Right to ‘Default Bail’: Statutory, Fundamental and Indefeasible Right
On October 12, 2020 Supreme Court in Bikramjit Singh v. State of Punjab held that the right to default bail is a fundamental right and is part of the procedure established by law under Article 21 of the Constitution of India.
Indefeasible Right of Accused: It has been discussed in various judgments that accused has a right to be released on bail whatever may be the accusation against him and where the investigation is not completed in stipulated maximum period or the maximum period for investigation of an offence is over under the first proviso (a) to Section 167(2).
Where the investigation is completed within the prescribed period of 90/60 days and not on merits, accused is entitled to get default bail by the investigating officer. On the other hand the court has the power to cancel the bail and to take the accused into detention for the grounds mentioned under the relevant provisions in Sections 437(5) and 439(2) of the Code. Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 and Hitendra Vishnu Thakur v. State of Maharashtra, 1994 AIR 2623, 1994 SCC (4) 602.
Right to default bail is statutory right under the first proviso to section 167(2) of the Code of Criminal Procedure.
It states as: Procedure when investigation cannot be completed in twenty-four hours: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in 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;
(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., 1st Proviso to section 167(2).
Article 21 of the Constitution states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Article specifically used the words ‘except according to procedure established by law’ however it simply means that any person can be deprived of his/her life or personal liberty but only according to procedure established by law.
Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824
