The right to life and personal liberty enshrined in Article 21 is the sanctum sanctorum of the Indian Constitution. Law makers have given the highest priority to the personal liberty and deprivation of the same can only be in accordance with the procedure established by law. The concept of Bail germinates from the presumption of innocence until proven guilty which is golden thread running throughout the criminal justice system. According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.” To put it in simple words, it denotes the provisional release of an accused in a criminal matter until the pronouncement of judgment. The primary object of bail is to attain the appearance of the person accused of an offence for the trial. The idea ascribed to the institution of bail is, to ensure the presence of the person accused of an offence at trial while maximizing personal liberty in accordance with the constitutional framework. Depending upon the stage of the matter, there are commonly three types of bail in India, Regular, Interim and Anticipatory. However, there is another bail known as Default Bail embodied in Section-167(2) of CrPC. This article seeks to acquaint readers with the Default Bail mechanism under the CrPC in the light of recent judicial pronouncements Bikramjit Singh and M. Ravindran.
WHAT IS DEFAULT BAIL?
The right to default bail, one of the lesser known rights granted by the law, is indefeasible in nature and enshrined in Section 167(2) of CrPC. It provides down that upon the expiry of a specified period, if the chargesheet has not been filed by the investigating agency, the accused immediately becomes entitled to seek bail. This type of bail is called default bail or statutory bail or automatic bail. As the name suggests, the accused becomes entitled to be released automatically once the statutory requirements of Section 167(2) are complied with and an application has been made, orally or in writing. The accused can claim it as a matter of right and this right is not subject to the discretion of the Court, because it is expressly granted to him by the legislature. The specified period after which accused gets entitled to default bail is 90 days where the offence punishable with a minimum sentence of 10 years; or offences punishable with lower sentence, where one of the prescribed punishments is either death or life imprisonment, and in cases where the offence is punishable with less than 10 years, the period is 60 days. The object behind granting default bail is three-fold, firstly, to expedite the investigation, secondly to further personal liberty of the accused and thirdly, to do societal justice in the long run. In the case of Suresh Jain v. State of Maharashtra, (2013) 3 SCC 77 the Supreme Court clarified, “A person accused of an offence acquires an “indefeasible right” to be granted bail on meeting the bail conditions if investigation is not completed within the periods mentioned in S. 167(2) of Cr.PC, and the Magistrate is mandatorily required to release the accused person. Any detention beyond the prescribed period would be illegal.”
RIGHT TO DEFAULT BAIL: STATUTORY OR FUNDAMENTAL?
The Supreme Court being the sentinel on qui vive has ad infinitum protected the accused’s right to life 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 right to be released on bail is not merely a statutory right but a fundamental one, which accrues to 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 investigation and submit a charge sheet is not akin to 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.
IS A WRITTEN APPLICATION NECESSARY TO INVOKE RIGHT TO DEFAULT BAIL?
The Apex Court in 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 reiterated Rakesh Kumar Paul case and held,“A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on 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 application before the charge sheet is filed or disposes of such application wrongly before such 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 chargesheet has expired, whether the charge-sheet has been filed and whether the accused is prepared to and does furnish bail.
WHEN THE ACCUSED IS SAID TO HAVE ‘AVAILED OF’ HIS RIGHT TO DEFAULT BAIL
One of the contentious issues is whether the expression “availed of” would mean when the accused files application or when accused is actually released after furnishing bail formalities. The Apex Court in M. Ravindran v. The Intelligence Officer, Crl. Appeal 699/2020 while affirming the locus classicus ruling of Uday Mohanlal Acharya 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 application is filed even though it is pending consideration and the actual release is subject to the compliance with the order granting bail. This interpretation is in consonance with the purpose of the Section 167(2) and the Statement of Objects and Reasons of the CrPC.
HOW TO INTERPRET EXPLANATION I TO SECTION 167(2)
Explanation I to Section 167(2), CrPC provides that the accused shall be detained in custody so long as he does not furnish bail. The Court in Ravindran case while liberally construing the explanation held that it would apply only to those situations where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court, but has subsequently failed to comply with the terms of the bail order within the time prescribed by the Court. The explanation would not apply to the situation where the prosecution files the chargesheet or additional complaint prior to fulfillment of the conditions of bail. Consequently, the right to be released on default bail continues to remain enforceable once the accused has applied for such bail, notwithstanding pendency of the bail application, subsequent chargesheet, additional complaint or report seeking extension of time by the prosecution before the Court is filed. The Court while releasing the accused on default bail cannot impose conditions of depositing money as this would frustrate the very object and purpose of default bail. Undisputedly, filing additional complaint or chargesheet merely to circumvent the right of the accused frustrate the object of CrPC and doesn’t affect the enforceability of the right of default bail. Even filing incomplete chargesheet on the 60th/90th day to defeat the accused’s right to default bail is an apparent abuse of law and cannot defeat the right to default bail.
Hence, as a precautionary principle the Counsel for accused must apply for default bail the moment the right under Section- 167(2) accrues to him failure to do so extinguish this right after the prosecution has filed a chargesheet. Duty is also casted upon the Magistrate to inform the accused about his indefeasible right to be released, when it accrues. In case the accused cannot arrange a private counsel, it is the obligation of the Magistrate to ensure competent and effective legal aid is provided to him at the expense of the State. Various District Legal Services Authorities have appointed Remand and Bail Advocates in the respective district courts to ensure fair representation to the accused. The Magistrate also ought to ensure that the appointed counsel has access to all case related documents for effectively defending the accused. As was said by Lord Russell of Killowen, C.J “….it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial.”
On perusal of various judicial pronouncements, it can be observed that the right to default bail under section 167(2) of the Code proceeds under the premise that the accused must enforce his right to be released on default bail by way of application, written or oral. The Court has to ascertain whether the accused is prepared to furnish bail. In other words, the Magistrate’s exercise of power depends on the application by the accused. If the magistrate receives no such application, he has no power to release the accused. There are two situations when the right to default bail would be extinguished, firstly if the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court; secondly, if he fails to apply for default bail upon the expiry of the specified period (60/90 days), and subsequently chargesheet, additional complaint or report seeking extension of time is filed.
In order to avoid the salutary purpose of Section 167(2) from being frustrated by subsequent filing of chargesheet, the Courts must decide bail applications on the very day of filing or as far as practicable, at the earliest possible opportunity. The denial of the right to default bail is should be viewed as denial of the right to liberty granted by Article 21 of the Indian Constitution. In matters of personal liberty, it is the solemn duty of the court to avoid technical approach and lean in favor of personal liberty.
(Author is an Advocate practising in Delhi)