“Bail is rule, jail is exception”
In general terms, bail is a provisional release of an accused under legal custody by undertaking a promise to put an appearance before the court whenever required. The right of default bail builds up when the investigating agency fails to complete the investigation within a specified time. The provision regarding default/statutory bail enshrines under Section 167 (2) of the Code of Criminal Procedure, hereinafter referred to as Cr.P.C. It provides down that upon the expiration of a particular period, if the charge sheet has not been filed by the investigating agency, the accused immediately becomes entitled to seek bail.
It is marked here that the accused can claim it as a matter of right, since it is not subject to the discretion of the court.
When does the accused become eligible to seek default bail?
The right of default bail accumulates where it is not feasible for the police to complete the investigation within 24 hours. As per Section 167 of Cr.P.C. under these circumstances, the police officer shall produce the accused to the nearest Judicial Magistrate and seek orders for either police or judicial custody. For most offences, the time period for completion of the investigation and presenting the final report before the court is 60 days. Nonetheless, for the offences which attract the death penalty or imprisonment for life, or punishment of not less than 10 years, the time period for completing the investigation is 90 days.
Generally speaking, an accused cannot be kept behind bars beyond 60-90 days in case of not filing a final report before the court.
What is the time limit in special enactments?
The time limit of 60-90 days is for penal offences. The special enactments like the Narcotic Drugs and Psychotropic Substances Act, 1985, and the Unlawful Activities (Prevention) Act, 1967 provide more time for the investigating agencies to complete the investigation. To illustrate, under the Narcotic Drugs and Psychotropic Substances Act, the time period is 180 days, which can be extended up to one year.
Similarly, as per the provisions of the Unlawful Activities (Prevention) Act, the default limit is 90 days, which could be deferred to another 90 days. Remarkably, this extension can be granted only upon the report submitted by Public Prosecutor stating the developments made in the investigation and mentioning reasons to keep the suspect in continued incarceration.
Computation of time period:
In Rakesh Kumar Paul versus State of Assam, (2017) 15 SCC, the Hon’ble Top Court held that while computing a period of 60 or 90 days of custody, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included.
Is it a fundamental right?
The Hon’ble Apex in its recent pronouncement in a case titled as Bikramjit Singh versus State of Punjab, Criminal Appeal No. 667 of 2020, observed that “the right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167 (2) of the Code, but is part of the procedure established by law under Article 21of 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.”
Can the accused be asked to deposit money?
The answer to this query is negative since the court cannot impose harsh conditions like depositing money on the accused while granting default bail. The Hon’ble Supreme Court in Saravanan versus State represented by Inspector of Police, Criminal Appeal No. 681682 of 2020, clarified the said proposition by observing that imposing such condition while releasing the accused on default bail would frustrate the very object and purpose of default bail under Section 167 (2) Cr.P.C.
Conclusion: –
The right to statutory bail proceeds under the assertion that the accused must enforce his/her right to be released on default bail by way of filing an application. The Magistrate’s exercise of power depends upon the application moved by the accused. There are two positions when the right to default bail would be extinguished. Firstly if the accused fails to furnish bail bonds or comply with the terms and conditions of the bail order within a given time period. Secondly, if the accused fails to apply for statutory bail upon the expiry of the specified time period, and subsequently, a charge sheet or application seeking an extension of time is filed by the prosecution.
Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S Nagar, Mohali