Aug 29, 2020

Bail is a basic part of the Indian Criminal Jurisprudence and is well recognized principle among all the judicial systems of the world. In the terms of law bail means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The bail bond is set by the court it could be money value of the security. Bail in default in terms of the provision of section 167 of Code of Criminal Code, 1973 and is an attempt to encapsulate various aspects related and ancillary thereto. In the matter of personal freedom, the courts cannot and should not be overly technical and must lean in favour of personal freedom. The generic principle of criminal law is that “a person is innocent until proven guilty.” We often hear the term “early or regular bail.” However, there is another less heard form of bail, which is called “Default Bail” or “Legal Bail.”

The bond must be only considering the merits, except the default bond found in Section 167 (2) of the Code of Criminal Procedure, 1973, where the first instance judges grant the bond by not filing the charge sheet for part of the police within the legally stipulated time period after taking an accused into custody. There are two subparts of this Section that establishes a defendant’s right to obtain a default bond. Various criminal cases are registered every year in this country and various persons get arrested by different law enforcement agencies. The parent code in our country governing the procedure to be followed in criminal cases being Code of Criminal Procedure, 1973 also provides for several safeguards in order to ensure the protection of the individual and that the personal liberty of a person is not snatched away without the authority of law.

Salient features of the section:

  • Bail is granted under Section 167 (2) of the Code of Criminal Procedure, 1973.
  • No Magistrate shall authorize the arrest of the accused in police custody under this section unless the accused appears before him in person for the first time.
  • No magistrate of the second class, who is not specially empowered in this regard by the Superior Court, will authorize the detention in the custody of the police.
  • The court also has the discretionary power to grant the prison sentence for a period of less than ten years. In the case of a crime punishable by imprisonment for a period that can extend to 10 years, the maximum custody would be 60 days.
  • Subsection (a) (i) of Section 167 (2) of the Code of Criminal Procedure, 1973, establishes that 90 days would be the maximum custody allowed when the investigation relates to a crime punishable by death, life imprisonment or imprisonment for a term of not less than ten years.

In the case of Rakesh Kumar Paul , where the accused was charged with an offense under Section 13 (1) of the Corruption Prevention Act for being “punishable by imprisonment for a period of not less than four years, but that can be extended to ten years, “argued the State, since the petitioner could face imprisonment that could last up to 10 years; the date to request the “default bond” would begin 90 days. However, Supreme Court Judge, MadanBhimaraoLokur, maintained that the petitioner had fulfilled all the requirements to obtain the “predetermined bond” that he had placed in custody for more than 60 days pending investigations into an alleged crime not punishable by imprisonment for a minimum period of 10 years without any charge sheet been filed against him and he was prepared to post bail for his release, as such he should have been released by the High Court on reasonable terms and conditions of bail. Supreme Court Justice, Deepak Gupta further held that Section 167 (2) (a) (i) of the CrPC is applicable only in the cases where the accused is charged with (i) crimes punishable by death and any lesser sentence ; (ii) crimes punishable by life imprisonment and any lesser penalty and (iii) crimes punishable by a minimum penalty of 10 years; in all cases where the minimum penalty is less than 10 years but the maximum penalty is not death or life imprisonment then Section 167 (2) (a) (ii) will apply and the defendant will be entitled to a “default bond” after 60 days if the charge sheet is not filed. He maintained, “In matters of personal liberty, we cannot and should not be overly technical and should lean in favour of personal liberty.”

In Natabar Parinda v. State of Orissa, the Hon’ble Supreme Court noted that the accused has a right to be released on bail under this provision “even in serious and ghastly types of crimes”. The said section, however, went further churning in the year 1978, when a need was felt to further amend section 167, extending the period to ninety days in cases of heinous offences which prescribed punishment of not less than 10 years. It is no longer res integra that every accused person who is arrested in a criminal case, is entitled to a default/ statutory/ compulsory bail as a matter of right, as an “indefeasible right” accrues in his/ her favour, the moment, the statutory period of 60 days or 90 days or 180 days, as the case may be, is over, and no charge sheet/ challan/ final report/ complaint is filed against him/ her for any reason whatsoever, and the arrestee is willing to furnish the bail bonds, in terms of section 167(2) CrPC. Therefore, as soon as the period of 60 days or 90 days or 180 days, as the case may be, expires, and the challan/ final report/ complaint, is not filed then the accused person’s right ripens and he/ she has to be released on bail, the moment he/ she offers to furnish bail bonds.