DEFAULT BAIL: A MATTER OFRIGHT

 

DEFINITION

Accordingto Black’s Law Dictionary bail is “A security such as cash or bond especiallysecurity required by a court for the release of a prisoner who must appear at afuture date.” In simple terms, when an accused is temporarily released from thepolice custody by the grant of release by court after signing a document andassuring his presence at the required time to legal authority, then he is saidto be released on bail. The term “bail” has been derived from a French word “bailera”which means “to deliver” or “to give”. The law lexicon[1]defines bail as the security for the appearance of the accused person on whichhe is released pending trial or investigation. The term bail has not beendefined anywhere in any law book. The provisions relating to bail are mentionedin section 436 to section 450 of the Criminal Procedure Code.

HISTORY OF BAIL

The concept of bailfirst came into being back in 399 BC, when Plato tried to create a bond for therelease of Socrates. Earlier during medieval times in Britain, there used to becircuit courts where judges used to deal with the cases in intervals. In themeanwhile, the under trial prisoners were barred with the other accused in veryunhygienic and inhumane conditions which in turn caused the spread of lots ofdiseases. This led to their release on their securing a surety, so that as andwhen required that person appears before the court. And thus, this way theconcept of monetary bail came into existence. The modern concept of bail hasbeen originated from medieval period.

EVOLUTION OF BAIL IN ENGLANDAND AMERICA

In 1215, The Magna Cartatook first step to grant rights to the citizens. It said that no man could beconfined to jail without being judged by his peers or the law of land. Then in1275, the Statute of Westminster was enacted which classified crimes asbailable and non bailable. It also determined which judges and officials couldmake decisions on bail. Further in 1677, the Habeas Corpus Act was added to theRight Of Petition of 1628, which provided the right to the defendant the rightto be told of the charges against him, also the right to know if the chargesagainst him were bailable or not.

Moreover, the HabeasCorpus Act, 1679 states, “ A magistrate shall discharge prisoners from theirimprisonment taking their recognizance, with one or more surety or sureties, inany sum according to the magistrate’s discretion, unless it shall appear thatthe party is committed for such offences for which by law the prisoner is notbailable.”

Later in 1689, TheEnglish Bill of Right came into existence, which provided safeguard againstjudges setting bail too high. It stated that “excessive bail hath been requiredof persons committed in criminal cases, to elude the benefit of the laws madefor the liberty of the subjects. Excessive bail ought not to be required.”

On the other hand, theconcept of bail in America was established by Peter P. Mc Donough in SanFrancisco. In 1791, Bill of Rights was entrenched in the constitution of UnitedStates through the 5^th, 6^th and 8^th Amendments.The bill ensured the citizen of United States for basic rights of due processof law, speedy trial and protection against enormous bail amounts.

It is believed that theconcept of bail in India has been adopted by the English and American bailsystems. Kautilya’s Arthashastra also mentioned that avoiding pre-trialdetention was ideal therefore the concept of bail was prevailing in ancientIndia too. Even during the Mughal period bail was practised in the form of‘zamanat’. In current times, the bail system is governed by provisions ofCriminal Procedure Code, 1973.

 

TYPES OF BAIL

As per Criminal ProcedureCode, 1973, bail is categorised into five types namely Regular bail, Interimbail, Anticipatory bail, Transit anticipatory Bail and Default bail.

i.           Regular Bail: When an accused is arrested in any non bailableoffence and non cognizable offence without warrant and if that person is readyto furnish bail and bail bond. Further, if the magistrate after examining the meritsand parameters of the offence committed by such accused, grants bail, then thatperson is said to be released on regular bail. The person will be required tobe present before the legal authorities whenever he is required to.

 

Any person may be released on bail by the grant ofmagistrate or; High Court or Court of Session provided that the magistrate isnot dealing with the offences punishable with death or life imprisonment or theaccused had not been previously convicted of an offence punishable with death,imprisonment for life or imprisonment for seven years or more or he had notbeen previously convicted for two or more occasions of cognizable offence. Theprovisions pertaining to regular bail are provided in Section 437 and 439 ofCr.P.C.

 

ii.           Interim Bail: When the under trial person is released forshort period of time on bail before hearing for the grant of regular or anticipatorybail, then that person is said to be released on interim bail. Section 437 and439 of Cr. P. C. gives the accused the power to be released on such bail.

 

In Sukhwant Singh & Ors vs. State of Punjab,interim bail has been defined by court as a tool for protection of the accused.[2] Thecase of Lal Kamlendra Pratap Singh v. State of U.P. and Ors dealtwith the scope of interim bail in which the court stated that “Inappropriate cases interim bail should be granted pending disposal of the finalbail application, since arrest and detention of a person can cause irreparableloss to a person’s reputation….”[3]

 

iii.           Anticipatory Bail: Where any person has reason to believe that hemay be arrested on accusation of having committed non bailable offence, he mayapply to High Court or Court of Session for bail and such bail if granted willbe termed as anticipatory bail as according to section 438 of Cr.P.C.

 

The concept of Anticipatory Bail was recommendedby the 41^st report of Law Commission of India. It is based on legalprinciple of “Presumption of Innocence”. Moreover, the objective of arrest isto deliver justice, if the same can be done without making any arrest, thenthere is no need to violate any person’s liberty.

 

iv.           Transit AnticipatoryBail: Abail granted by court not having jurisdiction over the place where offence wascommitted is Transit Bail. Black law dictionary defines the word “in Transitu”as on the way or while passing from one person or place to another. Therefore, ATransit Anticipatory bail is when a person apprehending arrest by police of thestate other than the state where he/she is presently situated.

 

Say, Mr. R is a resident of Gujarat and has anapprehension that a case might get registered against him in Rajasthan. AsRajasthan court have power to grant bail to Mr. R therefore, in order to getbail Mr. R will have to travel from Gujarat to Rajasthan. If Mr. R isapprehending arrest by Rajasthan police within Gujarat jurisdiction, he canmove to a Court in Gujarat seeking transit anticipatory bail. The local courtwill grant transit bail as a limited protection till the accused approaches thejurisdictional court for bail.

 

Further,this article intensively discusses about defaultbail.

 

INTRODUCTION

Anindefeasible right accrued under Section 167(2); on the event of failure ofinvestigating officer to complete the investigation within a stipulated timeperiod prescribed by law, is a statutory mandated right and the same can beavailed by any accused in form of default bail. This type of right is notsubject to the discretion of the court because of it being a legislativecommand. The said right can be claimed by the accused as a matter of rightsince it is a fundamental right and not merely a statutory right.[4]

Accordingto section 167(2), if accused is charged with offences punishable with death orimprisonment for life or offence punishable with the imprisonment for term notless than 10 years then the stipulated period of detention will be for 90 dayswhile such detention is for 60 days in other offences. If not already releasedon bail on merit, and the investigation is not completed in 90 days or 60 days,as case may be, from the date of first remand and detention, then the accusedis entitled to be released on default bail.

 

OBJECTOF DEFAULT BAIL

Theprovision of section 167 (2) has been enacted for the objectives mentionedhereinafter:

·        To have control over the lethargic anddelayed investigation, especially keeping a person in custody.

·        To safeguard the liberty of the citizens aswell as to safeguard the interest of the state or in other words the public.

·        To obligate the investigating agency tocomplete investigation within a reasonable time period prescribed by law and tocollect material regarding the investigation without any delay. The idealperiod to complete investigation would be of 24 hours but it in some cases itmay not be possible to do so. When the charge sheet is not filed within thatstipulated time period, the benefit of section 167 (2) will be availablehowever if the same is not filed, the said right ceases.

·        Another objective is that the state authorityshould not take any malafide belated action against accused persons.

·        To speed up investigation so that the person does not have tolanguish in the prison unnecessarily facing a trial.

·        In short, to expedite the investigation, to further personalliberty of the accused and lastly to do societal justice in the long run.

 

DEFAULTBAIL UNDER SECTION 167(2)

 

Theright to default bail accrued under Section 167(2) of Criminal Procedure Codeis an absolute and indefeasible right[5] of a person accused, underwhich bail is to granted to the accused on meeting the bail conditionsmentioned in section 167(2), and the magistrate is mandatorily required torelease that person. Any detention beyond the prescribed period is consideredillegal.[6]

Providedthat the accused is prepared to furnish bail and has applied for the samebefore the court. The fact that the application for bail is written or oral isof no consequence.[7]Moreover, the court is obliged to inform the accused of his right of beingreleased on bail and enable him to make an application in that behalf.

Thereafterthe court, once the application is made, should issue a notice to the publicprosecutor who may either show that the prosecution has obtained the order forextension for completion of investigation from court under relevant provisionor that the challan has been filed in the designated court before the expiry ofthe prescribed period or even that the prescribed period has actually notexpired and thus resist the grant of bail on the alleged ground of “default”.If the Public Prosecutor fails to furnish aforementioned documents, thereremains no discretion in the Magistrate[8] and the only thing he isrequired to find out is whether the specified time period under the statute haselapsed or not, and whether the challan has been filed or not.

Whilegranting the bail under section 167(2), the court only requires to consider thefact that the challan has been filed or not and the specified period hasexpired or not; and no other grounds or merits of the case are to be taken intoconsideration. Besides that, if the bail application is filed after the filingof charge sheet, then in that case the merits of the case will be taken intoconsideration.

Filingof charge sheet after the accused has offered to furnish bail (after thestipulated time period prescribed by the law), will not defeat the indefeasibleright of the accused. Furthermore, the question that whether or not the courtdisposes of such application before the charge sheet is filed; or whether thecourt disposes of such application erroneously before the charge sheet isfiled, would be of no value.

However,if the court refuses the application of the accused erroneously, then the accusedcan choose to move to the higher forum. In the meanwhile, if charge sheet isfiled by the investigating agency, then also the indefeasible right of defaultbail would not get defeated.[9]

 

DEFAULT BAIL, NOT MERELY A STATUTORY RIGHT, BUT A FUNDAMENTALONE

Right to default bail is not a mere statutoryright under the first proviso to Section 167(2) CrPC, but is part of theprocedure established by law under Article 21 of the Constitution of India,which is, therefore, a fundamental right granted to an accused person to bereleased on bail once the conditions of the first proviso to Section 167(2) arefulfilled.[10] Lawsays that a person is innocent for any kind of offence until he is provenguilty. The accused have right to get released on bail until is proven guilty. Andhence for the protection of the interest of the accused, Article 21 of IndianConstitution is provided by law.

Article 21 talks about the personal liberty of aperson, here the term ‘no person’ is any person who is citizen of India andalso other than that, therefore accused can apply for default bail under thisarticle as his personal liberty and get protection of his rights. Right todefault bail is not merely a statutory right but it is fundamental right underArticle 21. This article and its interpretation keep changing according to thepublic needs and requirement of liberty. It says that no person shall be deprivedof his liberty expect according to procedure established by law. Thus, theaccused will have his liberty but also certain proceedings can be done againsthim.

If the charge sheet is not filed by the investigatingagency during the period of 60 or 90 days, as case maybe, or even after thatand the accused is further kept into the custody then it will be considered asillegal custody. This leads to the violation of a person’s liberty and hisright under Article 21. Hence, keeping accused under custody after the end ofperiod of investigation would be against his personal liberty.

It is important to note that this fundamental rightgranted to an accused person of being released on bail is only applicable whenthe condition given in provision under 167(2) (a) of Cr.P.C are fulfilled.Right to default bail is a fundamental right of an accused because theprocedure given in Section 167(2) (a) of Cr.P.C is part of Article 21; underwhich words ‘procedure established by law’ are stated. This means that theprocedure of granting default bail as personal liberty of an accused is herebymentioned.[11]

Under Article 21, the sanctity of a person isprotected by law. Since liberty is a constitutional right, time period specifiedin provision of section 167(2); under which accused will have a right todefault bail is a valuable right. An accused exercises his right to defaultbail from the moment he applies for it in court. Magistrate has to mandatorilygrant the accused person of their statutory right, especially those from thepoor section of the society.

This right of default bail continues to remainenforceable if accused has applied for such bail, notwithstanding pendency ofthe bail application or subsequent filing of the chargesheet or a reportseeking extension of time by the prosecution before the court or filing thechargesheet during the interval when challenge to the rejection of the bailapplication is pending before a higher court.

In the case of S Kasi vs. State through Inspector ofpolice the Samaynallur police station Madurai district it was stated that “Theright of prosecution to carry on investigation and submit a chargesheet is notakin to right of liberty of a person enshrined under Article 21 and reflectedin other statues including Section 167, CrPC”.[12] Hence,Right to seek default bail is a fundamental right and an indefeasible part ofright of personal liberty under constitution.

 

COMPUTATIONOF PERIOD OF 60 OR 90 DAYS

Dueto default on the part of police officer or investigating agency in completingthe investigation within the time period prescribed under section 167(2) of theCr.P.C, a magistrate is compulsorily required to grant default bail to theaccused.

Thetime period for which an arrested person can be detained for the purpose ofinvestigation is 24 hours as mentioned under Section 57[13]. Further, if theinvestigation cannot be completed in twenty four hours and there are groundsfor believing that the accusation or information is well founded, the officerin charge of police station or the officer making the investigation shall forthwithtransmit to the nearest Judicial Magistrate a copy of the entries in the diaryhereinafter prescribed relating to the case, and shall at the same time forwardthe accused to such Magistrate.[14]

 

Further, if themagistrate has the jurisdiction to try that particular case, authorise thedetention of the accused in such custody for a time period not exceeding 15days and if he has no jurisdiction to try the case and considers furtherdetention unnecessary, then he may order the accused to be forwarded to themagistrate having such jurisdiction. Moreover, the magistrate can furtherauthorise to exceed the detention period i.e. exceeding fifteen days, in thepolice custody, but in no case the magistrate can authorise the detention of theaccused exceeding 60 or 90 days[15],as the case maybe. On the expiry of the said period of ninety days, or sixtydays, as the case may be, the accused person is released on bail if he isprepared to and does furnish bail, and the person so released is said to bereleased on default bail.

 

Whilegranting the same, the magistrate requires to examine whether the charge sheethas been filed or not and whether the time period prescribed under the code,has elapsed or not. For the calculation of such time period, date of remand,date of application of bail, date of arrest and date of filing of the chargesheet are required to be examined by the magistrate.

Nowthe major question that arises is whether while computing the period of 90 daysor 60 days as contemplated in Section 167 (2) (a) (ii) of the CrPC, the day ofremand is to be included or excluded, for considering a claim for default bail.The said question has been considered by the Court in various matters, butthere is divergence of opinion on how the period available for completing theinvestigation is to be computed. Some judgements have favoured the exclusion ofdate of remand, while few other cases have taken a contrary view.[16]

 

Inthe cases State of M.P. vs. Rustom & Ors.[17], Ravi Prakash Singh vs.State of Bihar[18]and M. Ravindran vs. Intelligence Officer, Director of Revenue Intelligence[19], it was held that thedate of remand is to be excluded for computing the permitted period forcompletion of investigation. On the other hand in Chaganti Satyanarayan vs.State of Andhra Pradesh[20] , CBI Vs. Anupam JKulkarni[21], State Vs. Mohd. Ashraft Bhat[22] , State of MaharashtraVs. Bharati Chandmal Varma[23], and Pragyna Singh Thakurvs. State of Maharashtra[24] it was contend that thedate of remand must be included for computing the available period forinvestigation for determining entitlement to default bail.

 

Thus the above mentionedprecedents of Supreme Court laids down two different propositions of law whichin turn has become problematic for high courts and lower courts to follow theprinciple for computation of 60 or 90 days. Moreover, in Shalini Verma vs State Of Chhattisgarh[25],theChhattisgarh High Court held that if two different propositions of law are laiddown by benches of similar strength, the earlier view shall be binding on thecourts.

 

However,in some cases the date of remand is included while in other cases the same isexcluded, while not following the previous judgement; which is further creatingconfusion to the subordinate courts. Therefore, the alleged issue needs to bepresented before a larger bench of the apex court since all the aforementionedjudgements were adjudicated by two judge benches. In ED v. Kapil Wadhawan[26] the Supreme Court referred the issue to a larger bench.Considering the inconvenience caused to the public, the matter should besettled by the apex court at the earliest.

 

INTERPRETATIONOF THE TERM “AVAILED OF”

Accusedmust file an application on the expiry of the period and before the filing ofthe charge sheet to avail the benefit provided under proviso to section 167(2)of the Cr.P.C.[27]

Oncethe period prescribed under the code i.e. 60 or 90 days, as the case maybe,elapses, the accused becomes eligible to avail the indefeasible right ofdefault bail provided that he is prepared to and does furnish bail.Subsequently, on the date of filing of application, the accused is said to be‘availed of’ the right of default bail.

Moreover,in Uday Mohanlal Acharya vs. State of Maharashtra[28], the Supreme Courtinterpreted the term ‘availed of’. The court observed:

“afterexpiry of 60 days for filing challan the accused filed an application for beingreleased on bail and was prepared to offer and furnish bail, however, themagistrate rejects application on erroneous interpretation about nonapplication of section 167(2) to the case pertaining to MPID act of 1999 andaccused approaches higher forum in meanwhile charge sheet is filed, theindefeasible right of accused being released on bail does not get extinguishedby subsequent filing of charge sheet. The accused can be said to have availed of his right to bereleased on bail on the date he filed application for being released on bailand offer to furnish bail.”

Furthermore, while interpreting the expression"if not already availed of" in Sanjay Dutt v. State through CBI[29],the court  held that on expiry of theperiod specified in para (a) of the proviso to Sub-section (2) of Section 167,if the accused files an application for bail and offers also to furnish thebail on being directed, then it has to be held that the accused has availed ofhis indefeasible right even though the court has not considered the saidapplication and has not indicated the terms and conditions of bail.

The court also said:

"The indefeasible right accruing to theaccused in such a situation is enforceable only prior to the filing of thechallan and it does not survive or remain enforceable on the challan beingfiled, if already not availed of."

Consideringthe abovementioned judgements, it can be understood that if the accused isprepared to and does furnish bail and have applied for the same before thecourt then he is said to be availed ofthe right of being released on bail. On the other hand, after the prescribedperiod, if the accused fails to furnish bail and subsequently the investigatingagency files charges sheet, the said right of bail would be extinguished.

 

CANCELLATIONOF BAIL

Thepower of court to cancel bail under section 437 and section 439 is availablefor cancelling default bail. The fact that before an order was passed undersection 167(2) the bail petition of the accused were dismissed on merits is notrelevant for the purpose of taking action under section 437 or 439. The courtbefore directing the arrest of the accused and committing them to custodyshould consider it necessary to do so under section 437. This may be done bythe court coming to the conclusion that after the challan had been filed thereare sufficient grounds that the accused had committed a non bailable offenceand it is necessary that e should be arrested and committed to custody. It isnecessary that the court should proceed on the basis that he has been deemed tohave been released under section 437 (1) and (2).[30]

Thereforethe accused cannot claim any special right to remain on bail when he isreleased under section 167(2). If the investigation reveals that the accusedhas committed a serious offence and charge sheet is filed, the bail grantedunder proviso (a) to section 167(2) can be cancelled.

Anorder for release on bail under section 167(2) cannot be defeated by lapse oftime, the filing of charge sheet or by the remand to custody under section 309(2). The order for release on bail maybe cancelled under section 437 (5) and section439(2). The grounds for cancellation of bail are interference or attempt tointerfere with the due course of administration of justice, or abuse of theliberty granted to accused.

Wherebail has been granted under the proviso of section 167(2) for the default ofthe prosecution is not completing the investigation in 60 days, after thedefect is cure by filing a charge sheet, the prosecution may seek to have bailcancel on the ground that there are reasonable grounds to believe that theaccused has committed a non bailable offence and that it is necessary to arresthim and commit him to custody. In the last mentioned case one would expect verystrong grounds indeed.[31]

Powerof cancelling default bail cannot be exercised suo motu. It can be exercised onlyafter application for cancellation is moved and allowed.[32] Moreover, Section 439(2)confers powers on the High Court and the Sessions Court to direct re-arrest ofthe accused who have been released on bail by any court. . High Courthas jurisdiction to entertain the application under Section 439(2) forcancellation of bail notwithstanding that the Sessions judge had earlieradmitted the appellant to bail.

 

DEFAULTBAIL BY SPECIAL COURTS

DefaultBail under Unlawful Activities Prevention Act (UAPA)

UnlawfulActivities Prevention Act (UAPA) was enacted for the more effective preventionof unlawful activities of individuals and association, and for dealing withterrorist activities for the matters connected therewith.

Bailis an indispensable part of criminal law system. Although in some cases whichdeals with organized crimes such as unlawful association of individuals anddealing with terrorist activities the ambit of judicial discretion is done.

Bailwhether regular or default both are available under UAPA as per the provisionsof Criminal Procedure Code (CrPC). For instance, regular bail can be granted bymagistrate under section 437 of CrPC and the provisions for default bail isavailable under section 167(2) CrPC read with section 43D (2) of UAPA.

Fordefault bail under UAPA, the investigation has to be completed within theperiod of 90 days. And if the investigation is not completed within the saidperiod of 90 days, then the accused is entitled to default bail. The SupremeCourt held that Magistrate cannot favour to extend the period of investigationin Unlawful Activities Prevention Act (UAPA).

UAPAdoes not have any specific conditions to be satisfied for the grant of bail asit is given under the CrPC. However, Supreme Court have listed certain factorsto be considered while deciding for bail applications which includes:

i.           The nature of accusation and the severityof punishment in case of conviction and the nature of supporting evidence

ii.           Reasonable apprehension of tampering withthe witness or apprehension of threat to the complainant

iii.           Prima facie satisfaction of the court insupport of the charge.[33]

UnderUAPA bail is granted through provisions of CrPC so the factors and procedureadopted for granting bail in UAPA is same as that of other offences. Althoughin unlawful activities act does the UAPA does not provide any specific rule todeny bail, hence provisions of CrPC are applicable in case of unlawfulactivities. If a person was suspected of the crime of an offence punishablewith death or imprisonment for life then there must exist grounds whichspecifically negate the existence of reasonable ground for believing that suchan accused is guilty of the offence.[34]

However, under the firstproviso in Section 43-D (2) (b), the 90 day period indicated by the firstproviso to Section 167(2) of the Code can be extended up to a maximum period of180 days if “the Court” is satisfied with the report of the public prosecutorindicating progress of investigation and specific reasons for detention of theaccused beyond the period of 90 days.

TheMagistrate will have power under Section 167 (2) Cr.P.C. read with Section 43(a) of UAP Act to extend the period of investigation up to 180 days and then,commit the case to the Court of Sessions as per provisions of Section 209Cr.P.C., whereas in case the investigation is conducted by the agency under theNIA Act, the power shall be exercised by the Special Court and challan will bepresented by the agency before the Special Court.[35]

Recently,it was held by the Supreme Court that Special court designated under theNational Investigation Act (NIA) to decide UAPA offences would have the solejurisdiction to investigate a case only after it is take over by the NIA.[36]

 

DefaultBail under Narcotic Drugs and Psychotropic Substances (NDPS)

NarcoticDrugs and Psychotropic Substances Act is an act to consolidate and amend thelaw relating to narcotic drugs, to make provisions for the control and regulationof operations relating to narcotic drugs and psychotropic substances and formatters connected therewith.

UnderSection 167(2) an accused can be detained in custody for a time period for 90days for crime punishable with death, life imprisonment or sentence of over 10years. Here, as per Section 37-A (4) of N.D.P.S Act in some special statutes asthe N.D.P.S Act, the period of detention can be extended for 180 days.

Ifthe investigation is not completed within the aforesaid time period, then theaccused is entitled to default bail. The Special Court in certain cases mayextend the said period up to one year on the report of the Public Prosecutorindicating the progress of the investigation and the specific reasons for thedetention of the accused beyond the said period of 180 days.[37]

Furthermore,as per apex court, “Once the accused files an application for bail underprovision to Section 167(2) he is deemed to have availed of or enforced hisright to be released on default bail, accruing after expiry of stipulated timelimit for investigation”.[38] The court shall releasethe accused on bail as it would be an indefeasible right of the accused to beso released.[39]

Inthe majority opinion it’s held that the accused is deemed to have exercised hisright to default bail under Section 167(2), CrPC. The moment the accused filesthe application for bail and offers to abide by the terms and condition laiddown in bail the prosecution cannot frustrate the object of Section 167(2),CrPC as the accused is entitled to get bail.[40]

 

 

CONCLUSION

 

Bailis a matter of a person’s liberty and every person has the right to claim itwithout any delay. But there are certain factors which lead to delay for thejustice.

Moneyis the main factor while procuring bail. Poor population in India is requiredto serve sureties even in bailable offences due to lack of money. As a result,they are kept behind bars for long period being treated as convicts, which inturn hinder their right of being released on bail. Whereas, “The person in thecustody have free legal aid under article 39(A) of the Indian constitution,this article also emphasis that free legal services are an unalienable elementof ‘reasonable, fair, and unjust procedure’ for without a person suffering fromeconomic or other disabilities would be deprived of the opportunity forsecuring justice”.[41]  Further to state, the prosecution mayfrustrate right of the accused accrued in his favour under the mandates of thestatute by several delict tactics or even in contingency like absence of thepresiding officer of the court or the non-availability of the court to take anapplication of bail and passing order thereon.

Althoughthere could be certain causes for such defects, one could be delay in filing acharge-sheet by investigating officer mainly due to seriousness of crime,tampering evidence, staff, burden of investigation, etc. and another reasoncould be court delay due to an increasing crime rate, the expanded network oflaws, the inaccessibility to courts of person in isolated geographic areas,securing legal aid, etc.

Defaultbail being a matter of fundamental right under Article 21 is of utmostimportance since it encompasses right of personal liberty. Denial of bailerroneously by court or police would be illegal and against the person’s rightto liberty. Hence, in order to conclude, default bail should be granted bycourt on the very day of application or at the earliest possible opportunity.Moreover, legal aid and assistance should be provided by government for publicgood at large.

 

 

 

REFERENCES

 

STATUTES REFERED

Constitution of India

Criminal Procedure Code, 1973

 

BOOKS REFERED

Sr. No.	Name Of the Book
1.	Bail is Rule by Rajesh Srivastava & Vinay B. Kadam – 1st Edition 2013
2.	Bail References by Justice M.L. Singhal – 2007
3.	Criminal Major Acts – All India Reporter, Nagpur
4.	Code of  Criminal Procedure by Sudipto Sarkar &V.R Manohar – 9th Edition 2007
5.	Law of Bail by Asim Pandya – 1st Edition 2013

 

 

E – SOURCES REFERRED

v  www.indiankanoon.com

v  www.indianlawcases.com

v  www.google.com

v  www.livelaw.in

v  www.scconline.com

v  www.manupatra.com

v  enforcement-directorate-vs-kapil-wadhawan-ll-2021-sc-118-389857.pdf

v  https://www.thelexrepository.com/bail-in-india-its-history-and-its-various-types/

 

 

 

CASESCITED

 

Sr. No.	CASE	CITATION
1.	Sukhwant Singh & Ors vs. State of Punjab	(2009) 7 SCC 559
2.	Lal Kamlendra Pratap Singh vs. State of U.P & Ors.	(2009) 4 SCC 437
3.	Bikramjit Singh vs. State of Punjab	(2020) SCC 824
4.	Suresh Jain vs. State of Maharashtra	(2013) 3 SCC 77
5.	Natabar vs. State of Orissa	AIR(1975) SCC1465
6.	S Kasi vs. State	2020 SCC 452
7.	Fakhrey Alam vs. State of Uttar Pradesh	2021
8.	State of M.P. vs. Rustom & Ors.	(1995) 3 SCC 221
9.	Ravi Prakash Singh vs. State of Bihar	(2015) 8 SCC 340
10.	M Ravindran vs. Directorate of Revenue Intelligence officer	2020
11.	Chaganti Satyanarayan vs. State of Andhra Pradesh	(1986) 3 SCC 141
12.	State Vs. Mohd. Ashraft Bhat	(1996) 1SCC 432
13.	State of Maharashtra Vs. Bharati Chandmal Varma	(1996) 1 SCC 432
14.	Pragyna Singh Thakur vs. State of Maharashtra	(2011) 10 SCC 445
15.	CBI vs. Anupam J Kulkarni	(1992) 3 SCC 141
16.	Kalyan Chandra Sarkar vs. Rajesh Ranjan	(2004) 7 SCC 528
17.	Shalini Verma vs State of Chhattisgarh	Cr no. 2551 of 2018
18.	ED v. Kapil Wadhawan	Criminal Appeal no. 701-702 of 2020
19.	Ohana Kuttan Pillai vs. State of Kerela	(2004) Cr LJ 3453
20.	Uday Mohanlal Acharaya vs. State of Maharashtra	2001
21.	Sanjay Dutt vs. State	1994 5 SCC 410
22.	Basir vs. State of Haryana	(1977) 4SCC 410
23.	Raghubir Singh vs. State of Bihar	(1986) 4 SCC 481
24.	Prahlad Singh Bhati vs. NCT, Delhi	(2001) 4 SCC 280
25.	Naser Bin Abu Bakr Yafai vs. State of Maharashtra	2021
26.	Hitendra Vishnu Thakur vs. State of Maharashtra	(1994) 4 SCC 602
27.	R. J. Sharma vs. R. P. Patnakar Asst. Collector of Custom	(1993) CR LJ 1550
28.	Venkatesan Balasubramaniyan vs. The Intelligence Officer	2020
29.	State of M.P. vs. Rustom & Ors.	(1995) 3 SCC 221
30.	State of Maharashtra Vs. Bharati Chandmal Varma	(1996) 1 SCC 432
31.	Hussainara Khatoon and Ors. Vs. Home Secretary	1979

 

 

 

 

 

ARTICLEBY:

TEJASWINITANWAR (BA LLB 4^TH YEAR, 7^TH SEMESTER)

RUTIKARAVAL (BA LLB 4^TH YEAR, 7^TH SEMESTER)

BHUMIROHIT (BA LLB 4^TH YEAR, 7^TH SEMESTER)

PRITESHSOLANKI (BA LLB 3^RD YEAR, 5^TH SEMESTER)

FROMMAHARAJA SAYAJIRAO UNIVERSITY OF BARODA

UNDERINTERNSHIP WITH SEJPAL ASSOCIATES, ADVOCATES (2021)