Default bail: an explainer

In the fifth part of an explainer series on criminal law, ADVAIT TAMHANKAR elaborates upon the provision of default bail to an accused person as per Section 167 of the Criminal Procedure Code.

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Previous parts: FIR | Refusal of police to register an FIR | Police investigation | Police officers’ power to search without search warrants

THIS part of the explainer series deals with undoubtedly one of the best provisions in the Code of Criminal Procedure [CrPC] which keeps a check and maintains a balance between the arbitrary exercise of power by the police and the right of an accused person.

The relief of default bail is different from bail obtained in normal course under Sections 437438 and 439 of the CrPC. Default bail, as the term indicates, is granted on the default of the police or investigating agency to file its report/complaint within a specific prescribed period of time. The same shall be dealt with in detail in this explainer.

Custody

For an effective understanding of default bail, it is necessary to know that according to Section 57 of the CrPC, any person arrested by the Police without warrant cannot, under any circumstances, be kept in custody of the police beyond the period of 24 hours, unless a special order authorising the detention is obtained by the police from a Magistrate’s Court.

Keeping the aforesaid provision in the backdrop, when it appears that the accusation against a person arrested and detained by the police is well founded, and investigation of the said offence cannot be completed within 24 hours, then it is mandatory for the Investigating Officer (not below the rank of Sub-Inspector of Police) or the Officer In-Charge of the Police Station, in any event, to forthwith forward the accused person, along with the record of the case maintained in the Station Diary of the Police Station, accompanied by an application known as Remand Application giving brief details of the offence alleged against the accused person and stating reasons for seeking custody of the accused person, to the nearest Judicial Magistrate or, in the event a Judicial Magistrate is not available, before an Executive Magistrate upon whom powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, in order to obtain authorization for further detention.

The Judicial Magistrate may or may not have jurisdiction to conduct a trial for the offence in question; however, that does not hinder with their power to authorise further detention of the accused person beyond the period of first 24 hours after the arrest of the accused person.

Once the accused person is produced before a Judicial Magistrate or an Executive Magistrate, as the case may be, such Magistrate is then authorized to peruse the case papers, consider the investigation conducted and the gravity of the offence alleged, among other things, and then authorise detention.

The custody may be of the following two types:

  • Police Custody, which is where an accused is lodged in a lock-up generally in the police station itself.  (The stay is not as bad as in prison; however, the accused is prone to be tortured at the hands of the police)
  • Judicial Custody, which is where an accused is lodged in prison. (The stay is a terrible experience in view of the overcrowding of jails; however, there is no question of torture at the hands of the police. Yet, the possibility of the accused being tortured by the other inmates cannot be ruled out since the accused shares his cell with other persons who may or may not have been arrested for the same offence).

The following table lays out the types of custodies that can be prescribed by magistrates for different categories of offences:

Offence punishable with Custody Judicial Magistrate Executive Magistrate
Death, imprisonment for life or punishment not less than ten years Police Maximum 15 days  
Seven days in total
Judicial Not more than 90 days (not more than 14 days at a time)
Imprisonment equal to or less than ten years Police Maximum 15 days  
Seven days in total
Judicial Not more than 60 days (not more than 14 days at a time)

Therefore, it can be seen, that under no circumstances can an accused person be subjected to police custody for more than 15 days overall. It is vital to note that the said overall period of 15 days is available during the first 15 days ONLY, from the date of first production of the accused person before a Magistrate. The Magistrate is at liberty to grant 15 days of police custody at once, or one day of police custody 15 times; however, under no circumstances can police custody be granted after the expiry of the first 15 days.

Also, it is not as a matter of right that the police can claim the allotted 15 days of custody. If the police intends to seek custody of the accused, cogent reasons must be mentioned in the remand application and on every such subsequent occasion (before the expiry of 15 days), when the police seek custody of the accused, progress in the investigation must be mentioned in the remand application; in the absence of the same, no custody by law can be granted to the police. Without there being any specific provision under a statute specifically amending this section to that effect, once the initial period of 15 days lapses, the accused person cannot under any circumstances be subjected to police custody in respect of that particular offence, even if during the period of the first 15 days, the police are unable to obtain custody of the accused for any reasons whatsoever; for instance, if the accused, by way of a medical emergency, is admitted at a hospital for the entire duration of the first 15 days after their production before the Magistrate, then too after their discharge, the police is not permitted to seek their custody.

Unfortunately, despite there being several judgments by the Supreme Court on this point, there are instances when the police submit identical remand applications on every occasion seeking custody of the accused without showing any progress in the investigation, and the Magistrate mechanically extends the custody of the accused with the police.

The provision serves two purposes: one is to allot sufficient time to the police officers to conduct investigation and interrogation with the accused person, to record confessions, effect recoveries from the accused person, if any, and so on, and at the same time, to ensure that the accused is not kept in the custody of police perpetually, leaving them at the whims and fancies of the police. Further, police custody can be granted by a Magistrate only when the accused person is physically produced before the Magistrate. This is one more safeguard to ensure that during the time accused was granted police custody, they were not subjected to torture at the hands of the police.

It must be noted that as a matter of practice, every accused is produced before a Magistrate for the first time and every subsequent time from police custody after they are examined by a Medical Practitioner attached to a Government Hospital. The report of such Medical Practitioner giving details of the physical and mental condition of the accused is then produced before the Magistrate for his perusal. Thus, the Magistrate is in a position to prima facie analyse whether the accused was subjected to torture, from the observations recorded by the medical practitioner. In the event on perusal of the medical report, prima facie evidence of assault is available, like fresh marks of injury or broken bone, then submissions on behalf of the accused can be advanced for not granting/extending police custody, and the Magistrate is dutybound to record the same in their order.

The order of a Magistrate subjecting an accused to police custody has to be a reasoned order, and a copy of the said reasoned order must be forwarded to the Chief Judicial Magistrate.

Once the accused is lodged in judicial custody, they shall remain in judicial custody till the investigation is completed, that is, till the police/investigating agency files its report. However, the police/investigating agency is not permitted to take an eternity to complete investigation. Therefore, Section 167 of CrPC has made a provision to release the accused person on bail if the investigation is not completed within a period of 90 days in respect of an offence punishable with imprisonment of more than 10 years, and where investigation is not completed within a period of 60 days in respect of an offence punishable with imprisonment equal to or less than 10 years.

Exceptions in special statutes

The time limit prescribed for completion of investigation varies in certain statutes wherein section 167 of CrPC is amended to that effect.

For offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act], the time limit prescribed for completion of investigation is provided under Section 36A(4) therein.

Section 36A(4) prescribes that when an offence under the NDPS Act pertains to recovery of commercial quantity of narcotic drugs or psychotropic substances, or pertains to offences punishable under Sections 1924 or 27A of the Act, then the time limit prescribed for the investigating agency to complete the investigation and submit its report is 180 days.

Further, this section also gives power to the court to extend the said period of 180 days up to one year, provided the public prosecutor submits his report indicating progress in the investigation, and also stating specific reasons for keeping the accused in custody beyond 180 days.

However, for any other offence under the NDPS Act, apart from the ones mentioned above, the time limit shall be governed according to the CrPC, and since no other offence under the Act is punishable with imprisonment for more than ten years, the time limit to complete investigation and submit report would be 60 days only. No extension of time is permitted in these cases.

Section 43D of the Unlawful Activities (Prevention) Act, 1967 [UAPA] amends section 167 of the CrPC to the effect that initial period of 15 days of police Custody is extended up to 30 days, and irrespective of the punishment prescribed for the offence alleged, the time limit to complete investigation and file report under the UAPA is 90 days.

Similar to the NDPS Act, even under the UAPA, if the investigation is not completed within the period of 90 days as prescribed under section 43D, the public prosecutor can submit their report indicating progress in the investigation and also stating specific reasons for keeping the accused in custody beyond 90 days. Then, the court is empowered to extend the said period up to 180 days.

Recently, lawyer and activist Sudha Bharadwaj, facing charges for offences under the UAPA Act, was released on default bail by the Bombay High Court.

However, the public prosecutor filing their report cannot arbitrarily extend the time limit under any of the special statues which prescribe for an extended time limit to complete investigation. The following parameters are to be complied with:

  1. a)The report of the Public Prosecutor must be independent of the report of Investigating Officer, if any.
  2. b)Independent analysis and application of mind by the Public Prosecutor must be seen from their report, and it must not be a mere repetition of the remand report.
  3. c)The report of the public prosecutor must disclose progress in the investigation and specific reasons must be attributed against each of the accused persons to detain them in custody beyond the statutory period.
  4. d)Further, it is also mandatory that the said report of the public prosecutor be served upon the accused person, and the accused person has a right to be heard before any order of extension is passed by the Court.

If any of the aforesaid parameters are not complied with, then the prosecution is not entitled for any extension of time, and if any order granting extension is passed, then the same is illegal and liable to be quashed. This can be done by filing an application under Section 482 of the CrPC before the concerned High Court.

In the event time is extended under a special statue by a period of certain days, then the right to default bail shall accrue in favour of the accused on expiry of the said extended period of time if report/complaint is not filed till then.

Accused is entitled to bail if report not filed within prescribed time

The right to be released on bail under section 167 of CrPC has been termed as an indefeasible right by the Supreme Court time and again through its various orders and judgments. This means that if the police report of the investigating agency is not filed within the prescribed time limit, then irrespective of the gravity of the offence or nature of accusation alleged against the accused, the accused person has a right to be released on bail, and the question as to why the chargesheet could not be filed within the prescribed time is immaterial.

It is worth noting that the prescribed period of 60 days or 90 days or 180 days, as the case may be, is to be calculated from the first day of production of the accused before the Magistrate, that is, the first day of remand, and not from the date of arrest of the accused person.

(Advait Tamhankar is an advocate practicing criminal law across courts and legal fora in Mumbai, Thane.)

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