In an appeal before the Supreme Court, the accused/appellant challenged an Allahabad High Court order rejecting his plea of default bail under Section 167(2) Cr.P.C. The accused-appellant had been arrested for offences under the sections 420, 467, 471, 468 and 120-B IPC and under Section 18 of the Unlawful Activities Prevention Act (UAPA), 1967. Further, the period stipulated under Section 167(2) Cr.P.C. had been extended to a period of 180 days under Section 43D(2) UAPA. A chargesheet was filed within this 180-day period, but without the mandatory government sanction. Pursuant to obtaining the government sanction, a second charge sheet was filed. Two days before the second charge sheet was filed, the appellant filed for default bail on the ground that no complete chargesheet had been filed within the time stipulated under Section 167(2) Cr.P.C. read with Section 43D(2) UAPA. His plea was dismissed by the trial court and then subsequently by the High Court on the basis that the second charge sheet was merely a supplementary charge sheet. The Appellant-accused thereafter appealed to the Supreme Court on the ground that the jurisdiction of offences under the UAPA lies only with the special courts and thus the 180 days for filing could/should not have been granted. It was further argued that even within the 180 days granted, the charge sheet had not been filed, as a result of which he was entitled to default bail.

The Supreme Court held as follows:

“We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances.”

The Supreme Court reaffirmed the settled principle of law that default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right as it is a procedure established under Article 21 of the Constitution of India.

The Appellant came before the Supreme Court in an appeal against a Bombay High Court order, claiming a right to default bail under Section 167 Cr.P.C. The Supreme Court expanded the understanding of custody under Section 167 Cr.P.C. to include not just police and judicial custody, but also “house arrest.”

The Appellant had been arrested from his Delhi residence in August 2018 in an FIR registered in PS Vishrambaug in Maharashtra. His arrest and transit remand had been challenged in a habeas corpus filed the same day as his arrest, in which the Delhi High Court directed that the Appellant be detained under “house arrest” till the petition was decided. During his “house arrest,” the Appellant could not leave the premises or meet anyone, barring his lawyers and those he lived with. Delhi Police officials guarded his house and the investigating agency did not have access to interrogate him. On 01.10.2018, the High Court ruled that the remand order was illegal. The Appellant filed several other cases seeking anticipatory bail, and quashing of the FIR against him, and was granted interim protection against arrest from time to time. The Appellant was finally directed to surrender before the investigating agency on 14.04.2020.

The Appellant submitted that the 34 days he spent under “house arrest” should be included in the period of custody undergone by him under Section 167 Cr.P.C., and he had a right to default bail as the chargesheet against him was filed after the expiry of the period stipulated in Section 167 Cr.P.C.

The Supreme Court held that “house arrest” involves custody which falls under Section 167 Cr.P.C., and that the period of such custody must be included in computing the time under Section 167 Cr.P.C., even if the order remanding the accused to such custody is later declared illegal. The Court further held that in appropriate cases, it is open to courts to order house arrest under Section 167 Cr.P.C., based on criteria such as inter alia age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest, particularly in light of the problems of overcrowding in prisons (para 149-151)

On the facts of the Appellant’s case, however, the Supreme Court rejected his plea for default bail and found that the Appellant’s “house arrest” would not qualify as custody for the purpose of Section 167, since the police did not have access to interrogate him during his “house arrest.” (para 131)

The appeal was filed against a Punjab and Haryana High Court order dismissing the accused’s plea for default bail. The accused’s application for default bail before the Magistrate had been dismissed on the ground that the 90-day period under Section 167(2) Cr.P.C. had been extended to 180 days under S. 43D(2)(b) of the Unlawful (Activities) Prevention Act, 1967 of the accused for default bail. This extension order however had later been set aside on account of lack of jurisdiction.

The Supreme Court held that as a result of setting aside the extension, the default bail application which had been wrongly dismissed ought to have been corrected in revision, and allowed the default bail plea of the Appellant. The Supreme Court held that the right to default bail is not a mere statutory tight, but is part of the procedure established by law under Article 21. The Supreme Court held:

39…. so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

The appeal was filed against a Madras High Court order wherein the Ld. Single Judge declined the plea of the accused for default bail under Section 167(2) Cr.P.C. The Ld. Single Judge had held that lockdown restrictions; as well as the Supreme Court’s order dated 23.03.2020 in Suo Moto W.P.(C) No. 3 of 2020 (which extended limitation in all proceedings); had eclipsed the time prescribed under Section 167(2) Cr.P.C. Thus, the Ld. Single Judge held that no right to default bail would accrue to the accused, even on non-submission of chargesheet within the prescribed period under Section 167(2) Cr.P.C.

The Supreme Court set aside the Madras High Court order, holding that its order dated 23.03.2020 in Suo Moto W.P.(C) No. 3 of 2020 was only to ease difficulties faced by lawyers/litigants in terms of them having to physically come to court for filings. The police, on the other hand, was not precluded from filing charge-sheets within the stipulated time period. The Supreme Court held that its order dated 23.03.2020 in Suo Moto W.P.(C) No. 3 of 2020 could not be interpreted to affect either Section 167(2) Cr.P.C. or constitutional mandates requiring production of accused before a Magistrate within 24 hours of arrest; and granted default bail to the accused.

The appeal was filed against a Madras High Court order allowing the plea of default bail to the accused, on condition that he deposit Rs. 8 lakhs with the concerned Magistrate. The accused had earlier been granted regular bail under Section 437 Cr.P.C. on condition of deposit of over Rs. 15 lakhs, of which he had deposited only Rs. 7 lakhs as a result of which he had remained in custody.

The Supreme Court allowed the appeal, holding that no condition of deposit of amount can be imposed when granting default/statutory bail.

The Supreme Court upheld an order passed by the Hyderabad High Court (now Telangana High Court) under Section 439(2) Cr.P.C. cancelling default bail granted under Section 167 Cr.P.C. The Supreme Court held that a combined complaint as required under Section 167(2) Cr.P.C. had indeed been filed within the stipulated time. The Supreme Court held that merely because the filing of the complaint had not been brought to the notice of the Special Court due to some mis-communication would not call for interference with the High Court’s order.

Noting a divergence of judicial opinion on whether the day of remand is to be included while computing the time period under Section 167 (2)(a)(ii) Cr.P.C. for considering a claim for default bail, the Supreme Court referred the matter to a larger bench of at least three judges.

The accused was arraigned in an FIR under the Official Secrets Act, for an offence which entailed a maximum punishment of 14 years but did not specify any minimum sentence of imprisonment. The issue before the Delhi High Court was whether the applicable time period under S. 167(2) Cr.P.C. was 60 or 90 days. The High Court held that Section 167(2)(a)(i) Cr.P.C., i.e. a period of 90 days, applies only when the alleged offence carries a minimum imprisonment term of 10 years. Since there was no minimum sentence in the offence alleged under the Official Secrets Act, even though the offence was punishable with a term of over 10 years, Section 167(2)(a)(ii) Cr.P.C stipulating a period of 60 days would apply. Since the charge sheet had not been filed within 60 days, the petitioner was entitled to default bail.

In a case involving the Terrorist and Disruptive Activities Act, 1987 (which extended the time periods provided under S. 167 CrPC), the Court held that with respect to default bail, an obligation is cast on the court to inform the accused of his right of being released on bail and enable him to make an application in that behalf (para 20). However, the Court clarified that:

“21… We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating/prosecuting agency…”

In yet another case involving the Terrorist and Disruptive Activities Act, 1987 (which extended the time periods provided under S. 167 CrPC), the Court held:

48… The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply.

53. (2)(b)… The “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.

The Appellant challenged a High Court order denying him default bail. The High Court held that since by the time the application for bail came before it, a chargesheet had been filed, the accused’s right to default bail did not remain enforceable, even though he had applied for default bail before the Magistrate before chargesheet had been filed and the Magistrate had erroneously denied him default bail.

The Supreme Court held, particularly in the context of the phrase “if already not availed of” used in Sanjay Dutt v. State through CBI [(1994) 5 SCC 410]:

13… The crucial question that arises for consideration, therefore, is what is the true meaning of the expression “if already not availed of”? Does it mean that an accused files an application for bail and offers his willingness for being release on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as nochallan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not.…In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused….. On the aforesaid premises, we would record our conclusions as follows… :

… 6. The expression “if not already availed of” used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same

In a case involving the Unlawful Activities (Prevention) Act, 1987 (which extended the time periods provided under S. 167 CrPC), the Court held that despite the fact that the accused’s default bail application was not taken up for hearing before the filing of the charge sheet, since it had been filed prior to the filing of the charge sheet, the “indefeasible right” spoken of earlier had sprung into action, as a result of which default bail had to be granted. The Court further clarified that:

25…. It is well-established that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail.

The Court held that even an oral application for grant of default bail would suffice, and so long as such application is made before the charge sheet is filed by the police, default bail must be granted. The Court held that:

40. In the present case, it was also argued by the learned counsel for the State that the petitioner did not apply for “default bail” on or after 4-1-2017 till 24-1- 2017 on which date his indefeasible right got extinguished on the filing of the charge-sheet. Strictly speaking, this is correct since the petitioner applied for regular bail on 11-1-2017 in the Gauhati High Court — he made no specific application for grant of “default bail”. However, the application for regular bail filed by the accused on 11-1-2017 did advert to the statutory period for filing a chargesheet having expired and that perhaps no charge-sheet had in fact being filed.… In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail.

41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical….

The Court further held that to attract the longer 90-day time period under S. 167(2)(a)(i) Cr.P.C. the alleged offence must be punishable with a minimum sentence of ten years – where there is no minimum sentence, and the sentence may permissibly extend to over ten years, S. 167(2)(a)(ii) will be attracted.

27… Offences punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offences punishable with death or imprisonment for life. This category c of offences undoubtedly calls for deeper investigation since the minimum punishment is pretty stiff. All other offences have been placed in a separate compartment, since they provide for a lesser minimum sentence, even though the maximum punishment could be more than ten years ‘ imprisonment. While such offences might also require deeper investigation (since the maximum is quite high) they have been kept in a different compartment because of the lower d minimum imposable by the sentencing court, and thereby reducing the period of incarceration during investigations which must be concluded expeditiously. The cut-off, whether one likes it or not, is based on the wisdom of the legislature and must be respected.