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The Indian constitution guarantees every person, regardless of their citizenship, the protection of life and personal liberty under Article 21 [1]. It assures the fundamental right to live with dignity and personal liberty. Therefore, when one gets arrested by the law enforcement authority, people have the right to ask for bail; however, depending on the nature of the offense, it is at the discretion of the court whether to grant bail or decline the bail application.

The bail provisions are based on the legal principle ‘presumption of innocence’ which means that the person accused of any crime is considered innocent until proven guilty. The given fundamental principle is mentioned under Article 11 of the Universal Declaration of Human Rights.

Bail is not defined in the CrPc, but it can be seen as the process of procuring the release of an accused who is charged with offenses, ensuring and considering his presence in the court of law when he or she is called or during the proceedings, and compelling him to remain within the jurisdiction of the court. According to the Black’s Law Dictionary, bail is the security required by the court to release the prisoner who shall appear in court in the future.


Default Bail

  • This is a right to bail that accrues when the police fail to complete an investigation within a specified period in respect of a person in judicial custody. It is also known as statutory bail.
  • This is provided under Section 167(2) of the Code of Criminal Procedure (CrPC).
  • Sec. 167(1) requires the police to produce the suspect to the nearest judicial magistrate and seek orders for either police or judicial custody if they are unable to complete an investigation in 24 hours.
  • Under Section 167(2) of the Code, a magistrate can order an accused person to be detained in the custody of the police for 15 days. Beyond the police custody period of 15 days, the magistrate can authorize the detention of the accused person in judicial custody where the accused cannot be detained for more than:
    • ninety days, when an authority is investigating an offense punishable with death, life imprisonment, or imprisonment for at least ten years; or
    • sixty days, when the authority is investigating any other offense.
    • In some other special laws, like the Narcotic Drugs and Psychotropic Substances Act, this period may vary.
      • In the Narcotic Drugs and Psychotropic Substances Act, the period is 180 days.
  • In case the investigation is not completed by the end of this period, the court shall release the person “if he is prepared to and does furnish bail”. This is known as default bail.


Right to Default Bail: Statutory or Fundamental?

The Supreme Court has ad infinitum ruled in favor of the accused’s personal liberty and held it to be an intrinsic part of Article 21 of the Constitution. In Bikramjit Singh v. State of Punjab 2020 SCC OnLine SC 824, it went a step ahead to unequivocally declare that the right to be released on bail is not merely a statutory right but a fundamental one, which accrues in his favor once the statutory conditions of Section 167(2) are fulfilled. In another symbolic ruling of 2020, the Apex Court held that the order extending limitation due to COVID-19 cannot be interpreted as extending the limitation period under Section 167(2) CrPC. The Court further stated, “The right of prosecution to carry on an investigation and submit a charge sheet is not akin to the right of liberty of a person enshrined under Article 21 and reflected in other statutes, including Section 167, Cr.P.C.” Hence, the period u/s. 167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142.

Computation of 60/90 days

The Supreme Court, by majority view in Rakesh Kumar Paul v. State of Assam (2017), 15 SCC 67, held that the specified period after which the accused gets entitled to default bail is 90 days where the offense is punishable with a minimum sentence of 10 years; or an offense punishable with death and any lower sentence; or an offense punishable with life imprisonment and any lower sentence; and in cases where the offense is punishable with 10 years or less, the period is 60 days. While computing the period of 60 or 90 days, the day on which the accused was remanded to judicial custody should be excluded, and the day on which a challan is filed in court should be included.


Application seeking default bail—written or oral?

The Apex Court in the Bikaramjit case has categorically stated that the application for default bail need not necessarily be in writing; even an oral application would suffice; the only caveat is that it must be made before the investigating agency files the chargesheet. The Court, while reiterating the majority view of Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, held: “A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on the expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the criminal court in question either does not dispose of such an application before the charge sheet is filed or disposes of such an application wrongly before such a charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.” To spell out what this means for a layman, whether the accused makes a written application or an oral application seeking default bail is of no consequence. The Court has to only consider the statutory requirements of Section 167(2), namely, whether the statutory period for filing a charge sheet has expired, whether the charge sheet has been filed, and whether the accused is prepared to and does furnish bail.


Interpretation of “availed of”: date of filing application or date of actual release?

One of the contentious issues is whether the expression “availed of” would mean when the accused files an application or when the accused is actually released after furnishing bail formalities. This issue assumes importance when an accused files an application for default bail and, before the court considers it, the charge sheet is filed. In such cases, the decision of the Court regarding when the accused “avail of his right to be released on default bail becomes crucial, because that determines whether the accused can be released on default bail or whether his right to be so released is extinguished by the filing of the charge sheet in the interregnum. The Apex Court in M. Ravindran v. The Intelligence Officer, Crl. Appeal 699/2020, while affirming its earlier decision Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, held that the expression must be understood to mean “when the accused files an application and is prepared to offer bail on being directed.” The accused shall be deemed to have enforced his indefeasible right when such an application is filed, even though it is pending consideration and the actual release is subject to compliance with the order granting bail. This interpretation is in consonance with the purpose of Section 167(2) and the Statement of Objects and Reasons of the CrPC. The Constitution Bench in Sanjay Dutt v. State (1994) 5 SCC 410 held, “The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan, and it does not survive or remain enforceable on the challan being filed, if already not availed of.” There were ambiguities in the interpretation of this expression “availed of,” as different High Courts have differed in their opinions, which now stand settled by the Apex Court.


What are the arguments in favor?

  • Presumption of Innocence: Default bail upholds the fundamental principle of “innocent until proven guilty.” It ensures that individuals who are accused of a crime but have not been convicted are not subjected to indefinite pre-trial detention.
  • Protecting Civil Liberties: Default bail protects the civil liberties and rights of individuals. It ensures that people are not deprived of their liberty without sufficient evidence and a formal trial, promoting the principles of fairness and justice.
  • Promoting Rehabilitation and Integration: Default bail helps accused individuals stay in their communities for rehabilitation and integration while still working and supporting their families, increasing their chances of successful reintegration if found not guilty.
  • Preventing Abuse of Power: Default bail acts as a safeguard against potential abuse of power by the investigating agencies. It prevents authorities from unjustly keeping individuals in custody without presenting evidence and framing charges within a reasonable period.
  • Balancing Detention and Liberty: Default bail strikes a balance between the need to prevent potential flight risks and the preservation of an individual’s right to liberty. It allows the court to assess the necessity of continued detention based on the prosecution’s ability to present evidence within the prescribed time frame.
  • Reducing Overcrowding in Prisons: Default bail helps in mitigating prison overcrowding by ensuring that individuals who are not promptly charged or have weak cases are not unnecessarily detained. This contributes to the more efficient utilization of prison resources.



What are the arguments against default bail?

  • Risk of Granting Bail to Potentially Dangerous Individuals: Default bail is granted when the prosecution fails to file charges within the stipulated time period. Granting automatic bail in such cases may pose a risk if the accused is potentially dangerous or a threat to society. It could compromise public safety and hinder effective law enforcement.
  • Undermining the Investigation Process: Automatic bail provisions can potentially undermine the investigation process. If the accused is released on default bail without charges being filed, it may impede further gathering of evidence or hamper the prosecution’s ability to build a strong case. This could lead to a lack of justice and hinder the fair resolution of cases.
  • Accountability and Public Perception: It may give the impression that accused individuals are getting away without facing due process or being held accountable for their alleged crimes.
  • Undermine the rights of the victims: Granting automatic bail may impede the rights of victims to see timely justice and could lead to a sense of injustice or inequality in the treatment of different parties involved in the case.


Case Laws

  • During the period of detention, the accused may be remanded either to police custody, i.e., the police station lockup, or to judicial custody, i.e., the prison. However, as held by the Supreme Court in CBI vs. Anupam J. Kulkarni, 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.
  • The Delhi High Court in Noor Mohd vs. State held that an order of remand is judicial interference with an accused’s liberty, and one who seeks remand must justify it. When an accused is produced before the court for obtaining a remand, if the court finds that the prosecution has not shown sufficient grounds for obtaining a remand, the court shall pass an order releasing the accused on bail forthwith, even without an application being filed on behalf of the accused. The accused needs to file an application only when he seeks bail during the period of remand. The Court observed, “Neither Section 436(1) nor Section 437(1) nor any other section dealing with bail enjoins an application… when the accused is produced before the court for obtaining a remand, an application is quite unnecessary, unless the purpose be to bring on record matters not otherwise apparent therefrom.”

The mere filing of a charge sheet after the accused has applied for default bail will have no consequence, and the accused can be committed back to custody only if the bail is canceled by virtue of Section 437(5) or Section 439(2) CrPC.

  • Some confusion had arisen after the SC judgment in Hitendra Vishnu Thakur vs. State of Maharashtra because few observations by the Apex Court were construed by the TADA Courts to mean that the right to default bail survived even after the filing of the charge sheet if the investigation was not completed within 60 or 90 days.
  • The Constitution Bench of the Supreme Court in Sanjay Dutt vs. State through CBI, Bombay (II) cleared this confusion and observed very appositely that even in the modified application of Section 167 CrPC, under Section 20(4) of the TADA Act, 1987, “the indefeasible right accruing to the accused… is enforceable only prior to the filing of the challan, and it does not survive or remain enforceable on the challan being filed, if already not availed of.” The SC further held that an accused who does not exercise his right to default bail can always seek regular bail under the CrPC.
  • The Supreme Court in Ravi Prakash Singh vs. State of Bihar, following the State of M.P. vs. Rustom, held that the period of 60 days or 90 days shall be computed from the date of first remand after arrest and not on the date of arrest, and the date on which a charge sheet is filed shall also be included. In Ravi’s case, where the accused surrendered before the magistrate and was remanded to judicial custody on the same day, while computing the 90-day period, we excluded the date of surrender or remand and included the date of filing the charge sheet.




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 days. 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.


-Upendra Pandey

Junior Associate

M&H Law Chambers, LLP


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