DEFAULT BAIL: A CULMINATION OF STATUTORY RIGHT AND FUNDAMENTAL RIGHT
The term ‘Bail’ has been derived from the French word ‘bailler’ which means ‘to deliver’ or ‘to give’. The term bail is not defined under CrPC, 1973. According to Black’s Law Dictionary, bail is defined as ‘procuring the release of a person from legal custody, by undertaking that he or she shall appear at the time and place designated and submit himself or herself to the jurisdiction and judgement of the court. Bail is the absolution of an accused person temporarily awaiting the trail or a sum of money is lodged by the accused person as guarantee for his appearance in the court. Bail means temporary release of an accused person in a criminal matter until the pronouncement of judgment. Bail is a kind of security which is given by the accused person to the court that he will attend the proceedings against the accusations made upon him. The basic and fundamental object of bail is to ensure the attendance of accused at the trial before the court. If the accused does not return to the trail before the court, the bail is fortified and the accused may possibly be brought up on charges of the crime of failure to appear. The two authorities that can grant bail are police and courts.
For the first time the idea of bail was instituted in England and after getting inspired from that India also introduced this concept. Since we live in a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. The right to liberty is the natural right and also the fundamental right of an individual. The concept of bail flows from the right to liberty which is sanctified in as one of the fundamental rights in the constitution of India in Article 21. The general principle of criminal law is ‘a person is innocent until proven guilty’. When a person is reasonably suspected to have committed an offence, he may be arrested either with an arrest warrant or without an arrest warrant and the act of arrest deprives a man of his liberty. Right to life and personal liberty is an important right granted to every citizen under article 21 of the Indian constitution and it is considered as one of the precious right. So the concept of bail is given so that a person’s liberty would not deprives unless and until the procedure established by law. Bail sets him free on securing his promise to take trail at a future date and to undergo punishment if found guilty.
There is a basic rule that bail is right and jail is an exception. So everyone who is accused of an offence has a right to apply for bail. There are two types of offences bailable offence and non-bailable offence, in the case of bailable offence it is mandatory to grant bail to the arrested person and in case of non-bailable offence it depends upon the discretion of the court whether court thinks fit to grant bail to accused or not. From the date of filing of FIR till completion of trial and decision of a case the law contains various provisions for releasing an accused person on different types of bail. There are many kinds of bail regular bail which is decided on the basis of the merit of the case, anticipatory bail, default bail or statutory bail. Here I will discuss in detail about bail by default and bail by default is not mere a statutory right of a person but it is also a fundamental right of a person.
The procedure for getting default bail is given in section 167(2) of CrPC, 1973. If a person is arrested without a warrant then he cannot be detained in the police custody more than 24 hours without the permission of the magistrate as per section 57 of CrPC. If a person is arrested and detained in custody and if the police officer thinks that the investigation cannot be completed in 24 hours and the accusation imposed on that accused is well founded then the officer in charge of police station or the police officer who is making the investigation and he must not be below the rank of sub inspector shall immediately send a copy of the entries as well as the accused to the nearest judicial magistrate. It is not necessary here that the magistrate must have jurisdiction to try that case. If judicial magistrate is not available then the copy of the entries and the accused may be sent to that Executive Magistrate who has the power of judicial magistrate or metropolitan magistrate.
When the accused come to judicial magistrate it is immaterial whether he has jurisdiction or not jurisdiction to try the case and if that magistrate thinks that detention is necessary then may give an order for detention which may not be more than 15 days as per 167(2) of CRPC and that custody of 15 days may be either judicial custody or police custody as the magistrate thinks fit. The magistrate can remand the accused person even to military, naval, or air force custody if such accused person is subject to military, naval or air force law. If magistrate who has no jurisdiction to try the case thinks that further detention is unnecessary then he may send the accused to a magistrate who has such jurisdiction. If the accused is produced before an executive magistrate then he may authorize the detention of the accused of not more than 7 days and for the same he has to recorded a reason in writing and send that records and the copy of the entries to the nearest judicial magistrate before the expiry of the 7 days. After 15 days the accused again produces before the judicial magistrate and he decides that whether he shall authorize further detention or not and if he thinks that further detention is required then he may authorize further detention of period 90 days including that 15 days where the investigation is related to an offence punishable with death , imprisonment for life or imprisonment for a term of not less than 10 years and 60 days including that 15 days, where the investigation relates to any other offence. After 15 days the accused can only be kept in judicial custody or any other custody as ordered by the magistrate but not in the custody of the police. The accused must be present before the magistrate when the magistrate authorizes his detention to police custody for the first time but when the magistrate authorizes the accused further detention to judicial custody then accused may be produced either physically or through any electronic medium given in section 167(2)(b). The signature of accused person is taken so that in later it could be proved that the accused person had produced before the magistrate. If a lady who is under the age of 18 years is accused then she will be detained in remand home or recognized social institution. The magistrate has to record his reason for authorizing the detention in police custody. The magistrate has to exercise his judicial mind while deciding the detention of the accused. The order of detention is not to be passed mechanically as a routine order on the request of the police for remand. According to section 167(2)(c) second class magistrate have no power to detain the accused in police custody.
The prescribed statutory period of 90 days and 60 days is to be counted from the date the magistrate authorizes detention of an accused person and not from the date of arrest. If the magistrate authorizes detention on the very date of arrest of an accused person, then the period of detention of 90 days and 60 days is to be counted from the date of his arrest.
Basically this time period of 90 days and 60 days is given to the police officer who is making investigation to complete investigation and submit the chargesheet. If the chargesheet is not submitted in given period as mentioned above then after the completion of the statutory days of 90 days and 60 days the accused is entitled to be released on bail if he file a bail application and this bail is called bail by default or statutory bail. This bail is known as “default bail” because it is granted due to the default on the part of the investigating agency in filung the chargesheet within the given period. Here default bail is deemed to be granted under chapter XXXIII of the CrPC. There is condition that until and unless the accused person prepared bail he shall remain in the custody and further detention does not ipso facto illegal or void. Here the magistrate cannot use his discretion in giving bail he has to give bail this is an absolute right of an accused. Once default bail is granted, it cannot be cancelled on mere filling of the chargesheet. The provision for default bail in section 167 of the Cr.P.C does not bar an accused from seeking regular bail on merits under section 437 or section 439 of the Cr.P.C. when he is in custody during the investigation and if such bail application was rejected by the courts on merits, it does not affect accused right to apply for default bail. All those prisoners, who are in custody beyond the statutory period and chargesheet are not yet filed, can seek to explore this remedy to be released on statutory bail immediately and the denial of the same, would amount to violation of their fundamental right and be against the spirit of law laid down by the supreme court of India in many cases which I will discuss later.
Any non- compliance of section 167 on any pretext would amount to non- compliance of ‘procedure established by law’, thereby leading to breach and violation of fundamental right of the arrestees guaranteed under article 21. Article 21 talks about that every citizen has a right to life and personal liberty except the procedure established by law and if the accused did not get bail here his right to liberty is violated. Hence, we can say that denial of bail under sec 167(2) of CrPC, 1873 is not mere a violation of statutory right but also a violation of fundamental right. Some cases related to bail by default are discussed below:-
In State of M.P v. Rustam, the accused was sent to judicial custody on 3 September 1993. Chargesheet was submitted by police on 2 December 1993. The accused claim compulsive bail and the high court granted it. The Supreme Court reversed the high court order. The SC says that the chargesheet was submitted within 90 days and hence there was no question of granting bail by default. In the Mantoo Majumdar v. State of Bihar the under trail prisoners were imprisoned for more than seven years without any investigation and the magistrate had been deciding detention mechanically so the Supreme Court order the release of the petitioner because detention here is violating Article 21 of the prisoners and section 167(2) of the CrPC.
In RJ Sharma v. RP Patnakar the bail was granted at very initial stage by trail judge and the same was confirmed by the HC but it was cancelled by the Successor judge means the judge who came later. The successor judge said that the bail granted is provisional in nature. The Bombay High Court held that once the bail was granted it cannot be cancelled suo moto. It can be cancelled after fulfilling the ingredients of natural justice so in this case the successor judge should at least hear the other judge. In Uday Mohan lal Acharayya v state of Maharashra accused application was erroneously rejected by magistrate then he approached higher court authority and in the meanwhile chargesheet was filed it was held that the right to bail was not extinguished. SC explained its position where a chargesheet was not file within the requisite period of 60 or 90 days then the accused became entitle to an indefeasible right to be released on bail. Similarly in Sahid Ahmad Kajmi v State a 3 judge bench of SC held that filling chargesheet during pendency of the application for statutory bail doesnot affect the right of the accused to get bail. In Sanjay Bhatia v. State the court observed that if on the 91st day or on the 61st day as the case may be, before the accused furnishes bail bond, the the investigating agency file the charge sheet then in that case the magistrate has to that the cognizance of the case and his bail application can be decided on merits. In Aslam Babalal Desai v state of Maharashtra SC held that once an accused is released on bail under sec 167(2) of the CrPc he cannot be taken into custody just because of the fact that investigating agency has submitted the charge sheet and for doing so there must exists special reason.
One should keep in mind that no court can extend the period of 90 days /60 days unless it is specifically provided in the statutes like in the Unlawful Activities (Prevention) Act, 1967, the terrorist and Disruptive Activities (Prevention) Act, 1987, the Maharashtra Control of Organised crime Act, 1999, Narcotic Drugs and Psychotropic substances (NDPS) Act. In Bikramjit singh v. state of Punjab the accused was remanded to custody by a Sub- divisional Magistrate under some sections of IPC, Arms Act, Explosive Substances Act and UAPA. After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate which was dismissed because the Sub-Divisional Judicial Magistrate had already extended time for custody from 90 days to 180 days under Section 167 of the Code. Although Special Court alone had jurisdiction to extend the time for custody 180 days under the first proviso in Section 43-D (2)(b) of the UAPA. The three-judge Bench of SC says that “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 sec167(2) of CrPC. In this case it was held that the right to default bail is not a mere statutory right under 167(2) CrPC, but is part of the procedure established by law under Article 21 of the constitution of India.
In Sayeed Majid Ahamad v. State of Karnataka the petitioner accused were arrested and produced before the Court on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and as that per Section 36A(4), the respondent was required to file charge-sheet under 180 days but an application was filed by the investigating agency in the meanwhile of the time period of 180 days for the extension of time beyond the 180 days before the special court and the court granted that application and extended the time. High Court observed here that the indefeasible right of an accused to seek compulsive bail under S. 167(2) CrPC is defeated by the unilateral extension of time by the Court and hence accused fundamental right have been violated.
To conclude that we can say that a fundamental right is granted to an accused person to be released on bail if the chargesheet is not submitted by investigation agency in 60days or 90 days as per sec 167(2) CrrPC. In an application for default bail the merits of the matter is not considered, an accused is entitled to be released on default bail even in a serious and ghasty types of crime. Right for default bail is an indefeasible right which cannot be allowed to be frustrated by the state. Hence, bail is a right and liberty of a person and is important till he is proven guilty. It would be very true to say that granting of bail should be the rule rather than the exception.
- R.V kelkar’s , Criminal Procedure,290 ( Eastern book company 6th edn.2020)
- Right to default bail under the first proviso of section 167 not a smere statutory right but also a fundamental right available at: https://www.scconline.com/blog/post/2020/10/14/sc-right-to-default-bail-under-the-first-proviso-to-section-1672-crpc-not-a-mere-statutory (last visited on April 27, 2021)
- The Code of Criminal Procedure, 1973 (Act 2 of 1974)
- Bail under CrPC, available at: https://lawtimesjournal.in/bail-under-crpc/ (last visited on April 27, 2021)
- State of M.P v. Rustam1995 supp (3) SCC221
- Mantoo Majumdar v. State of Bihar(1980) 2 SCC 406
- RJ Sharma v. RP Patnakar1993 Cri LJ1550 Bombay
- Uday Mohan lal Acharayya v state of Maharastra AIR 2001 SC 1910
- Sahid Ahmad Kajmi v state AIR 2013 SC 152
- Default bail under section 167 CrPC- a fundamental right, available at: https://www.barandbench.com/news/litigation/supreme-court-default-bail-section-167-crpc-fundamental-right-supplementary-chargesheet- (last visited on April 27, 2021)
- Aslam Babalal Desai v state of Maharashtra (1992) 4 SCC 272
- Bikramjit singh v. state of Punjab AIR 2020, SC 824
- Right to default bail, available at: https://www.SCConline.com (last visited on April 27, 2021)
- Provisions related to bail- preview and analysis, available at: https://blog.ipleaders.in/provisions-relating-to-bail/ (last visited on April 27, 2021)