Default Bail

• 15 May 2023

For Prelims: Default Bail, Supreme Court, Section 167(2) of the Criminal Procedure Code (CrPC), Article 21, Article 22, Fundamental Rights.

For Mains: Default Bail and related Provisions. Types of Bail.

Why in News?

The Supreme Court (SC) has instructed lower courts to consider Default Bail pleas in criminal cases when the charge sheet is not filed within 60 or 90 days, allowing them to grant default bail independently without relying on its own judgment of Ritu Chhabaria versus Union of India (26^th April, 2023).

• The observations were made by the SC while hearing an Enforcement Directorate (ED) appeal, seeking the recall of the Ritu Chhabaria judgment.
• The Ritu Chhabaria judgment held that “the right of default bail under Section 167(2) of the Criminal Procedure Code (CrPC) is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution” to protect accused persons from the “unfettered and arbitrary power of the State”.

What is Default Bail?

• About:
  • 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.
    • It is also known as Statutory Bail.
  • This is enshrined in Section 167(2) of the Code of Criminal Procedure (CrPC).
• Section 167(2) of the CrPC:
  • If the police are unable to complete an investigation within a specified period, a person in judicial custody has the right to seek bail.
  • When the police cannot finish the investigation within 24 hours, they present the suspect before a magistrate who decides whether the suspect should be held in police custody or judicial custody.
  • According to Section 167(2) of the CrPC, the magistrate can order the accused person to be detained in police custody for up to 15 days. If more time is needed, the magistrate can authorize the accused person's detention in judicial custody, which means jail. However, the accused cannot be held for more than:
    • Ninety days if the investigating authority is looking into a crime that is punishable by death, life imprisonment, or imprisonment for at least ten years.
    • Sixty days if the investigating authority is handling any other offense.
• Special Cases:
  • Some special laws like the Narcotic Drugs and Psychotropic Substances Act, the time period for investigation may be different, such as 180 days.
  • In the Unlawful Activities (Prevention) Act 1967, the default limit is 90 days only, which can be extended to another 90 days.
    • This extension can be granted only on a report by the Public Prosecutor indicating the progress made in the investigation and giving reasons to keep the accused in continued detention.
      • These provisions show that the extension of time is not automatic but requires a judicial order.

What are the Previous Judgements Related to Default Bail?

• CBI vs Anupam J. Kulkarni (1992):
  • The SC Held that a magistrate can authorize police custody for a maximum of 15 days after the arrest of the accused. After this period, any further detention must be in judicial custody, except in cases where the same accused is implicated in a different case arising from a separate incident or transaction. In such situations, the magistrate may consider authorizing police custody again.
• Uday Mohanlal Acharya vs. State of Maharashtra (2001):
  • The SC while relying upon the judgment of Sanjay Dutt vs State, held that the accused shall be said to avail of his right to default bail when he files an application for the same and not when he is released on default bail.
  • If an order of default bail is passed in favour of the accused, but he/she fails to furnish bail and a charge sheet is filed in the meantime, then the right to default bail shall stand extinguished.

What are the Other Types 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 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 short 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.
  • For such Bail, a person can file an application under Sec. 438 of the CrPC. It is issued only by the Sessions Court and High Court.

What are the Constitutional 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 Given Under Punitive Detention	Rights Given Under Preventive Detention
Right to be informed of the grounds of arrest.	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.
Right to consult and be defended by a legal practitioner.	The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
Right to be produced before a magistrate within 24 hours, excluding the journey time.	The detenu should be afforded an opportunity to make a representation against the detention order.
Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an enemy alien.	This protection is available to both citizens as well as aliens.

Source: TH