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Analyzing the concept of Default Bail

  • Category
    Polity & Governance
  • Published
    13th Dec, 2021

Context

The Supreme Court dismissed the National Investigation Agency’s petition challenging Bombay High Court order granting bail to advocate and activist Sudha Bharadwaj, arrested in Bhima Koregaon case.

This brief attempts to analyze the concept of bail in India and its actual implementation in today’s time.

Background

  • The idea of ‘bail’ was first institute in England. Later on, by getting inspired from the concept, India introduced it in the country.
  • The concept of bail has come under the extent of human rights since the UN declaration of Human Rights of 1948.
  • In its 41st report, the Law commission conduct out the recommendations to the parliament and these recommendations were examined and incorporated by parliament in criminal procedure code, 1973.
  • Streamlining of the law on bails was organized in the structure of basic principles of personal liberty to see that these are concisely affected and a flexible mechanism adapted to secure attentiveness of the community through an exercise of judicial discretion.
  • The approach appears to be constant with the policy and motive of the institution of bail.

Analysis

What’s the case?

  • Bharadwaj was arrested on August 28, 2018 in connection with the Bhima Koregaon/Elgar Parishad case under the Unlawful Activities Prevention Act (UAPA).
    • Unlawful Activities Prevention Act (UAPA), an anti-terror law that suspends the fundamental, constitutional rights of those arrested.
  • Now, HC has granted default bail to activist-lawyer Sudha Bharadwaj in the 2018 Bhima Koregaon case under Section 167(2) of the Criminal Procedure Code.
    • The high court stated in its order that Bharadwaj, accused of being part of a conspiracy to overthrow the Union government, was entitled to bail and its denial would be in breach of her fundamental right to life and personal liberty guaranteed under Article 21 of the
  • The National Investigation Agency (NIA) approached the Supreme Court against the Bombay High Court order, which got dismissed by the apex court.

National Investigation Agency (NIA)

  • The National Investigation Agency (NIA) was established on 31st December, 2008, in the aftermath of the traumatic Mumbai Terror Attack (MTA) on 26th November, 2008, to create an elite agency dedicated towards the investigation and prosecution of offences affecting sovereignty, security and integrity of India.
  • It is the designated National Counter Terrorism Law Enforcement Agency in India.
  • Headquarters: New Delhi

What is default bail?

  • Also known as statutory bail, this is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody.
  • This is enshrined in Section 167(2) of the Code of Criminal Procedure where it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody.
    • This section concerns the total period up to which a person may be remanded in custody prior to filing of charge sheet.
  • For most offences, the police have 60 days to complete the investigation and file a final report before the court.
  • However, where the offence attracts death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days.
  • In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
  • At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.

Principles on Default Bail

  • A right: Default or statutory bail is a right, regardless of the nature of the crime.
  • Stipulated period: The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time.
    • It includes days undergone in both police and judicial custody, but not days spent in house-arrest.
  • Requirement: A requirement for the grant of statutory bail is that the right should be claimed by the person in custody.
  • If the charge sheet is not filed within the stipulated period, but there is no application for bail under Section 167(2), there is no automatic bail.
  • In general, the right to bail on the investigation agency’s default is considered an ‘indefeasible right’, but it should be availed of at the appropriate time.

Right to Default Bail: Statutory or Fundamental?

As per a recent judgment by Delhi HC-

  • “The right to seek default bail under Section 167(2) CrPC is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation. The right of the accused to be set at liberty takes precedence over the right of the state to carry on the investigation and submit a charge sheet.”

Types of Bail

Bail is a provisional release of a detained person, who is accused of a criminal offense and therefore the judgment is yet to tend.

There are 3 types of bail Regular, Interim and Anticipatory.

  • Regular bail- A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under Section 437 and 439 of CrPC.
  • Interim bail: Interim bail is granted for a short period of time and it is granted before the hearing for the grant of regular or anticipatory bail.
  • Anticipatory Bail: If any person has reason to believe that he/she may be arrested for non-bailable offence, he/she may apply to Sessions court or High court for anticipatory bail praying that in the event of arrest, he/she shall be released on bail (Section 438 Cr.PC).

Rights at Trial

Right to A Fair Trial

Right to a speedy trial

Right To Consult A Legal Practitioner

Rights of Free Legal Aid

Right To Be Examined By A Medical Practitioner

Conclusion

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the ‘time for investigation’ relating to an offence (punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years) cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days.

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