Name: Kunal Saxena

Enrolment No.: A8111120043

Programme: BA.LLB (hons)

Semester: Forth, section: A

Batch: 2020-2025

ACKNOWLEDGMENT

I would like to express my deepest gratitude to all those who provided me to

complete this report. I would like to earnestly acknowledge the effort and
time given by my subject teacher Dr Ashutosh Kumar Shukla who has
supported and guided me in completing my assignment. His sincerity, vision
and motivation deeply inspired me.
I owe my deep gratitude to Dr JP Yadav (HOD) for his extensive support
and professional ethics and providing such an opportunity for assignment
and project work. I would like to thanks to all the people who supervise and
support me in any manner.
Code Of Criminal Procedure PSDA Report

Topic: Default Bail

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Introduction: -

Default Bail, also known as compulsive bail, is provided under Section

167(2) of the Criminal Procedure Code. Section 167 of the Code while
enunciating the law on remand also affords protection to accused against
detention during inordinate delay in completion of investigation. It provides
that, wherein the investigation is not completed within the prescribed period of
sixty pr 90 days thereafter the accused can avail his right of default bail on the
expiry of the said period. In other words, where the investigation agency has not
filed a charge-sheet within a period of 60 days (or 90 days in the case of
offences punishable with death or imprisonment for not less than 10 years) of
the investigation then the accused becomes entitled to be released on bail. Thus,
where no charge-sheet has been filed within the stipulated period the accused
can no longer be detained in custody, on the expiration of such period. Hence on
61" or 91" day of remand, the right to seek default bail accrues in favour of the
accused.

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.

About Default Bail: -

This is a right to bail that accrues when the police fail to complete investigation
within a specified period in respect of a person in judicial custody.
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 It is also known as statutory bail.

 This is enshrined in Section 167(2) of the Code of Criminal Procedure: -

Section 167- Procedure when investigation cannot be

completed in twenty-four hours.—(1) Whenever any person is arrested
and detained in custody, and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by section 57, and
there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer
making the investigation, if he is not below the rank of sub-inspector,
shall forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and shall at
the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has no jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial,
and considers further detention unnecessary, he may order the accused to
be forwarded to a Magistrate having such jurisdiction:1
 Supreme Court Judgment: In Bikramjit Singh2 case 2020,
the Supreme Court had observed that the accused gets an indefeasible
right to 'default bail' if he makes an application after the maximum
period for investigation of an offence is over, and before a charge sheet is
filed.
 Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and
KM Joseph, JJ has held that the right to default bail is not a mere
1
Section 167 (2) Code of Criminal Procedure
2
Bikramjit Singh vs The State of Punjab on 12 October 2020
 3:
statutory right under the first proviso to Section 167(2) CrPC, but is part
of the procedure established by law under Article 21 of the Constitution
of India, which is, therefore, a fundamental right granted to an accused
person to be released on bail once the conditions of the first proviso to
Section 167(2) are fulfilled.3

Conditions for grant of default bail:

In Hitendra Vishnu Thakur vs. State of Maharashtra4 Hon'ble Apex Court held
that "Parliament has introduced the amendment to Section. 167(2) Cr.P.C
prescribing the outer limit within which the investigation is to be completed. If
the same is not completed, the accused would acquire a right to be released on
bail and such release on bail shall be deemed to be under Chapter XXIII of the
Code."

Though the accused becomes entitled to be enlarged on bail, in a situation

contemplated by Section 167, however it is essential that following conditions
are met out:

I. Application by the accused: Though the accused becomes entitled to be

released on bail where the charge-sheet has not been filed within the
prescribed period of 60 or 90 days, however, in order to avail the benefit
of default bail it is mandatory that the accused should file an application
before the Court praying for his release on bail. The Court cannot
exercise its jurisdiction and grant default bail merely on the completion of
period in absence of an application by the accused. It often happens that
the advocate of the accused orally apprise the court with the expiry of
remand period and makes submission for grant of default bail however

3
https://main.sci.gov.in/supremecourt/2020/10353/10353_2020_33_1502_24337_Judgement_12-Oct-
2020.pdf
4
AIR 1994 SC 2623
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the mandate of Section 167 requires the advocate of the accused to
formally file an application stating that since the period of remand has
expired and no charge-sheet has been filed, the accused is liable to be
released on bail. Default bail is an indefeasible right of the accused but in
order to enjoy the same the accused is needed to approach the court in the
procedure prescribed. Mere expiry of the period does not suffice the
requirement of the grant of default bail and the accused will not be
automatically released. In other words, on the lapse of the period and
non-filing of the charge-sheet the right of default bail becomes operative
however to exercise the same an application before the magistrate is
necessary.
II. Investigation should be pending: Filing of charge-sheet under Section 173
of the Code results into culmination of investigation. Once the charge-
sheet is filed the provision of Section 167 is no longer applicable since it
is a pre-cognizance stage. Therefore, the accused can avail the benefit of
default bail only if the charge-sheet has not been filed within the
prescribed period. Default bail is available only during the pendency of
the investigation. Thus, it is important that the application for default bail
should be filed before the filing of charge-sheet. If the accused fails to do
so and charge-sheet is filed meanwhile, then his right extinguishes.

The Underlying Principle: -

The right to bail on the investigation agency’s default is considered an

‘indefeasible right,’ but it should be availed of at the appropriate time.

 Default bail is a right, regardless of the nature of the crime.

 The stipulated period within which the charge sheet has to be filed
begins from the day the accused is remanded for the first time.
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 Under Section 173 of CrPC, the police officer is obligated to file a
report after the completion of the necessary investigation of an
offence. This report is called the Charge Sheet in common
parlance.

173. Report of police officer on completion of investigation. —

(1) Every investigation under this Chapter shall be completed
without unnecessary delay.

Time Period: -

The issue of default bail arises where it is not possible for the police to complete
an investigation in 24 hours, the police produce the suspect in court and seek
orders for either police or judicial custody.

 For most offences, the police have 60 days to complete the

investigation and file a final report before the court.

 However, where the offence attracts death sentence or life

imprisonment, or a jail term of not less than 10 years, the period
available is 90 days.

 In other words, a magistrate cannot authorize a person’s judicial

remand beyond the 60-or 90-day limit.

 At the end of this period, if the investigation is not complete, the

court shall release the person “if he is prepared to and does furnish
bail.”

In Rakesh Kumar Paul VS. State of Assam 5, 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
5
Rakesh Kumar Paul vs State of Assam on 16 August 2017
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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.

Custody: -

For an effective understanding of default bail, it is necessary to know that

according to Section 57 of the CrPC, any person arrested by the Police without
warrant cannot, under any circumstances, be kept in custody of the police
beyond the period of 24 hours, unless a special order authorizing the detention
is obtained by the police from a Magistrate's Court.

Keeping the aforesaid provision in the backdrop, when it appears that the
accusation against a person arrested and detained by the police is well
founded, and investigation of the said offence cannot be completed within 24
hours, then it is mandatory for the Investigating Officer (not below the rank of
Sub-Inspector of Police) or the Officer In-Charge of the Police Station, in any
event, to forthwith forward the accused person, along with the record of the
case maintained in the Station Diary of the Police Station, accompanied by an
application known as Remand Application giving brief details of the offence
alleged against the accused person and stating reasons for seeking custody of
the accused person, to the nearest Judicial Magistrate or, in the event a Judicial
Magistrate is not available, before an Executive Magistrate upon whom
powers of a Judicial Magistrate or Metropolitan Magistrate have been
conferred, in order to obtain authorization for further detention.

The Judicial Magistrate may or may not have jurisdiction to conduct a trial for
the offence in question; however, that does not hinder with their power to
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authorize further detention of the accused person beyond the period of first 24
hours after the arrest of the accused person.

Once the accused person is produced before a Judicial Magistrate or an

Executive Magistrate, as the case may be, such Magistrate is then authorized
to peruse the case papers, consider the investigation conducted and the gravity
of the offence alleged, among other things, and then authorize detention.

 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. Kulkarni6, although the magistrate may authorize police
custody after authorizing judicial custody and vice versa, the magistrate
can only authorize 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.

Exceptions in special Statutes: -

The time limit prescribed for completion of investigation varies in certain

statutes wherein section 167 of CrPC is amended to that effect.

I. For offences under the Narcotic Drugs and Psychotropic Substances

Act, 1985 [NDPS Act], the time limit prescribed for completion of
investigation is provided under Section 36A (4) therein.
II. Section 36A (4) prescribes that when an offence under the NDPS Act
pertains to recovery of commercial quantity of narcotic drugs or
psychotropic substances, or pertains to offences punishable under
Sections 19, 24 or 27A of the Act, then the time limit prescribed for the

6
1992 AIR 1768, 1992 SCR (3) 158
 8:
investigating agency to complete the investigation and submit its report
is 180 days.
III. Further, this section also gives power to the court to extend the said
period of 180 days up to one year, provided the public prosecutor
submits his report indicating progress in the investigation, and stating
specific reasons for keeping the accused in custody beyond 180 days.
IV. However, for any other offence under the NDPS Act, apart from the
ones mentioned above, the time limit shall be governed according to the
CrPC, and since no other offence under the Act is punishable with
imprisonment for more than ten years, the time limit to complete
investigation and submit report would be 60 days only. No extension of
time is permitted in these cases.
V. Section 43D of the Unlawful Activities (Prevention) Act, 1967 [UAPA]
amends section 167 of the CrPC to the effect that initial period of 15
days of police Custody is extended up to 30 days, and irrespective of the
punishment prescribed for the offence alleged, the time limit to
complete investigation and file report under the UAPA is 90 days.
VI. Similar to the NDPS Act, even under the UAPA, if the investigation is
not completed within the period of 90 days as prescribed under section
43D, the public prosecutor can submit their report indicating progress in
the investigation and also stating specific reasons for keeping the
accused in custody beyond 90 days. Then, the court is empowered to
extend the said period up to 180 days.

Other Kinds of Bail in India: -

 Regular Bail: It is a direction given by the Court (any Court within the
country) to release a person who is already under arrest and kept in
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police custody. For such Bail, a person can file an application
under Section 437 and 439 of the CrPC.

 Interim Bail: Bail granted for a temporary and brief period by the

Court till the application seeking Anticipatory Bail or Regular Bail is
pending before a Court.

 Anticipatory Bail: A direction issued to release a person on Bail even

before the person is arrested. In this situation, there is apprehension of
arrest, and the person is not arrested before the Bail is granted.

Other Provisions Related to Arrest: -

Article 22 grants protection to persons who are arrested or detained. Detention

is of two types, namely, punitive and preventive.

 Punitive detention is to punish a person for an offence committed by

him after trial and conviction in a court.
 Preventive detention, on the other hand, means detention of a person
without trial and conviction by a court.

Article 22 has two parts—the first part deals with the cases of ordinary law
and the second part deals with the cases of preventive detention law.

Rights under Punitive Detention:

 Right to be informed of the grounds of arrest.

 Right to consult and be defended by a legal practitioner.

 Right to be produced before a magistrate within 24 hours, excluding the
journey time.
 Right to be released after 24 hours unless the magistrate authorises
further detention.
 These safeguards are not available to an enemy alien.
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Rights Under Preventive Detention:

 The detention of a person cannot exceed three months unless an

advisory board reports sufficient cause for extended detention.
 The board is to consist of judges of a high court.
 The grounds of detention should be communicated to the detenu.
 However, the facts considered to be against the public interest need not
be disclosed.
 The detenu should be afforded an opportunity to make a representation
against the detention order.
 This protection is available to both citizens as well as aliens.

Accused is entitled to bail if the report has not been filed within
estimated time: -

The right to be released on bail under section 167 of CrPC has been termed as
an indefeasible right by the Supreme Court repeatedly through its various
orders and judgments. This means that if the police report of the investigating
agency is not filed within the prescribed time limit, then irrespective of the
gravity of the offence or nature of accusation alleged against the accused, the
accused person has a right to be released on bail, and the question as to why
the chargesheet could not be filed within the prescribed time is immaterial.

It is worth noting that the prescribed period of 60 days or 90 days or 180 days,
as the case may be, is to be calculated from the first day of production of the
accused before the Magistrate, that is, the first day of remand, and not from the
date of arrest of the accused person.
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Conclusion

Thus, in order to conclude, it can be said that though liberty is the most
sacrosanct right, however, to have a more cohesive society, it is required that
individual liberty be regulated in the interest of all. The Constitution of India
also subscribe to this idea wherein it provides that liberty can be curtailed by
the procedure established by law. Rejection of default bail after filing of
charge-sheet is under a well-established procedure laid down in Section 167 of
the Code of Criminal Procedure, 1973.

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 ways. 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.

*******
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