This article is written by Shreya Srivastava, pursuing a Certificate Course in Advanced Criminal Litigation and Trial Advocacy from Lawsikho.


The principles of presumption of Innocence is stressed in Indian laws. A person is innocent until proven guilty. Life and liberty are priceless possessions and they can’t be compromised except with the sanction of law. Under Article 21, a fundamental right, more of an inherent human right, is enshrined for every person regardless of that person’s status wherein even prisoners are not excluded. There exists the basic rule: Bail and not Jail. Bail is a right of every individual and an important aspect of his liberty. The basic principle embodies freedom from arbitrary detention and serves as a bulwark against punishment before convictions. Bails are for ensuring compliance with the judicial process imposed on the subject in the form of pre-trial restrictions. There are many kinds of bails; Anticipatory bail, Regular bail, Interim bail, and lesser heard Default or Statutory bail.

Section 167(2) CrPC confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision is related to information to the police and their powers to investigate. Any further remand to judicial custody beyond 90 days and 60 days without the chargesheet being presented before the court will be without the authority of law. Whereas section 37-A(4) of N.D.P.S. Act makes the statutory time period of 90 days under section 167(2) CrPC extended as 180 days to complete the investigation and if the procedure is not completed then specific reasons are to be produced for further detention of accused beyond the said period.

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Concept of bail

Bail means a kind of security and bond which is given to release a person from prison. It is a pro-tem release of a criminal before his trial begins. The term bail is nowhere defined. Default bail can be held as Trial Judges granting bail upon failure to file chargesheet by the police within the statutorily stipulated time period after taking an accused in custody. Any non-compliance of section 167 CrPC on any pretext, would amount to non-compliance of “procedure established by law”, thereby leading to breach and violation of fundamental right of the prisoners/arrestees guaranteed under Article 21.

All those prisoners, who are in custody beyond the statutory period and chargesheets/challans are not yet filled, can seek to explore this remedy to be released on statutory bail immediately and the denial thereof, might amount to violation of their fundamental right and be against the spirit of law laid by the Supreme Court of India in a number of cases. Default bail is the power of Magistrate which is only exercisable during the course of investigation of a case. A person arrested for bailable offence may secure bail at a police station while those who fail to secure police bail and those arrested for non-bailable offences have to secure bail in court.

Grounds on which bail is granted

While considering bail applications, courts are required to balance the considerations of personal liberty of accused with public interest at large. It is true that a citizen’s liberty cannot be curtailed unless the facts and circumstances completely justify it and the same goes with the Court’s decision of whether to grant bail to the accused or not. This can distinctly be perceived from the legislature’s words, “reasonable grounds for believing” instead of “evidence”. Bail applications adjudicated by Courts are only to be examined into the question of prima facie case established for granting bail rather than into the question of credibility and reliability put up by the prosecution. The major factors considered before granting bail are :

  • Nature and severity of accusations
  • Prima facie satisfaction of Court 
  • Likelihood of offence being continued or repeated
  • Reasonable apprehensions of tampering witnesses or threatening the complainant or applicant’s absconding
  • Applicant’s standing, character, means and status
  • Health, age, sex of accused5
  • Illegal detention or period of detention
  • Delay in trial of the case

Court’s duty is to ensure that conditions imposed for granting bail are not onerous but in consonance with the intention and provisions of sections. “Any condition” imposed should not confer absolute power on the Court of law but preferably be interpreted as, reasonable condition acceptable in facts permissible in circumstances and effective in pragmatic sense and should not defeat the order of grant of bail.

Grant bail on grounds of non-service of notice (judicial pronouncements)

It is clearly understood that the principle of natural justice asks the judges to be unbiased, impartial and neutral towards the parties to suit with the extension of duty to act fairly. There have been many instances where Courts made sure of protection of accused person’s bail rights.

  1. Pradip Kumar Maity v. Union of India– Screening Committee without reasonable exercise of discretion shortlisted and granted compassionate appointment. They were directed to take a reasoned decision in light of the matter and to communicate the same to the petitioner within a period of six weeks. It is mandatory to issue notice to the accused person before the grant of extension of time with a view to give him fair chance under established rule against bias and to oppose that extension.
  2. Arvind Kumar Saxena v. State– On prosecution’s failure of to file the chargesheet within allowed time, if the accused also fails to exercise his right to be released on bail, his exercise of indefeasible right ends as it does not follow the principle of perpetuity. It has to be exercised before filing a chargesheet.
  3. Dinesh Dalmia v. CBI– So long as a police report is not filed under section 173(2) investigation remains pending. If it is not possible to complete the investigation within a statutory period of 189 days, then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. This right does not revive only because further investigation remains pending. It has been held that after filing chargesheet the Magistrate is not competent to grant bail under the proviso to section 167(2). But, if a chargesheet is not filed, this right would arise whereas on filing, the right ceases.

Analysis of the case of Ishwar Tiwari v. State of Odisha

This case deals with the question whether default bail be granted under section 167(2) CrPC in case of non-compliance of notice to the accused under section 36A(4) N.D.P.S. Act. In the instant case, the petitioner and other accused persons were detained under the charges of section 20(b)(ii) of N.D.P.S. Act which deals with the punishments for production, export, import or use of cannabis also known as “marijuana”, a psychoactive drug. In Sessions Court an application was filed for grant of extending chargesheet’s submission, which was herein allowed neglecting the principle of “audi alteram partem” (both sides must be heard). Non issuance of notice to accused persons for that allowed extension was made in violation of their rights which demands for specific reasons for accused person’s detention beyond the statutory period along with a fair chance to be heard before such grant was made

SK Panigarh J. unambiguously held solid the indefeasible right of accused to be admitted to bail. It was revised that an accused cannot be excused for his rights to bail merely because the default in filing the chargesheet was rectified later on. The Court besides granting bail to the accused even established basic legal parameters and violation of which is followed by increased chances of bail.

The basic format that can be concluded and be practiced is, the accused should be made well aware of the situation of his case and any further notice for investigation or extension of time has to be served to him. The notice issued must deal with definite reasons for his further detention and requires no expiry of statutory period for filing of chargesheet. Any violation shall be held as default which consequently accruing his rights entitles the accused for his bail.


The principles have been incorporated into our system of administration of justice and the Courts have to follow these principles through many formal laws. Right for default bail is an indefeasible right which cannot be allowed to be frustrated by the prosecution. Whenever, there is a discretion upon the Court with respect to granting bail, there are certain established principles which have to be adhered to. It would be very true to say that granting of bail should be the rule rather than the exception. It not only secures justice but more importantly prevents the State from miscarriage of the same which would be easier by causing greater damage to any unconvicted accused.


  1. Justice Krishna Iyer pronounced in State of Rajasthan v. Balachand alias Baliay,1977 AIR 2441 SCR(1) 535
  2. Section 167(2) CrPC
  3. Bail decisions and under trial detention: An Introduction
  4. State of Maharashtra v. Sitaram Popat Vital, AIR 2004 SC 4258
  5. Prahlad Singh Bhati v. NCT Delhi, AIR 2001 SC 1444
  6. Sumit Mehta v. State of NCT Delhi, 2013 15 SCC 570
  7. 2010 Cal 1503
  8. 2018 SCC DEL 7769
  9. 2007 8 SCC 770
  10. BLAPL No. 10152 of 2019
  11. Section 36 A(4) of N.D.P.S. Act
  12. Bhandari Vrinda: NUJS Law Review

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