follows:

“28. …A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. …”

Further, on the basis of the reading of the judgment in the case of Rakesh Kumar Paul (supra), another Three Judge bench of the Supreme Court in the recent case of M. Ravindran (supra) observed as follows:

“32. … The majority opinion held that the 90 day limit is only available in respect of offences where a minimum ten year imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. …”

Thus, two Three Judge bench of the Supreme Court have read the majority decision in the case of Rakesh Kumar Paul (supra) to have held that an oral application/argument by an accused would suffice to exercise and enforce his/her indefeasible right to default bail. However, it may humbly be pointed out that the said proposition depended on the reading of the said paragraph 82 of the concurring judgment of Justice Deepak Gupta. Since the said paragraph was also noted by the Supreme Court in Bikramjit Singh (supra) while arriving at the conclusion that an oral application would suffice, the law as held in the said case must necessarily be taken to be the conclusive view on the said aspect of the matter, more so, since the said position was similarly read by another Three Judge bench decision in the case of M. Ravindran (supra). Though it may have been possible to contend that the said view was only the view of Justice Madan B. Lokur and the same view was perhaps not endorsed by Justice Deepak Gupta in his concurring judgment as it is arguable that Justice Deepak Gupta visualized that a written application be filed by the accused for availing the benefit of the said default bail in view of the use of the expression “aver” in the said paragraph 82 of the said judgment. However, the Three Judge Bench in the case of Bikramjit Singh (supra), after noticing the relevant paragraphs of Rakesh Paul (supra), including paragraph 82 thereof, has come to a conclusion that an oral application for grant of default bail would also suffice. This being the position, one can conclusively say that the position of law now is quite settled that an oral application by an accused will also suffice for seeking the benefit of default bail, moreso, as it involves the personal liberty of an accused, thereby, touching Article 21 of the Constitution.

Impact of subsequent filing of charge-sheet on grant of default bail

The default bail granted under Section 167(2) is deemed to be a bail granted under Chapter XXXIII of the CrPC. The Supreme Court has held in various judgments that mere filing of subsequent charge sheet does not result in cancellation of default bail. Moreover, as default bail stands on the same footing as normal bail in view of the aforesaid deeming clause, such statutory/default bail can be cancelled only in terms of the principles contained under Section 437 (5) and Section 439 (2) of the CrPC.

The said aspect of the matter has been laid down by the Supreme Court in the following cases:-

In Natabar Parida & Ors. vs. State of Orissa[19], the Supreme Court held as follows:

“8. … Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of Section 437 occurring in Chapter XXXIII. …”

In Bashir & Ors. vs. State of Haryana[20], the Supreme Court held as follows:

“6. … As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter 33, his release should be considered as one under Section 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody. …….. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Section 437(1) and (2).”

In Raghubir Singh & Ors. vs. State of Bihar[21], the Supreme Court held as follows:

“20. … Orders for release on bail are effective until an order is made under Section 437(5) or Section 439(2). These two provisions enable the Magistrate who has released an accused on bail or the Court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to Section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167(2) is also subject to the provisions of Sections 437(5) and 439(2) and may be extinguished by an order under either of these provisions. …………. The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under Section 309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. Section 309(2) merely enables the court to “remand the accused if in custody”. It does not empower the court to remand the accused if he is on bail. It does not enable the court to “cancel bail” as it were. That can only be done under Section 437(5) and Section 439(2). When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under Section 437(5) or Section 439(2).

…

22. The result of our discussion and the case-law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.”

In Aslam Babalal Desai vs. State of Maharashtra[22], the Three Judge bench of the Supreme Court through the majority opinion of Justice A.M. Ahmadi (as he then was) held as follows:

“6. … It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision it can be cancelled and the accused person can be arrested and committed to custody if the court considers it necessary so to do. That is the import of sub-section (5) of Section 437 of the Code. ……….. Similarly sub-section (1) of Section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the court will exercise the power conferred by Section 439(2) will have to be noticed later. This in brief is the scheme of the Code. …

7. …It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code.

8. …It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Section 437(5) or Section 439(2). ………

…

11. … As stated in Raghubir Singh case [(1986) 4 SCC 481 : 1986 SCC (Cri) 511 : (1986) 3 SCR 802] the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vii) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

…

14. … Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. ……

15. …We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. …….”

In Sanjay Dutt vs. State[23], the following observation of the Constitution Bench of the Supreme Court in paragraph 48 created some amount of confusion as to whether the indefeasible right accruing to an accused gets extinguished and becomes unenforceable on the challan being filed:

“48. ….. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply…..

53.…

(2)(b) The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.”

The aforesaid observations created a lot of confusion which became the subject matter of interpretation in a subsequent case of Uday Mohanlal Acharya vs. State of Maharashtra[24]where the Three Judge bench of the Supreme Court explained that the above observations only means that if an accused does not avail of its right under 167 (2) then on filing of challan, his rights become unenforceable. This does not, however, mean that if an accused, upon failure of the police to file chargesheet within the stipulated time, promptly files an application seeking default bail and the matter is not decided and is kept pending, his/her right won’t get extinguished on account of subsequent filing of charge-sheet before the decision on the said default application.

The relevant extract in the above context is reproduced hereinbelow:

“13. …

6. The expression “if not already availed of” used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.”

In the said case of Uday Mohanlal Acharya (supra), the Three Judge bench of the Supreme Court summarized the law as follows:

“13. … Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society, at large, in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows:

1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.

2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

6. The expression “if not already availed of” used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

With the aforesaid interpretation of the expression “availed of” if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri) 202] .”

The aforesaid decision in the matter of Uday Mohanlal Acharya (supra) has been followed consistently by the Supreme Court in numerous cases.

In Dr. Bipin Shantilal Panchal vs. State of Gujarat[25], a Three Judge bench of the Supreme Court held as follows:

“4. …Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870] .”

In the case of State of M.P. vs. Rustam[26], it was held by the Supreme Court that the relevant date for consideration of default bail is the date when the said issue is considered by the court and not the date of the presentation of the petition. Further, in Pragyna Singh Thakur vs. State of Maharashtra[27], the Supreme Court held that as soon as the charge sheet is filed, the right of an accused for default bail becomes unenforceable even if the application has been filed in time.

The relevant extract from the judgment of State of M.P. vs. Rustam (supra) is as follows:

“4. … The court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail.”

The relevant extract from the judgment of Pragyna Singh Thakur vs. State of Maharashtra (supra) is as follows:

“54. There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. After the filing of the charge-sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from the Constitution Bench decision of this Court in Sanjay Dutt v. State [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] [paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49.”

The aforesaid proposition of law as laid down in M.P. Rustam (supra) and Pragyna Thakur (supra) have been declared not to express the correct position of law by the Supreme Court in Uday Mohanlal Acharya (supra) and Union of India vs. Nirala Yadav[28] respectively.

In Uday Mohanlal Acharya (supra), the relevant discussion with regard to M.P. Rustam (supra) was as follows:

“13. … A two-Judge Bench decision of this Court in State of M.P. v. Rustam [1995 Supp (3) SCC 221 : 1995 SCC (Cri) 830] setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression “if already not availed of”, used by the Constitution Bench in Sanjay Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] …”

In Nirala Yadav (supra), the relevant discussion relating to Pragyna Singh Thakur (supra) is as follows:

“45. The opinion expressed in paras 54 and 58 in Pragyna Singh Thakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] which we have emphasised, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] which has been followed in Hassan Ali Khan [(2011) 10 SCC 235 : (2012) 1 SCC (Cri) 256] and Sayed Mohd. Ahmad Kazmi [(2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] . The decision in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakur case [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] the learned Judges have referred to Uday Mohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] but have stated the principle that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if the charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isak case [(2009) 7 SCC 480 : (2009) 3 SCC (Cri) 449] . We are disposed to think so, as the two-Judge Bench has used the words “before consideration of the same and before being released on bail”, the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches.

46. …….. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] which is based on three-Judge Bench decision in Uday Mohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] , we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur case [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd. [(2014) 3 SCC 159]”

The Three Judge Bench of the Supreme Court in the matter of M. Ravindran (supra) again reiterated that Pragyna Singh Thakur (supra) runs counter to the law laid down in Uday Mohanlal Acharya (supra) and held as follows:

“67. …However in any case, given that the decision continues to be relied upon by the State, we must clarify that in our considered opinion, the observations made in Pragyna Singh Thakur run counter to the principles laid down in the judgments rendered by larger Benches.

69. We are of the firm opinion that the view taken in Uday Mohanlal Acharya is a binding precedent. It has been followed by a subsequent three Judge Bench in Sayed Mohd. Ahmad Kazmi (supra). Hence, the opinion rendered by the two Judge Bench in paragraphs 54 and 58 of Pragyna Singh Thakur, to the effect that “even if an application for bail is filed on the ground that chargesheet was not filed within 90 days, but before consideration of the same and before being released on bail, the said right to be released on bail would be lost” or “can only be on merits”, must be held per incuriam.”

In the cases of Union of India vs. Nirala Yadav[29] and Sayed Mohd. Ahmad Kazmi vs. State (Govt. of NCT of Delhi) & Ors.,[30] the position of law on default bail has been further crystallised.

SOME RECENT LANDMARK DECISIONS

In Rakesh Kumar Paul vs. State of Assam[31], the Supreme Court, inter-alia, held that in matters of personal liberty, the Court cannot and should not be too technical and must lean in favour of personal liberty.

Some of the relevant extracts from the majority judgment of Justice Madan B. Lokur are as follows:

“38. This Court also dealt with the decision rendered in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] and noted that the principle laid down by the Constitution Bench is to the effect that if the charge-sheet is not filed and the right for “default bail” has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge-sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.

…

41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.”

Moreover, Justice Deepak Gupta in his concurring judgment further held that:

“82. The right to get “default bail” is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of this Court in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] has held that the accused must apply for grant of “default bail”. As far as Section 167 of the Code is concerned, Explanation I to Section 167 provides that notwithstanding the expiry of the period specified (i.e. 60 days or 90 days, as the case may be), the accused can be detained in custody so long as he does not furnish bail. Explanation I to Section 167 of the Code reads as follows:

“Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in para (a), the accused shall be detained in custody so long as he does not furnish bail.”

This would, in my opinion, mean that even though the period had expired, the accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing of bail. The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge-sheet after the accused has offered to furnish bail.”

In the case of Achpal & Anr. vs. State of Rajasthan[32], the Supreme Court, after noticing the legislative history of Section 167(2), reiterated the principles of default bail. Significantly, the Supreme Court held that even the courts do not have the power to extend the period prescribed for completion of investigation. The Supreme Court further held that matters relating to liberty and remand/custody of an accused is to be considered by the Judiciary and not by the police.

The relevant extracts of the said judgment are as follows:

“18. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation.

……

20. 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 the 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. ……..”

The decision of the Three Judge bench of the Supreme Court in Bikramjit Singh (supra) have already been noted.

The Three Judge bench of the Supreme Court in M. Ravindran (supra) further crystallized the law and held as follows:

“44. However, the Constitution bench decision in Sanjay Dutt cannot be interpreted so as to mean that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed.”

“45. The arguments of the State that the expression “availed of” would only mean actual release after furnishing the necessary bail would cause grave injustice to the accused and would defeat the very purpose of the Proviso to Section 167(2), CrPC. …”

“47. … Hence irrespective of the reasons for delay in deciding the bail application, the accused is deemed to have exercised his indefeasible right up on filing of the bail application, though his actual release from custody is inevitably subject to compliance with the order granting bail.”

“78. Therefore, in conclusion:

78.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.

78.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

78.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would beat liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

78.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.”

Though the position of law regarding cancellation of bail has been crystallized in the abovementioned cases, it is relevant to notice the following observations made by the Supreme Court in Rakesh Kumar Paul (supra) and Achpal (supra).

“Conclusion

49. ….. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.

…

86. I agree and concur with the conclusions drawn and directions given by learned Brother Lokur, J. in paras 49 to 51 of his judgment.”

2. In the case of Achpal (supra), the Supreme Court held:

“23. In his concurring judgment, Deepak Gupta, J. agreed [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, para 86 of the judgment of Hon’ble Deepak Gupta.] with conclusions drawn and directions given by Madan B. Lokur, J. in paras 49 to 51 of his judgment. According to the aforesaid conclusions, it would not prohibit or otherwise prevent the arrest or re-arrest of the accused on cogent grounds in respect of charge in question and upon arrest or re-arrest the accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.

24. We, therefore, allow this appeal and direct that the appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate. The matter shall be immediately placed before the trial court upon receipt of copy of this judgment. We also add that in terms of the conclusions arrived at in the majority judgment of this Court in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , there would be no prohibition for arrest or re-arrest of the appellants on cogent grounds and in such eventuality, the appellants would be entitled to petition for grant of regular bail.”

The above observations, in my humble view, made by the Supreme Court in the cases of Rakesh Kumar Paul (supra) and Achpal (supra) that an accused on default bail can be re-arrested on cogent grounds has to be read along with the above mentioned position of law that a person granted default bail can be arrested and committed to custody only in terms of the principles governing Section 437 (5) and Section 439 (2) of the CrPC.

Duty and Responsibility of the Court

It has been held by the Supreme Court that a duty is cast upon the Magistrate/Court to forthwith dispose of any default bail application filed by an accused person and such application should not be kept pending for an inordinate time. Another obligation that is cast upon the court is to apprise and inform the accused person of his indefeasible right of default bail on the failure of the prosecution to file the charge-sheet within the prescribed time.

In Uday Mohanlal Acharya (supra), the Supreme Court held as follows:

“13. … On the aforesaid premises, we would record our conclusions as follows:

     …

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated….”

In Mohd. Iqbal Madar Sheikh vs. State of Maharashtra[33], the Supreme Court held as follows:

“12……if an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge sheets are submitted so that the right which had accrued is extinguished and defeated. ...”

In Nirala Yadav (supra), the Supreme Court held as follows:

“28. … When the charge-sheet is not filed and the right has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the Public Prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in Sanjay Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] . That is the duty of the Court. This is the position of law as has been stated in Uday Mohanlal Acharya [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] .”

In Hitendra Vishnu Thakur vs. State of Maharashtra[34], the Court also held that an obligation is cast upon the court to inform the accused of his right of being released on bail and enable him to make an application in that behalf. In the said case, it was held as follows:

“20. …There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. …”

The same was re-iterated by the Supreme Court in the case of Rakesh Kumar Paul (Supra) where the Court speaking through the majority judgment of Justice Madan B. Lokur held as follows:

“44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, 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. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav [Union of India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri) 212] .”

It was further held by Justice Deepak Gupta in his concurring judgment as follows:

“83. This Court in a large number of judgments has held that the right to legal aid is also a fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to “default bail”. In my view, the Magistrate should also not encourage wrongful detention and must inform the accused of his right. In case the accused still does not want to exercise his right then he shall remain in custody but if he chooses to exercise his right and is willing to furnish bail, he must be enlarged on bail.”

In M. Ravindran (supra), the Three Judge bench of the Supreme Court held as follows:

“48. We agree with the view expressed in Rakesh Kumar Paul (supra) that as a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge-sharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld.”

Extension of limitation during the period of pandemic with respect to Section 167(2)

On 23^rd March 2020, the Supreme Court of India vide an order passed in Suo Moto W.P. (Civil) No. 03 of 2020[35] extended the limitation period for filing of petitions/appeals/suits/applications on account of the hardships faced by the litigants in the wake of the COVID-19, w.e.f 15^th March 2020, irrespective of the limitation prescribed under the general law or special laws. 

On account of the said order, an issue arose as to whether the said order eclipsed the prescribed time period for completion of investigation and filing of charge-sheet u/s 167(2) of CrPC. The same was answered by the Three Judge Bench[36] of the Hon’ble Supreme Court in the negative and the Court held as follows:

“26. We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such restriction in the order of this Court dated 23.03.2020.”

Lastly, it may be mentioned that a person released under default bail, however, have to be produced before the Magistrate on charge-sheet being filed in accordance with Section 209 of the CrPC, whereupon,the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by the Supreme Court.

In the above context, the Supreme Court in Uday Mohanlal Acharya (supra) held as follows:

“13….Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri) 202]”

Conclusion

From the above, the position of law with regard to default bail may be summarized as follows:

****

Parthiv K. Goswami is an advocate practicing law since 2004. He has argued many reported / unreported cases in various branches of law before the Supreme Court of India, Gauhati High Court, Delhi High Court and High Court of Judicature at Allahabad.

Research Inputs for this article were provided by Ishant Bisht, Advocate.

[1](1975) 2 SCC 220

[2](1970) 3 SCC 501

[3](1972) 1 SCC 564

[4](1992) 4 SCC 272

[5] (1986) 4 SCC 481

[6] 2020 (12) SCALE 190

[7]Para 82 of the concurring judgment by Hon’ble Justice Deepak Gupta in the case of Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67

[8]M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence

[9](1975) 2 SCC 220

[10](1986) 4 SCC 481

[11](2017) 15 SCC 67

[12](2019) 14 SCC 599

[13]Criminal Appeal No. 452 of 2020

[14]Criminal Appeal No. 667 of 2020

[15] 2020 (12) SCALE 190

[16](1994) 4 SCC 602

[17](2017) 15 SCC 67

[18]Criminal Appeal No. 667 of 2020

[19](1975) 2 SCC 220

[20]1977 4 SCC 410

[21](1986) 4 SCC 481

[22](1992) 4 SCC 272

[23](1994) 5 SCC 410

[24](2001) 5 SCC 453

[25](1996) 1 SCC 718

[26]1995 Supp (3) SCC 221

[27](2011) 10 SCC 445

[28](2014) 9 SCC 457

[29](2014) 9 SCC 457

[30](2012) 12 SCC 1

[31](2017) 15 SCC 67

[32](2019) 14 SCC 599

[33](1996) 1 SCC 722

[34](1994) 4 SCC 602

[35]Re: Cognizance for Extension of Limitation

[36]S. Kasi vs. State, Crl. Appeal No. 452 of 2020

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