Default bail rejections are hot topic for debate among city lawyers

Regular and anticipatory bail is the most often-heard bail, but there is another type of bail of which not many know, which is default or statutory bail.

Default bail is granted to any arrested person under Section 167(2) of the 1973 Code of Criminal Procedure (CrPC) if the investigative agencies have not completed their investigation or fails to file chargesheet in 60 days for offences punishable with less than 10 years and 90 days for offences punishable with not less than 10 years.

Default bail amid coronavirus pandemic has become an extremely difficult task for the lawyers who are representing the accused booked for 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 the accused as well as lawyers. Various default bail pleas rejected by different courts recently have become the hot topic for debate among criminal law experts.

A special court on Thursday rejected the default bail plea application of businessman Deepak Kochhar in ICICI Bank-Videocon money laundering case. Whereas in Yes Bank Money Laundering case, Bombay High Court recently rejected the 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 chargesheet 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 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 CrPC 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, "I believe that the investigation officers are not wrong if there is any delay in filing the chargesheet as I think the 90 days mandatory period should be interpreted as 90 days in normal circumstances but this pandemic situation is not a normal circumstance." 

Advocate Nitin Satpute said, "If the accused are not granted default bail even after the agency has not filed the report in the stipulated time, it has created a huge debate. It will have major implications in future orders, as default bail is a right of the accused."

Whereas some lawyers believe that there should be more clarity on such issues from the constitutional courts.