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Recently the Madras High Court clarified an order of the Supreme Court given in the backdrop of the COVID-19 pandemic. The Madras HC in Settu v The State [Crl OP(MD) NO. 5291/2020], held that the Apex Court’s March 23 order granting an extension of the limitation period for various laws would not apply to the right to default bail as granted under section 167 of the Code of Criminal Procedure (CrPC), 1973.
Justice G R Swaminathan observed that a denial of the right to default bail would imply a denial of the right to liberty granted by Article 21 of the Indian Constitution. He observed:
“Personal liberty is too valuable a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except in accordance with the procedure established by law. So long as the language of Section 167 (2) of CrPC remains as it is, I have to necessarily hold that the denial of compulsive bail to the petitioner herein will definitely amount to a violation of his fundamental right under Article 21 of the Indian Constitution.”
The Court further clarified that the intention of the Supreme Court in its order is not to deprive the rights of a person. Such an interpretation would render the rights provided by Article 21 as nullified. Instead, it was to ease the difficulties faced by litigants due to the spread of coronavirus. The order was to ensure that neither the litigants nor their lawyers have to be physically present while filing cases. Thus, as long as the language of section 167 (2) of the CrPC remains as it is, it must be necessarily held that the denial of default bail amounts to a violation of his fundamental rights.
The Madras HC also observed that the Apex Court had not specified that the extension of limitation would apply to police investigations as well. The failure of the State Police to complete investigation on time cannot be hidden by invoking Supreme Court’s order.
What is default bail?
It was Supreme Court’s view in Rakesh Kumar Paul v State of Assam, (2017) 15 SCC 67, that in matters of personal freedom, the courts cannot and should not be too technical and must lean in favor of personal liberty. The generic principle of criminal law is that “a person is innocent until proven guilty.” From even before the registration of an FIR till the completion of the trial, the law provides for many provisions of bail. In countless cases, the Supreme Court has held that bail is a person’s absolute right (in bailable offenses). Granting of bail is the rule while sending to jail is the exception. Very often, we hear about anticipatory bail or regular bail. But, there is one more type of bail that is relatively less known. This is called default bail.
The right to default bail is also an absolute and indefeasible right of the accused. Section 167(2) lays down the provisions regarding this right. This section provides a specified period beyond which the accused cannot be kept in custody. On the expiry of such a period, if the police have not completed their investigation and filed the charge-sheet, the accused can seek default bail. This right accrues from the failure of the police. It acts as an incentive for the police to do timely investigations while also protecting the right to liberty of the accused.
Following are the salient features of the right to default bail:
- Right to default bail is provided under Section 167(2) of the Code of Criminal Procedure, 1973
- It is an indefeasible right of the accused
- It gets invoked when the police fail to complete the investigation within the prescribed period
- The failure to file a charge sheet within 90 days or 60 days, as the case may be, gives birth to this right
- Such a failure divests a power to the concerned Magistrate to grant default bail to the accused if he “is prepared to and does furnish bail”
- It is only on the failure to file a charge-sheet that the right to default bail arises. Such a right is lost if the charge-sheet is filed within 90 days or 60 days, as the case may be
- The accused must make an application, written or oral for the grant of default bail
- In case the accused fails to furnish bail, this right would be extinguished
Legal provisions regarding it
Following are the relevant provisions w.r.t. to the right to default bail:
- Section 57, CrPC: This section states that a person who is arrested without a warrant cannot be detained in custody beyond a period of 24 hours. Such a person has to be produced before the concerned Magistrate. The period of custody can go beyond 24 hours if specified so by a special order granted under section 167.
- Section 167(2), CrPC: Section 167 of CrPC lays down provisions for cases when investigation cannot be completed within 24 hours. Subsection 2 of this section empowers the Magistrate to send the accused in the custody of 15 days at a time. It further states that the total period of such detention shall not exceed beyond:
- 90 days, where the offense is punishable with death, life imprisonment, or imprisonment of 10 years,
- 60 days, where the investigation relates to an offense other than those specified above.
If the police are unable to complete investigation and file a charge-sheet within 90 days or 60 days, as the case may be, then the accused has the right to be released on bail. This is his right to default bail. As per this section, the accused shall be released on bail if he “is prepared to and does furnish bail”.
Explanation I clarifies that the accused will continue to be custody until he furnishes bail.
- Chapter XXXIII, CrPC: Chapter XXXIII of CrPC contains sections 436 to 450. It deals with provisions w.r.t. bail and bonds. A person released on bail under section 167(2) is deemed to be released under the provisions of this chapter.
- Article 21, Constitution of India: Article 21 states that no person can be deprived of life or liberty except according to the procedure established by law.
Following are some landmark cases on right to default bail:
- Rakesh Kumar Paul v State of Assam, (2017) 15 SCC 67
In this case, the accused was charged with an offense under Section 13(1) of the Prevention of Corruption Act. The said offense was punishable by “imprisonment for a period of not less than four years, but that can be extended to ten years”. The State thus argued that since the accused might end up with imprisonment of up to 10 years, the date on which the accused can request a default bond would begin after completion of 90 days. However, the Apex Court was of the view that the accused in this case had fulfilled all the requirements to seek default bail under section 167(2) of CrPC.
- The Court held that the 90-days criterion is only for offenses punishable with death, life imprisonment, or imprisonment of a minimum of 10 years. For offenses that are punishable with minimum imprisonment that is less than 10 years and where the maximum punishment is not death or life imprisonment, then the accused becomes entitled to the right to default bail after the expiry of 60 days on the failure of filing of charge-sheet.
- Sanjay Dutt v State through CBI, Bombay, (1994) 5 SCC 410
The Hon’ble Supreme Court has laid down several guidelines in case w.r.t. section 167, CrPC. These guidelines specified that the completion of 90 days or 60 days, as the case may be, accrues an indefeasible right in favor of the accused for grant of bail. This right arises from the failure of the investigative agencies to complete investigations and file the charge sheet within the prescribed time. He becomes entitled for a release on bail if he is prepared to and furnishes bail. If he is unable to furnish bail and investigation is complete, then such a right would extinguish.
- Aslam Babalal Desai v State of Maharashtra, (1992) 4 SCC 272
In this case, the Supreme Court pointed towards the “legislative anxiety” found in sections 57 and 167 of CrPC. These sections express the urgency with which the investigation must be completed within the prescribed period once a person is deprived of his liberty. Proviso (a) to section 167(2) provides a maximum period of 90 days or 60 days, as the case may be. It was introduced to allow the investigative agencies to complete the investigation within the maximum stipulated time. The Court further held that if the investigation is not completed within this maximum period, the accused is entitled to be the right to default bail. It was also held that section 167 does not give any power to cancel bails. Such power is only available under section 437 or 439 of CrPC.
On perusal of various Supreme Court judgments, it can be observed that the right to default bail under section 167(2) of the Code proceeds under the premise that the accused must either “make use of” or “enforce his right to be released on bail”. The Court has to ascertain whether the accused is prepared to furnish bail. In other words, the Magistrate’s exercise of power depends on the application by the accused. If the magistrate receives no such application, he has no power to release the accused. The application can either be written or oral.
The right to bail under section 167(2) is absolute and indefeasible. It is a legislative mandate and not the discretion of the court. If the investigating agency fails to file a charge sheet before the 90/60 days expiration, as the case may be, the accused in custody should be released on bond. At this stage, the merits of the case are not to be examined. This absolute right, however, depends upon the ability of the accused to furnish bail. If he is unable to do so even after the Court’s direction, his absolute right is extinguished. Thus, this right does not take into account the financial condition of an accused.
There exists an indefeasible right to default bail under section 167(2) of CrPC. The Magistrate is empowered to release the accused after the stipulated time and on the failure of the investigative agencies to file a charge sheet. The 90/60 days period as specified in section 167(2) begins to run from the date the magistrate hands the accused into custody. This may not necessarily be the date of arrest. In cases where the defendant has submitted a request for bail, he is deemed to have “validated” his right. In such cases, the magistrate must approve a bond order upon the expiration of the stipulated period. The provisions of section 167 of the Code would apply to all offenses unless specified otherwise. The right to default bail is a statutory right and cannot be taken away. The recent extension of limitation by the Supreme Court would not apply to this right.
Author: Sanjana seth from School of Law, University of Petroleum and Energy Studies (UPES) Dehradun.
Editor: Shalu Bhati from Campus Law Centre, Faculty of Law, University of Delhi.