Sarah Azad
Introduction
“An individual, unless proven guilty, is innocent”. This is the general rule or the basic principle of criminal law. This is something which even a layman has come across, by now, at least once. This is basically what led to the emergence of the concept of bail. Black’s Law Dictionary quoted or defined bail 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.” Bail has a prominent goal which is to ensure that the individual convicted of a crime appears in court for the proceedings and trial. Bail-in India comes under the ambit of Code of Criminal Procedure, 1973 and is not overtly mentioned or defined in the CrPC but concepts of non -bailable offence and bailable offences are defined under Section 2(a) of the act. Regular bails or anticipatory bails are something we do come across on numerous occasions but another kind of bail that is not much known by the general public is the default bail. This article attempts to shed light on the mechanism and procedure of the default bail as per the CrPC.
What is a Default Bail?
The Supreme Court has ruled that if the investigating authority does not conclude the investigation within a specified period, the accused must be awarded “default” or “compulsive” bail, regardless of the legitimacy of the case against him.
Default bail as per Criminal Code of Procedure, for offences punishable by not fewer than 10 years in prison, the Judicial Magistrate may award custody of an accused of a maximum period of 90 days, and for offences punishable by fewer than 10 years, the maximum duration is 60 days. As a result, if the inquiry is not finished within the specified time frame, the judge would no more be competent to place the accused in custody during the process of investigation As a result, the judge will have to give the accused bail – Default bail that is issued by default caused by the failure of an investigation to be completed.
Any individual accused or convicted of any crime or offence has an “indefeasible right” wherein he shall be granted bail if that particular person meets the conditions of the bail and if the inquiry is not carried out within the period said or provided by Section 167(2) of CrPC, and accused has to be released by the Magistrate, according to the law. “Any detention beyond the prescribed period would be illegal.” – The Supreme Court of India in Suresh Jain v. the State of Maharashtra[1].
Case Studies
• Aslam Babalal Desai v. the State Of Maharashtra[2]dated 15 September 1992
Any individual convicted cannot under any circumstances be imprisoned for more than a day (24 hours). This is by section 57 of the code. Also, section 167 talks about default bail, detainment as well as sentencing. The legislature of the Code in these sections demonstrate the legal distress that if an individual’s freedom has been, in any way, violated by the cops arresting him in the absence of a proper warrant or without the order of the court, the procedure must be conducted with great priority and compulsion. This is mentioned clearly in Section 167 (2) of the code.
It is also important to note that certain provisions were added to the Legislation to increase the period an arrested suspect may be held in custody. As a result, the investigating authority should recognize that if it refuses to acknowledge a sense of urgency in the investigative process and struggles to apply for a charge sheet within the stipulated period, the convict will be qualified for bail. Also, section 167 (2) of the IPC, which announces in this regard will be the ultimate order issued by section 437 (1) or (2) wherein in case of non-bailable, bail can be taken. Section 439 (1) mentions the unique authority of the High Court or Session Court in regards to presenting bail.
Section 167 does not deal with the cancellation of bail. Only certain sections have the authority and power to make the bail null and void. It resides in section 437 (5) or section 439 (2) of IPC. The bail-in in most of the cases are cancelled only on the considerations issued and valid in section 437 (1) or (2) or section 439 (1) of the code.
The obligation of Judicial Magistrate
• Case Reference – HussainaraKhatoon and Ors. V. Home Secretary, State of Bihar[3]
It was held, by the Supreme Court – whenever an under trial prisoner who has been detained for 60-90 days, is to be produced before the magistrate, about the case, the magistrate must make the prisoner aware of his right of being granted bail, before he orders for a judicial custody remand. A lawyer is to be provided to the prisoner by the State to aid him in the process of applying for bail under Section 167 (2) of CrPC. It was held that is the duty of the magistrate to ensure the protection of the rights of the under-trial prisoner while he, along with his lawyer, applies for the bail to be granted.
What is the safeguard for Default Bail?
• Case Reference – M Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence[4]
The Supreme Court, in this case, related Article 21 of the Indian Constitution to the provisions of Section 167(2) and pronounced that the default bail is safeguarded and is inextricably related to Article 21. It is nothing more than a legal expression of the constitutional guarantee that no one shall be detained other than in compliance with the rule of law.
Is it a Fundamental right under Article 21?
• Case Reference – Bikramjit Singh v. State of Punjab[5]
The Supreme Court went even further, declaring unanimously that the right to be granted bail is a constitutional Fundamental right and not just another right under the ambit of statutory rights that accumulates in his favour once the legislative provisions of Section 167(2) are met. The Court also pronounced, “The right of the prosecution to carry on investigation and submit a charge sheet is not akin to the right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C. As a result, even though if it exercises its power under Article 142, the Supreme Court cannot stretch the period as implied under Section 167.
Requirement of a formal application
• Case Reference – Subhash Bahadur @ Upender v. State NCT of Delhi[6]
The High Court of Delhi, in this case, observed that if the accused meets the conditions outlaid in Section 167(2) of CrPC, he is entitled to be granted bail and there exists no compulsion on the part of the accused or his lawyer to submit any formal application for the same.
Conclusion
What we observe is that, according to various legal rulings, under section 167(2) of the rule, the right to default bail is based on the principle that the convicted must exercise his rights to be discharged on default bail via a written or oral appeal. The Court must determine if the individual is willing to post bail. What this simply means is that the Magistrate’s power is contingent on the plea of the convicted individual. If there no such application from the accused’s side, the Magistrate does not hold the power or authority to release that individual. There are certain circumstances wherein the right of an individual or a person to default bail is not applicable or extinguished. First, in case the convicted/accused individual fails to apply for the bail and/or abide by the proper terms as well as conditional rules set for the bail order within the period set by the Court. Second, in case he isn’t successful in applying for the default bail after the expiration of the 60/90 days of the specified period and a charge-sheet, extra appeal, or report requesting an extension of time is filed.
Sources:
· Vaghela, R., 2003. DEFAULT BAIL: A STUDY OF CASE LAW. Journal of the Indian Law Institute, 45(1), pp.80-96.
- Nandan, S. and Kansra, D., 2019. Cancellation of Bail. Bail: Law and Practice in India, Publication of the Indian Law Institute, Delhi.
[1] 3 SCC 77 2013.
[2] (1992) 4 SCC 272.
[3] 1979 AIR 1369.
[4] S.L.P. (Criminal) No. 2333 of 2020.
[5] Special Leave Petition (Crl.) No. 2933 of 2020.
[6] BAIL APPLN. 3141/2020.
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