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Right to default bail is an undefeasible right of accused: SC


Right to default bail is an undefeasible right of accused: SC

Decision of the Supreme Court

  • In the case of Bikramjit Singh v. State of Punjab, the Bench led by Justice RF Nariman of the Supreme Court observed that the accused has an indefeasible right to 'default bail'.
  • The three-judge bench of the Supreme Court consisting Justices Rohinton Fali Nariman, Navin Sinha and KM Joseph has held that right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the Code of Criminal Procedure (Cr.P.C.), 1973 and that the right to default bail is a fundamental right forming a part of the procedure established by law enshrined under Article 21 of the Constitution of India.
  • This fundamental right is granted to an accused person for the purpose of releasing him on bail once the conditions enumerated in the first proviso to Section 167(2) are fulfilled.
  • The right of default bail is available if the accused makes an application after the expiry of the maximum period for investigation of an offence and before the filing of a charge sheet.

Background of the case

  • In the instant case, the Sub-Divisional Judicial Magistrate remanded the accused, Bikramjit Singh to custody and after the expiry of the term of 90 days in custody, the accused filed an application for default bail which was dismissed by the Sub-Divisional Judicial Magistrate.
  • The bail was rejected on the ground that the Sub-Divisional Judicial Magistrate had already extended the time for bail application from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by UAPA.
  • The Special Court thereafter set aside this Order observing that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days. But the default bail application was rejected.
  • Again, the High Court of Punjab and Haryana set aside the Special Court's order and held that in case of on-going investigation by the State police, the Magistrate will have power under Section 167 (2) Cr.P.C. read with Section 43 (a) of UAPA to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions according to Section 209 Cr.P.C.
  • In case the investigation is being carried on by the agency under the NIA Act, the power shall be exercised by the Special Court and the agency shall place the challan before the Special Court.

Observations of the Court 

The Court while referring to various earlier judgments on the subject, stated:

"A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted."

The Court while granting default bail to the accused, noted:

"We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled."

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