bail

This article has been written by Gunjeet Singh Bagga, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

As per Section 167 of CrPC, if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution.

A Judicial Magistrate may authorise the detention of the accused from time to time for a maximum period of 15 days through a reasoned order and a copy of such an order shall be forwarded to the Chief Judicial Magistrate except where the magistrate authorizing detention is the CJM. The Judicial Magistrate can authorise detention beyond 15 days if sufficient reasons exist for doing so. If the Judicial Magistrate does not have jurisdiction to try the case, he/she shall forward the case to the concerned jurisdictional Judicial Magistrate.

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If the Judicial Magistrate is not available, the concerned police officers, not below the rank of sub-inspector, shall forward the accused to the nearest Executive Magistrate conferred with the power of a Judicial Magistrate who shall authorise the detention of accused of a maximum period of 7 days through a reasoned order and forward the accused to the nearest Judicial Magistrate.

Default bail under section 167 of The Code Of Criminal Procedure, 1973

The accused is entitled to an indefeasible right of default bail/compulsive bail/statutory bail if the accused is prepared to furnish bail in case the charge sheet has not been filed in court. This right accrues after 90 days of custody in cases punishable with death, life imprisonment, and imprisonment not less than 10 years and after 60 days of custody for any other offence. Every person released under default bail shall be deemed to be released under Chapter XXXIII of CrPC.

  • During the period of detention, the accused may be remanded either to police custody i.e. in the police station lockup or to judicial custody i.e. in the prison. However, as held by the Supreme Court in CBI vs Anupam J. Kulkarni, although the magistrate may authorize police custody after authorising judicial custody and vice versa, the magistrate can only authorise police custody till 15 days after arrest and further detention shall only be in judicial custody except where the same accused is implicated in a different case arising out of a different transaction.
  • The Delhi High Court in Noor Mohd vs State held that an order of remand is judicial interference with an accused’s liberty and one who seeks remand must justify it. When an accused is produced before the court for obtaining a remand, if the court finds that prosecution has not shown sufficient grounds for obtaining a remand, the court shall pass an order releasing the accused on bail forthwith even without an application being filed on behalf of the accused. The accused needs to file an application only when he seeks bail only during the operation of the period of remand. The Court observed “Neither Section 436(1) nor Section 437(1) nor any other section dealing with bail enjoins an application…when the accused is produced before the court for obtaining a remand, an application is quite unnecessary, unless the purpose be to bring on record matters not otherwise apparent there from.”

The mere filing of a charge sheet after the accused has applied for default bail will have no consequence and the accused can be committed back to custody only if the bail is canceled by virtue of Section 437(5) or Section 439(2) CrPC. 

  • Some confusion had arisen after the SC judgment in Hitendra Vishnu Thakur vs State of Maharashtra because few observations by the Apex Court were construed by the TADA Courts to mean that the right to default bail survived even after filing of charge sheet if investigation was not completed within 60/ 90 days.
  • The Constitution Bench of Supreme Court in Sanjay Dutt vs State through CBI, Bombay (II) cleared this confusion and observed very appositely that even in the modified application of Section 167 CrPC to under Section 20(4) of TADA Act, 1987 “…The indefeasible right accruing to the accused.…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.” The SC further held that an accused who does not exercise his right to default bail can always seek regular bail under CrPC. 
  • The Supreme Court in Ravi Prakash Singh vs. State of Bihar following the State of M.P. vs Rustom held that the period of 60 days or 90 days shall be computed from the date of first remand after arrest and not on the date of arrest and the date on which charge sheet is filed shall also be included. In Ravi’s case, where the accused surrendered before the magistrate and was remanded to Judicial Custody on the same day, while computing the 90 day period, excluded the date of surrender/ remand and included the date of filing the charge sheet. 
  • In Mohd. Iqbal vs. State of Maharashtra, the Supreme Court deprecated the practice of some courts of keeping the applications for default bail pending for a few days, which  enabled the IO to file a charge sheet in the meantime so that the statutory right of the accused is defeated.
  • The 3 Judge Bench of the Supreme Court in Uday Mohanlal Acharya vs. State of Maharashtra, while relying upon the judgment of Constitution Bench in Sanjay Dutt vs State, held that the accused shall be said to avail of his right to default bail when he files an application for the same and not when he is released on default bail. This right of the accused does not extinguish on the magistrate not being available, the magistrate refusing to pass an order or an appeal or revision being filed against the magistrate’s order. However, if an order of default bail is passed in favour of the accused, but he/she fails to furnish bail and a charge sheet is filed in the meantime, then the right to default bail shall stand extinguished.

Further, the SC overruled the State of MP vs. Rustom wherein it was held that the right of the accused to default bail had been extinguished because on the date the magistrate passed the order, the prosecution had already submitted a charge sheet.

In Sadhwi Pragya Singh Thakur vs. the State of Maharashtra, it was erroneously observed by a Division Bench of the Supreme Court that. if during the consideration of an application for default bail, a charge sheet is filed, then bail could only be granted on merits. A Division Bench of the Supreme Court in Union of India vs. Nirala Yadav held that the SC in Pragya Singh Thakur did not lay down the correct law as it ran directly counter to the majority judgment in Uday Mohanlal Acharya and other later judgments. The abovementioned observation in Pragya Singh Thakur’s judgment has been held to be per incuriam by a 3 Judge Bench of the Supreme Court in M. Ravindran vs. Directorate of Revenue Intelligence.

In Rakesh Kumar Paul vs. the State of Assam, a 3 Judge Bench of the Supreme Court, by a 2:1 majority, held that the period of 90 days for availing default bail shall not be applicable to offences where the minimum imprisonment is not 10 years or more. Thus, for an offence where the minimum period of imprisonment is less than 10 years and the maximum period of imprisonment is not life imprisonment or death, the period of imprisonment for availing default bail shall be 60 days.

The Supreme Court in M. Ravindran vs. Directorate of Revenue Intelligence has observed that the limited notice issued to Public Prosecutors while hearing the application for Default Bail should not be misused by buying extra time and filling up lacunae in the investigation. The SC further observed that the purpose of hearing Public Prosecutors is only to ensure that the accused is not suppressing material facts in the application, whether charge sheet has been filed, whether the period of 60/90 days has expired, whether any extension of time for investigation has been granted to the prosecution in case of special statutes like under the proviso to Section 36-A (4) of the NDPS Act, 1985.

Conclusion

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

References

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