Demystifying the concept of Default Bail

The right of default bail arises from subsection 3 of section 187 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short BNSS). The provision in terms of determining the period of custody for the purpose of default bail is similar as provided under the proviso to sub-section 2 of section 167 of Criminal Procedure Code (for short Cr.P.C.).

Key Provisions of Section 187 BNSS

Section 187 sub-section 3-The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub- section for a total period exceeding- -

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The indefeasible right of the accused arises on 91st day or 61st day from first date of remand when the investigating agency fails to complete the investigation within the said 90 or 60 days respectively, as the case may be. The object of concept of default bail is twofold.

Firstly, to safeguard the right of life and personal liberty of the accused as guaranteed to every person under Article 21 of Constitution of India.

Secondly, is to put a deadline on investigating agency to complete the proper investigation in a time bound manner.

Comment – While drafting BNSS legislature again waives the opportunity to introduce an effective timeline, generally, for completion of investigation and submitting the police report thereto. Earlier when the Cr.P.C. is in force, the nature of custody can be changed from police custody to judicial custody or vice versa within first fifteen days. It is pertinent to mention the fact that police custody cannot exceed 15 days in total neither in Cr.P.C. nor in BNSS. However, in BNSS nature of custody can be changed during first 60-days or 40-days in 90-days or 60-days custody period respectively.

Comment – Our criminal justice system works on the principle that every person accused of any crime is presumed to be innocent unless proven guilty. It is a matter of prudence and fact courts does not lean towards releasing accused when investigation is not completed owing to certain factors such as protection of victim or witnesses, in order to prevent tampering of evidence etc.. In the light of the discussed factors and societal factors it is seen that in practice courts does grant bail to the accused person during first 15 days, when there exists a right of police custody with the investigating agency. Coming to the meat of the substance, now time period of seeking police custody has been extended to 60 days or 40 days, though not exceeding 15 days in total, the fundamental right of personal liberty enshrined under Article 21 of the Constitution of India gets jeopardized.

For instance, if departure from earlier practice be taken by the court of law and accused be released on bail on taking into account the proviso 3 to section 480 of BNSS. The proviso states that the investigating agency still has the right of police custody as far as the period of 60 days or 40 days has not completed yet, there can be no ground to refuse bail to the accused. If some day in that prescribed period the investigating authority seeks police custody and the same be granted by the court, then the issue arises whether the bail granted be cancelled. That is how an innocent person who is not proven guilty becomes the soccer ball in the hands of the system wherein within the above prescribed period, any number of times an innocent be released and sent back to the custody till the 15 days period of police custody got exhausted or the period of 60 days or 40 days be elapsed.

How to calculate days for Default Bail?