Context: Recent, the Supreme Court said that grant of default bail will not operate as an absolute bar to canceling it once the charge sheet is filed and the same can be considered if a strong case is made out

What is a Default bail?

• Also known as statutory bail, this is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody.

• This is enshrined in Section 167(2) of the Code of Criminal Procedure (CrPC) where it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody.

Under Section 167(2) of the Code, a Magistrate can order an accused person to be detained in the custody of the police for 15 days. Beyond the police custody period of 15 days, the Magistrate can authorize the detention of the accused person in judicial custody i.e., jail if necessary. However, the accused cannot be detained for more than:

• ninety days, when an authority is investigating an offense punishable with death, life imprisonment or imprisonment for at least ten years; or

• sixty days, when the authority is investigating any other offense.

• In some other special laws like Narcotic Drugs and Psychotropic Substances Act, this period may vary. For eg: In Narcotic Drugs and Psychotropic Substances Act, the period is 180 days.

• At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”. This is known as default bail.

Is it a Fundamental right or a Statutory right?

• According to the Supreme Court, ‘Statutory bail’ is a Fundamental right and is a part of the Right to personal liberty under Article 21 of the Indian Constitution. The rationale here is that the right of the accused to seek liberty takes precedence over the right of the State to carry on the investigation beyond a stipulated time limit (varies for different laws).

• The confusion might arise due to the name itself – ‘Statutory’ Bail. As this right was given by a statute (Section 167 of CrPC), it was a statutory right to begin with. However, SC in Bikramjit Singh vs State of Punjab (2020) and Fakhrey Alam vs State of UP (2021) declared statutory bail under the first proviso to Section 167(2) of CrPC a fundamental right.

Note

• Though it is a Fundamental right, it comes into place only after the stipulated time limit for investigation has expired.

• It does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds.

What are the principles laid down on Statutory Bail?

• Default or statutory bail is an indefeasible right’, regardless of the nature of the crime.

• Stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time. It includes days undergone in both police and judicial custody, but not days spent in house arrest.

• Requirement for the grant of statutory bail is that the right should be claimed by the person in custody. If the charge sheet is not filed within the stipulated period, but there is no application for bail under Section 167(2), then there is no automatic bail.

Time Period for Statutory Bail

• For most offences, the police have 60 days to complete the investigation and file a final report before the court.

• However, where the offence attracts a death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days.

• In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit. At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to furnish bail”.

Statutory Bail Provision for Special laws

• The 60 or 90-day limit is only for ordinary penal law. Special enactments allow greater latitude to the police for completing the probe.

• In the Narcotic Drugs and Psychotropic Substances Act 1985, the period is 180 days. However, in cases involving substances in commercial quantity, the period may be extended up to one year.

• In the Unlawful Activities (Prevention) Act 1967, the default limit is 90 days only, which can be extended to another 90 days.

• This extension in these cases can be granted only on a report by the Public Prosecutor indicating the progress made in the investigation and giving reasons to keep the accused in continued detention.

• These provisions show that the extension of time is not automatic but requires a judicial order.

Key Principles

• It is a right, regardless of the nature of the crime.

• The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time.

• It includes days undergone in both police and judicial custody, but not days spent in house-arrest.

• A requirement for the grant of statutory bail is that the right should be claimed by the person in custody.

• If the charge sheet is not filed within the stipulated period, but there is no application for bail under Section 167(2), there is no automatic bail.

• Once the accused files an application for bail under Section 167(2), it is considered that he/she has enforced the right to be released on default bail.

• This right only comes into place after the stipulated time limit for investigation has expired.

• If the accused fails to apply for default bail after the investigation time period has expired, and the investigating agency files a charge-sheet or seeks more time before the accused makes such an application for default bail, then the right of default bail is no longer applicable.

• The Magistrate can then grant further time for completion of the investigation.

• However, the accused may still be released on bail under other legal provisions of the Code.