HYDERABAD: An accused in a criminal case is entitled to ‘default bail’ after the expiry of statutory period of remand and non-filing of charge sheet by the police. An indefeasible right accrues in favour of the accused for being released on bail if the police fail to complete the probe and no charge-sheet is filed within the period of 90 days or 60 days as the case may be. The accused concerned can be released on bail if he is prepared to and furnishes the bail as directed by the magistrate/court.
The Supreme Court Constitution bench, in its judgment in Sanjay Dutt’s case, has laid down certain guidelines -
a) Under sub-section (2) of Section 167 of CrPC, a magistrate before whom an accused is produced while the police are investigating into the offence, can authorize detention of the accused in such custody as the magistrate thinks fit for a term not exceeding 15 days on the whole.
b) Under the proviso to the aforesaid sub-section, the magistrate may authorize detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
c) On the expiry of said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completion of probe within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the magistrate.
d) When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour, the magistrate / court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency.
e) If the accused is unable to furnish the bail as directed by the magistrate, and if during that period, the investigation is complete and the charge-sheet is filed, then the so-called indefeasible right of the accused would stand extinguished.
f) If the accused files an application for bail and offers to furnish the bail on being directed, the accused has availed of his indefeasible right. Dealing with batch petitions filed challenging the orders of the trial court in dismissal of ‘default bail’ applications of some of the accused arrested in criminal cases, Justice B Siva Sankara Rao of the Hyderabad High Court made it clear that once an application is made by the accused, after expiry of the statutory period of remand from non-filing of the charge-sheet, he is entitled to the default bail and such a right cannot even be defeated by filing of charge-sheet thereafter.
Filing of the application either orally or in writing is a prerequisite, if not the Court chosen to grant the default bail, and once such an application is there, in recognition of his indefeasible right, he is entitled to the default bail and that can no way be delayed even in its disposal, the judge noted.
Relying on the Supreme Court judgments in the cases of Sanjay Dutt, Rakesh Kumar, Rambeer Shokeen and others, the judge allowed the batch petitions by granting the statutory bail to the petitioners-accused subject to various conditions.
The conditions included execution of a self bond for an amount fixed by the court, two sureties each for the like sum each to the satisfaction of the concerned court judge, report before the investigation officer on every Sunday, attend the court regularly in enquiry and trial without fail, not to leave the state without prior permission of the court and so on.
Right in favour of accused
An indefeasible right accrues in favour of the accused for being released on bail if the police fails to complete the probe and no charge-sheet is filed within the period of 90 days or 60 days as the case may be