The article “Default Bail”- What, How and Why? has been written by Himani Jha, 3rd Year Law student at the University School of Law and Legal Studies, (USLLS) GGSIPU.
What is Bail?
Bail is a legal term that refers to the temporary release of a person who has been arrested and charged with a crime, pending their trial or other legal proceedings.
When someone is arrested, they are taken into custody and may be held in jail until their trial. However, if the person is granted bail, they can be released from custody until their trial date, with the condition that they show up for all required court appearances and follow any other conditions set by the court.
Bail is often granted in exchange for a sum of money, which is held by the court as collateral to ensure the defendant’s appearance in court. This sum of money is known as a bail bond. The amount of bail is typically set by a judge and can vary depending on the severity of the crime, the defendant’s criminal history, and the likelihood of the defendant fleeing or endangering the public if released.
If the defendant shows up for all court appearances and meets all other bail conditions, the bail money will be returned to the person who posted it. If the defendant fails to appear in court or violates any bail conditions, the bail may be forfeited, and the defendant could be re-arrested and held in custody until their trial.
Bail under Crpc
Bail under the Code of Criminal Procedure (CrPC) in India refers to the release of a person who has been arrested and detained for an alleged offense, pending their trial or other legal proceedings.
Under CrPC, there are two types of bail – Regular bail and Anticipatory bail.
Regular bail: It is granted to a person who is under arrest or detention, after he or she applies for it. The accused can apply for bail at any stage of the investigation or trial, and it is granted by the court, subject to certain conditions.
Anticipatory bail: It is granted in anticipation of an arrest, in case the person has reason to believe that he or she may be arrested for a non-bailable offense. The accused can apply for anticipatory bail before an arrest warrant is issued against him or her, and it is granted by the court, subject to certain conditions.
The provisions related to bail under CrPC are aimed at protecting the personal liberty of the accused, while also ensuring that they do not misuse their freedom to tamper with evidence or abscond. The granting of bail is at the discretion of the court, and it takes into account factors such as the nature and gravity of the offense, the character of the accused, the likelihood of the accused fleeing justice, and the need to protect the interests of the victim or the society at large.
Default Bail
A Default bail is the automatic grant of bail to an accused person who has been arrested and detained for an alleged offense, but the investigation or trial against him or her has not been completed within the time limit specified under the law.
Default Bail under CRPC
Section 167 of the CrPC sets out the time limit for completing the investigation and filing of the charge sheet. If the investigation is not completed within the specified time limit, the accused has a right to default bail.
The time limit for filing a charge sheet varies depending on the nature of the offense. For offenses punishable with imprisonment for a term exceeding 10 years, the time limit is 90 days, while for offenses punishable with imprisonment for a term not exceeding 10 years, the time limit is 60 days. For offenses punishable with imprisonment for a term not exceeding 3 years, the time limit is 90 days, while for offenses punishable with imprisonment for a term not exceeding one year, the time limit is 60 days.
If the charge sheet is not filed within the stipulated time limit, the accused has the right to default bail, which means that the accused will be released on bail automatically, without any further order from the court. This is because the accused is entitled to the presumption of innocence and cannot be detained indefinitely without a charge sheet being filed against him or her.
Default Bail as a Fundamental Right.
Default bail is considered to be a fundamental right in many countries, including India, as it is seen as an essential element of the right to fair trial and due process of law.
Article 21 of the Indian Constitution provides that no person shall be deprived of his or her personal liberty except according to the procedure established by law. The Supreme Court of India has held that this right to personal liberty includes the right to default bail if the investigation or trial against the accused person is not completed within the specified time limit.
The right to default bail is seen as a necessary safeguard against arbitrary and prolonged detention, and is essential to protect the personal liberty of the accused person. The right to default bail ensures that the accused person is not detained indefinitely without a charge sheet being filed against him or her, and is therefore a critical protection against the abuse of state power.
When can default Bail be denied?
Default bail does not apply in certain circumstances, even if the investigation or trial against the accused person is not completed within the specified time limit. Some of the situations where default bail may not be granted are:
Offenses punishable with death penalty or life imprisonment:
In India, default bail is not available to an accused person who has been arrested for an offense punishable with death penalty or life imprisonment.
Cases under special laws:
Certain special laws in India, such as the Prevention of Money Laundering Act and the Unlawful Activities (Prevention) Act, have their own provisions regarding the grant of bail. In such cases, the provisions of the special law would apply, and default bail may not be available.
Cases involving juveniles:
In India, if the accused person is a juvenile, the Juvenile Justice Act would apply, and the provisions of default bail under the CrPC may not be applicable.
Cases where the accused person has been previously convicted:
If the accused person has been previously convicted for an offense punishable with imprisonment for seven years or more, default bail may not be granted.
Cases where the accused person has absconded or is a flight risk:
If the accused person is absconding or is likely to abscond, or if there is a risk that he or she may flee from justice, default bail may not be granted.
Evolution of Default Bail in India
The concept of default bail in India has evolved over time through various judicial pronouncements and amendments to the Criminal Procedure Code (CrPC).
Initially, the CrPC did not provide for default bail. It only allowed for a regular bail application to be filed by the accused person, which was subject to the discretion of the court.
However, in the case of Hussainara Khatoon v. State of Bihar (1979), the Supreme Court of India recognized the right of undertrial prisoners to a speedy trial as a fundamental right under Article 21 of the Constitution of India. The Court observed that the prolonged detention of undertrial prisoners, due to delays in the trial process, violated their right to personal liberty.
Subsequently, in the case of Joginder Kumar v. State of UP (1994), the Supreme Court held that the right to personal liberty and dignity is of utmost importance, and that any infringement of this right must be in accordance with the law.
In 2005, the CrPC was amended to provide for default bail in certain circumstances. Section 167(2) of the CrPC provides that if the investigation is not completed within the specified time limit, the accused person shall be entitled to be released on bail.
The scope and application of the right to default bail have been further clarified and strengthened through various judicial pronouncements, such as the cases of Sanjay Dutt v. State (1994), and Siddharam Satlingappa Mhetre v. State of Maharashtra (2011).
The evolution of default bail in India reflects a growing recognition of the importance of individual rights and liberties, and the need for a fair and just criminal justice system.
Landmark Judgements on Default Bail
1. Sanjay Kumar Kedia v. State of Bihar (2016)
One of the landmark judgments for default bail in India is the case of “Sanjay Kumar Kedia v. State of Bihar” (2016) 14 SCC 394, decided by the Supreme Court of India.
In this case, the accused person was arrested in connection with a financial fraud case, and the charge sheet was not filed within the statutory period of 60 days. The accused person applied for default bail, which was rejected by the trial court on the ground that the investigation was still ongoing. The High Court also rejected the accused person’s application for bail.
On appeal, the Supreme Court held that the right to default bail is a fundamental right guaranteed under Article 21 of the Indian Constitution, and that the accused person was entitled to default bail since the charge sheet had not been filed within the statutory period. The Court held that the investigation could not be extended beyond the statutory period, and that the accused person could not be detained indefinitely.
The Court also held that the right to default bail is not affected by the fact that the investigation is still ongoing, and that the accused person can still be granted bail even if the investigation is not complete.
This judgment reaffirmed the importance of the right to default bail as a fundamental right, and clarified that the accused person is entitled to default bail if the charge sheet is not filed within the statutory period, regardless of whether the investigation is still ongoing.
2. Arnesh Kumar v. State of Bihar (2014).
Another landmark judgment in India regarding default bail is the case of Arnesh Kumar v. State of Bihar (2014). In this case, the Supreme Court of India held that an accused person is entitled to default bail if the charge sheet is not filed within the specified time limit, and that the right to default bail is a fundamental right under Article 21 of the Constitution.
The Court held that default bail is a statutory right, and that the provisions of the Criminal Procedure Code (CrPC) must be strictly complied with by the investigating agencies and the courts. The Court also held that the right to default bail is not dependent on the merits of the case, and that it is a procedural safeguard to protect the personal liberty of the accused person.
The judgment in Arnesh Kumar v. State of Bihar has been widely cited and followed by the Indian judiciary, and has led to a more stringent enforcement of the time limits for completing the investigation and filing the charge sheet against the accused person. The judgment has also been hailed as a landmark decision in the protection of individual rights and liberties in India.
3. Siddharam Satlingappa Mhetre v. State of Maharashtra (2011)
In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra (2011), the Supreme Court of India held that the right to default bail is a fundamental right of the accused person under Article 21 of the Constitution of India.
The Court emphasized that personal liberty is a cherished and invaluable right, and that any curtailment of this right must be strictly in accordance with the law. And, the Court observed that the right to default bail is a statutory right, which is available to the accused person if the investigating agency or the court fails to complete the investigation or file the charge sheet within the specified time limit.
The Court held that the right to default bail is an important safeguard against arbitrary arrest and detention, and that it must be strictly enforced by the courts. The Court further held that the power to grant bail is discretionary, and that the discretion must be exercised judiciously and in accordance with the principles of law.
In this case, the accused person had been arrested for the offense of murder, and the charge sheet was not filed within the specified time limit. The accused person filed an application for default bail, which was rejected by the trial court. The accused person then approached the High Court of Bombay, which also rejected the application.
The Supreme Court, while allowing the appeal of the accused person, held that the right to default bail is a statutory right, and that it cannot be denied to the accused person on the ground that the investigation is still ongoing. The Court held that the right to default bail is not dependent on the merits of the case, and that it is a procedural safeguard to protect the personal liberty of the accused person.
The judgment in Siddharam Satlingappa Mhetre v. State of Maharashtra has been widely cited and followed by the Indian judiciary, and has been instrumental in the development of the law on the right to default bail in India.
4. Sanjay Chandra v. CBI (2012)
In the case of Sanjay Chandra v. Central Bureau of Investigation (CBI) (2012), the Supreme Court of India reaffirmed the importance of the right to default bail as a fundamental right of the accused person under Article 21 of the Constitution of India.
The case involved a high-profile telecom scam in India, and the accused person, Sanjay Chandra, was arrested by the CBI for his alleged involvement in the scam. The charge sheet was not filed within the specified time limit, and Sanjay Chandra applied for default bail. However, his application was rejected by the trial court and the High Court of Delhi.
On appeal to the Supreme Court, the Court held that the right to default bail is a statutory right, and that it is an essential safeguard against arbitrary arrest and detention. The Court observed that the right to personal liberty is sacrosanct, and that any curtailment of this right must be in accordance with the law.
And, the Court further held that the provisions of the Criminal Procedure Code (CrPC) regarding default bail must be strictly complied with, and that any delay in the filing of the charge sheet beyond the specified time limit would entitle the accused person to default bail.
The Court also emphasized that the power to grant bail is discretionary, and that the discretion must be exercised judiciously and in accordance with the principles of law. The Court held that the grant of bail in a non-bailable offense must be guided by considerations such as the nature and gravity of the offense, the role of the accused person in the offense, the likelihood of the accused person tampering with the evidence or influencing witnesses, and the likelihood of the accused person absconding.
The judgment in Sanjay Chandra v. CBI has been widely cited and followed by the Indian judiciary, and has further strengthened the protection of individual rights and liberties in India. It has also contributed to the development of the law on the right to default bail in India.
Recent Developments in Default Bail
In Ritu Chhabaria vs Union of India, a Supreme Court bench of Justices Krishna Murari and C.T. Ravikumar, on April 26, held that an investigating agency cannot submit a charge sheet or prosecution complaint in order to deny an accused person’s right to default bail under Section 167 of the Criminal Procedure Code before the case has been fully investigated. It was also held that the relief of statutory bail under Section 167(2) of the Criminal Procedure Code, is a fundamental right. Such a right, it said, directly flows from Article 21 of the constitution, and the violation of such a right attracts consideration under Article 32 of the constitution.
In April 2023, in Qamar Ghani Usmani v. The State of Gujarat, the Supreme Court ruled that an accused person cannot profit from default bail if the charge sheet was later filed during the extension term, he did not object to the first extension of time allowed for the inquiry, and the second extension was granted in his presence.
The Jammu and Kashmir and Ladakh High Court in the case of Gopal Krishan vs Ut Of J&K has ruled that a “pseudo police report” under section 173 CrPC cannot be granted legal legitimacy to violate an accused person’s right to statutory or default bail, even if it is filed within the time limits of section 167 CrPC.
The Karnataka High Court ruled that the accused was not entitled to a default bail under Section 167 of the Criminal Procedure Code if the charge sheet was filed before their arrest.
Suggestions
Some suggestions for improving the implementation of default bail in India:
- Awareness and education: There is a need to increase awareness and educate the public, particularly undertrial prisoners and their families, about the provisions of the CrPC regarding default bail. This can be done through legal aid clinics, community outreach programs, and other initiatives.
- Timely investigation: Law enforcement agencies should conduct investigations in a timely and efficient manner, so that the investigation is completed within the specified time limit under Section 167 of the CrPC. This will help to ensure that the accused person is not subjected to prolonged detention without trial.
- Strengthening of the judiciary: The judiciary plays a crucial role in upholding the right to default bail, and there is a need to strengthen the judiciary in terms of infrastructure, resources, and training. This will help to ensure that the judiciary can effectively adjudicate cases related to default bail, and that the principles of natural justice and due process of law are upheld.
- Review of bail conditions: In cases where default bail is granted, the court should review the conditions of bail to ensure that they are fair, just, and reasonable. The court should also monitor the progress of the trial to ensure that it is conducted in a timely and efficient manner.
- Streamlining of legal procedures: There is a need to streamline legal procedures and reduce delays in the trial process, so that undertrial prisoners can be released on bail at the earliest possible opportunity. This can be done through the use of technology, better case management, and other initiatives.
By implementing these suggestions, it is possible to ensure that the right to default bail is effectively enforced in India, and that undertrial prisoners are not subjected to prolonged detention without trial.
Conclusion
The right to default bail is an essential safeguard against arbitrary arrest and detention, and is recognized as a fundamental right of the accused person under Article 21 of the Constitution of India. The concept of default bail has evolved over time through various judicial pronouncements and amendments to the Criminal Procedure Code, reflecting a growing recognition of the importance of individual rights and liberties, and the need for a fair and just criminal justice system. The grant of default bail must be strictly in accordance with the provisions of the CrPC, and any delay in the filing of the charge sheet beyond the specified time limit would entitle the accused person to default bail. The protection of individual rights and liberties is a cornerstone of a democratic society, and the right to default bail is an important tool for ensuring that this protection is upheld.
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