Default bail

Shivendra Pratap Singh


High Court Lucknow


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In the context of criminal procedure in India, the term “default bail” refers to the right of an accused person to be released on bail when certain conditions are not met by the prosecution within a specified period of time. The provision for default bail is outlined in Section 167(2) of the Code of Criminal Procedure (CrPC).

According to Section 167(2) of the CrPC, if the investigation in a non-bailable offense is not completed within a period of 90 days (or 60 days in certain cases), the accused person is entitled to default bail. This means that if the prosecution fails to file the charge sheet or complete the investigation within the stipulated time, the accused has the right to be released on bail, subject to certain conditions.

Here are some key points regarding default bail under the CrPC:

  1. Time limit: The default bail provision applies when the investigation is not completed within 90 days (or 60 days) from the date of the accused’s arrest. However, if the accused is a woman or a person under the age of 16, the time limit is reduced to 60 days (or 30 days) respectively.
  2. Filing charge sheet: The prosecution must file a charge sheet within the prescribed time limit to avoid the grant of default bail to the accused. A charge sheet is a formal document that contains the details of the offense and the evidence against the accused.
  3. Judicial discretion: While the default bail provision specifies a time limit, it is ultimately up to the court to decide whether to grant bail to the accused. The court has the discretion to extend the time limit based on certain grounds, such as the complexity of the case or the exceptional circumstances involved.
  4. Conditions of bail: If default bail is granted, the court may impose certain conditions on the accused, such as providing sureties, surrendering travel documents, or regularly appearing before the court for hearings. These conditions are intended to ensure the accused’s presence during the trial and to maintain law and order.

Section 167(2) of the CrPC

Section 167 of the CrPC, however, does deal with the procedure when investigation cannot be completed in 24 hours. It outlines the conditions under which a person arrested without a warrant can be detained by the police for a longer period of time for investigation purposes.

To clarify, if an accused person is arrested without a warrant for a non-bailable offense, the police can detain the person for a maximum of 24 hours. If the investigation cannot be completed within this period, the police may produce the accused before a magistrate.

The magistrate can then authorize the detention of the accused for a period of 15 days in total. This can be further extended to a total of 90 days by the magistrate, but only if certain conditions are met, such as the offense being punishable with death, life imprisonment, or imprisonment for a term exceeding 10 years.

During this period of detention, the accused person may apply for regular bail, and the court will decide whether to grant bail based on the facts and circumstances of the case.

Cancellation of default bail

Cancellation of default bail refers to the process of revoking or terminating the bail granted to an accused person under the provision of default bail in the Code of Criminal Procedure (CrPC) in India. When an accused is granted default bail due to the failure of the prosecution to complete the investigation or file a charge sheet within the prescribed time limit, the prosecution may seek the cancellation of that bail under certain circumstances. The cancellation of default bail is governed by Section 439(2) of the CrPC.

Under Section 439(2) of the CrPC, the prosecution can apply to the court for the cancellation of bail granted to the accused. The court will consider the application and may cancel the bail if it finds that there are reasonable grounds for believing that the accused has:

  1. Violated the conditions of bail: If the accused has breached any of the conditions imposed by the court while granting bail, such as failure to appear before the court, tampering with evidence, or influencing witnesses, the court may cancel the bail.
  2. Committed an offense while on bail: If the accused is found to have committed another offense while being released on bail, the court may cancel the bail.
  3. Interfered with the investigation or tampered with evidence: If there is evidence to suggest that the accused has interfered with the ongoing investigation or tampered with evidence, the court may cancel the bail.
  4. Become a threat to society or the complainant: If the court determines that the accused poses a threat to society or the complainant, it may cancel the bail.

However, it is important to note that the cancellation of bail is not automatic. The court will examine the grounds presented by the prosecution and give the accused an opportunity to present their case before making a decision on the cancellation of bail. The accused may also be granted an opportunity to file a counter-application in response to the prosecution’s plea for cancellation.