Section 167(2) of the Code of Criminal procedure, 1973 provides for default bail, also known as compulsive bail. While enunciating the law on remand, Section 167 of the Code protects accused persons from custody if an investigation takes an excess amount of time to complete. It provides that if the investigation is not completed within the specified term of 60 or 90 days, as the case may be, the accused may use his right to default bail after that period has expired. In other words, if the investigation agency does not file a charge-sheet within 60 days of the investigation (or 90 days in the case of offences punishable by death or imprisonment for not less than 10 years), the accused is qualified for bail. Thus, where no charge-sheet is filed within the stipulated time, the accused can no longer be held in custody after that time has passed. As a result, on the 61st or 91st day of custody, the accused has the right to request for default bail.

Granting of default bail is subject to certain conditions:

Even though the accused is allowed to be released on bail in a case specified by Section 167, it is imperative that the following conditions are met:

  1. Application by the accused
  2. Investigation should be pending.

The above conditions are explained below:

  • Application by the accused

Though the accused is eligible to be released on bail if the charge-sheet is not filed within the prescribed timeframe of 60 or 90 days, it is necessary for the accused to file an application with the court requesting his release on bail. In the absence of an application by the accused, the Court cannot exercise its jurisdiction and grant default bail merely on the completion of period in absence of an application by the accused.

Default bail is an indefeasible right of the accused, but in order to exercise it, the accused must follow the proper procedure when approaching the court. The mere passage of time does not satisfy the criteria of default bail, and the accused will not be released automatically. As a result, the accused must file an application to exercise his right to default bail. His right will be impeded by simple oral submission of the expiry of the timeframe and non-filing of the challan.

  • Investigation should be pending

The filing of a charge sheet under Section 173 of the Code indicates the end of the investigation. Once the charge-sheet is filed the provision of Section 167 is no longer applicable since it is a pre-cognizance stage. Therefore, default bail is only available to the accused if the charge-sheet has not been submitted within the prescribed time frame.

Default bail is available only during the pendency of the investigation. As a result, it is critical that the application for default bail is made prior to the filing of the charge-sheet. If the accused fails to do so and a charge-sheet is filed in the meanwhile, the accused’s right extinguishes.

If the charge-sheet has not been filed and the period of detention expires, i.e. on the 61st or 91st day, the accused must make an application under Section 167(2) CrPC.

If he fails to do so and a charge-sheet is filed on the 62nd day, his right expires. After that, he can’t approach court under Section 167(2) because he’s passed that stage. Post filing of charge-sheet the remand of accused is taken under Section 309 of the Code, therefore, the benefit under Section 167 cannot be availed.

In State vs. Mohd. Asrafat Bhat (1996), the Supreme Court reaffirmed the prevailing stance. “such right (right of default bail) is enforceable only prior to the filing of the charge-sheet. But the accused did not avail himself of the right and charge-sheet in the meantime been filed, his right to obtain statutory bail under Section 167(2) proviso (a) or (b) has been extinguished.”

Whether the Default Bail u/s 167(2) of CrPC is the Fundamental right or not?

“The right to seek default bail under Section 167(2) CrPC is a fundamental right, not only a statutory right, derived from Article 21 of the Constitution.” Under Article 21 of the Constitution, it has been declared an inalienable aspect of the right to personal liberty, held by Hon’ble Supreme Court. Once the conditions of the first proviso to Section 167(2) are fulfilled, the accused person is entitled to be released on bail.

Denial of default bail under Section 167(2) of Cr.P.C. amounts to violation of its fundamental right under Article 21 of the Constitution of India.

In Fakhrey Alam v. State of UP (2021) it was held by Hon’ble Supreme Court that Default bail under first proviso of Section 167(2) of the Code of Criminal Procedure is a fundamental right and not merely a statutory right.

Leading case laws pertaining to Default bail under section 167 of The CrPC, 1973

  1. “Parliament has introduced the amendment to Section 167(2) Cr.P.C specifying the upper end within which the investigation is to be concluded,” the Supreme Court said in Hitendra Vishnu Thakur vs. State of Maharashtra (1994). If the process is not concluded, the accused will have the right to be released on bail, which will be governed by Chapter XXIII of the Code.

  • In Fakhrey Alam v. State of UP (2021) it was held by Hon’ble Supreme Court that Default bail under first proviso of Section 167(2) of the Code of Criminal Procedure is a fundamental right and not merely a statutory right.
  • In Rakesh Kumar Paul vs. the State of Assam (2017), a three-judge bench of the Supreme Court ruled by a 2:1 majority that the 90-day default bail period does not apply to offences with a minimum imprisonment is 10 years or more. If the minimum term of imprisonment is less than ten years and the maximum term of imprisonment is not life imprisonment or death, the period of imprisonment for default bail is 60 days.
  • The time spent in unlawful custody cannot be considered against the 90-day timeframe required for default bail under Section 167(2) of the Criminal Procedure Code, as held in Gautam P Navlakha Vs. National Investigation Agency (2021).
  • In Uday Mohanlal Acharya vs. State of Maharashtra (2001), a three-judge Supreme Court bench, relying on the Constitution Bench’s decision in Sanjay Dutt vs State (2013), held that the accused is said to have exercised his right to default bail when he files an application for it, not when he is released on default bail. This right of the accused does not go away if the magistrate is unavailable, if the magistrate refuses to give an order, or if the magistrate’s order is appealed or revised. If an order of default bail is issued in the accused’s favour, but he or she fails to furnish bail and a charge sheet is filed in the meantime, the accused’s entitlement to default bail is forfeited.
  • Conclusion

    When a person is arrested and detained in custody, Section 167 Cr.P.C specifies that the time for investigation and on expiry of the Specified period, if the Investigation is not completed and Charge Sheet is not filed, then the Accused is entitled for Default Bail. Default bail is a fundamental right that cannot be suspended, even in the event of a pandemic situation, held by Delhi High Court in the case of Abhishek v. State (2021 DHC)

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