LexCounsel Newsletter – June 2023

Default Bail in India

Case Details:The State Through Central Bureau of Investigation vs T. Gangi Reddy @ Yerra Gangi Reddy CRIMINAL APPEAL NO. 37 OF 2023  
Court:The Supreme Court of India (“the Court”)  
Ratio:Default bail is a bail granted to an accused under arrest upon failure of the investigating agency to file a chargesheet within the stipulated timelines.      No default bail can be cancelled on the mere filing of the chargesheet. It however can be cancelled if a special or strong ground of commission of a non-bailable offence is disclosed in the chargesheet.  
Judgment date:January 16, 2023  
Act/Law:Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC)

The concept of default bail in India is enshrined in Section 167(2) of the CrPC, which provides that when an accused is arrested and detained in custody, the investigation must be completed within a specified time frame, failing which the accused shall be released on bail.

The statutory time frame for completing the investigation of offences under the IPC, and for filing of the charge sheet varies depending on the gravity of the offence. For offences punishable with imprisonment up to 10 years, the investigation must be completed within 60 days of arrest. For offences punishable with death, imprisonment for life or imprisonment for more than 10 years, the investigation must be completed within 90 days of arrest (excluding the investigation/arrests made under special statutes).

If investigation is not completed within the specified time frame, the accused has a right to be released on bail, and this is known as “default bail”. For an accused to be entitled to a default bail, the accused must have been in custody during the entire statutory period for the investigation, and the accused must not have been released on bail during that period.

The Court, recently, in the judgment of “State through Central Bureau of Investigation vs T. Gangi Reddy @ Yerra Gangi Reddy”, discussed the fundamental principles and considerations for default bail.

Facts:

  • The case involved the Respondent, Yerra Gangi Reddy (Reddy), who was arrested by the Special Investigation Team (SIT)on 28.03.2019, in connection with a case registered under Section 302 IPC (“Punishment for murder”) read with Section 120-B IPC (“Punishment of criminal conspiracy”). Reddy’s remand period under Section 167(2) of the CrPC (“Procedure when investigation cannot be completed in twenty-four hours”), ended on 26.06.2019, and the SIT failed to file the charge sheet within the prescribed 90-day period. Consequently, Reddy applied for default bail under Section 167(2) of the CrPC, which was granted by the trial court.
  • Subsequently, vide an order passed in Writ Petition No. 3144 of 2019 and Writ Petition No. 1639 of 2020 by the High Court of Andhra Pradesh at Amravati (High Court), investigation into the above crime was entrusted to the appellant – Central Bureau of Investigation (C.B.I.). The C.B.I. thereafter filed F.I.R. No. RC-04(S)/2020/SC-II/ND on 09.07.2020 and the initial/first chargesheet on 26.10.2021 naming Reddy. During the investigation, it was revealed that a conspiracy was hatched by Reddy and other accused persons to kill the deceased (Y.S. Vivekananda Reddy, a former M.L.A.; former Member of Lok Sabha; former Member of A.P. Legislative Council).
  • Consequently, C.B.I. then filed an application before the Special Court under Section 439(2) CrPC (“Special powers of High Court or Court of Session regarding bail”) for cancellation of the bail granted to the respondents, which was dismissed vide order dated 30.11.2021. The C.B.I., thereafter, filed a supplementary chargesheet against another accused under Sections 201 IPC (“Causing disappearance of evidence of the offence, or giving false information, to screen offender”) and 120-B IPC read with 302 & 201 of the IPC and also against Reddy under Sections 201, 506 (“Punishment for criminal intimidation”) and 120-B IPC read with 201 IPC.
  • The C.B.I. also sought cancellation of bail granted to Reddy in Criminal Petition No. 788 of 2022 before the High Court under Section 439(2) CrPC, which was rejected, the reason being that once default bail has been granted it cannot be cancelled on merits. The C.B.I. then approached the Court against the above rejection.
  • Key Issues for consideration by the Court were:
  • Whether the grant of default bail was valid under Section 167(2) of the CrPC, given that the charge sheet was not filed within the prescribed statutory period.
  • Whether the provisions of Section 167(2) of the CrPC were mandatory or directory in nature.
  • Whether the grant of default bail could be cancelled on merits, and if so, under what circumstances.
  • The Court observed and held as follows:
  • Grant of default bail was valid: The Court held that the grant of default bail was valid under Section 167(2) of the CrPC, as the charge sheet was not filed within the prescribed 90/60-day period. The Court noted that the right to default bail is a valuable right of an accused person and should not be interfered with lightly.
  • Default bail is mandatory in nature: The Court held that the provisions of Section 167(2) of the CrPC are mandatory in nature and that the failure to file the charge sheet within the prescribed 90/60 day period, as the case may be, would result in the automatic grant of default bail. The Court noted that this was the settled law and that the purpose of the time limit was to ensure that no accused is kept in custody for an indefinite period.
  • Default bail can be cancelled on merits: The Court held that a default bail can be cancelled on merits if special or strong grounds of commission of a non-bailable offence(s) are disclosed in the chargesheet, including where new facts or circumstances emerge during the course of the investigation and are made part of the chargesheet. Default bail is granted not on merits, but due to failure of the investigating agency to complete the investigation within the statutory timeframe. A default bail can thus be cancelled on merits and other general grounds like the possibility of the accused tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc.

The above decision of the Court has reaffirmed the importance of protecting the rights of the accused persons while holding that default bail is a matter of right. The judgment strikes a fine balance between the legal possibility of cancellation of a default bail if the compelling facts and circumstances so require, and the law that an accused cannot be detained indefinitely without a trial