Default Bail

“A man of courage never needs weapon, but he may need bail.”- Lewis Munford

One of the most fundamental principles of criminal law is that a person is “innocent until he is proven guilty.” Under Section 167(2) of the 1973 Code of Criminal Procedure (CrPC), the maximum period for which the Judicial Magistrate can grant custody of an accused in the course of investigation is 90 days for offenses punishable with not less than 10 years, and 60 days for offenses punishable with less than 10 years. Thus, if the investigation is not completed within the stipulated period of time, the magistrate will no longer be competent in the course of investigation to send the accused into custody. Accordingly, the magistrate will have to grant bail to the accused. Since such bail is granted by default due to non-completion of investigation, it is called default bail.

Bail is often granted depending on various factors, but under Section 167(2), the Judicial Magistrate grants bail on non-completion of the investigation, i.e., under 60 or 90 days. After the completion of the aforementioned period, the accused can move an application for the grant of bail. If he does not move an application before the court, then he cannot avail the benefit of default bail. The Supreme Court in Natbar Parinda v. State of Orissa observed that the accused has a right to be released “even in serious and ghastly types of crimes.”

Recently, on March 23, the Supreme Court of India passed an order, “In Re: Cognizance for extension of Limitation,” which extended the period of limitation in all proceedings. This is irrespective of the limitation prescribed under the general law or special laws, whether condonable or not. This seems to have stirred yet another controversy. Two differing opinions were delivered by two learned judges of the Madras High Court on the right of an accused under Sec 167(2) of CrPC, which has nothing to do with the law of limitation. On May 8, Justice G. R. Swaminathan, in Settu v The State interpreted the above Supreme Court’s order as applicable to only the limitation period for filing cases under the Limitation Act of 1963. The order did not touch upon any specific extension of time for completing investigation under Section 167(2). Hence, it was held that, once the mandatory period of 60 or 90 days expires, the accused is entitled for default bail. A similar order was also passed by the Uttarakhand High Court in Vivek Sharma v. State of Uttarakhand.

While delivering its judgement on June 19,2020, the Supreme Court in S.Kasi v. State held that the right for default bail is an indefeasible right. It was also held in Union of India v. Nirala Yadav that the right to default bail is an indefeasible and an absolute right upon the completion of 60 or 90 days.

Although the recent judgements states default bail as an indefeasible and an absolute right, but there still exists tussle in Indian Courts in this context and ultimately it is the poor who have to suffer who cannot approach the higher courts for remedy. This issue needs a virtuous debate in order to limpid the views of Indian Courts in this context and to make the concept of default bail more perspicuous.  

(Researched by Mr. Paras Gupta – Intern, Edited by Lexstructor Editorial Team)

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