Q.1 Has the accused an indefeasible right to “compulsive bail” i.e. “default bail” under the proviso to Section 167 (2) Cr.P.C. on the expiry of the period of 90 days or 60 days whichever is applicable?Ans. Yes. At that stage, even without examination of the case on merits, the accused is entitled to and the Court is bound to grant default bail to the accused. See –Hitendra...
Q.1 Has the accused an indefeasible right to “compulsive bail” i.e. “default bail” under the proviso to Section 167 (2) Cr.P.C. on the expiry of the period of 90 days or 60 days whichever is applicable?
Ans. Yes. At that stage, even without examination of the case on merits, the accused is entitled to and the Court is bound to grant default bail to the accused. See –
Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 = AIR 1994 SC 2623 - Dr. A. S. Anand, Faizan Uddin - JJ;
Sanjay Dutt v. State through CBI (1994) 5 SCC 410 = 1995 Cri.L.J. 477 (SC) – 5 Judges - A. M. Ahmadi, J. S. Verma, P. B. Sawant, B. P. Jeevan Reddy, N. P. Singh - JJ;
Union of India v. Thamisharasi (1995) 4 SCC 190 = 1995 KC 1189 (SC) - J. S. Verma, Sujata V. Manohar – JJ;
Uday Mohanlal Acharya v. State of Maharashtra – (2001) 5 SCC 453 = AIR 2001 SC 1910 - 3 Judges – G. B. Pattanaik, U. C. Banerjee, B. N. Agrawal - JJ;
Sadhwi Pragyna Singh Thakur v. State of Maharashtra (2011) 10 SCC 445 = 2011 KHC 4874 (SC) – J. M. Panchal, H. L. Gokhale - JJ;
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 = AIR 2017 SC 3948 – 3 Judges - Madan B. Lokur, Prafulla C. Pant, Deepak Gupta – JJ.
Q.2 The period of 90 days or 60 days as the case may be should be computed from the date of arrest or from the date of remand ?
Ans. From the date of remand and not from the date of arrest. For the computation of the period for default bail under the proviso to Section 167 (2) Cr.P.C. time starts from the date of remand and not from the date of arrest. (See –
Antony v. State of Kerala 1986 KLT 86; Chaganti Satyanarayana v. State of A. P. (1986) 3 SCC 141 = AIR 1986 SC 2130 – A. P. Sen, S. Natarajan – JJ;
C.B.I. Special Investigation Cell-I, New Delhi v. Anupam J Kulkarni = AIR 1992 SC 1768; State of M. P. v. Rustam 1995 Supp. (3) SCC 221 – M. M. Punchhi, K. Jayachandra Reddy – JJ;
State v. Mohd. Ashraft Bhat 1996 SCC (1) 432 – M. M. Punchi, Venkataswami K.– JJ;
Para 20 of Sadhwi Pragyna Singh Thakur v. State of Maharashtra (2011) 10 SCC 445 = 2011 KHC 4874 (SC) – J. M. Panchal, H. L. Gokhale – JJ;
Harish Babu Maddineni v. State of Kerala – 2012 (1) KLT 235 – K. T. Sankaran - J).
Q.3 What is the mode of computation of the period of 60 days or 90 days, as the case may be ? Should the first and last dates to be included while computing the period ?
Ans. The day on which the accused was remanded to custody is to be excluded and the day on which the challan was filed is to be included. (Vide Chaganti Satyanarayana v. State of A.P. (1986) 3 SCC 141 = AIR 1986 SC 2130 – A. P. Sen, S. Natarajan - JJ).
The day on which the accused was remanded to custody is to be excluded and the day on which the challan was filed is to be included. Sections 9 and 10 of the General Clauses Act , 1897 to be applied for computing the period. (Vide –
State of M.P. v. Rustam 1995 Supp. (3) SCC 221 – – M. M. Punchhi, K. Jayachandra Reddy – JJ;
Para 12 of Ravi Prakash Singh @ Arvind Singh v. State of Bihar (2015) 8 SCC 340 = AIR 2015 SC 1294 – Dipak Misra, Prafulla C. Pant – JJ – State of M. P. v. Rustam followed.)
In M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence (2020) SCC OnLine SC 867 – 3 Judges – Uday Umesh Lalit, Mohan M. Shantanagaudar, Vineet Saran – JJ, this question regarding computation of the period was not decided.
In Enforcement Directorate, Govt. of India v. Kapil Wadhawan 2021 SCC OnLine SC 3136 – Sanjay Kishan Kaul, Hrishikesh Roy – JJ, observing that there is a conflict of decisions on the issue as to whether the date of remand should be excluded or included while computing the period, the matter has been directed to be placed before a three-Judges Bench for an authoritative decision on the question.
NOTE BY VRK: A close scrutiny of the decisions referred to in Kapil Wadhawan (Supra), it will be discernible that there was actually no conflict of views as to whether the date of remand should be included or not. The principle governing the matter is covered by Sections 9 and 10 of the General Clauses Act, 1897, whereby while computing the period the first day is to be excluded and the last day is to be included.
Rule 22 of the Kerala Criminal Rules of Practice which enjoins that both the date of remand as well as the date of production of the charge-sheet are to be included, does not reflect the correct position of law. The order dated 14-11-2022 passed by the Kerala High Court in B.A. No: 8261/ 2022 – Viju Abraham – J, granting default bail to the accused by including both the date of remand as well as the date of filing of the charge-sheet in compliance of Rule 22 of the Kerala Criminal Rules of Practice, does not appear to lay down the law correctly.
Q.4 In a case where the accused has been released on compulsive bail under the proviso to Sec. 167 (2) Cr.P.C. during the investigation stage, is it not permissible for the Court to cancel the bail by examining the case on merits upon the filing of the charge sheet ?
Ans. No. An order for release on bail under the proviso to Sec.167 (2) Cr.P.C. is, by virtue of the deeming fiction provided therein. Such an order for default bail is deemed to be an order passed under Sec. 437 (1) or (2) or Sec. 439 (1), as the case may be. Hence, when once the accused is released on default bail under the proviso to Sec. 167 (2) Cr.P.C, his bail cannot be cancelled and he cannot be ordered to be arrested or taken back to custody merely because, on the filing of the charge sheet, the Court has taken cognizance of the offence. There should exist independent grounds attributable to the accused for cancellation of the compulsive bail. (Vide Aslam Babala Desai v. State of Maharashtra – (1992) 4 SCC 272 = AIR 1993 SC 1 - 3 Judges – A. M. Ahmadi, M. M. Punchhi, K. Ramaswamy - JJ;
Bipin Shantialal Panchal v. State of Gujrat (1996) 1 SCC 718 = AIR 1996 SC 2897 - A. M. Ahmadi – CJ, B. P. Jeevan Reddy, N. P. Singh - JJ.)
Q.5 Is not the Court entitled to impose a condition of deposit of amounts while releasing the accused on default bail under Section 167 (2) Cr.P.C. ?
Ans. No. Imposing such a condition while releasing the accused on default bail/ statutory bail will frustrate the very object and purpose of default bail under Section 167 (2) Cr.P.C. (Vide para 9 of Saravanan v. State rep. by Inspector of Police (2020) 9 SCC 101 = 2020 KHC 6595 – 3 Judges - Ashok Bhushan, R. Subhash Reddy, M. R. Shah – JJ).