5 things you didn’t know about Default Bail

In a recent judgement, the Supreme Court discussed the right of an accused person to get default bail. The Court said that the accused’s lawyer and the Magistrate should inform the accused of his/her right to get default bail, especially when the accused is from an underprivileged section of society and will probably not have information about his/her legal rights.

1. Which law regulates bail in India?

The Code of Criminal Procedure, 1973 regulates the procedural aspects of criminal law, including arrest, investigation and bail.

2. What is default bail?

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 authorise the detention of the accused person in judicial custody i.e., jail if necessary. However, the accused cannot be detained for more than:

1. i) ninety days, when an authority is investigating an offence punishable with death, life imprisonment or imprisonment for at least ten years; or
2. ii) sixty days, when the authority is investigating any other offence.

In this case, bail is granted because of the default of the investigating agency in not completing the investigation within the specified time, and it is referred to as ‘default bail’ or ‘compulsive bail’. After the period of ninety/sixty days, if the investigation has not been completed and charge-sheet not filed, the accused person has the right to be released on bail as long as he/she applies for bail and agrees to fulfil other bail conditions (such as providing the required bail amount).

3. Default bail as a fundamental right

Article 21 of our Constitution provides everyone with the fundamental right to life and personal liberty. No person can be deprived of life or personal liberty except according to the procedure established by law, and such a procedure cannot be

arbitrary, unfair or unreasonable. The safeguard of ‘default bail’ is linked to Article 21.

Section 167(2) places time limits on the period of custody of the accused, in proportion to the seriousness of the offence. So, the investigative agency must collect the required evidence within the prescribed time period. If it doesn’t do this, the accused can no longer be detained. This ensures that investigating officers act swiftly and efficiently without misusing the law. This also ensures that the Court takes up the case without any undue delay so that society does not lose faith in the criminal justice system.

4. The right to get default bail

Once the accused files an application for bail under Section 167(2), it is considered that he/she has enforced the right to be released on default bail. This right only comes into place after the stipulated time limit for investigation has expired. The right to be released on default bail is enforceable as long as the accused has made an application for such bail. It doesn’t matter if the bail application is still pending, or if the investigating authority files the charge-sheet subsequently after the accused has applied for default bail.

5. When does default bail not apply?

If the accused fails to apply for default bail after the investigation time period has expired, and the investigating agency files a charge-sheet or seeks more time before the accused makes such an application for default bail, then the right of default bail is no longer applicable. The Magistrate can then grant further time for completion of the investigation. However, the accused may still be released on bail under other legal provisions of the Code.

It is important to note that even if the Court grants default bail, the actual release of the accused from custody depends on the directions passed by the Court which is granting bail. If the accused fails to submit the bail amount and/or comply with the terms and conditions of the bail order as stipulated by the Court, the accused will continue to be detained in custody.