While hearing the plea involving UAPA, the apex court held that right to
default bail under Section 167(2), CrPc is part of procedure established by law
under Article 21 of the Constitution of India
Eminent lawyer and managing partner of OP Khaitan & Co, Gautam Khaitan has
welcomed the recent judgment of the Hon'ble Supreme Court that held the right to
default bail as not only a statutory, but a fundamental right under Article 21
of the Constitution of India.
A three-judge bench comprising of Hon'ble Justices KM Joseph, Navin Sinha, and
Rohinton F Nariman in the matter of Bikramjit Singh v. State of Punjab
Criminal Appeal No. 667 of 2020 decided on 12.10.2020 declared that it is a
fundamental right granted to an accused person to be released on bail once the
conditions of the first proviso to Section 167(2), Section 167 (2) of the Code
of Criminal Procedure (CrPC) are fulfilled.
Section 167 (2) CrPC provides that the detention of an accused person cannot be
extended beyond a statutory period prescribed to completion of the
investigation. In cases involving offences punishable with life imprisonment or
death, statutory period to complete the investigation and file chargesheet/final
report is a maximum of 90 days. Nevertheless, it is 180 days in offences under
UAPA. It was while hearing a plea involving a UAPA case when the Supreme Court
held default bail as a fundamental right.
"We must not forget that we are dealing with the personal liberty of an accused
under a statute which imposes drastic punishments. The right to default bail, as
has been correctly held by the judgments of this Court, are not mere statutory
rights under the first proviso to Section 167(2) of the Code, but is part of the
procedure established by law under Article 21 of the Constitution of India,
which is, therefore, a fundamental right granted to an accused person to be
released on bail once the conditions of the first proviso to Section 167(2) are
fulfilled, the court said.
A few months back, the Hon'ble Madras High Court inSettu v/sThe State
OP(MD) NO. 5291/2020], held that the Hon'ble Supreme Court's March 23 order
granting an extension of the limitation period for various laws would not apply
to the right to default bail as granted under section 167 of the Code of
Criminal Procedure (CrPC), 1973.
The Hon'ble High Court observed that:
Personal liberty is too valuable a fundamental right. Article 21 states that no
person shall be deprived of his personal liberty except in accordance with the
procedure established by law. So long as the language of Section 167 (2) of CrPC
remains as it is, I have to necessarily hold that the denial of compulsive bail
to the petitioner herein will definitely amount to a violation of his
fundamental right under Article 21 of the Indian Constitution.
The Hon'ble Madras High Court also observed that the Apex Court had not
specified that the extension of limitation would apply to police investigations
as well. The failure of the State Police to complete investigation on time
cannot be hidden by invoking Supreme Court's order.
Landmark cases on Right to Default Bail by Hon'ble Courts:
- Rakesh Kumar Paul v/s State of Assam, (2017) 15 SCC 67
The Hon'ble Supreme Court held that,..in matters of personal freedom, the
courts cannot and should not be too technical and must lean in favor of
personal liberty. The generic principle of criminal law is that a person
is innocent until proven guilty.
From even before the registration of an FIR till the completion of the
trial, the law provides for many provisions of bail. In countless cases, the
Supreme Court has held that bail is a person's absolute right (in bailable
offenses). Granting of bail is the rule while sending to jail is the
exception. Very often, we hear about anticipatory bail or regular bail. But,
there is one more type of bail that is relatively less known.
This is called default bail. The right to default bail is also an absolute
and indefeasible right of the accused. Section 167(2) lays down the
provisions regarding this right. This section provides a specified period
beyond which the accused cannot be kept in custody. On the expiry of such a
period, if the police have not completed their investigation and filed the
charge-sheet, the accused can seek default bail. This right accrues from the
failure of the police. It acts as an incentive for the police to do timely
investigations while also protecting the right to liberty of the accused.
- Sanjay Dutt v/s State through CBI, Bombay, (1994) 5 SCC 410
The Hon'ble Supreme Court has laid down several guidelines in case with
respect to section 167, CrPC. These guidelines specified that the completion
of 90 days or 60 days, as the case may be, accrues an indefeasible right in
favor of the accused for grant of bail. This right arises from the failure
of the investigative agencies to complete investigations and file the charge
sheet within the prescribed time. He becomes entitled for a release on bail
if he is prepared to and furnishes bail. If he is unable to furnish bail and
investigation is complete, then such a right would extinguish.
- Aslam Babalal Desai v/s State of Maharashtra, (1992) 4 SCC 272
In this case, the Supreme Court pointed towards the legislative anxiety
found in sections 57 and 167 of CrPC. These sections express the urgency
with which the investigation must be completed within the prescribed period
once a person is deprived of his liberty. Proviso (a) to section 167(2)
provides a maximum period of 90 days or 60 days, as the case may be.
It was introduced to allow the investigative agencies to complete the
investigation within the maximum stipulated time. The Court further held
that if the investigation is not completed within this maximum period, the
accused is entitled to be the right to default bail. It was also held that
section 167 does not give any power to cancel bails. Such power is only
available under section 437 or 439 of CrPC.
- Powell Nwawa Ogechi v. The State (Delhi Administration)1986 SCC
OnLine Del 224
The Hon'ble High Court of Delhi, while agreeing with the view taken by
the High Court of Bombay inState of Maharashtra v. Sharad B. Sarda1982
SCC OnLine Bom 287held that even if the last day to file final report was a
holiday, still, the same could not come to the rescue of the investigating
The provision of Section 10 of the General Clauses Act, 1897, which is pari
materia to Section 4 of the Limitation Act, 1963 was considered and it was
A bare reading of the aforesaid provision of the Code would go to show that
this provision merely confers power on the Magistrate to commit to custody
an accused person and there is limitation of 90 days and 60 days, as the
case may be.
This provision of the Code falls under Chapter XII of the Code relating to
information to the police and their powers to investigate. It is thus clear
that this is a power which is only exercisable during the course of
investigation of a case.
Any further remand to judicial custody beyond 90
days and 60 days without the charge-sheet being presented before the Court
will be without the authority of law.
The same view has been taken by the Hon'ble High Court of Rajasthan in Hari
Singh v. State of Rajasthan
1998 SCC OnLine Raj 381and by the Hon'ble High
Court of Gujarat in Alamkhan Umarkhan Jatmalek Jenjari v. State of Gujarat
SCC OnLine Guj 1557.
On careful consideration of various judgments including the Bikramjit Singh's
case, Gautam Khaitan, quoted America's visionary social critic and philosopher
Lewis Mumford's statement that, A man of courage never needs weapons, but he
may need bail.
Mr. Khaitan further emphasized on the fact that while
applying the judicial mind in regards with the personal liberty of an accused
under a statute which imposes severe punishments.
The right to default bail is not mere statutory rights under section 167(2)
CrPC, but is part of the procedure established by law under Article 21 of the
Constitution of India as has been reaffirmed by this recent judgment in
Bikramjit Singh's case
It can be observed that the right to default bail under section 167(2) CrPC is
based on the fact that the accused must either make use of or enforce his
right to be released on bail
. The Court has to ascertain whether the accused
is prepared to furnish bail. Therefore, a magistrate receives no such
application, he has no power to release the accused. It is also crucial to note
that the application can either be written or oral.
It is a legislative mandate through procedure established by Law and not the
discretion of the court which makes right to bail under section 167(2) absolute
and indefeasible. Hence, if the investigating agency fails to file a charge
sheet/final report before the 90/60 days expiration, as the case may be, the
accused in custody should be released on bond and the merits of the case are not
to be examined at length while such consideration.