Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

A 3-judge bench of Apex Court held as follows regards to default bail u/s 167 CrPC,

From Para 4,

Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.

From Para 25,

25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, thewords “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable witha minimum of 10 years imprisonment.

From Para 31,

31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable toseparate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.

From Paras 40 and 41,

40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

Then finally in Paras 46 and 47,

46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another matter altogether if the petitioner had not applied for ‘default bail’ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ‘default bail’ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ‘default bail’ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Citations : [2017 SCC ONLINE SC 924], [2017 ALLCC 101 287], [2017 ACR 3 2474], [2017 ALT CRL AP 3 141], [2017 CCR SC 3 371], [2017 DLT 242 79], [2017 ILR KER 3 673], [2017 JLJR 4 37], [2017 KHC 4 470], [2017 KLT 4 284], [2017 MLJ CRL 4 62], [2017 PLJR 4 53], [2017 RCR CRIMINAL 3 996], [2017 SCALE 9 24], [2017 UC 3 1756], [2017 SCC 15 67], [2018 SCC CRI 1 401], [2017 AIR SC 3948], [2017 AIC 178 75], [2018 CRI LJ 155]

Other Sources :

https://indiankanoon.org/doc/194334432/

https://www.casemine.com/judgement/in/599a9dfd4a93262f6c14fba6

https://www.indianemployees.com/judgments/details/rakesh-kumar-paul-versus-state-of-assam

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

Posted on March 18 by ShadesOfKnife

A Division bench of Supreme Court in this Order held as follows in regards to Default bail u/s 167 CrPC,

On the second aspect we cannot lose sight of the fact that what was envisaged by the Legislature was that the investigation should be completed in 24 hours but practically that was never found feasible. It is in these circumstances that Section 167 of the Cr.P.C. provided for time period within which the investigation should be completed, depending upon the nature of offences. Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.
If we look at the scenario in the present case in that conspectus, the charge sheet under the provisions of law as originally filed on 04.09.2017 were required to be filed within 90 days but was actually filed within 180 days. This was on the premise of the charge under Section 18 of the UAPA Act. However, no charge sheet was filed even within 180 days under the UAPA Act, but post filing of the application for default bail, it was filed after 211 days. Thus, undoubtedly the period of 180 days to file the charge sheet qua UAPA Act had elapsed. We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances.
We need only emphasize what is already observed in Bikramjit Singh case (supra) that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) of the Cr.P.C. are fulfilled.
In fact in the majority judgment of this Court it has been held that an oral application for grant of default bail would suffice [See. Rakesh Kumar Paul vs. State of Assam]3. The consequences of the UAPA Act are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

Citations :

Other Sources :

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Posted on November 10, 2020 by ShadesOfKnife

Supreme Court held that, the default bail that is available to an accused person u/s 167(2)(a) of CrPC, is part of the fundamental rights available to him/her under Article 21 of Constitution of India.

From Para 28,

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.

But then from Para 29,

…

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.

…

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Citations : [(2020) SCC Online SC 824]

Other Sources :

https://indiankanoon.org/doc/10807134/

https://www.indianemployees.com/judgments/details/bikramjit-singh-versus-the-state-of-punjab

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

Posted on November 10, 2020 by ShadesOfKnife

Delhi High Court held that there is no need for filing an formal application seeking default bail, once the conditions set out in section 167(2)(a) are made out, as continued confinement violates fundamental right under Article 21.

From Paras 32, 33 and 34,

32. A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail “if he is prepared to and does furnish bail”. Thus, in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application.

33. It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law [See: Natbar Parida Bisnu Charan vs State of Orissa: (1975) Supp SCR 137 and Union of India vs Thamsharasi: (1995) 4 SCC 190]. As is apparent from the language of Proviso (a) to Section 167(2) of the Cr.PC, the power of a Court to remand an accused to custody pending investigation is circumscribed and stands denuded if the period of sixty days or ninety days, as the case may be, has expired and the accused is ready and willing to furnish bail.

34. It is also necessary to bear in mind that courts have consistently leaned to resolve the tension between form and substance, in favour of substance and have used the interpretative tools to address the substance of the matter. In Ajay Hasia Etc v Khalid Mujib Sehravardi & Ors:1981SCR(2) 79 had, in an altogether different context, observed that “where the constitution fundamentals vital to maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form”. Thus, if in substance the essential conditions as set out under the Proviso (a) to Section 167(2) of the Cr.PC are met and complied with – that is (i) if the investigation has not been completed within the period of sixty or ninety days, as the case may be, from the date of arrest of the accused; and (ii) if the accused is prepared to offer bail – then there would be no justifiable reason to detain the accused.

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

More Gyan here.

Default Bail under Code of Criminal Procedure

Posted on November 10, 2020 by ShadesOfKnife

Code of Criminal Procedure contains lot of provisions that give powers to Police/investigating agencies to take an accused person into their custody (police custody in the lockup cell of a Police station, where lockup deaths happen). At the same time, time limits were placed on such custody for inquiry/investigation so as to protect the fundamental rights of accused. When such time limits expire, Courts are empowered (actually duty-bound) to order for release of such accused at the expiration of such statutory time-limits.

Here are the provisions.

As per subsection (2) of section 167 CrPC, the following situation allows for default bail for an accused.

(2) XXXXX:
Provided that—
(a) XXXXX, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and,

on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

Also, obviously

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

As per subsection (2A) of section 167 CrPC, the following situation allows for default bail for an accused.

(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and
thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Some helpful cases laws are here.

Index of all Bail matters is here.

Shades of Knife

True Colors of a Vile Wife

Tag: CrPC 167 – Default Bail

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

Default Bail under Code of Criminal Procedure