The High Court recently clarified that the indefeasible right of default bail under Section 167 (2)(a) of the Code of Criminal Procedure does not hinge upon an accused specifically invoking the provision in his application for bail.

Rather, court has highlighted

"... in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application."

In criminal cases where the police is not able to file its final report (chargesheet) within 24 hours of having arrested the accused, Section 167 (2)(a) of the Code of Criminal Procedure (CrPC) lays down that such a person cannot be detained beyond a period of either 60 days (or 90 days in more serious offences), if the person "is prepared to and does furnish bail."

The High Court observed,

"A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail 'if he is prepared to and does furnish bail.'"

The High Court also pointed out that a court's power to remand an accused to custody is limited, in that the exercise of remand has to be backed by law. As noted in the judgment,

"It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law.... As is apparent from the language of Proviso (a) to Section 167(2) of the Cr.PC, the power of a Court to remand an accused to custody pending investigation is circumscribed and stands denuded if the period of sixty days or ninety days, as the case may be, has expired and the accused is ready and willing to furnish bail."

The case before the High Court involved the arrest of a man (petitioner) for allegedly having taken part in a mobile phone robbery, during which the complainant was also shot on his leg. The petitioner was arrested in connection with the case in January this year.

The chargesheet was filed on September 14. The period of 60 days stipulated in Section 167 (2) (a), CrPC had expired in March. Bail applications moved in May and June were rejected by the trial court. Pertinently, the petitioner did not invoke Section 167 (2) (a), CrPC while moving his bail pleas.

The State relied on the case of Hitendra Vishnu Thakur v. State of Maharashtra to argue that a court cannot release an accused on bail on its own motion without any application on his behalf.

It would be necessary for the accused to make an application for release on bail on account of a default on the part of the investigation agency, he told the Court. Therefore, it was submitted that since no such application had been made, the petitioner could not have been released on default bail in this case.

The Court, however, did not agree. Justice Bakhru pointed out courts have consistently interpreted the law to favour substance over form. In this regard, he also quoted from Ajay Hasia Etc v Khalid Mujib Sehravardi & Ors, wherein the Supreme Court said,

"... where the constitution fundamentals vital to maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form."

As such, the Delhi High Court observed,

"... if in substance the essential conditions as set out under the Proviso (a) to Section 167(2) of the Cr.PC are met and complied with – that is (i) if the investigation has not been completed within the period of sixty or ninety days, as the case may be, from the date of arrest of the accused; and (ii) if the accused is prepared to offer bail – then there would be no justifiable reason to detain the accused."

For this provision to apply, all that is required is to see that an accused seeking bail is ready to furnish bail once the period of 60 (or 90 days, as the case may be) has lapsed.

In the present case, the Judge noted that the petitioner had told the lower Court that he is willing to furnish bail, provide a sound surety and ready to comply with any condition the court may impose. Therefore, the High Court granted him bail, remarking,

"Clearly, the Proviso to Section 167(2)(a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail. Of course, he would be released on bail only if he did so...it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application."

The Court also added a note on the significance of the right to default bail, as enunciated by the Supreme Court in numerous cases.

"...the Proviso to Section 167(2) of the Cr.PC is intrinsically linked to the right under Article 21 of the Constitution of India that 'no person shall be deprived of his life or personal liberty except according to the procedure established by law.' It embodies a safeguard that circumscribes the power to detain an accused pending investigation. Keeping this principle in mind and the consistent view of the Supreme Court that in matters of personal liberties, it would not be apposite to curtail the same on technicalities, this Court is of this view that the petitioner would be entitled to default bail."