On the expiry of the said period, the accused person shall be released on bail if he is prepared to and does furnish bail. paying the entire bail amount. Further, police custody can be granted by a Magistrate only when the accused person is physically produced before the Magistrate. It has a remaining term in excess of oneyear. Yet, the possibility of the accused being tortured by the other inmates cannot be ruled out since the accused shares his cell with other persons who may or may not have been arrested for the same offence). Once you have viewed this piece of content, to ensure you can access the content most relevant to you, please confirm your territory. The chargesheet has to conform to the essentials of the Section173 of the CrPC. At this juncture, myopic reading of Section 167 of Cr.P.C conveniently ignoring the spirit behind the order by the Apex Court invoking its power under Article 142 of the constitution will amount to judicial indiscipline. Once the accused person is produced before a Judicial Magistrate or an Executive Magistrate, as the case may be, such Magistrate is then authorized to peruse the case papers, consider the investigation conducted and the gravity of the offence alleged, among other things, and then authorise detention. The Court has to only consider the statutory requirements of Section-167(2), namely, whether the statutory period for filing a chargesheet has expired, whether the charge-sheet has been filed and whether the accused is prepared to and does furnish bail. v. Rustam, 1995 Suppl (3) SCC 221; Ravi Prakash Singh v. State of Bihar, AIR 2015 SC 1294). Recently, lawyer and activist Sudha Bharadwaj, facing charges for offences under the UAPA Act, wasreleasedondefault bailby the Bombay High Court. cannot be equated with the discretion of the Court under Sections 437, 438 or 439 Cr.P.C., wherein the Court has got ample power to impose any condition as would be deemed fit on the facts and in the circumstances of the case. A "bail bond" is a written undertaking entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation; provided, however, that the defendant on execution of the bail bond may deposit with the custodian of funds of the court in which the This article has been written by Gunjeet Singh Bagga, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. Nicely described. It is for your own use only - do not redistribute. She specialises in Criminal, POCA and POCSO matters. Page 3 of 17 property. If the agency fails to comply with these deadlines, the accused becomes entitled to what is commonly referred to as 'default' or 'regular' bail. 2019 - 2023 PwC. This is the most common kind of license. Lord Russell of Killowen,C.J said.it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. Duty is casted upon the Magistrate to inform the accused about his indefeasible right to be released, when it accrues. If the Judicial Magistrate does not have jurisdiction to try the case, he/she shall forward the case to the concerned jurisdictional Judicial Magistrate. But in the meantime, three important questions arise: (i) Which order would be binding on Courts pending judgment of the Division Bench on this issue? WHEN a delinquent is arrefted by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a juftice of the peace. Bhawna is an advocate practising in Delhi High Court and District Courts of Delhi. To conclude, Section 167(2) of the Code does not impose any limitation on the Investigating Agency to file its final report/charge-sheet within a specific period. Bond. BAIL IN NDPS ACT:-Bail in NDPS Act. Hence, this decision is not on the point at all. The NIA court had rejected the default bail applications of the five accused, who had been in jail since 2018. Interpretation of availed of: date of filing application or date of actual release? Your email address will not be published. In such cases, the decision of the Court regarding when did the accused avail of his right to be released on default bail becomes crucial, because that determines whether the accused can be released on default bail or whether his right to be so released is extinguished by the filing of the charge sheet in the interregnum. All rights reserved. Without there being any specific provision under a statute specifically amending this section to that effect, once the initial period of 15 days lapses, the accused person cannot under any circumstances be subjected to police custody in respect of that particular offence, even if during the period of the first 15 days, the police are unable to obtain custody of the accused for any reasons whatsoever; for instance, if the accused, by way of a medical emergency, is admitted at a hospital for the entire duration of the first 15 days after their production before the Magistrate, then too after their discharge, the police is not permitted to seek their custody. It is worth noting that the prescribed period of 60 days or 90 days or 180 days, as the case may be, is to be calculated from the first day of production of the accused before the Magistrate, that is, the first day of remand, and not from the date of arrest of the accused person. RL 425:19. The author is an Advocate of the Bombay High Court. court officer to whom the charges have been referred for trial may issue a warrant It's the RobertJDFL, Attorney 21,360 Satisfied Customers Experienced in multiple areas of the law. Once such an application is made . This is enshrined in Section 167 (2) of the Code of Criminal Procedure. It is vital to note that the said overall period of 15 days is available during the first 15 days ONLY, from the date of first production of the accused person before a Magistrate. Although the lease is not subject to the specific disclosure requirements of the leases guidance (because the lease term has not yet commenced). History: 1937, Act 144, Eff. This means that if the police report of the investigating agency is not filed within the prescribed time limit, then irrespective of the gravity of the offence or nature of accusation alleged against the accused, the accused person has aright to be released on bail, and the question as to why the chargesheet could not be filed within the prescribed time is immaterial. The period of custody can go beyond 24 hours if specified so by a special order granted under section 167. In the case of Suresh Jain v. State of Maharashtra, (2013) 3 SCC 77 the Supreme Court clarified, 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 CrPC, and the Magistrate is mandatorily required to release the accused person. Military 37-09-08. The right to be released on default bail is enforceable as long as . PL 366 :19. The Court particularly discarded the misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused . This protection is available to both citizens as well as aliens. 9. This is enshrined in Section 167 (2) of the Code of Criminal Procedure. Provided the statutory conditions of Section 167(2) are met and bail is furnished, the accused is entitled to default bail. (The stay is a terrible experience in view of the overcrowding of jails; however, there is no question of torture at the hands of the police. For an effective understanding of default bail, it is necessary to know that according toSection 57of the CrPC, any person arrested by the Police without warrant cannot, under any circumstances, be kept in custody of the police beyond the period of 24 hours, unless a special order authorising the detention is obtained by the police from a Magistrates Court. A "bail enforcement agent" means a. . If the Judicial Magistrate is not available, the concerned police officers, not below the rank of sub-inspector, shall forward the accused to the nearest Executive Magistrate conferred with the power of a Judicial Magistrate who shall authorise the detention of accused of a maximum period of 7 days through a reasoned order and forward the accused to the nearest Judicial Magistrate. The abovementioned observation in Pragya Singh Thakurs judgment has been held to be per incuriam by a 3 Judge Bench of the Supreme Court in M. Ravindran vs. cases, principles underlying the same, nature of right conferred upon the accused thereunder. Directorate of Revenue Intelligence has observed that the limited notice issued to Public Prosecutors while hearing the application for Default Bail should not be misused by buying extra time and filling up lacunae in the investigation. bail and to actually furnish bail when magistrate passes an order for release on bail. You're all set! Thus, to answer (i) and (ii), pending order of the Division Bench, the prior view taken by the Court would be in force and the subsequent view would be per incuriam and unbinding for want of judicial discipline. New Delhi: In a landmark decision, the Supreme Court Monday held that "default bail" could be cancelled even after investigating agencies file their chargesheet, provided there was a strong case for it. About Default Bail: Legal Source: This is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody. To answer (iii) it would be apposite to elaborate on Section 167(2) of the Code, which contemplates detention of accused to custody, empowering a Magistrate to authorise such detention of accused in police custody for a period not exceeding 15 days, and thereafter to judicial custody. Bail is an essential part of criminal law. Commitment to prison or jail pending trial--Bail allowed. Sign up for our free summaries and get the latest delivered directly to you. The Court particularly discarded the misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused . 2. In Sadhwi Pragya Singh Thakur vs. the State of Maharashtra, it was erroneously observed by a Division Bench of the Supreme Court that. In view of the conflicting opinions, the Chief Justice of Madras High Court has constituted a Division Bench to answer the issue. Appeal 699/2020 while affirming its earlier decision Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, held that the expression must be understood to mean when the accused files an application and is prepared to offer bail on being directed. The accused shall be deemed to have enforced his indefeasible right when such application is filed even though it is pending consideration and the actual release is subject to the compliance with the order granting bail. "Bail" means cash bail, a bail bond or money paid with a credit card. In the event time is extended under a special statue by a period of certain days, then the right to default bail shall accrue in favour of the accused on expiry of the said extended period of time if report/complaint is not filed till then. https://codes.findlaw.com/nd/title-37-military/nd-cent-code-sect-37-09-08/, Read this complete North Dakota Century Code Title 37. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso toSection 167(2), kicks in and must be granted. To spell out what this means for a layman, whether the accused makes a written application or an oral application seeking default bail is of no consequence. All rights reserved. The Constitution Bench in Sanjay Dutt v. State, (1994)5 SCC410 held, The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. There were ambiguities in interpretation of this expression availed of as different High Courts have differed in their opinion, which now stands settled by the Apex Court. In this video lecture, Saurabh Pandey brings you about Sudha Bhardwaj Case for UPSC CSE preparation. While she was given 'default bail', eight others were . TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select. 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