What is Default Bail and Can the High Court Grant It?

Bail is an important aspect of criminal jurisprudence, as it protects the right to personal liberty guaranteed under Article 21 of the Constitution of India. Among the different kinds of bail available to an accused, default bail occupies a unique position. Unlike anticipatory bail or regular bail, default bail is not dependent on the discretion of the court but arises as a statutory right when the investigating agency fails to complete its investigation within the prescribed period. This concept of default bail flows from Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC).

The High Court, being a constitutional court with extraordinary powers under Section 439 of the CrPC and Article 226 of the Constitution of India, plays a crucial role in granting default bail, especially where lower courts either reject or delay in recognizing the accused’s entitlement. In this article, we will examine in detail what default bail means, its legal foundation, the procedure for obtaining it, the role of the High Court in granting default bail, relevant case laws, and practical considerations.

Understanding the Concept of Default Bail

Default bail, also known as statutory bail, is a right that accrues to an accused person when the investigating agency fails to complete the investigation and file the charge sheet within the prescribed statutory time limit.

Under Section 167(2) of CrPC, if the investigation is not completed within:
- 60 days for offences punishable with imprisonment less than 10 years, or
- 90 days for offences punishable with death, life imprisonment, or imprisonment of not less than 10 years,

then the accused is entitled to be released on bail if he makes an application and is prepared to furnish sureties.

Thus, unlike discretionary bail, default bail is a statutory right and not based on merits of the case. The Supreme Court has repeatedly held that once the conditions of Section 167(2) are satisfied, the accused must be granted bail.

Legal Provisions Related to Default Bail

Section 167(2) CrPC – This is the central provision that grants an accused the right to default bail when the investigation is not completed within the prescribed period.
Section 173(2) CrPC – Provides that a charge sheet must be filed after completion of investigation. Filing of an incomplete or preliminary charge sheet does not defeat the right to default bail.
Section 439 CrPC – Grants the High Court and Court of Session the power to grant bail, including default bail.
Article 21 of the Constitution of India – The right to default bail has been recognized as part of the right to personal liberty under Article 21.

Nature of the Right to Default Bail

The Supreme Court has clarified that default bail is not a privilege but a fundamental right. Once an accused files an application for bail after the expiry of 60 or 90 days (as the case may be), and is prepared to furnish bail, the court must grant bail.

In Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, the Supreme Court held that the accused’s right to default bail is indefeasible once conditions of Section 167(2) are met.

In Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, the Court reiterated that default bail is a statutory right and cannot be denied on the basis of the gravity of the offence once the time period has lapsed.

Procedure for Seeking Default Bail

Expiry of Statutory Period: The first condition is that the statutory period of 60 or 90 days must have expired without the filing of a complete charge sheet.
Filing of Application: The accused must file an application before the Magistrate, Sessions Court, or High Court claiming default bail under Section 167(2) CrPC.
Readiness to Furnish Surety: The accused must be prepared to furnish bail bonds and sureties as required by the court.
Grant of Bail: Once the application is filed and the court is satisfied about the expiry of the period, bail must be granted.
Role of High Court: If the Magistrate or Sessions Court rejects the application or imposes unreasonable conditions, the accused can directly approach the High Court under Section 439 CrPC or Article 226 of the Constitution.

When Can One Approach the High Court for Default Bail?

While default bail is usually filed before the Magistrate or Sessions Court, there are several situations when the accused can approach the High Court:

Rejection by Lower Court: If the Magistrate wrongly denies default bail even though the statutory period has expired.
Delay in Disposal: If there is unnecessary delay in hearing the bail application in the lower court.
Illegal Detention: If the accused continues to be detained despite being entitled to default bail.
Special Situations: In cases involving grave offences, sensitive matters, or constitutional violations, one can directly move the High Court under Article 226.

Can the High Court Grant Default Bail?

Yes, the High Court can grant default bail under Section 439 of CrPC and Article 226/227 of the Constitution. The High Court has both statutory and constitutional jurisdiction to protect the personal liberty of citizens.

In Bikramjit Singh v. State of Punjab (2020) 10 SCC 616, the Supreme Court emphasized that default bail is not merely statutory but a fundamental right under Article 21. The High Court, therefore, has the duty to ensure that this right is not violated.

Factors the High Court Considers While Granting Default Bail

While granting default bail, the High Court does not go into the merits of the case. The primary considerations are:

Whether the statutory period of 60 or 90 days has expired.
Whether a complete charge sheet has been filed by the prosecution.
Whether the accused has filed an application for default bail.
Whether the accused is ready to furnish sureties.

If these conditions are satisfied, the High Court is bound to grant bail. The seriousness of the offence or merits of evidence are not relevant at this stage.

Limitations of Default Bail

The right to default bail exists only until the charge sheet is filed. Once a charge sheet is filed before the accused exercises his right, the right is extinguished.
Default bail does not amount to acquittal. The accused will still have to face trial.
The High Court can impose reasonable conditions while granting default bail.

Important Case Laws on Default Bail

Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 – Indefeasible right to default bail once conditions are met.
Sanjay Dutt v. State (1994) 5 SCC 410 – Clarified that right to default bail must be exercised before filing of charge sheet.
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 – Right to default bail is a statutory right flowing from Article 21.
Bikramjit Singh v. State of Punjab (2020) 10 SCC 616 – Default bail is a fundamental right and cannot be defeated.
M. Ravindran v. Intelligence Officer (2021) 2 SCC 485 – Filing of an incomplete charge sheet does not defeat the right to default bail.

Difference Between Default Bail and Regular Bail

Aspect	Default Bail	Regular Bail
Basis	Failure of prosecution to file charge sheet in time	Merits of the case and discretion of the court
Statutory Reference	Section 167(2) CrPC	Section 437/439 CrPC
Right	Statutory and fundamental right	Discretionary
Timing	After expiry of 60 or 90 days	Anytime during custody or after charge sheet
Considerations	Only delay in investigation	Gravity of offence, evidence, flight risk, etc.

Practical Aspects in High Court

Petitioners usually approach the High Court when default bail is denied at lower levels.
High Courts often fast-track such matters as they involve personal liberty.
Lawyers must carefully calculate the 60/90-day period to avoid errors.
The High Court may also entertain default bail petitions directly under writ jurisdiction in exceptional cases.

Frequently Asked Questions (FAQs)

Q1. What is default bail?
Default bail is the statutory right to bail when the investigating agency fails to file a charge sheet within the prescribed period under Section 167(2) CrPC.

Q2. Is default bail a matter of discretion?
No, it is an indefeasible right. Once conditions are met, the court must grant bail.

Q3. Can the High Court grant default bail directly?
Yes, the High Court has jurisdiction under Section 439 CrPC and Article 226 of the Constitution to grant default bail.

Q4. Can default bail be denied due to the seriousness of the offence?
No, seriousness of the offence is irrelevant. If the statutory time has lapsed, bail must be granted.

Q5. Can default bail be cancelled later?
Yes, like any other bail, default bail can be cancelled if the accused misuses liberty, tampers with evidence, or absconds.

Q6. Is an incomplete charge sheet sufficient to defeat default bail?
No, an incomplete or preliminary charge sheet does not take away the right to default bail.

Q7. Can default bail be sought after filing of charge sheet?
No, the right must be exercised before the charge sheet is filed.

Conclusion

The concept of default bail under Section 167(2) CrPC is a cornerstone of criminal law in India. It ensures that an accused person is not kept in custody indefinitely due to the failure of the prosecution to complete its investigation in time. Unlike other forms of bail, default bail is not subject to judicial discretion but is a statutory and fundamental right.

The High Court plays a pivotal role in safeguarding this right by granting default bail when lower courts fail to do so or when the constitutional right to liberty is at stake. Through its extraordinary powers under Section 439 CrPC and Article 226 of the Constitution, the High Court ensures that justice is not defeated by delay or misuse of investigative powers.

Thus, the answer to the question “Can the High Court grant default bail?” is an emphatic Yes—the High Court not only can, but is duty-bound to grant default bail where conditions are fulfilled, as it flows directly from the fundamental right to personal liberty under Article 21.

Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304