“A man of courage never needs weapons, but he may need bail.” -Lewis Mumford

One of the most fundamental principles of criminal law is that a person is “innocent until he is proven guilty.” Any person under trial can avail different types of bail. The Supreme Court of India has held in many judgments that, until the final verdict of the court, every person is presumed to be innocent and has the right to bail until proven guilty. Regular and anticipatory bail are the most often-heard bails, but there is another type of bail of which not many know, which is default or statutory bail.

Under Section 167(2) of the 1973 Code of Criminal Procedure (CrPC), the maximum period for which the Judicial Magistrate can grant custody of an accused in the course of investigation is 90 days for offenses punishable with not less than 10 years, and 60 days for offenses punishable with less than 10 years. Thus, if the investigation is not completed within the stipulated period of time, the magistrate will no longer be competent in the course of investigation to send the accused into custody. Accordingly, the magistrate will have to grant bail to the accused. Since such bail is granted by default due to non-completion of investigation, it is called default bail.

Bail is often granted depending on various factors, but under Section 167(2), the Judicial Magistrate grants bail on non-completion of the investigation, i.e., under 60 or 90 days. After the completion of the aforementioned period, the accused can move an application for the grant of bail. If he does not move an application before the court, then he cannot avail the benefit of default bail. The Supreme Court in Natbar Parinda v. State of Orissa observed that the accused has a right to be released “even in serious and ghastly types of crimes.”

When the accused is remanded to custody at the first instance by the magistrate, this is considered to be the day when the period of 60 or 90 days starts. The essential element here is that the accused should have been in continuous custody for 60 or 90 days. Section 167(2) applies to non-bailable offences, and it is presumed that the accused does not have a regular bail. It was held in Dinesh Dalmia v. CBI that, once the chargesheet is filed, the accused loses his right to default bail. However, the chargesheet should be a completed chargesheet. If the magistrate finds that the chargesheet was incomplete, then he can return it and deem it not to have been filed. Therefore, the right to default bail will still exist.

Recently, on March 23, the Supreme Court of India passed an order, “In Re: Cognizance for extension of Limitation,” which extended the period of limitation in all proceedings. This is irrespective of the limitation prescribed under the general law or special laws, whether condonable or not. This seems to have stirred yet another controversy. Two differing opinions were delivered by two learned judges of the Madras High Court on the right of an accused under Sec 167(2) of CrPC, which has nothing to do with the law of limitation.

On May 8, Justice G. R. Swaminathan, in Settu v. The State, interpreted the above Supreme Court’s order as applicable to only the limitation period for filing cases under the Limitation Act of 1963. The order did not touch upon any specific extension of time for completing investigation under Section 167(2). Hence, it was held that, once the mandatory period of 60 or 90 days expires, the accused is entitled for default bail. A similar order was also passed by the Uttarakhand High Court in Vivek Sharma v. State of Uttarakhand.

However, Justice G. Jayachandran, in S. Kasi v. State, Through the Inspector of Police, took a contrary view and observed that holding the Supreme Court’s order as inapplicable to the time period of filing a final report amounts to “mocking” the Apex Court. He also held that the period of limitation for investigation under Section 167 of the CrPC would stand extended, keeping in view the extraordinary situation of the COVID-19.

Because of these two conflicting opinions, the Chief Justice of the Madras High Court, Justice AP Sahi, constituted a division bench to determine whether the Supreme Court’s order for extension of limitation during the lockdown period is applicable to police investigation under Section 167(2) of the CrPC for default bail, since it is likely to have a direct impact on bail orders.

The goal of the CrPC in the long run is to do societal justice. But it is not only about doing societal justice; it is also about the fundamental right of life and personal liberty of the accused under Article 21 of the Constitution of India. The CrPC should draw a balance between the societal requirements on the one hand, and the safeguards to the individual on the other hand. There is a slight sense of dynamism in the CrPC as, with the passage of time and various Supreme Court judgments, the CrPC is required to be made more and more explicit. The safeguards in the interest of justice should be made clearer and more visible.

Section 167(2) is a procedural safeguard to an accused. In the absence of such a safeguard, the executive could devise methods to keep an accused indefinitely in custody without a single charge being framed. The very concept of such a custody without charge is against Article 21 of the Constitution and violates the main goal of the CrPC, which is about drawing balance between the society and the individual. Police have to complete their investigation in the given time and, whether these are tough times or not, should be of no consequence. Grant of bail is no doubt discretionary, but, as held in Union of India through CBI v. Nirala Yadav, the right to default bail is an indefeasible and absolute right upon the completion of 60 or 90 days.

The poorest sections of the community who cannot afford to approach the higher courts for remedy will ultimately suffer the most. Hence, we are of the opinion that such an extension of the custody without framing any charges is bad in law. We hope that the division bench will uphold the validity of default bail.

Aakash Kumar and Animesh Upadhyay are fourth-year B.A. LL.B. (Hons.) students at Dr. Ram Manohar Lohiya National Law University in Lucknow, India.

Suggested citation: Aakash Kumar and Animesh Upadhyay, Default Bail Controversy Amidst COVID-19, JURIST – Student Commentary, May 27, 2020, https://www.jurist.org/commentary/2020/05/kumar-upadhyay-default-bail-controversy/.

This article was prepared for publication by Cassandra Maas, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org