Hot topic for debate among lawyers is default bail rejections; know what it stands for

A third kind of bail exits other than regular and anticipatory bails.

Regular and anticipatory bails are the most often-heard bails, but there is another type of bail of which not many people know of and that is default or statutory bail. Various default bail pleas rejected by different courts recently has become the hot topic for debate among criminal law experts.

The default bail is granted to any arrested person if the investigative agencies have not completed their investigation or fail to file charge-sheet within a certain time frame.

The bail is given under Section 167 (2) of the 1973 Code of Criminal Procedure (CrPC) if the investigative agencies are unable to finish the probe or fail to file charge sheet in 60 days for offences punishable with less than 10 years and 90 days for offences punishable with not less than 10 years.

The default bail amid coronavirus pandemic has become an extremely difficult task for the lawyers who are representing accused of different crime-related cases. While in some cases, the investigative agencies blame the delay in the investigation during the pandemic, in other cases, satisfying the court for default bail becomes a difficult task for accused as well as lawyers.

A special court on November 12 (Thursday) rejected default bail plea application of businessman Deepak Kochhar in ICICI Bank-Videocon money laundering case. Whereas in Yes Bank money laundering case, the Bombay High Court recently rejected default bail plea filed by former DHFL promoters, Kapil and Dheeraj Wadhawan.

The duo had filed for default bail as the investigating officer had not filed a complete charge sheet and only IO's say was submitted as a final report. In another case, the default bail of Gautam Navlakha and Anil Teltumbde were also rejected.

However, a three-judge bench of the Supreme Court comprising of justices Rohinton Fali Nariman, Navin Sinha and KM Joseph recently held that “the right to default bail is not a mere statutory right under the first proviso to section 167 (2) of The Code, but, is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to section 167 (2) are fulfilled".

The court had also observed that it is a fundamental right of an accused person to be released on bail once the conditions of section 167 (2), CrPC are fulfilled.

In a recent hearing of a default bail case, senior counsel Amit Desai argued, “The right accrued to the accused under Section 167 of Cr.P.C. is an indefeasible right. It flows from Article 21 of the Constitution of India. The gravity of the offence is immaterial. If there are possible views, then, the one leaning in favour of the accused has to be accepted. Such rights cannot be defeated by any subterfuge or any technical argument."

Advocate Amit Karkhanis said, "The 90 days stipulated period should be interpreted as 90 days in normal circumstances but this pandemic situation is not a normal circumstance."

Advocate Nitin Satpute said, "If agencies can make arrests during pandemic why they can't file charge sheet in the stipulated time. It has created a huge debate. Default bail is a right of the accused." Some lawyers believe that there should be more clarity on such issues from the constitutional courts.