80

DEFAULT BAIL: A STUDY OF CASE LAW

SECTION 167(2) of the Criminal Procedure Code, 1973 empowers
judicial magistrates to authorize custody of an accused person in cases
wherein investigation cannot be completed in twenty-four hours. It
provides for the maximum period of custody that can be authorized. It
further contains a mandate that if the investigation is not completed
within the stipulated maximum period, the accused is to be released on
bail whatever may be the nature of accusation against him.1 In Natbar
Parinda1 the Supreme Court noted that the accused has a right to be
released on bail under this provision "even in serious and ghastly types
of crimes". The court observed:
Such a law may be 'paradise for the criminals', but surely it
would not be so, as sometimes it is supposed to be, because of
the Courts, it would be so under the command of the Legislature.
The proviso to section 167(2) does not lay down any time limit for
completion of investigation. In substance it deals with the "detention of

1. Section 167(2) lays down:

The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has no jurisdiction to try the case, from time to time, authorize the
detention of the accused person in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the
case or commit it for trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that:
(a) the Magistrate may authorize the detention of the accused person, otherwise
than in the custody of the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorize 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.
2. Natabar Parinda v. State ofOrissa, AIR 1975 SC 1465.

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the accused person in custody" during investigation. The mandate of the

proviso is that the accused is not to be detained in custody beyond the
period of 90/60 days as may be applicable to the offence for which the
accused is being detained. If the investigation is not completed within
that period, on the expiry of such period, the accused is to be "released
on bail if he is prepared to and does furnish bail". The role of the
accused under the proviso is that he should show willingness to furnish
bail and to actually furnish bail when magistrate passes an order for
release on bail. Under the legislative scheme of section 167(2), the
magistrate has no authority to detain the accused in custody beyond the
statutory period of 90/60 days. Once the stipulated period expires and
investigation is not completed, the magistrate cannot further authorize
detention of accused in custody. In such a situation the magistrate has
to forthwith pass an order releasing the accused on bail. After passing
such an order the magistrate has to call upon the accused to furnish bail.
Once such an order is passed, the accused can be "detained in custody
so long as he does not furnish bail". Explanation I to section 167(2) of
the Code makes this position clear. Needless to say that if charge sheet
is filed on completion of investigation within the stipulated period, the
accused would be detained in custody under the authority of law namely
section 209 or 309 of the Code as the case may be. The question of
detention in custody under section 167(2) would obviously not arise in
cases wherein accused is released on bail under chapter XXXIII of the
Code.
Despite this clear mandate of section 167(2), questions and issues
have arisen leading to a plethora of case law, at times conflicting and
confusing. An attempt is made in this note to analyze the case law in
order to arrive at a correct understanding of the provisions.

I Power vests with the magistrate

Section 167(2) deals with powers of the magistrate to detain the

accused in custody and release him on bail on expiry of the statutory
period. It is quite clear that power is conferred on the magistrate to
release the accused on bail under the proviso. The position is well
settled by the Supreme Court judgment in Laxmi Brahman? The
prevalent impression in some judicial circles that in case of offences
that are required to be tried by sessions court, it is only the sessions
court which has power to release the accused on bail under section
167(2) is not correct. Restrictions imposed on the powers of the

3. State ofU.P. v. Laxmi Brahman, AIR 1983 SC 439. Also see, Gujarat High
Court judgment in Shardulbhai Laxmanbhai v. State of Gujarat, 1989 (2) GLR
1388 (para 29 and 27).

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magistrate with regard to grant of regular bail under section 437 of the
Code would not be applicable when magistrate exercises power under
section 167(2).

II Applicability of 90/60 days and manner of computation

The period of 90 or 60 days would begin to run from the day on

which the accused is remanded to custody by the magistrate at the first
instance. 4 Since person arrested is to be produced before a magistrate
within 24 hours of arrest, date of remand to custody may not necessarily
be the same as the date of arrest.
The period of 90/60 days is ,the total period of custody - police
custody and/or judicial custody - that can be authorized by the magistrate.
Detention in police custody can be authorized only during the first
period of fifteen days after an accused is produced before the magistrate.
Police custody cannot exceed fifteen days in the whole. The Supreme
Court in Anupam Kulkarni5 has made this position clear in the following
words:
Having regard to the words "in such custody as such Magistrate
thinks fit for a term not exceeding fifteen days in the whole"
occurring in sub-section (2) of Section (167), now the question
is whether it can be construed that the police custody, if any,
should be within this period of first fifteen days and not later or
alternatively in a case if such remand had not been obtained or
the number of days not availed earlier or for the remaining days
during the rest of the period of ninety days or sixty days covered
by the proviso. Taking the plain language into consideration
particularly the words "otherwise than in the custody of the
police beyond the period of fifteen days" in the proviso, it has
to be held that the custody after the expiry of the first fifteen
days can only be judicial custody during the rest of the period
of ninety days or sixty days and that police custody, if found
necessary, can be ordered only during the first period of fifteen
days.
Which are the offences, in respect whereof the prescribed period
would be ninety days? Section 167(2)(a)(i) provides that 90 days would
be the maximum permissible custody where the investigation relates to
"an offence punishable with death, imprisonment for life or imprisonment

4. Chaganti Satyanarayana v. State of Andhra Pradesh, AIR 1986 SC 2130;

State of Maharashtra v. Bharati Chandumal Varma, (2002) 2 SCC 121.
5. Central Bureau of Investigation v. Anupam Kulkarni, AIR 1992 SC 1768: JT
1992 ( 3 ) S C 3 6 6 .

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for a term of not less than ten years". For offences not covered under
section 167(2)(a)(i), maximum period of custody would be sixty days.
With regard to the first two categories of offences (punishable with
death or imprisonment for life) there can arise no difficulty. With regard
to the third category, viz., offences punishable with imprisonment for a
term of "not less than ten years", question arose in Rajeev Chaudhary6,
as to whether this expression would cover the offences wherein the
punishment provided is imprisonment "for a term which may extend to
ten years". The accused Rajeev Chaudhary was arrested in connection
with the offence of extortion under section 386 of the Penal Code
punishable with imprisonment "for a term which may extend to ten
years". The magistrate released the accused on bail under section 167(2)
of the Code on the expiry of a period of sixty days. The magistrate held
that clause (ii) of section 167(2)(a) of the Code applied as the
investigation related to an offence punishable with imprisonment "for a
term which may extend to ten years". The revision application filed by
the state was allowed by the sessions court. The additional sessions
judge set aside the order of bail holding that maximum permissible
custody for offence under section 386 of the Penal Code was ninety
days and not sixty days. The accused, who was directed to surrender,
moved the Delhi High Court.
Upholding the order of the sessions court, the high court held: 7
The crucial test is whether the offence is one for which the
punishment of imprisonment for a term often years or more can
be awarded. It is immaterial that the Court may have also the
discretion to award the punishment of imprisonment for a term
of less than ten years. In the case of a particular offence, even
though the Court may have discretion to award punishment of
imprisonment for a term of less than ten years, the above
mentioned clause (i) will apply if the accused can be punished
with imprisonment for a term often years. Where the offence is
punishable with "imprisonment for a term which may extend to
ten years", the Court has discretion to sentence the accused to
undergo imprisonment for a term of ten years or for a term of
less than ten years. Hence the above-mentioned clause (i) will
be applicable where the investigation relates to an offence
punishable with "imprisonment for term which may extend to
ten years". It should be borne in mind that the expression used
by the Legislature in clause (i) of the proviso (a) to Section
167(2) is not "imprisonment for a minimum term of ten years".

6. Rajeev Chaudhary v. State (NCT) of Delhi, 2001 Cr LJ 2023 (Delhi)

7. Id. at 2025, para 4.

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If the Legislature intended to restrict the application of the said

clause (i) to offences punishable with imprisonment for a
minimum term of ten years, the Legislature could have used the
expression "offence punishable with death, imprisonment for
life or imprisonment for a minimum term of ten years."
Significantly the Legislature did not use such an expression.
In this manner, the high court upheld the order passed by the
additional sessions judge. The high court held that section 167(2)(a)(i)
of the Code providing for custody upto 90 days would be applicable in
case of an accused arrested for offence punishable with imprisonment
"for a term which may extend to ten years". In these circumstances it
was the accused who moved the Supreme Court. Inspite of this position,
apparently due to oversight, the Supreme Court proceeded on an
erroneous premise as if the high court had held that maximum permissible
custody would be sixty days in case of offences that are punishable with
imprisonment "for a term, which may extend to ten years". That the
Supreme Court proceeded on such an erroneous impression is evident
from the following observations in Rajeev Chaudhary}
The High Court referred to its earlier decisions and held that
the expression "an offence punishable with imprisonment for a
term of not less than ten years" in clause (i) of proviso (a) to
Section 167 would mean an offence punishable with
imprisonment for a specified period which period would not be
less than ten years or in other words would be at least ten years.
The words "not less than" qualify the period. These words put
emphasis on the period of ten years and mean that the period
must be clear ten years. It was further held that on a plain
reading of clause (i) of proviso (a) to sub Section (2) of Section
167 Cr.P.C. there seemed to be no doubt that offence punishable
with death, imprisonment for life or imprisonment for a term of
ten years or more would fall under clause (i) and offences which
are punishable with imprisonment for less than ten years would
fall under clause (ii). Hence the High Court set aside the order
passed by the Additional Sessions Judge. That order is challenged
in appeal.
A plain reading of the Delhi High Court judgment would make it
clear that the above observations of the Supreme Court with regard to
what the high court held and did are incorrect. The high court did not
set aside the order passed by the additional sessions judge. The high
court upheld the said order. The high court did not hold that the
expression "an offence punishable with imprisonment for a term of not

8. Supra note 6 at 5 SCC 34, 35.

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less than ten years" in the proviso to section 167(2) would mean an
offence punishable with "at least ten year". The high court, on the
contrary, held that the above expression would be applicable to an offence
for which the accused can be punished with imprisonment for a term of
ten years. The high court further held that it is "immaterial that the
Court may have also the discretion to award the punishment of
imprisonment for a term of less than ten years". Proceeding on such an
erroneous premise, the Supreme Court held: 9
[I]n cases where offence is punishable with imprisonment of 10
years or more, the accused would be detained up to a period of
90 days. In this context, the expression "not less than" would
mean imprisonment should be 10 years or more and would cover
only those offences for which punishment could be imprisonment
for a clear period of 10 years or more. Under Section 386
punishment provided is imprisonment of either description for a
term which may extend to 10 years and also fine. That means,
imprisonment can be for a clear period of 10 years or less.
Hence, it could not be said that minimum sentence would be 10
years or more.
The curious part of the judgment is that even after holding that in
case of offence under section 386 of the Penal Code the maximum
custody would be sixty days, the Supreme Court did not release the
accused on bail. The court dismissed the appeal filed by the accused.
In this manner, in Rajeev Chaudhary, the Supreme Court held that in
case of offence punishable with imprisonment "for a term which may
extend to ten years" the maximum custody would be 60 days. However,
in the same judgment the court upheld an order of the Delhi High Court
that had said that for such an offence the maximum period of custody
would be ninety days. The Supreme Court judgment proceeds on an
erroneous impression as regards finding of the high court, both on law
and on facts. This has made the task of ascertaining the ratio of the
judgment extremely difficult. An important aspect in this regard is that
when section 167 was brought into force in its present form (vide Act
No. 45 of 1978) there was no offence in the Penal Code or any Special
Act that provided for a minimum sentence of ten years. This has been
noticed in the Delhi High Court judgment. If that were so, the
interpretation placed on the proviso to section 167(2) by the Supreme
Court would render the words "imprisonment for a term of not less than
ten years" in clause (a) redundant. Such an interpretation has to be
avoided. Accordingly, it can safely be said that the decision of the

9, Id. at 36, para 6.

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Supreme Court in Rajeev Chaudhary is per incuriam.10 Hence, despite

the Supreme Court judgment, the position in law would still be that
where the punishment provided for an offence is imprisonment "for a
term which may extend to ten years" the accused could be detained in
custody for a maximum period of 90 days. Such offences are covered
within the meaning of the expression " imprisonment for a term of not
less than ten years" in sub clause (i) of clause (a) of section 167(2).

Ill Applicability to special acts

Provisions of the Code of Criminal Procedure, 1973 apply to

investigation, inquiry and trial of all offences under the Indian Penal
Code. Section 4(2) of the Code provides for application of the Code to
other laws. It stipulates that offences under "any other law" are also to
be investigated, inquired into, tried and otherwise dealt with according
to the same provisions. This is "subject to any enactment for the time
being in force regulating the manner or place of investigation, inquiring
into, trying or otherwise dealing with such offences". Hence, unless a
special act provides to the contrary, provisions of section 167 would
apply even in the case of an accused arrested for offendes under a
special act. Section 49 of the Prevention of Terrorism Act, 2002 (POTA)
provides that section 167 of the Code shall apply in relation to a case
involving an offence punishable under the said Act subject to the
modifications mentioned therein. These modifications, so far as relevant
for the present discussion, are that investigation is required to be
completed within 90 days for all categories of offences under POTA,
with a further proviso that the special court under the Act can extend
the period up to 180 days. Accordingly, section 167(2) of the Code
would have to be read subject to the modifications. If the charge sheet
is not filed within the period of 90 days or within the extended period,
the accused would have a right to be released on bail under the proviso
to section 167(2). In Deepak Mahajanl\ the Supreme Court held that
provisions of section 167 of the Code would apply to foreign exchange
offences under the Foreign Exchange Regulation Act, 1973 and the
Customs Act, 1962. With regard to the Narcotic Drugs and Psychotropic
Substances Act, 1985 in Thamisharashi12, the Supreme Court held that
section 167(2) of the Code would apply in case of offences under the

10. A per incuriam decision is not binding on any court. See, Punjab Land
Development and Reclamation Corporation v. Presiding Officer, (1990) 3 SCC
682.
11. Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775: 1994
(1) Crimes 892.
12. Union of India v. Thamisharashi, 1995 (2) Crimes 523.

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said Act. The court held that in order to exclude the application of the
proviso to section 167(2) of the Code in such cases, an express provision
indicating the contrary intention was required or at least some provision
from which such a conclusion emerged by necessary implication.

IV Bail granted not to be cancelled on

completion of investigation

Whether bail granted under section 167(2) is liable to be cancelled

on completion of investigation and filing of a charge sheet? In Rajnikant
Jivanlal^ the Supreme Court (K. Jagannatha Shetty J. sitting single
during vacation) held that an order for release on bail under proviso (a)
to section 167(2) may appropriately be termed as an "order on default".
The court further observed:
The accused cannot, therefore, claim any special right to remain
on bail. If the investigation reveals that the accused has
committed a serious offence and charge sheet is filed, the bail
granted under proviso (a) to Section 167(2) could be cancelled.
Relying on Rajnikant, a full bench of the Gujarat High Court in
Shardulbhai,14 took the view that after the "defect is cured by filing the
charge sheet, the prosecution may seek to have the bail cancelled on the
ground that there are reasonable grounds to believe that the accused has
committed non-bailable offence and that it is necessary to arrest him
and commit to custody".
The judgment in Rajnikant, on the aspect regarding cancellation of
bail after charge sheet is filed was overruled by the Supreme Court in
Asia Babalal.15 The Supreme Court held that an order of bail under
section 167(2) could be cancelled only on the considerations that are
valid for cancellation of bail granted under chapter XXXIII of the Code.
The court observed:
Once the accused has been released on bail his liberty cannot be
interfered with lightly, i.e. on the ground that the prosecution
has subsequently submitted a charge sheet. Such a view would
introduce a sense of complacency in the investigating agency
and would destroy the very purpose of instilling a sense of
urgency expected by Sec. 57 and 167(2).

13. Rajnikant Jivanlal Patel v. Intelligence Officer, NCB, AIR 1990 SC 71:
(1989 3 SCC 532: JT 1989 (3) SC 67.
14. Shardulbhai Laxmanbhai v. State of Gujarat, supra note 3.
15. Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1: (1992) 4
SCC 363: 1992 3) Crimes 597.

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The legal position in this regard thus stands concluded, namely, that
the mere fact of filing of the charge sheet subsequent to release of the
accused on bail under section 167(2) would not affect the order of bail.

V Position after filing of charge sheet

It is obvious that if investigation is completed and charge sheet is

filed before the expiry of the maximum period of custody of 90/60 days,
the right of the accused to be released on bail under section 167(2)
would come to an end. What would be the position in cases wherein
charge sheet is filed after the expiry of the stipulated period but the
accused has not been released on bail in the meanwhile? Would the
accused have a right to be released on default bail in such cases? These
would be cases wherein the accused has not been released on default
bail inspite of the fact that the investigation was not completed within
the stipulated period. Custody of an accused in such cases would be in
breach of the statutory provision that prohibits custody beyond the period
of 90/60 days. Such situations do occur in courts throughout the country.
Though the statute does not provide that accused has to prefer an
application, no order for release on default bail is passed unless an
application is preferred. This is so, because an impression is harbored
that for being released on bail under section 167(2) an accused person
has to make an application. Judgements of the courts proceed on a
premise that accused has to 'avail' his right by making an application
for release on bail. For instance, in Sanjay Dutt]6 the Supreme Court
observed:
The indefeasible right' of the accused to be released on bail in
accordance with Section 20(4)(bb) (of TAD A) read with Section
167(2), Cr.P.C. in default of completion of the investigation
and filing of the challan within the time allowed is a right which
ensures to and is enforceable by the accused only from the time
of default till the filing of the challan and it does not survive or
remain enforceable on the challan being filed.... The right of
the accused to be released on bail after filing of the challan,
notwithstanding the default in filing it within the time allowed
is governed from the time of filing of the challan only by the
provisions relating to the grant of bail applicable at the stage.
It is implicit in these observations that the accused has to "enforce"
his right to be released on default bail by submitting an application in
that regard. It is also implicit that if a charge sheet was filed pending
such an application, the right would "not survive or remain enforceable

16. Sanjay Dutt v. The State through CBI Bombay, 1995 Cr LJ 477. Para 55.

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on the challan being filed." The Supreme Court failed to notice that in
such cases authorization of an accused in custody after expiry of the
period of 90/60 days would be contrary to law. In this regard a full
bench of the Gujarat High Court in Babubhai17 stated the legal position
on this aspect correctly. The high court held that on the expiry of 90/60
days the magistrate's power to remand the accused to custody comes to
an end. The court observed:
Once the period of ninety days or sixty days is over and an
application has been made on behalf of the accused showing his
preparedness to furnish bail the order must be passed without
any delay to enlarge the accused on bail on such terms and
conditions as the Magistrate deems proper.
In Babubhai, the application for bail under section 167(2) was made
on 20th Jan. 1981 and it was kept for hearing on 23 rd Jan. 1981. In the
meanwhile charge sheet was filed on 21 st Jan. 1981. Allowing the writ
petition on behalf of the accused, the full bench held that entitlement of
the accused to be released on bail is clear once the period of 90 days
from the accused being first presented before a magistrate is over. The
full bench in Babubhai, relied on the observations of the Supreme Court
in Natabar Parinda]S and Bashir,]9 to the effect that section 167(2) did
not grant any discretion to the court and made it obligatory for it to
release the accused on bail. Subsequently, another full bench of the
Gujarat High Court in Shardulbhai20 held that Babubhai was no longer
good law in view of the decision of the Supreme Court in Laxmi
Brahman.2] It was held in Shardulbhai that right of an accused to be
released on bail under section 167(2)(a) of the Code is not absolute in
the sense that it could be exercised at any stage. It was held that in such
cases accused has a right to be released on bail as of right before the
charge sheet is filed. When the accused is not actually released on bail
and charge sheet is filed (even if it be after the stipulated period) the
accused will have no such right to be released on bail as investigation
comes to an end once charge sheet is filed. However, what was held in
Babubhai has since been fortified by a recent judgment of the Supreme
Court in Uday Mohanlal.11 The Supreme Court examined the provisions

17. Babubhai Parshottamdas v. State of Gujarat, 1981 GLR 1232 1981 GLH
348. Para 22.
18. Supra note 2.
19. Bashir v. State of Haryana, AIR 1978 SC 55.
20. Supra note 3 (paragraph 29 and 47).
21. State ofU.P. v. Laxmi Brahman, supra note 3.
22. Uday Mohanlal Acharya v. State of Maharashtra, 2001(3) Supreme 142:
2001 (2) GLR 1148.

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of default bail under section 167(2) of the Code in the context of

fundamental right of personal liberty under article 21 of the Constitution.
Although, charge sheet was not filed within the applicable statutory
period of 60 days, the magistrate rejected the application for bail. The
magistrate held that provisions of bail under section 167(2) of the Code
had no application to cases pertaining to the Maharashtra Protection of
Interest of Depositors (Financial Establishments) Act, 1999 (MIPD Act).
The accused preferred a revision application before the Bombay High
Court and it was fixed for hearing on 31 s t August 2000. In the meanwhile,
charge sheet was filed in the trial court on 30 th August. The high court
held that provisions of section 167(2) would be applicable even with
regard to offences under the MIPD Act. Having held so, the high court
declined to grant relief of bail on the ground that charge sheet was filed
before the application could be heard. The aggrieved accused approached
the Supreme Court. The court referred to Sanjay Dutt, wherein it was
held that the indefeasible right of accused is enforceable only prior to
the filing of the challan (charge sheet) and u does not survive or remain
enforceable on the challan being filed, if already not availed o f . The
Supreme Court in Uday Mohanlal, interpreted the words "if already not
availed o f and held:
[I]t would be more in consonance with the legislative mandate
to hold that the accused must be held to have availed of his
indefeasible right, the moment he files an application for being
released on bail, and offers to abide by the terms and conditions
of bail. To interpret the expression 'availed o f to mean actually
being released on bail after furnishing the necessary bail required,
would cause great injustice to the filed before an order is passed.
The Magistrate will have no option but to release the accused
on bail.
The situation still leaves many questions unanswered. The accused
is deemed to have availed of his right 'the moment he files an application'
for bail. Which is 'the moment'? This can be a million-dollar question.
Let us take a hypothetical situation. The stipulated time period is over.
On the very next day, the accused or his lawyer places a bail application
on the table of the concerned clerk. The clerk is not around. By the time
the clerk turns up, a police constable has reached the same table with
the charge sheet. Has the application been filed before the charge sheet?
Now reverse the situation. The policeman has walked in first with the
charge sheet and the lawyer has come to the court office later on. Both
wait for the clerk. The lawyer has placed the application on the clerk's
table whereas the policeman keeps the charge sheet in his bag and
removes it as soon as the clerk arrives. Is the application filed before
the charge sheet? If the clerk obliges the lawyer and registers the

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application first and then takes the charge sheet in his hand, will that
clinch the issue? Separate registers are maintained for bail applications
and for charge sheet. Date of registration is mentioned but not the time.
How will the issue be resolved? Different clerks sitting in different
rooms of the court building may be performing these two different tasks.
If the application and the charge sheet are filed on the same day, how
will the magistrate determine which was the first in point of time?
Those familiar with the ground realities in magistrates' courts would
readily understand such a scenario. Something is obviously amiss in
the interpretation placed on section 167(2) by holding that accused is
deemed to have availed of his right "the moment he files an application".
What is it?

VI Suggested interpretation

The Supreme Court decisions on default bail under section 167(2)

of the Code proceed on the premise that the accused has to 'avail' or
'enforce' his right to be released on bail by making an application. It is
taken for granted that accused has to make an application. In other
words, exercise of power by the magistrate is made dependent on an
application, as if the magistrate would have no power to release an
accused person on bail without an application. It is taken for granted
that accused has to make an application. Indeed, in Hitendra Vishnu
ThakurP the Supreme Court, while dealing with a case under TADA
rejected an argument that no application was required for release of bail
under section 167(2). The court observed:
We are not impressed with the argument of the learned Counsel
for the appellant that on the expiry of the period during which
investigation is required to be completed under Section 20(4) of
TADA read with Sec. 167 of the Code, the Court must release
the accused on bail on its own motion even without any
application from an accused person, on his offering to furnish
bail. In our opinion as an accused is required to make an
application if he wishes to be released on bail on account of
default of the investigation/prosecuting agency and once such
an application is made, the Court should issue a notice to the
public prosecutor, who may either show that the prosecution
has obtained the order for extension for completion of
investigation from the Court under clause (bb) or that the Challan
has been filed in the Designated Court before the expiry of the
prescribed period or even that the prescribed period has actually

23. Hitendra Vishnu Thakur v. State of Maharashtra, 1995 Cr LJ 517.

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not expired, and thus resist the grant of bail on the alleged
ground of 'default'.
The court was dealing with a case under TADA. An application for
bail and notice to the public prosecutor would have relevance since
section 20(4)(bb) of TADA provided for extension of time up to one
year for completing the investigation. Since question of default bail is
to be determined by the magistrate, the purpose of issuing notice to the
public prosecutor would be to ascertain whether charge sheet is filed in
another court namely the designated court. The decision in Hitendra
Vishnu Thakur, would be applicable to cases of persons arrested under
statutes having provisions similar to TADA such as the Prevention of
Terrorism Act, 2002 (POTA) which provides for extension of time
beyond 90 days (up to 180 days) for completion of investigation.
However, with regard to ordinary criminal cases, the court of the
magistrate who passed the first order of remand would have to decide
the question of default bail. Charge sheet is filed in the same court.
The magistrate would be able to ascertain from the record of the court
as regards the date of remand and also as to whether the charge sheet
has been filed within "... as an accused is required to make an
application...." No reasons are given as to why an application is required
when the statute does not stipulate filing of an application as a pre-
condition for exercise of power by the magistrate. As a matter of fact,
neither section 437 nor section 439 dealing with grant of regular bail
contemplates any application by an accused for being released on bail.
There is nothing in section 167(2) to infer that an accused is required to
submit an application for being released on bail. Proviso (a) to section
167(2) merely lays down that on the expiry of the stipulated period "the
accused person shall be released on bail if he is prepared to and does
furnish bail". The proviso casts a duty on the magistrates in the domain
of personal liberty. All that the accused has to do under the legislative
scheme is to show willingness to furnish bail and to actually furnish
bail when order for release on bail is passed. This formality can be
complied with if the magistrate questions the accused as to whether he
is prepared to furnish bail. In the Indian scenario it cannot be expected
of an accused to know that he has a right to be released on bail when
investigation is not completed in the prescribed period. When not
represented by a competent lawyer, the accused would not be aware
about any such right. A person who cannot afford a competent lawyer
would languish in custody even when he has a right to be released on
bail, Another person who would be able to afford a good lawyer would
'avail' and 'enforce' his right and get out of custody on bail. In this
manner the legal system would operate harshly against the poor. Courts
have to avoid this situation. The state, under article 39A of the

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2003] NOTES AND COMMENTS 93

Constitution is enjoined to "secure that the operation of the legal system

promotes justice, on a basis of equal opportunity..." The magistrate has
no power to remand an accused to custody beyond the statutory period.
Unauthorized detention in custody cannot be countenanced if article 21
of the Constitution is to have any meaning. Section 167(2) of the Code
is, therefore, to be read as casting a duty on the magistrate to be vigilant
about the rights of the accused and to pass an order for bail as soon as
the statutory period is over. As a matter of fact, the provision was so
construed by the Supreme Court in Rajnikant,24
This is evident from the following observations 2 5 :
The right to bail under Sec. 167(2) proviso (a) thereto is absolute.
It is legislative command, not Court's discretion. If the
investigating agency fails to file charge sheet before the expiry
of 90/60 days, as the case may be, the accused in custody should
be released on bail. But at that stage, merits of the case are not
to be examined. Not at all. In fact, the Magistrate has no power
to remand a person beyond the stipulated period of 90/60 days.
He must pass an order of bail and communicate the same to the
accused to furnish the requisite bail-bonds.
The judgment clearly lays down that on the expiry of the stipulated
period, the magistrate must pass an order of bail and communicate the
same to the accused to furnish the requisite bail bonds. If the accused
does not furnish the requisite bail bonds he would remain in jail despite
the bail order. This would be in accord with explanation I to section
167(2), which reads as under:
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 he does not
furnish bail.
The manner in which explanation I is worded also indicates that the
legislature has not contemplated any application by the accused for
being released on bail. The explanation pre-supposes that magistrate
has to pass order of bail on the expiry of the stipulated period. The
accused would, thereafter, remain in custody so long as he does not
furnish bail. But such custody will be under the authority of law namely
explanation I.
The decision in Rajnikant was overruled in Aslam Babulal on the
question regarding cancellation of bail after filing of the charge sheet.

24. Supra note 13.

25. Id. para 12 (emphasis added).

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However, the position of law quoted above, as enunciated in Rajnikant,

has remained unaffected and still holds the field. In fact a close reading
of Aslam Babalal would show that the legal position as quoted above is
approved. This would be evident from the following observations26:
[I]f on the expiry of the aforesaid period of 90/60 days, the
accused person offers to furnish bail, the Magistrate is bound to
release him on bail...
The Supreme Court in Hitendra Vishnu Thakur noticed this fact
namely that the law laid down in Rajnikant on this aspect was "referred
with approval" in Aslam Babalal.11 Besides, as observed in Aslam
Babalal, "lapse of time and mere filing of the charge sheet at a subsequent
date" would not defeat order for release on bail under section 167(2) of
the Code. Reading section 167(2) in the manner suggested herein (as
not requiring any application by accused and casting a duty on the
magistrate) would make its implementation simple. On expiry of the
stipulated period the magistrate would forthwith pass an order for bail
and communicate the same to the accused calling upon the accused to
furnish bail-bonds. If that were done, an order for release on bail having
been already passed, the same would not be affected by subsequent
filing of the charge sheet during the time taken by the accused to actually
furnish the bail-bonds. Reading the section in this manner would be in
consonance with the spirit of article 21 of the Constitution giving
paramount importance to personal liberty. This would also be in accord
with the legislative intent. In Aslam Babalaf the Supreme Court
observed:28
Even when two views are possible, this being a matter belonging
to the field of criminal justice involving liberty of an individual,
the provision must be construed strictly in favour of individual
liberty since^ even the law expects early completion of the
investigation.
From the above discussion it becomes abundantly clear that
provisions of section 167(2) of the Code do not contemplate an
application by the accused for being released on default bail except in
cases under POTA and statutes containing provisions similar to POTA.
If the charge sheet is not filed within the applicable statutory period the
magistrate has to forthwise pass an order for bail and call upon the
accused to furnish the requisite bail-bonds. This would be construing

26. Supra note 15, para 6.

27. Id. N.24, para 20.
28. Id., note 26 para 15.

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2003] NOTES AND COMMENTS 95

the provisions strictly in favour of individual liberty which the courts

are expected to safeguard.

VII Summary

The discussion in this article can be summarized as follows:

1. Power to release an accused person on default bail vests with
the magistrate whatever is the nature of the accusation against
the accused.
2. Period of 90/60 days would begin to run from the date on
which the magistrate remands an accused to custody. This may
not necessarily be the date of arrest.
3. Detention in police custody can be authorized only during the
first period of 15 days beginning with the day an accused is
produced before a magistrate and remanded to custody. Police
custody cannot exceed fifteen days in the whole. This is subject
to provisions of a special act such as POTA.
4. For offences such as those under section 306 and 386
punishable with imprisonment "which may extend to ten years",
the maximum period of custody would be 90 days. Such
offences are covered within the category of offences punishable
with imprisonment for a term of "not less than ten years" within
the meaning of that expression used in section 167(2)(a)(i) of
the Code. For offences not covered in this category the
maximum period of custody would be 60 days.
5. Provision of section 167 of the Code would apply to offences
under a special act unless such act provides to the contrary or
makes the provisions applicable with modifications. POTA is
an example of legislation of this nature.
6. Bail granted under section 167(2) is not liable to be cancelled
on completion of investigation and filing of charge sheet. Bail
can be cancelled only on considerations valid for cancellation
of regular bail granted under chapter XXXIII of the Code.
7. In cases where accused has filed application for default bail,
he is deemed to have "availed" of his right. In such cases, the
magistrate shall have to pass an order of bail on expiry of the
stipulated period even if charge sheet is filed after such period
of over.
8. The interpretation suggested by the author is that immediately
on expiry of the statutory period the magistrate has to pass an

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order to bail and call upon the accused to furnish bail. This is
the statutory duty of the magistrate that must be performed
even in the absence of an application by the accused in this
regard.

Ramesh Vaghela*

* Judicial Officer in the cadre of District Judge in Gujarat.

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