Feb 23, 2022

What do you need to know about Default Bail?

The Bombay High Court is going to decide whether activist Gautam Navlakha is entitled to get default bail. Navlakha was arrested as an accused in the Elgaar Parishad-Bhima Koregaon case under the Unlawful Activities (Prevention) Act, 1967.  


Which law regulates bail in India?

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


What is default bail?

Under Section 167(2) of the Code, a Magistrate can order an accused person to be kept in the custody of the police for fifteen days. Beyond the police custody period of fifteen days, the Magistrate can authorise the detention of the accused person in judicial custody i.e., jail, if necessary. Under the law, this police custody and judicial custody is different from imprisonment given as punishment after being convicted of a crime.


That is why the law provides that the accused should not be detained for more than:


  • Ninety days, when an authority is investigating an offence punishable with death, life imprisonment or imprisonment for at least ten years; or
  • Sixty days, when the authority is investigating any other offence.


If this time limit is exceeded, bail is granted because of the default of the investigating agency in not completing the investigation in time. This is ‘default bail’ or ‘compulsive bail’. After the period of ninety/sixty days, if the investigation is not complete and charge-sheet not filed, the accused person has the right to be released on bail, as long as they apply for bail and agree to fulfil other bail conditions (such as providing the required bail amount).


Default bail as a fundamental right

Article 21 of the Constitution of India, 1950, provides everyone with the fundamental right to life and personal liberty. No person can be deprived of life or personal liberty without following fair and reasonable legal procedure. The safeguard of ‘default bail’ is linked to Article 21.


The investigative agency must collect the required evidence within the prescribed time period. If it doesn’t do this, it cannot detain the accused any longer. Default bail prevents the investigative agency from detaining an innocent person. It ensures that investigating officers act swiftly and efficiently without misusing the law. It also ensures that the Court takes up the case without any undue delay.


The right to get default bail

The accused enforces their right to be released on default bail by filing an application for bail under Section 167(2). This right can be exercised if:

  • The stipulated time limit for investigation has expired; and 
  • The accused has made an application for such bail. It does not matter if the application is pending or yet to be decided by the Court. An application for default bail will be considered by the Court as long as it was filed before the investigating authority files the charge-sheet.


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 application for default bail, then the right of default bail does not apply. 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.


Even if the Court grants default bail, the actual release from custody depends on the directions given by the Court. If the accused does not submit the bail amount and/or comply with the terms and conditions of the bail order, they will continue to be detained in custody.