Default bail
According to gravity of crime, a person may be arrested with or without warrant. One important purpose of arrest is to secure the presence of accused at the time of enquiry or trial and to ensure that he is available to receive sentence on conviction. If the purpose can be achieved without forcing detention on the accused during inquiry or trial, it would be an ideal blending of two apparently conflicting claims that is freedom of individuals and interest of justice. The provision of bail aims at such blending.
Bail is a matter of right, jail is an exception. This doctrine has been laid down by Justice Krishna Aiyer in a landmark judgement of STATE OF RAJASTHAN Vs. BALCHAND alias BALIYA, 1977 SC. Justice Krishna Aiyer laid this legal doctrine by safeguarding fundamental right under Article 21 of Indian constitution, granting the right to life and liberty. Purpose of any detention to make the accused available for the judicial proceedings, to avoid any unnecessary delay in case accused flee away. If it is ensured that the accused shall be available for required proceedings. There is no point in detaining the accused.
According to Merriam Webster Dictionary, Bail is define as “to temporary release a prisoner in exchange for security given for appearance for later hearing.” Bail generally means release on one’s own bond, with or without sureties. Every accused person is presumed to be innocent until proved guilty. The effect of granting bail is not to set the accused free, but to release him from custody and entrust him to his own bond and to the custody of his sureties who are bound to produce him to appear at a trial at a specified time and place.
Bail are of five types, named:
a. Regular bail,
b. Anticipatory bail,
c. Interim bail;
d. Transit bail ,
e. Default bail.
Regular Bail are applied by a person who is arrested and in custody of police and it is provided under section 436 and 437 of criminal procedure code 1973. Whereas Anticipatory Bail as enunciated in U/s 438 applicant or accused applied for bail when he is in apprehension of being arrested by police. Interim Bail is given to a person on conditions for specific period of time. It is of temporary nature and it is granted till the time n application for anticipatory bail or regular bail is pending before a court. Transit Bail is applied when an applicant does not reside over the place where offence has been committed and court has not jurisdiction where the accused resides. And last but foremost , Default Bail (Compulsive Bail) is granted to the accused when the investigation agency makes default and failed to complete the investigation on time as provided in the section 167(2) of Cr.p.c.1973.
It has been held by three judge bench of supreme court comprising R F NARIMAN, NAVIN SINHA and K M JOSEPH in case of BIKRAMJIT SINGH Vs. state of Punjab 2020. Right to default bail under the first proviso to section 167(2) Cr.p.c. not a mere statutory right but a fundamental right granted to an accused person to be released on bail once the condition of the first proviso to section 167(2) are fulfilled.
Explaining the law on the grant of default bail, the court said that so long as an application for grant of default bail is made on the expiry of the period of 90 days, before a chargesheet is filled Application need not even be in writing , the right to default bail becomes complete. It is not important that criminal court in question does not dispose of such application before the chargesheet is filed or disposes of such application wrongly before such chargesheet 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 first proviso to section 167(2) kicks in and must be granted.
Power of court to extend the period of 90 days upto a maximum period of 180 days¬-
The court was dealing with the question relating to extension of time from 90 days to 180 days under section 167(2) of criminal procedure code 1973, as amended by UNLAWFUL ASSEMBLIES PREVENTION ACT, 1967.
Section 167 criminal procedure code, 1973 makes it clear that whenever a person is arrested and detained in custody ,the time for investigation relating to an offence punishable with death, imprisonment of life, and imprisonment of ten year, can not ordinarily be beyond the period of 15 days , but is extendable ,on the magistrate being satisfied that adequate ground exist for so doing ,to a maximum period of 90 days.
The first proviso to section 167(2) of the code goes on to the state that the accused person shall be released on bail if he is prepared to and does furnish bailon expiry of te maximum period of 90 days, and every person so released on bail be deemed to be so released under the provision of chapter 33(provision as to bail and bond) for the pupose of that chapter.
Section 43-d(2)(b) of UAPA, 1967-
Under the first proviso to section 43d(2(b), the period of 90 days indicated by the first proviso to section 167(2) of the code can be extended upto maximum period of 180 days, if the court is satisfied with the report of public prosecuter indicating progress of investigation and specific reason for detention of the accused beyond the period of 90 days.
Court under UAPA, 1967 – before National Investigation Agency Act, 2008 was enacted offences under the UAPA were of two kind – those with imprisonment of over 7 years , and those with imprisonment of 7 year and under. Under the code as applicable to offences against other laws, offences having a maximum sentence of 7 year and under are triable by the magistrate’s courts, whereas offences having a maximum sentences of above seven years are triabe by court of sessions.
However, this scheme has been completely done away with by the NIA Act as all scheduled offences that is all offences under the UAPA, whether investigated by the NIA or by the investigation agency of states, are to be exclusively triable by special court set up under that Act.
In the absence of any designated court by notification issued by either the central govt and by state govt, the fall back is upon the court of session alone.
Hence, for offences under the UAPA, the magistrate jurisdiction to extend the time under the first proviso in section 43-d(2((b) is non existence, “the court” being either a session court ,in absence of a notification specifying a special court, or the special court itself.
In another case,Orissa high court granted default bail U/s 167(2) CrPC in case of non – compliance of notice under section 36 A (4) NDPS Act.(Ishwar Tiwari Vs state of odisha 2019)
Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR , SIXTH SEMESTER , BACHELORS OF ARTS AND BACHELORS OF LEGISLATIVE LAWS
