Introduction:
Arrest, remand and bail are components related to investigation. They generally come into play as an aid to investigation. Arrest directly curtails personal liberty of an individual. The effect of granting bail is not to set the accused free, but to release him from custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned. (Halsbury’s Laws of England, 1998- Volume II)
In the matter of: Kamlapati Trivedi V/s State of West Bengal, AIR 1979 SC 777, it was observed that bail is devised as a technique for effecting a synthesis of two basic concepts of human values, namely the right of the accused person to enjoy his personal freedom and the public interest; subject to which, the release is conditioned on the surety to produce the accused person in court to stand trial. Thus, bail means the provisional release of an accused in a criminal case, which awaits court judgment and for the purpose of granting it, a security must be deposited before the court.
Default Bail:
1. When investigation into a case cannot be completed within 24 hours and further custody of the arrested person is required, the police as per Section 57 of the Cr.P.C., has to produce the arrested person before the nearest Magistrate within 24 hours of his arrest, excluding the time necessary for journey from the place of arrest to the court. Any further detention of the person can only be through the order of a Magistrate under Section 167 of the Cr.P.C.
2. Section 167 of the Cr.P.C. provides that if investigation into a case cannot be completed within 24 hours, and the accusation or information seems well- founded, then the police should produce the accused, along with a copy of the case diary, before the nearest Magistrate. Such Magistrate may or may not have jurisdiction to try the case. The Magistrate may from time to time, authorize the detention of the accused in such custody as he thinks fit, for a term not exceeding 15 days in the whole.
3. The police custody after first 15 days is not permissible; however, if complicity of accused is found in some other transaction while in judicial custody, then aforesaid limitation will not apply. (CBI V/s Anupam Kulkarni, AIR 1992 SC 1768)
4. When a Magistrate remands a person to police custody, he has to conform to the following three conditions:
i. Such custody should not be made of more than 15 days on the whole;
ii. Reasons should be recorded at the time of remanding accused to police custody;
iii. A copy of the order and the reasons should be sent to the Chief Judicial Magistrate/ Chief Metropolitan Magistrate.
5. During first 15 days, a person may be sent from police custody to judicial custody and vice versa, through one or more orders of the Magistrate. After the first 15 days, the arrested person can only be sent to judicial custody, which may be extended by maximum 15 days at one time during investigation. If the Magistrate has no jurisdiction to try the case or commit it for trial, and he considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction to try the case.
6. Police custody can only be granted during the first 15 days, for reasons to be recorded. This limit of 15 days will apply even if some more offences committed by the accused in the same transaction come to light at a later stage during investigation. But this bar does not apply, if the same accused is involved in a different case arising out of a different transaction.
7. If a Judicial Magistrate is not available, the police officer may transmit the arrested person to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Executive Magistrate can authorize detention in either police or judicial custody, for a maximum period of 7 days in aggregate, through one or more orders. The Executive Magistrate has to record reasons in writing for authorizing police or judicial custody.
8. Before the expiry of the authorized period of detention, the Executive Magistrate has to send the records of the case to the nearest Judicial Magistrate and any further extension of custody can only be through the orders of the Judicial Magistrate. If the Judicial Magistrate authorizes further detention, the period during which the accused person was detained in custody under the orders of the Executive Magistrate has to be taken into account for the purpose of Section 167 (2) of the Cr.P.C., while calculating the first 15 days during which police custody may be granted.
9. As per Section 167 (2) (a) of the Cr.P.C., the maximum period of detention that can be authorized during investigation is 90 days or 60 days, depending on the nature of the offence. This period has been enlarged in certain States through State Amendments. The legislative expectation behind this limit on the period of detention is that investigations should be completed with promptitude and the police report (“charge-sheet”/ “challan”), that is required to be filed by the police in court on culmination of investigation under Section 173 (2) of the Cr.P.C., be filed without unnecessary delay. It is important to note that there is no time limit for filing a charge-sheet in Section 167 of the Cr.P.C.
10. That 90 days/ 60 days is the maximum period for which a Magistrate can authorize detention during investigation. If the charge-sheet is filed within the 90 days/ 60 days period, then investigation comes to an end and Section 167 of the Cr.P.C. becomes inapplicable to the accused. Thereafter, further custody of the accused is governed by Section 209 or Section 309 of the Cr.P.C.
11. If the charge-sheet is not filed within 90 days/ 60 days, the investigation can continue beyond 90 days/ 60 days, but as per paragraph (a) of the proviso to Section 167 (2) of the Cr.P.C., the accused acquires an indefeasible right to be released on bail, if he is prepared to and does furnish bail as directed by the Magistrate. The bail so granted is known as “default bail”, because it is granted due to the default on part of the investigating agency in filing the charge-sheet within the period prescribed by law. It is also known as “statutory bail” or “compulsive bail”.
12. If the charge-sheet filed, within 90 days/ 60 days as the case may be, is complete in all respects so as to enable the court to take cognizance in the matter, merely because certain facets of the matter called for further investigation under Section 173 (8) of the Cr.P.C. for which a supplementary charge-sheet may be filed, the accused are not entitled to default bail.
13. If the accused is unable to furnish the bail as directed by the Magistrate, then he will continue to remain in custody even beyond the 90 days/ 60 days period, and if, during that period, investigation is completed and charge-sheet is filed, then the right of the accused to get default bail will be extinguished. (Uday Mohanlal Acharya V/s State of Maharashtra, (2001) 5 SCC 453)
14. Similarly, if an accused does not exercise his right to default bail despite the fact that the period of 90 days/ 60 days has expired, he loses his right to apply for it once the charge-sheet is filed. (Bipin Shantilal Panchal V/s State of Gujarat, (1996) 1 SCC 718)
15. After submission of the charge-sheet, Section 167 of the Cr.P.C., including the provision for default bail, has no application and an accused can only seek regular bail under Sections 437 or 439 in Chapter XXXIII of the Cr.P.C. which deals with “Provisions as to Bail and Bonds”. Even a person who is released on default bail under Section 167 of the Cr.P.C. is deemed to be released under the provisions of Chapter XXXIII of the Cr.P.C. Thus, the provisions relating to bonds and sureties in Chapter XXXIII are applicable to such person.
16. An accused is entitled to be released on default bail even in serious and ghastly types of crimes. In an application for default bail, the merits of the matter are not considered.
17. The provision for default bail in Section 167 of the Cr.P.C. does not preclude an accused from seeking regular bail on merits under Section 437 or Section 439 of the Cr.P.C. when he is in custody during investigation and the mere fact that such bail application(s) were rejected by the courts on merits, does not affect his right to apply for default bail if the charge-sheet is not filed within 90 days/ 60 days.
18. How should the period of 15 days/ 90 days/ 60 days is to be counted in Section 167 (2) of the Cr.P.C.?
(a) An arrested person must be produced before a Magistrate within 24 hours of arrest and any further detention can only be under the order of the Magistrate.
(b) The period of first 15 days during which police custody may also be granted is to be computed from the date when the Magistrate authorizes remand of the accused under Section 167 of the Cr.P.C. and not from the date of his arrest under Section 57 of the Cr.P.C. (Chaganti Satyanarayana V/s State of Andhra Pradesh, (1986) 3 SCC 141)
(c) The principle stated in point (b) above, also determines how the further period of 90 days/ 60 days after which the accused becomes entitled to default bail is to be counted. That clear 90 days/ 60 days have to expire before the right to default bail begins.
(d) While computing the period of 90 days/ 60 days, the day on which accused was remanded by the Magistrate should be excluded, and the day on which charge-sheet is filed in the court has to be included.
(e) Where the accused surrenders before a Magistrate, and is remanded to judicial custody on the same day, the date of surrender/ remand has to be excluded while counting the period of 90 days and the day on which challan is filed in the court, has to be included. (Ravi Prakash Singh V/s State of Bihar, (2015) 8 SCC 340)
(f) What if the last day of the statutory period is a public holiday?
i. An interesting issue that has been raised before the courts is what course should be adopted if the 90th day or the 60th day, as the case may be, is a public holiday. In such cases, will a charge-sheet filed on the 91st day or the 61st day, or the next working day after the 90th day or 60th day, be considered to be within time, or will the accused be entitled to default bail if he files an application for bail on the 91st day or 61st day, before the charge-sheet is filed?
ii. The High Court of Bombay in the matter of: State of Maharashtra V/s Sharan B. Sarda, 1983 (2) Crimes 254, and the High Court of Delhi (Division Bench) in the matter of: Powell Nwawa Ogechi V/s State (Delhi Administration), 1986 Cr. L.J. 2081, it was held that:
(1) Even if the 90th day is a holiday, the accused cannot be deprived of the benefit of the proviso to Section 167 (2) of the Cr.P.C., if he files an application for default bail on the 91st day.
(2) That Section 167 (2) of the Cr.P.C. nowhere prescribes a period within which the police is required to present the charge-sheet before the court.
(3) Section 167 (2) of the Cr.P.C. essentially gives a power to the Magistrates to be exercised pending investigation. This power ceases to exist after the expiry of period of 90 days/ 60 days, as the case may be, and thereafter, the Magistrate has no authority to detain a person in custody, unless he offers bail to the accused person who fails to furnish the same.
iii. On the contrary, applying Section 10 of the General Clauses Act, the High Court of Orissa (Division Bench), in the matter of: N. Sureya Reddy V/s State of Orissa, 1985 Cr. L.J. 939, observed that Section 167 (2) of the Cr.P.C., by implication, prescribes that the period for presentation of the charge-sheet before the court; thus, if the 90th day or the 60th day is a holiday, filing of the charge-sheet on the 91st day or the 61st day (or the next working day) should be treated as sufficient compliance of Section 167 (2) of the Cr.P.C.
iv. However, in the matter of: Chaganti Satyanarayana (Supra), it was observed that:
“… As the terms of proviso (a) to section 167 (2) with reference to the total periods of detention can be interpreted on the plain language of the proviso itself we do not think it is necessary to invoke the provisions of the GC Act or seek guidance from the Limitation Act to construe the terms of the proviso.”
v. Hence, the difference of opinion and incongruities in citing precedents persists due to the absence of an authoritative pronouncement from the Supreme Court of India on the issue.
(g) Application for default bail and charge-sheet filed on the same day:
In the matter of: Sanjay Bhatia V/s State, 2014 SCC Online Del 1263, V.P. Vaish, J., observed that if on the 91st day/ 61st day, before the accused furnishes bail bond, the investigating agency files the charge-sheet, then the Magistrate has to take cognizance of the offence. That it was observed that:
“… at that time, the investigating agency can very well press that since the bail bond of the accused has not been furnished, he be not released on bail under Section 167 (2) of the Cr.P.C. and the accused can be kept in custody and his bail application be decided on merits. While the accused has a right to be released on bail after 60 days or ninety days [90 days], as the case may be, the State also has a right to detain the accused on filing of challan and the accused is entitled to bail only on merits.”
However, broadly speaking, the High Court of Punjab & Haryana, in the matter of: Master Bholu V/s CBI, 2018 SCC Online P&H 747, following the dictum in the matter of Uday Mohanlal Acharya (Supra) observed that if the application for default bail as well as the charge-sheet are filed on the same day, then while adjudicating the application for default bail, the court will have to see whether the application was filed prior in time to the charge-sheet. If the application was indeed filed prior in time, even if on the same day; the indefeasible right of the accused to be released on default bail would remain intact.
19. Meaning of the expression “imprisonment for a term of not less than ten years” in the Proviso to Section 167 (2) of the Cr.P.C.:
In the matter of: Rakesh Kumar Paul V/s State of Assam, (2017) 15 SCC 67, it was held that:
(a) If an offence is punishable with death then whatever be the minimum punishment prescribed for that offence, the period of detention permissible would be 90 days.
(b) If an offence is punishable with maximum life imprisonment, even if the minimum sentence provided is less than 10 years, then the period of detention permissible would be 90 days.
(c) If the minimum punishment prescribed for the offence is 10 years, then whatever be the maximum punishment, the period of detention permissible would be 90 days.
(d) Thus, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment, the accused will be entitled to default bail after 60 days of detention, if charge-sheet is not filed.
(e) The expression “not less than ten years” appearing in Section 167 (2) (a) (i) of the Cr.P.C. would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more.
(f) For example, the offence under Section 304-B of the Indian Penal Code, 1860 is punishable with maximum imprisonment for life, the minimum sentence of 7 years, hence, the right to default bail will accrue only after 90 days of detention.
20. When can the accused avail of the right to default bail?
(a) The right to default bail accrues to an accused at the end of the statutory period of 90 days/ 60 days under the proviso to Section 167 (2) of the Cr.P.C. or the extended period provided under some special laws. But the accused needs to avail the right to default bail and furnish the bail as directed by the court in order to be released on default bail.
(b) The question which often arises for consideration and answer is:
“Does an accused person avail an indefeasible right when he files an application for bail and offers his willingness for being released on bail, or does he avail it when a bail order is passed and he furnishes the bail as directed by the court?”
That the aforenoted question of law is of seminal importance because there are cases where an accused file an application for default bail and, before the court considers it and passes a bail order or, before the accused furnishes bail as directed by the court, the charge-sheet is filed. That aforenoted question of law can be answered as follows:
i. The right to default bail is enforceable only prior to the filing of the charge-sheet/ challan and this right to default bail does not survive or remain enforceable on the charge-sheet/ challan being filed.
ii. The right to grant of default bail is enforceable by the accused only from the time of default till the filing of the charge-sheet and it does not survive or remain enforceable on the charge-sheet being filed.
iii. The right to grant of default bail is extinguished the moment charge-sheet is filed because once charge-sheet is filed within the period of 60 days/ 90 days, as the case may be, Section 167 of the Cr.P.C. ceases to apply.
iv. That for the purpose of default bail, the accused person avails his right to default bail on the day when he files the application for being released on bail and offers to furnish the bail in question.
v. On expiry of the period of 90 days/ 60 days if the accused files an application for bail and offers to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right, even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. If the charge-sheet is filed subsequent to such availing of the indefeasible right by the accused, then the right to default bail would not stand frustrated or extinguished.
vi. If an accused entitled to be released on bail by application of the proviso to Section 167 (2) of the Cr.P.C. makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration, the charge-sheet is filed, the indefeasible right of the accused would not stand extinguished thereby, and the accused has to be released on bail.
vii. If the accused applies for default bail and an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files the application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused of being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. [Uday Mohanlal Acharya (Supra)]
viii. An accused who is entitled to be released on default bail will have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 of the Cr.P.C. and the Magistrate must then deal with him in the matter of remand to custody and bail in accordance with Section 309 of the Cr.P.C. and Chapter XXXIII of the Cr.P.C. If required, the bail may also be cancelled in accordance with the principles laid down in the matter of: Mohamed Iqbal Madar Sheikh V/s State of Maharashtra, (1996) 1 SCC 722.
(c) When accused files an application for default bail, the only thing that the Magistrate is required to find out is whether the specified period under the statute has elapsed or not, and whether a charge-sheet has been filed or not.
(d) Even if the application for default bail is filed before the court after some delay, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting default bail, then filing of challan at that stage will not take away the right of the accused.
(e) Discordant note being struck:
In the matter of: Sadhvi Pragyna Singh Thakur V/s State of Maharashtra, (2011) 10 SCC 445, it was observed that:
“… it is quite clear that even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge-sheet is filed, the said right to be released on bail, can be only on merits.”
(f) That observations in the matter of Sadhvi Pragyna Singh Thakur (Supra) run counter to the clear principles of law enunciated in the matter of Uday Mohanlal Acharya (Supra). That the ratio in the matter of Uday Mohanlal Acharya (Supra) was cited with approval in the matter of: Sayed Mohd Ahmed Kazmi V/s State (GNCTD), (2012) 12 SCC 1.
(g) In the matter of Mohamed Iqbal Madar Sheikh (Supra) it was held that if an accused becomes entitled to be released on default bail, that statutory right should not be defeated by the court by keeping the applications pending till the charge-sheets are submitted, so that the right which had accrued is extinguished and defeated; any such act on the part of any court cannot be approved.
(h) Lastly, in the matter of: Kunal Kumar Mahto V/s State of Jharkhand, Petitions for Special Leave to Appeal (Crl. No. 7537/ 2016), the petitioner was granted default bail on 07.09.2015 but he had not furnished the bail bond and in the meantime, on 08.09.2015 charge-sheet was submitted. After referring to the report in the matter of: Sanjay Dutt V/s State (CBI), (1994) 5 SCC 410, the three Judge bench of the Supreme Court of India held that since bail bond was not furnished by the petitioner his right to be released on bail stood extinguished on filing of the charge-sheet.
21. Whether the presentation of the charge-sheet is required to be before the court or whether merely filing it before an official of the court, such as the ahlmad, would be sufficient for the purpose of Section 167 of the Cr.P.C?
It is important to note that:
(a) If the charge-sheet is left with the ahlmad, it is not proper presentation of the charge-sheet before the Magistrate as required under Section 173 (2) of the Cr.P.C. Therefore, if the charge-sheet is filed with the ahlmad and is presented later before the Magistrate, then the date of putting up of the charge-sheet before the Magistrate will be taken as the date of filing of the charge-sheet. [Master Bholu (Supra)]
(b) If the Magistrate is not available after court hours for presentation of charge-sheet, then charge-sheet can be presented at the residence of the illaqa Magistrate or before the Duty Magistrate. (Gurcharan Singh@ Mintu V/s State of Haryana, 2016 (1) Law Herald (Punjab & Haryana) 679)
(c) Thus, the charge-sheet has to be presented before the court and merely leaving it with the ahlmad or any other functionary does not satisfy the requirement of Section 167 (2) of the Cr.P.C.
22. Cancellation of default bail:
(a) Once default bail is granted, it cannot be cancelled on mere filing of the charge-sheet in the case. The bail order is also not defeated by lapse of time or by remand to custody under Section 309 (2) of the Cr.P.C. (Raghubir Singh V/s State of Bihar, (1986) 4 SCC 481)
(b) Since default bail is deemed to be granted under Chapter XXXIII of the Cr.P.C., the order granting bail is deemed to be an order under Section 437 (1) or Section 437 (2) or Section 439 (1) of the Cr.P.C., and that order can be cancelled under Section 437 (5) and Section 439 (2) of the Cr.P.C.
(c) If a person is illegally or erroneously released on bail by the Magistrate under Section 167 (2) of the Cr.P.C. on the 89th day, that is, before the expiry of 90 days, his bail can be cancelled by Sessions Court by passing appropriate order under Section 439 (2) of the Cr.P.C. (Dnyanu Khot V/s State of Maharashtra, (2008) 17 SCC 745)
(d) In the matter of: Rajnikant Jivanlal V/s Intelligence Officer, Narcotic Control Bureau, New Delhi, (1989) 3 SCC 532, a vacation Judge of the Supreme Court upheld the cancellation of default bail on the ground that the charge-sheet revealed commission of serious offences under the Narcotic Drugs & Psychotropic Substances Act, 1985. However, in the matter of: Aslam Babalal Desai V/s State of Maharashtra, (1992) 4 SCC 272, a three Judge bench of the Supreme Court by majority of 2:1 held that once an accused is released on bail under Section 167 (2) of the Cr.P.C., he cannot be taken back in custody merely on the filing of a charge-sheet, and there must exist special reasons for doing so, besides the fact that the charge-sheet reveals the commission of a non-bailable offence. Thus, according to Aslam Babalal Desai (Supra), the ratio of Rajnikant Jivanlal (Supra) to the extent of inconsistency does not state the law correctly.
23. Police remand after filing of the charge-sheet:
Section 309 (2) of the Cr.P.C. read with First Proviso states as follows:
“… (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: …”
That in the matter of: State Through CBI V/s Dawood Ibrahim Kaskar & Ors, (2000) 10 SCC 438, it was held that police remand can be sought under Section 167(2) of the Cr.P.C. in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency; moreover, the Hon’ble Court clarified that the expression “accused if in custody” appearing in Section 309 (2) of the Cr.P.C. does not include the accused who is arrested on further investigation before supplementary charge-sheet is filed.
Thus, it can be said that:
(a) The term “custody” appearing in Section 309 (2) of the Cr.P.C. refers to judicial custody only; while,
(b) The term “custody” appearing in First Proviso to Section 309 (2) of the Cr.P.C. includes both police custody as well as judicial custody.
