Report No. 268

B. Default Bail or Statutory Bail

5.6 The object of this provision manifests the legislative anxiety that once a person's liberty has been interfered with, the arrest made without a warrant or a court order, the investigation must be conducted with utmost urgency.117Persons who are detained for committing an offence and undergoing investigation are statutorily eligible for bail under Section 167(2) of Code after ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for not less than ten years; and sixty days where the investigation is relating to any other offence, if the investigating authorities fail to complete their investigation and file a charge-sheet within this period.

5.7 In the case of Suresh Jain v. State of Maharashtra,118 the Supreme Court clarified that a person accused of an offence acquires an "indefeasible right" to be granted bail on meeting the bail conditions if investigation is not completed within the periods mentioned in s. 167(2) of Cr.PC, and the Magistrate is mandatorily required to release the accused person. Any detention beyond the prescribed period would be illegal. In Sanjay Dutt v. State, Through CBI ,119 Supreme Court held that this indefeasible right of the person accused of an offence to be released on bail under s. 167(2) of Cr.PC would not apply if the accused person does not file an application to "avail" the right before filing of charge-sheet.

The Court held that if the charge-sheet is filed after the period specified in s. 167 (2) of Cr.PC but before the application for bail is considered, then the right to bail under s. 167(2) of Cr.P.C would not be available and the application for bail will then be considered only on merits.120 Although the right to avail bail for failure to complete investigation is 'indefeasible', it is not automatic. The person accused of an offence should avail the right at an appropriate stage and enforce it prior to the filing of the challan.121 Further, such accused person continues to remain in custody until he furnishes bail.

5.8 On day to day basis it has been recorded that inspite granting bail the person accused of an offence is not able to furnish security and thus the bail order remains inoperative. In such cases, if the accused person is not able to furnish security because his indigence and moves an application for varying th terms of bail, the Court may consider it and pass an appropriate order after giving due notice to the prosecutor.