CrPC LAW PROJECT ON

Bail on Default

Submitted to:
Dr. Mohammad Asad Malik
FACULTY OF LAW

Submitted by:
VARUN MITTAL
SECTION - B
Semester- VIII, B.A. LLB. (Hons.)
 Acknowledgement

I would like to express my special thanks of gratitude to

my teacher Dr. Mohammad Asad Malik who gave me the
golden opportunity to do this wonderful project, which also
helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to him.

VARUN
 CONTENTS

1. What is Bail?
2. Section 167 (2)
3. Bail on Default
4. I Power vests with the magistrate
5. II Applicability of 90/60 days and manner of
computation
6. Ill Applicability to special acts
7. IV Bail granted not to be cancelled on
completion of investigation
8. V Position after filing of charge sheet
9. VI Summary
10. BIBLIOGRAPHY
What is Bail?

The word Bail is not defined in CrPC but it has to be understood as a concept. Bail means release
of a person from custody of police and his delivery to the sureties who undertake to produce him in
court upon appointed day. The jurisprudence of bail deals with the procedural aspects of criminal
law in a welfare state. The courts play an important role in balancing two contradictory but
important tasks of society being shielded from the ill-effects of persons alleged with criminal
offences and on the other hand, the personal liberty of person to be safeguarded against ignominy
of serving a prison term for an offence for which he is yet to be convicted.

Bail is a matter of right in a bailable offence however in case of a non-bailable offence, bail is a
matter of Judicial Discretion. Thus, the provisions dealing with when bail may be taken in case of a
non-bailable offence under CrPC lays down that where it appears that there are not reasonable
grounds for believing that the accused has committed a non-bailable offence but further inquiry is
still considered necessary, the accused may still be released on bail. There is no hard and fast rule
and no inflexible principle governing such discretion. The only principle that is established is that
there must be a judicial exercise of that discretion1. The Supreme Court of India has construed the
scope and amplitude of the provisions dealing with when the bail may be given in a non-bailable
offence and the special powers of High Court or Court of Session regarding Bail as specified under
CrPC, 1973. The condition laid down for the grant of bail in case of a non-bailable offence under
CrPC is sine qua non for granting bail even by High Court or Court of Session using its special
powers under CrPC.

The basic rule is Bail not jail, except where there are circumstances suggestive of fleeing from
Justice or thwarting the course of Justice2. The distinction between an ordinary order of bail and an
order of Anticipatory Bail is that whereas the former is granted after arrest and therefore means
release from custody of Police, the latter is granted in anticipation of arrest and therefore effective
at the very moment of arrest3.

The following principles are to be adhered to while granting/refusing bail under section 437 CrPC
as illustrated in Sidharth Vashishht v State of Delhi, 2004 CrLJ 684 (Del):

1. Bail should not be refused unless the crime charged is of the highest magnitude and the
punishment of it assigned by the law is of extreme severity.
2. Bail should be reused when the Court may reasonably presume, some evidence warranting
that no amount of bail would secure the presence of the convict at the stage of judgment.
3. Bail should be refused if the course of Justice would be thwarted by the person who seeks
the benignant jurisdiction of the court to be freed for the time being.
4. Bail should not be refused if there is likelihood of the applicant interfering with the
witnesses for the prosecution or otherwise polluting the process of Justice.
5. Bail should be refused if the antecedents of a man who is applying for bail show a bad
record, particularly a record which suggests that he is likely to commit more serious offence
while on bail.

1 KN Joglekar v Emperor AIR 1931 All 504

2 State of Rajasthan v Balchand, AIR 1977 SCC 2447
3 D.K. Ganesh Babu v P.T. Manokaran, 2007 CrLJ 1827
Bail provision under CrPC are applicable after arrest and becomes effective from the moment of
arrest. The complainant has no right to oppose bail of the accused and only the public prosecutor
may oppose the bail application. A counsel representing the complaint may act under the
instructions of the public prosecutor and oppose the bail application within the limitations provided
by the code. Where the accused is not released at the initial stage of his appearance in a court, he
may still be released subsequently during investigation, inquiry or trial4.

There is no express provision in CrPC that deals with cancellation of a bail granted, however, when
a person has failed to comply with the conditions of the bail-bond as regards the time and place of
attendance, misuses liberty by indulging in similar criminal activity, interferes with course of
investigation, attempts to temper with evidence of witnesses, threatens witnesses, attempts to flee
to another country or goes underground, attempts to place himself beyond the reach of surety; it is
well-settled that bail granted can be cancelled.

4 All India Democratic Women’s Assn v. State(1998) CrLJ629(MAD)

Section 167 (2)

The Magistrate to whom an accused person is forwarded under this section may, whether he has or
has not jurisdiction to try the case, from time to time, authorise the detention of the accused 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) 1 the Magistrate may authorise 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 authorise 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;

1. subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).
2. Ins. by act 10 of 1990, s. 2 (w. e. f 19- 2- 1990 )

(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;]

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is
produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court,
shall authorise detention in the custody of the police. 1 Explanation I.- 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 as he does not furnish bail;]. 2Explanation II.- If any
question arises whether an accused person was produced before the Magistrate as required under
paragraph (b), the production of the accused person may be proved by his signature on the order
authorising detention.]
Bail on Default

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. In
Natbar Parinda5 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 proviso to section 167(2) does not lay down any time limit for completion of investigation. In
substance it deals with the "detention of 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. 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 Large
amount of case law, at times conflicting and confusing.

5
Natabar Parinda v. State ofOrissa, AIR 1975 SC 1465
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 Brahman6 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 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. 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.

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
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 Chaudhary 7 , 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.

6
State of U.P. v. Laxmi Brahman, AIR 1983 SC 439

7
Rajeev Chaudhary v. State (NCT) of Delhi, 2001 Cr LJ 2023 (Delhi)
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".

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 Supreme Court in Rajeev Chaudhary is
per incuriam.8 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).

Rakesh Kumar Paul vs State Of Assam 2017

Facts: was hearing an appeal filed by former Chairman of Assam Public Service Commission
Rakesh Kumar Paul against Gauhati High Court order upholding the Special Judge’s order denying
him the statutory bail for the offence punishable under Sections 7,13(1)(b)(2) of the Prevention of
Corruption Act 1988. The main question in this case was ‘whether in a case regarding offence for
which the punishment imposable may extend upto ten years, the accused is entitled to bail under
Section 167(2) of the Code of Criminal Procedure 1973 due to default on the part of investigating
agency in not filing the charge sheet within sixty days?

According to the State the appellant was liable for punishment for an offence, inter alia, under
Section 13(1) of the PC Act, the offence being “punishable with imprisonment for a term which
shall be not less than four years but which may extend to ten years” and fine. Therefore, the view
of the State is that since the petitioner could face imprisonment that could extend to 10 years, the
date for applying for ‘default bail’ would commence on the expiry of 90 days. However, according
to the petitioner the date for obtaining ‘default bail’ would commence on the expiry of 60 days.

Judgement

8
A per incuriam decision is not binding on any court. See, Punjab Land Development and Reclamation Corporation v. Presiding
Officer, (1990) 3 SCC 682.
Justice Lokur observed that if the minimum is laid down, the sentencing judge has no option but to
give a sentence “not less than” that sentence provided for. Therefore, the words “not less than”
occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions)
must be given their natural and obvious meaning which is to say, not below a minimum threshold
and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable with
a minimum of 10 years imprisonment.

“Offences punishable with imprisonment of not less than ten years have been kept in one
compartment equating them with offences punishable with death or imprisonment for life. This
category of offences undoubtedly calls for deeper investigation since the minimum punishment is
pretty stiff. All other offences have been placed in a separate compartment, since they provide for a
lesser minimum sentence, even though the maximum punishment could be more than ten years
imprisonment”.

Justice Lokur concluded that the petitioner had satisfied all the requirements of obtaining ‘default
bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending
investigations into an alleged offence not punishable with imprisonment for a minimum period of
10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his
release, as such, he ought to have been released by the High Court on reasonable terms and
conditions of bail.

Justice Dipak Gupta has supported the view of Justice Lokur. In his concurring opinion he
observed that if an offence is punishable with death then whatever the minimum punishment be,
the period of investigation permissible would be 90 days. Similarly, if the offence is punishable
with life imprisonment, even if the minimum sentence provided is less than 10 years, the period of
detention before ‘default bail’ is available would be 90 days.

“Therefore, if a person is charged with an offence, which is punishable with death or life
imprisonment, but the minimum imprisonment is less than 10 years, then also the period of 90 days
will apply. However, when we look at the third category, the words used by the legislature are “not
less than ten years”. This obviously means that the punishment should be 10 years or more. This
cannot include offences where the maximum punishment is 10 years. It obviously means that the
minimum punishment is 10 years whatever be the maximum punishment”.

Justice Gupta concluded as follows;

Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i)
offences punishable with death and any lower sentence; (ii) offences punishable with life
imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10
years;

In all cases where the minimum sentence is less than 10 years but the maximum sentence is not
death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to
grant of ‘default bail’ after 60 days in case charge-sheet is not filed.
Dissenting Opinion By Justice PC Pant

Justice PC Pant observed that the intention of the legislature was that if an offence was punishable
with imprisonment upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the
Code, and the permissible period for investigation is ninety days. The intention of the Legislature
in extending the permissible time period from sixty days to ninety days for investigation is to
include the offences in which sentence awardable is at least ten years or more.

“Therefore, though the expression “not less than ten years” used in Section 167(2)(a) (i) of the
Code has created some ambiguity, the real intention 49 of the legislature seems to include all such
offences wherein an imprisonment which may extend to ten years is an awardable sentence. In
other words, for offences wherein the punishment may extend to ten years imprisonment, the
permissible period for filing charge sheet shall be ninety days, and only after the period of ninety
days, the accused shall be entitled to bail on default for non filing of the charge sheet”.

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 Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 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.

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 Jivanlal9 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:

9
Rajnikant Jivanlal Patel v. Intelligence Officer, NCB, AIR 1990 SC 71
“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 Shardulbhai10, 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.11 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 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

In Sanjay Dutt12 the Supreme Court held 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 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

10
Shardulbhai Laxmanbhai v. State of Gujarat,

11
Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1

12
Sanjay Dutt v. The State through CBI Bombay, 1995 Cr LJ 477
a full bench of the Gujarat High Court in Babubhai 13 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.

In Babubhai, the application for bail under section 167(2) was made on 20th Jan. 1981 and it was
kept for hearing on 23rd Jan. 1981. In the meanwhile charge sheet was filed on 21st 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 and Bashir, 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 Shardulbhai held that Babubhai was no longer good
law in view of the decision of the Supreme Court in Laxmi Brahman14] 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 Mohanlal15 The Supreme Court examined the provisions 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 31st 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 udoes not survive or remain enforceable on the challan being filed, if already not availed of.
The Supreme Court in Uday Mohanlal, interpreted the words "if already not availed o f and held :

It 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 of
to mean actually being released on bail after furnishing the necessary bail required, would cause
13
Babubhai Parshottamdas v. State of Gujarat, 1981 GLR 1232 1981 GLH 348

14
State ofU.P. v. Laxmi Brahman

15
Uday Mohanlal Acharya v. State of Maharashtra, 2001(3)
great injustice to the filed before an order is passed. The Magistrate will have no option but to
release the accused on bail.

VI 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 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.
BIBLIOGRAPHY

NET SOURCES
• www.indiankanoon.org
• www.wikipedia.org

• www.vakilno1.com

• bombayhighcourt.nic.in

BOOKS REFERRED
• R.V. Kelkar's Criminal Procedure

STATUTES REFERRED
• The Code of Criminal Procedure,1974