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This article is written by Moumita Mondal who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.


If an accused is arrested by the police, then he can apply for bail for his release. The person apprehended is released on bail. The bail is conditional. The Jurisdictional Court may allow the bail application on the condition that he will not hamper the investigation or the judicial process. There are three types of bail which are interim bail, regular bail, and anticipatory bail. Anticipatory bail is different from interim bail and regular bail. 

Suppose the investigation is incomplete and the person is confined in custody for more than 90 days, then a question arises whether he can apply for default bail or not. The accused can apply for default bail if the inquiry relating to his matter is incomplete.

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This article will discuss the concept and other aspects relating to the Default bail. Also, I will be discussing the default bail which cannot be granted after the resubmission of the chargesheet after curing defects in light of Saharath VP v. State of Kerala.

Default bail – A primer

The bail application known as default bail can be applied by the arrested person when the inquiry is incomplete. Section 57 of the Code of Criminal Procedure, 1973 says that the arrested person should be produced before the Magistrate within 24 hours from his arrest made by the police. The police are not authorized to detain the arrested person beyond 24 hours. The police can detain the accused further only with the special permission granted by the Magistrate.

The police must complete their investigation within 90 days. And, if the police are not able to finish their inquiry against the arrested person within 90 days, then the arrested person can ask for bail as a matter of right. Section 167 of the Code of Criminal Procedure, 1973 says that the person is entitled to bail if the inquiry of the police is unfinished. The arrested person will not get the default bail, if he does not apply before the Court. The arrested person may seek the default bail when the investigation is pending and has already exceeded more than 90 days.

Section 167(2) of the Code of Criminal Procedure, 1973 says that the arrested person is produced before the Magistrate who may try the case or may pass an order to detain the person and if he is not authorized to look into the case, then he can forward the case to the other Magistrate who may have jurisdiction to try the case of the accused person.

Section 167(2) (a) of the Criminal Procedure Code, 1973, authorizes the Magistrate to pass the order for the confinement of the arrested person. And also, the Magistrate cannot pass the order for detention of the person who is apprehended if there is insufficient ground.

The Magistrate is not authorized to detain the person in the custody of the police if 90 days have already passed and inquiry relating to the offense is incomplete and punishable with death or life imprisonment or term of imprisonment is ten years.

How to get a default bail?

The accused can apply for bail through his lawyer if an incomplete investigation exceeds more than 90 days. To get default bail, the accused must take the undertakings to follow all the conditions or the additional conditions which the Court may impose. The following steps to get a default bail are as under:

  • When the investigation is incomplete, the arrested person is still in the custody of the police. Then, he can apply for default bail through his lawyer.
  • The arrested person should file the bail application first at Sessions Court. It is because chances are there for the bail application to get rejected in the Sessions Court. So, the arrested person has an option to file a bail application before the High Court.
  • And, even if the High Court does not consider the bail application, then the arrested person can apply for bail before the Supreme Court through a Special Leave Petition (SLP).

The conditions which are bound to be followed by the arrested person are as follows:

  • The arrested person should not leave the place.
  • He should not threaten or induce the victim or witnesses.
  • He should not wipe out the evidence.
  • He should be present whenever the Court conducts the trial.
  • The arrested person should cooperate in the inquiry whenever he is called to the police station.

The arrested person should comply with these conditions. And, if he is not following these conditions, then the police will apprehend him.

Cancellation of a default bail

The Court may terminate the bail application if the conditions are not complied with by the person discharged on bail. If it is proved that he had committed the offense, then the Court may cancel the bail. If the accused misapplies his bail, then the Court will terminate his bail application. The Appellate Court may also cancel the bail if it discovers that the arrested person is not following the conditions imposed on him or misusing the bail in another way. Section 439(2) of the Code of Criminal Procedure, 1973 says that the High Court of Session Court may pass an order to apprehend and confine the person in custody who has been released on bail. The Sessions Court or High Court or Supreme Court may terminate the bail of the arrested person without any interference of the third party, i.e, suo-moto.

Default bail cannot be granted if the chargesheet is resubmitted after curing defects in light of Saharath VP v. State of Kerala

In Saharath VP v. State of Kerala, Saharath has committed the offense under Section 22(c) of the Narcotics Drug and Psychotropic Substances Act, 1985. The investigation was finished and the final report was submitted. The final report was returned. It is because the copy of the drug disposal committee was not submitted with the final report.

The police conducted a search based on their doubt in the goods shed yard of Kallai Railway Station and found 2830 capsules measuring 1750 grams of Spasmo Proxyvon consisting of Tramadol, a commercial quantity of a psychotropic substance from Saharath. He was arrested by the police. Then, he was remanded to judicial custody. 

The default bail application filed by him under Section 162(2) of the Code of Criminal Procedure, 1973 was not considered by the designated Court. He contended that he is entitled to claim the benefit of the mandatory bail under Section 162(2) of the Code of Criminal Procedure read with Section 36A(4) of the NDPS Act. He had also referred to the judgment of the Supreme Court in Achpal Ramswaroop & Ano v. State of Rajasthan, [AIR 2018 Sc 4647:2018 KHC 6714] which stated that the charge sheet is filed with the statutory period and if it is returned due to technical defects then it cannot be considered as filed. And also, if the charge-sheet is not submitted within 90 days, then the arrested person has a right to claim the statutory bail. He also referred to the verdict given in Udhay Mohanlal Acharya v. State of Maharashtra [2001 (5) SCC 453] and M. Raveendran v. The Intelligence Officer, Directorate of Revenue Intelligence [Crl. Appeal No.699 of 2020] states that the arrested person may be discharged on bail.

The Court observed that the copy of the Drug Disposal Committee was not issued to him. So, the Court directed to cure that defect. The Court ordered the prosecution to give the copy of the Drug Disposal Committee to the arrested person. The Court relied on the verdict of Supreme Court given in Central Bureau of Investigation v. R.S.Pai and Another, [2002 (2) KLT 149 (SC): 2002 (5) SCC 82] and also the verdict of this Court in Shino Paul and Others v. State of Kerala [2010 (1) KLT 339] which held that if an error is committed while issuing the relevant documents during the submission of the final report or the charge sheet, then the investigating officer must provide the document with the consent of the Court. In both of the judgments, it was also mentioned that the court will permit a cure for the defect by providing the document. The defect is cured when the document along with the charge sheet is resubmitted. But  Section 167(2) of the Code of Criminal Procedure, 1973 would not be applicable and also, the arrested person is not entitled to get statutory bail. 

The Court has rejected the application on the ground that this matter comes under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court had referred to the verdict of the Supreme Court in Union of India (UOI) v. Shri Shiv Shanker Kesari [KHC 5675: 2007 (7) SCC 798].

The arrested person can apply for bail. But, the Court will look into the purpose and grounds for which the previous bail application was not accepted. The Court will also examine the new grounds on what way the present applications are different from the previous applications.

In Kalyan Chandra Sarkar v. Pappu Yadav, [2005 KHC 604: AIR 2005 SC 921], the Supreme Court had held that the arrested person can file the subsequent bail application if there are any changes in the factual circumstances or law. The accused can apply for a subsequent bail application if his previous application is rejected by the Court.

In Achpal’s case, the final report was submitted after the investigation was completed by the police. But, the report was returned. The High Court had directed the Police Officer to initiate the investigation. It was because the submission of the final report has not complied with the statements given before the Court. 

The bail application was rejected. Therefore, the High Court had directed to complete the case speedily.


Bail is a fundamental right of the arrested person. The arrested person is discharged on bail if he agrees to follow the conditions of the bail. If a person fears that the police might arrest him based on the registered FIR against him, then he can apply for anticipatory bail to avoid the arrest. 

The person can apply for default bail when the investigation is pending and the statutory period is exceeded. If the charge sheet or the final report is not attached with the required document and is returned by the Court, then in this situation, the person who is kept in custody would not be entitled to get the default bail. But, the defect is cured when the charge sheet is resubmitted along with the required documents.

During the investigation, special care is taken to ensure that the fundamental rights of the arrested person are not infringed. Article 22(1) of the Constitution of India says that an arrested person must be informed about the reason for which he was arrested by the police and he has a right to consult and get defended by a legal practitioner as per his preference.

If the previous bail application is unaccepted, then the arrested person can file another bail application afresh. The Court will take all the facts and ground of the earlier application into consideration while looking at the fresh bail application filed by the arrested person.


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