CRIMINAL PROCEDURE CODE I

TOPIC: BAIL WHEN JUDICIAL CUSTODY MAY LAPSE

IX Trimester

Submitted to:- Dr. P.K. Shukla

professor

Submitted by:- Hrishika Netam

2017B.A.LL.B53

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 ACKNOWLEDGMENT

We would like to express our immense respect and gratitude to all those who helped us in making this
project successful.
We are very grateful to our course teacher, Dr. P.K.Shukla, humbly thankful to you for your guidance
and support during the project.

We would also thank the librarian and other staff for their help and support. We thank our renowned
university for the provision of research database which were of very use for our help; without which
the completion of the project would have been difficult for us.

We would find immense pleasure to thank our seniors for their constant support and help during the
making of this project.

And last but not the least we would thank wholeheartedly, our friends and parents for their constant
encouragement and valuable inputs.

Thus, we are grateful to all of them.

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 Synopsis

TITLE:- BAIL WHEN JUDICIAL CUSTODY MAY LAPSE.

STATEMENT OF PROBLEM 
right to bail under section 167(2) is indefensible until the chargesheet is not filed within the
prescribed time frame, This proviso is to the effect that on the expiry of the period of 60 days the accused
shall be released on bail if he is prepared and does furnish bail, is not controlled by S. 437(1).

HYPOTHESIS
The hypothesis for this research is that bail under default clause i.e. granting of bail when judicial custody lapse
is to protect the accused from delay in the process and avoiding detention of accused from unnecessary delay.

OBJECTIVE
The objective of this research project is to understand the concept of bail when judicial custody may lapse
through case and various instances. Also, to understand that how bail under default clause is different from bail
under merits

RESEARCH QUESTIONS
1. What is judicial custody and how is it different from police custody?
2. When does the judicial custody lapse?
3. What is right to bail when judicial custody lapse?
4. What are objectives of right to bail when judicial custody lapse?

Review Litreture :-
A man of courage never needs weapons, but he may need Bail.”

– Lewis Mumford
(American historian, architect, philosopher, literary critic)

In matters of personal liberty, courts cannot and should not be too technical and must lean in favour of personal
liberty. The generic principle of criminal law is, ‘a person is innocent until proven guilty’. From the date of

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filing of FIR till completion of trial and decision of a case, the law contains various provisions for releasing an
accused on different types of bails. In innumerable cases, the Supreme Court has held that bail is a right and
liberty of a person and is important until he is proven guilty. Most often, we hear about ‘anticipatory or regular
bail’. However, there is another less heard form of bail, which is called as ‘Default Bail’ or ‘Statutory Bail’.

Vidhan maheshwari, 2010, Right to bail as a constitutional right Is a civil judge and has studied in National
Law Institute University Bhopal. According to Vidhan liberty is on a higher pedestal and therefore the duty of
the court is to grant bail except in cases of murder robbery rape. In Victimless crimes bail must be necessarily
granted.

R.Sharma, 2002, Human Rights and Bail

R.Sharma’s book published, According to the author genesis of bail is in the preNorman England. The
evolution of the bail is attributed to the administration of justice then
prevailed. In 12 the Century A.D. the judges were very few and traveled all over the country
dispensing justice. The accused could not be incarcerated since there was huge expenditure in
keeping people in prison. Usually accused arraigned persons were released on the assurance
of wealthy friends and relatives until judges arrived from other parts of the nation. Thus the
practice of bail evolved

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 TABLE OF CONTENT

ACKNOWLEDGMENT 2

HYPOTHESIS 3

OBJECTIVE 3

RESEARCH QUESTIONS 3

TABLE OF CONTENT 5

TABLE OF CASES 7

TABLE OF STATUTES 9

INTRODUCTION 10

JUDICIAL CUSTODY 11

CUSTODY 11

POLICE CUSTODY AND JUDICIAL CUSTODY 11

DIFFERENCE BETWEEN POLICE CUSTODY AND JUDICIAL CUSTODY 12

DIFFERENCE BETWEEN SECTION 167 & 309 OF CrPC 13

RIGHT TO BAIL WHEN JUDICIAL CUSTODY LAPSE 13

OVERVIEW OF RIGHT TO BAIL IN THE CASE OF JUDICIAL CUSTODY LAPSE 13

OBJECTIVE OF S. 167(2) CRPC 14

INSTANCES WHERE RIGHT TO BAIL UNDER SECTION 167(2) IS APPLICABLE 14

INSTANCES WHERE RIGHT TO BAIL UNDER SECTION 167(2) IS INAPPLICABLE 15

RIGHT TO BAIL IS INDEFENSIBLE RIGHT UNDER S.167(2) 17

CASES RELATED TO THE APPLICATION OF S.167(2) 19

DIFFERENCE BETWEEN BAIL U/S 436 TO 439 & U/S 167(2) 20

CONCLUSION 21

BIBLIOGARPHY 22

ARTICLE 22

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 BLOG 22

WEBSITES 22

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TABLE OF CASESAbdul Wahid v State of Maharashtra (1991) 93 Bom LR 478.....................21
Ada v State, 1996 CrLJ 3130 (3134) (Ori)....................................................................................16
Anil Somdatta Nagpal v State of Maharashtra 2006 CrLJ 1307 (1316).......................................15
Asa Singh v State of Punjab, 2002 (2) Crimes 84 (89) (P&H)......................................................15
Avinashkumar v State of Jharkhand, 2006 (2) East Cri C 347 (Jhar)............................................15
Bhikari Charan Awasthi alias Bhiku v State of Orissa, (2000) 18 OCR 448.................................8
Bhulabai v Shanker 1999 (3) Crimes 347 (Bom)..........................................................................21
Bipin Shantilal Panchal v State of Gujarat AIR 1996 SC 2897....................................................15
Chaitu Sahni v State of Bihar 1995 (1) Crimes 381 (386)............................................................17
Dinesh Kumar Jain v. State of U.P., 2001 CrLJ 2847 (2848) (All)..............................................15
Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440.............................................14
Dorai v State of Karnataka 1994 CrLJ 2987 (2996) (Kant)..........................................................16
Gousemohiddin Maradansab Masanakatti v State of Karnataka 2004 Crlj 1033 (1035, 1036) (Kant) 15
Gulam Mohd. Kabir Mohd. Mir v State of Maharashtra 2008 CrLJ 2426 (2432)........................16
Guna v State 1997 Crlj 626 (633) (Mad).......................................................................................21
Gurmit Kaur v State of Punjab 1989 Cri LJ 1609 (P&H)...............................................................8
Hitendra Vishnu Thakur v State of Maharashtra AIR 1994 SC 2623..........................................13
Jagdish v State of M.P. 1989 Crlj 531 (MP)..................................................................................21
Jitendra v State of Maharashtra, 2008 (6) Mah LJ 699 (Bom-DB)..............................................15
Khatri (II) v the State of Bihar (1981) 1 SCC 627........................................................................11
Kondapali Seetharamayya v Govt. of A.P. 1995 CrLJ 2169 (2174) (AP-DB)..............................17
M.P. Ramesh v State of Karnataka 1991 Crlj 1298, 1309 (Kant).................................................19
Matabar Parida v State of Orissa (1975) 2 SCC 220.....................................................................8
Md. Abdul v State of W.B. 1991 (2) Crimes 741............................................................................21
Mukesh v. Central Bureau of Investigation, Chandigarh 1998 (1) Crimes 282 (P&H)................15
Nawal Sahni v State of Bihar 1989 Cri LJ 733................................................................................8
Nijamuddin Mohammad Bashir Khan v State of Maharashtra 2006 CrLJ 4266 (4274) (Bom-DB)20
Nijamuddin Mohd. Bashir Khan v. State of Maharashtra 2006 (2) Mah LJ 690..........................12
Nishil v Station House Officer, Alathur Police Station 2008 CrLJ 2467 (2470)...........................17
Powell Nwawa Ogechi v. State (Delhi Admn.), 1986 Crlj 2081 (Del-DB)...................................18
Pradeep Kumar Deo v State of Orissa (2003) 96 Cut LT 431......................................................16
Pradeep Kumar Deo v State of Orissa 2003 CrLJ 4053 (4054)....................................................14
Prakash Kumar Naik v State of Orissa, 2008 Crlj (NOC) 424 (Ori)............................................20

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Pramod Hariprasad Tiwari v State of Gujarat 1997 CrLJ 1605 (1610) (Guj).............................18
Prem Raj v State of Rajasthan 1976 Crlj 455 (Raj).......................................................................18
Raghubir Singh v State of Bihar AIR 1987 SC 149......................................................................18
Rajnikant Jivanlal Patel v Intelligence Officer, Narcotic Control Bureau, New Delhi AIR 1990 SC 71 16
Rajnikant v Intelligence Officer, Narcotic Control Bureau AIR 1990 SC 71...............................18
S.K. Nair v State of Punjab 1984 Cri LJ 1090 (P&H)...................................................................14
S.W. Nade v State of Maharashtra 1994 Crlj 780 (784, 785) (Bom)............................................16
Sagra Singh v State 1996 Crlj 726 (731) (J&K)............................................................................14
Sanjay Dutt v State through CBI Bombay (II) 1994 AIR SCW 3857...........................................15
Sankar v State of Tamil Nadu 1991 Crlj 1745 (1755, 1756) (Mad)..............................................17
Santosh Kumar Mohapatra v State of Orissa 2004 (4) Crimes 59 (Ori).......................................20
Sayendragiri Anandgiri Goswami v Narcotics Control Bureau 2005 Cri LJ 3190 (Bom)...........13
Shardulbhai v State of Gujarat 1990 Crlj 1275, 1305 (Guj-FB)...................................................16
Singamala Sankara Nath v State of A.P. 2007 Cri LJ 884 (887)...................................................13
Singamala Sankara Nath v State of A.P. 2007 Crlj 884 (887)......................................................14
State of H.P. v Kanti Grover 2004 Crlj 4355 (4359, 4360) (HP)..................................................17
State of Punjab v Sukhvinder Singh 1998 Crlj 3090 (P&H)..........................................................16
State of U.P. v Lakshmi Brahman AIR 1983 SC 439....................................................................18
State through C.B.I. v. Dawood Ibrahim Kaskar and Others 1997 CriLJ 2989...........................12
State v Dharampal 1980 CriLJ 1394 (Del)....................................................................................11
Surinder Joshi v State of Punjab 2004 CrLJ 1100 (1102) (P&H).................................................20
Sushila Devi v State of Rajasthan 2007 Cri LR (Raj) RAJ 649 (Raj)...........................................16
Uday Mohanlal Acharya v State of Maharashtra 2001 Crlj 4563 (Bom-DB)..............................20
Ved Kumar Seth v State of Assam 1975 Crlj 647 (Gau-DB)...................................................19, 21
Vishnu Soni v State of Chhattisgarh, 2007 Crlj (NOC) 537 (Chhatt)...........................................15

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 TABLE OF STATUTES
Code of Criminal Procedure 1973, s 439(2)........................................................................................23
Code of Criminal Procedure 1973, s 167(2)..................................................................................13
Code of Criminal Procedure 1973, s 436 to 439...........................................................................23
Code of Criminal Procedure 1973, s 57.........................................................................................10
Code of Criminal Procedure, s 437(5)...........................................................................................21
NDPS Act, s 21(b).........................................................................................................................22

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 INTRODUCTION

Supreme Court in the case of Matabar Parida v State of Orissa1 made an important observation with regard to
bail under section 167(2), “such a law may be a ‘paradise for the criminals’, but surely it would not be so, as
sometimes it is supposed to be, because of the courts. It would be so under the command of the legislature.”
Whenever there is arrest of an accused person and he being detained in custody by police during the phase of
investigation. During investigation it appears to police that investigation cannot be completed within 24 hrs as
fixed by S.572 then the accused must be forwarded to magistrate who from time to time authorises the phase of
detention not exceeding 15 days. There is no as such obligation on magistrate to grant remand, the police has to
a case for that. For the purpose of investigation it becomes important that the accused remains under remand or
custody. There are offences that are punishable with death, life imprisonment or imprisonment of term for more
than 10 years. For such offences the chargesheet must be filed within 90 days as grant by the authorise
magistrate. And if the offence which has punishment of term less than the chargesheet of which must be file
within 60 days.
If in case the police department defaults in filing chargesheet within the stipulated time period than accused has
the right to bail under section 167(2) of CrPC which is the default clause for granting of bail. 3 The purpose of
this section is to protect accused from unnecessary delay in the process of investigation and filing of
chargesheet.4 Bail under this proviso to section 167 would however, not be available to the accused who make
the application on the submission of report after 90 days.5 However, if the application is made after the period
of 90 days but it is submitted before the submission of chargesheet then in such case the accused has the right to
bail under default clause.6

1 Matabar Parida v State of Orissa (1975) 2 SCC 220

2 Code of Criminal Procedure 1973, s 57
3 Matabar Parida v State of Orissa (1975) 2 SCC 220
4 Bhikari Charan Awasthi alias Bhiku v State of Orissa, (2000) 18 OCR 448
5 Nawal Sahni v State of Bihar 1989 Cri LJ 733
6 Gurmit Kaur v State of Punjab 1989 Cri LJ 1609 (P&H)
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 JUDICIAL CUSTODY

CUSTODY
As per Black’s Law Dictionary, custody is defined as under:

“The detainer of a man’s person by virtue of lawful process or authority”7

The word 'custody' means to apprehend someone for the purpose of protection of the society. There is a
difference between the words "custody" and "arrest". In every arrest there is custody but vice versa is not true.
Mere utterance of words or gesture or flickering of eyes does not amount to arrest. For custody to be amounting
to arrest there should be some sort of actual seizure or touch of a person's body with a view to arrest.8

Many times it happens that the police is not able to complete its investigation of a person suspected of a crime,
within 24 hours and present that person in front of the magistrate. At this point in time, with it is important to
keep the person away from the society, for the security of the society and the security of the person himself. It is
also necessary that he is present for further investigation and inquiry and does not evade the law. In such a case,
the person may be kept police custody. The person may also be submitted to judicial custody.9

POLICE CUSTODY AND JUDICIAL CUSTODY

When police takes receipt of an information/complaint/report about a crime, a police officer brings the suspect
to the police station to prevent that person from committing any further offence. It's called Police Custody.

In police custody actually the person suspected of crime is detained in police station and during his detention
the officer in charge has to investigate him. This detention should not be more than 24 hours.10

Within 24 hours of the detention, the officer in charge of the case is required to present the suspect before the
magistrate. The time of journey from police station to the court is not included in these 24 hours.11

Judicial custody means that the accused is in the presence of a concerned magistrate.

7 Bryan A. Garner, Black’s Law Dictionary (9th edn, West 2009)

8 Judicial Custody and Police Custody-Recent Trends < https://districts.ecourts.gov.in/sites/default/files/fct.pdf> accessed 21 March
2019
9 Rebecca Furtado, ‘Custody of a Person under Criminal Law in India’ (iPleaders, 5 July 2016) <https://blog.ipleaders.in/custody-
person-criminal-law-india/> accessed 21 March 2019

10 Code of Criminal Procedure 1973, s 57

11 Khatri (II) v the State of Bihar (1981) 1 SCC 627
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 DIFFERENCE BETWEEN POLICE CUSTODY AND JUDICIAL CUSTODY

S. 167(2) of the Code of Criminal Procedure provides that on the order of the magistrate a person can be kept in
police custody for not more than fifteen days. 12In case of Judicial magistrate, Judicial magistrate can grant the
police custody to the extent of fifteen days whereas in case of executive magistrate, executive magistrate can
grant the police custody to the extent of seven days. Police custody can only extend up to the period of 15 days.
Beyond this, even if the custody of the person is required, it has to be judicial custody.13

If the magistrate is satisfied then he can authorize the detention of the accused for a period beyond fifteen days.
If an accused is related to an offence which is punishable by an imprisonment of 10 years or more, life
imprisonment, and capital sentence then a judicial custody may extend up to the period of 90 days. In any other
case, the judicial custody of such person may extend up to the period of 60 days. After the period of 60 or 90
days, the person is entitled to bail, till the time police have not filed the charge sheet. Once the police files the
charge sheet, the person cannot claim bail as a matter of right.14

In every case in which offence is punishable with imprisonment for a term which may extent to ten years,
provisions of section 167(2)(a)(ii) of CrPC, will be attracted and if investigation in such case is not completed
within period of 60 days, no Magistrate shall authorise detention of accused beyond the said period.15

In police custody the authority is in the hands of police whereas in judicial custody, magistrate is the authority.
In police custody, the accused is lodged in the police station while in judicial custody the accused is in jail. The
person accused of a crime can be interrogated in police custody whereas the same cannot be done in case of
judicial custody. As soon as the person is arrested, that person is placed in police custody but when the
magistrate orders it, then the accused comes under judicial custody.

12 State v Dharampal 1980 CriLJ 1394 (Del)

13 Code of Criminal Procedure 1973, s 167(2)
14 Code of Criminal Procedure 1973, s 167(2) (a) (i) & (ii)
15 Nijamuddin Mohd. Bashir Khan v. State of Maharashtra 2006 (2) Mah LJ 690
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 DIFFERENCE BETWEEN SECTION 167 & 309 OF CrPC

There is a difference between the remand and custody, which is referred in the proviso to Section 309(2) and
detention as provided under Section 167. While remand under the former relates to a stage after cognizance and
can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be
either in police custody or judicial custody.

RIGHT TO BAIL WHEN JUDICIAL CUSTODY LAPSE

OVERVIEW OF RIGHT TO BAIL IN THE CASE OF JUDICIAL CUSTODY LAPSE

S. 167(2) provides an order for release on bail and it can be termed as order on default. 16 This provision is
applicable when there is default on the part of prosecution in filing charge-sheet within prescribed period. The
right to bail under S.162(2) proviso (a)17 is absolute. Putting the words in very clear terms that if the
investigative agency fails to file charge-sheet before the expiry 90/60 days, then the accused should be released
on bail, irrespective of order passed under S.439.18
For instance, in the case of Singamala Sankara Nath v. State of A.P 19,an FIR was registered for an offence
under S. 5 of the A.P. Protection of Depositors and Financial Establishments Act, 1999 and 420 IPC. As the
offences prescribed under these sections are 10 years and 7 years respectively and due to which it was an
obligation for the police to file case within the limit of 60 days. However, police failed to file the case within
the prescribed thus, the accused who was arrested was entitled to be released on bail as of right.20
In the case of Hitendra Vishnu Thakur v State of Maharashtra,21 the Supreme Court held that “ Sub-sec. (2) of
S. 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorize his detention
in such custody, as he may think fit, for a term specified in that section. The proviso to sub-sec (2) fixed the
outer limit within which the investigation must be completed and in case the same is not completed within the
said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to
16 Code of Criminal Procedure, s 167(2)
17 Code of Criminal Procedure, s 167(2)
18 Sayendragiri Anandgiri Goswami v Narcotics Control Bureau 2005 Cri LJ 3190 (Bom); Singamala Sankara Nath v State of A.P.
2007 Cri LJ 884 (887)
19 id
20 id
21 Hitendra Vishnu Thakur v State of Maharashtra AIR 1994 SC 2623
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and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of
bail under Chapter XXXIII of the Code of Criminal Procedure”
It is important to note that for the application of this particular section one must take police custody into
consideration.22 In the case of Directorate of Enforcement v Deepak Mahajan23 the Supreme Court held that a
person accused of an offence under FERA or custom act shall be entitled to remand under section 167(2).
Whenever it appears to the court that the person released on bail under section 167(2) CrPC is misusing the
freedom and tempering with the evidences and fleeing from justice, then the bail may rightly be cancelled in
view of this legal fiction.24

OBJECTIVE OF S. 167(2) CRPC

The object S.167(2) of CrPC is to protect the interest and right of the arrested person from unnecessary
detention in prison due to incomplete investigation. The provisions provided under S. 167(2) are mandatory in
nature and in case of failure by investigative agency in completing the investigation within the given period
entitles the accused released on bail.25

Merit, gravity or nature of the case/crime is immaterial under this section. When accused apply for bail under
this section then he is entitled for bail as a right and Magistrate need not apply his discretion over the matter.26

INSTANCES WHERE RIGHT TO BAIL UNDER SECTION 167(2) IS APPLICABLE

● Delay of even one day in filing the charge-sheet shall give rise too bail under default clause. This right
to bail under the section can be exercise at any time till the conclusion of the trial and it is not defeated
by the lapse of time.27
● The bail application will be maintainable if it is filed on the next working holiday, in case the period of
60/90 days expires on public holiday.28

22 S.K. Nair v State of Punjab 1984 Cri LJ 1090 (P&H)

23 Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440
24 R.V. Kelkar, Criminal Law Procedure (6th edn, EBC Publishing 2018)
25 Pradeep Kumar Deo v State of Orissa 2003 CrLJ 4053 (4054)
26 Singamala Sankara Nath v State of A.P. 2007 Crlj 884 (887)
27 Sagra Singh v State 1996 Crlj 726 (731) (J&K)
28 Jitendra v State of Maharashtra, 2008 (6) Mah LJ 699 (Bom-DB)
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 ● Where the accused has availed his right u/s 167(2) CrPC for bail would not be affected by subsequent
filing of charge sheet.29 Therefore, this action of prosecution would not affect the right to bail passed by
the court in earlier order.30
● If the bail application and charge-sheet are filed together on same date or day, but the bail application
was slightly earlier then accused would not be denied bail on mere ground that right to bail got
extinguished.31
● The right to bail under default clause is not defeated merely because another offence alleged found or
alleged to have been committed during the course of investigation has been added.32

INSTANCES WHERE RIGHT TO BAIL UNDER SECTION 167(2) IS INAPPLICABLE

● Right to bail for the release of accused sustain till the filing of charge and does not survive after the
filing of the charge-sheet.33 If accused failed to apply for bail within the time allowed by law then
he cannot ask for bail as a matter of indefeasible right. 34 But in case he applied for bail within the
given time frame then he cannot be rearrested on filing of charge-sheet.35
● There will be no applicability of S.167(2) when report is filed u/s 173(2) CrPC and cognizance is
taken by magistrate. The order for further investigation does not revive the bail under default
clause.36
● The bail application would not be allowed if it is filed after filing of chargesheet, which is filed
after the expiry of prescribed time. For instance, charge sheet was filed on 27.12.1999, after the
expiry of sixty days from the date of arrest, but the bail application was filed by accused on
6.1.2000. Thus, the accused would not the right to release on bail u/s 167 (2) CrPC.37
● If the accused by his own conduct delayed the filing of chargesheet within the prescribed time
framed then he would not be allowed to take advantage of his own act, would not be entitled to bail
u/s 167 (2) CrPC.38

29 Vishnu Soni v State of Chhattisgarh, 2007 Crlj (NOC) 537 (Chhatt)

30 Avinashkumar v State of Jharkhand, 2006 (2) East Cri C 347 (Jhar)
31 Gousemohiddin Maradansab Masanakatti v State of Karnataka 2004 Crlj 1033 (1035, 1036) (Kant)
32 Mukesh v. Central Bureau of Investigation, Chandigarh 1998 (1) Crimes 282 (P&H)
33 Dinesh Kumar Jain v. State of U.P., 2001 CrLJ 2847 (2848) (All) ; Asa Singh v State of Punjab, 2002 (2) Crimes 84 (89) (P&H)
34 Bipin Shantilal Panchal v State of Gujarat AIR 1996 SC 2897
35 Sanjay Dutt v State through CBI Bombay (II) 1994 AIR SCW 3857
36 Anil Somdatta Nagpal v State of Maharashtra 2006 CrLJ 1307 (1316)
37 Sushila Devi v State of Rajasthan 2007 Cri LR (Raj) RAJ 649 (Raj)
38 Gulam Mohd. Kabir Mohd. Mir v State of Maharashtra 2008 CrLJ 2426 (2432)
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 ● Bail granted under S.167(2) can be cancelled if it is found that the accused has committed a very serious
offence.39
● In case of failure of accused to make bail application prior to submission of charge-sheet he cannot
claim his right to be released on bail as a matter of right solely on the ground that charge-sheet was not
submitted within the prescribed period.40
● Where the charge-sheet is filed within the statutory period, S. 167(2) does not apply, it is immaterial that
the Magistrate has not taken cognizance of the offence within that period, 41 the date on which the
Magistrate takes cognizance is not material.42 Where charge-sheet is filed within the prescribed period of
90 days after the filing of bail application by accused, bail application is not maintainable. 43 Where
charge-sheet is filed before the expiry of the stipulated period or before the filing of the bail application,
accused is not entitled to bail.44
● Where accused does not file bail application after the expiry of the prescribed period envisaged by S.
167, the accused cannot be released on bail under the default clause once the charge-sheet is filed.45
● Where the accused is allowed bail under default case but does not furnish bail bonds and in the
meanwhile charge-sheet is filed, the effect is that, the bail order is extinguished.46
● Where bail petition under S. 167(2) under default clause is filed after the submission of charge-sheet, the
accused is not entitled to bail.47
● Where the charge-sheet is not filed within 90 days, the record does not show that the accused was
prepared to furnish sureties or did furnish sureties, the accused has not filed suits, shall not be deemed to
have been released under the default clause under S. 167(2), Proviso (a).48
● The investigation comes to end the moment the police report is submitted to the Court under S. 170 read
with S. 173, thereafter the act of the Magistrate in supplying the copies under S. 207 to the accused is
judicial function and not part of investigation. The accused would not be entitled to bail under S. 167(2),
merely because the Magistrate has not supplied the copies under S. 207 within the prescribed period of
60/90 days as the case may be.49

39 Rajnikant Jivanlal Patel v Intelligence Officer, Narcotic Control Bureau, New Delhi AIR 1990 SC 71
40 Shardulbhai v State of Gujarat 1990 Crlj 1275, 1305 (Guj-FB)
41 Dorai v State of Karnataka 1994 CrLJ 2987 (2996) (Kant)
42 Pradeep Kumar Deo v State of Orissa (2003) 96 Cut LT 431
43 S.W. Nade v State of Maharashtra 1994 Crlj 780 (784, 785) (Bom)
44 Ada v State, 1996 CrLJ 3130 (3134) (Ori)
45 State of Punjab v Sukhvinder Singh 1998 Crlj 3090 (P&H)
46 Chaitu Sahni v State of Bihar 1995 (1) Crimes 381 (386)
47 Kondapali Seetharamayya v Govt. of A.P. 1995 CrLJ 2169 (2174) (AP-DB)
48 Sankar v State of Tamil Nadu 1991 Crlj 1745 (1755, 1756) (Mad)
49 State of H.P. v Kanti Grover 2004 Crlj 4355 (4359, 4360) (HP)
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 ● Where an accused enlarged on bail under default clause fails to comply with the conditions of bail and is
re-arrested, he is not entitled to be released again on bail under default clause under S. 167 (2), Proviso.
Such an accused continues in custody because he has abused the freedom/liberty granted to him. The
case of such a person must definitely be distinguished from a person who continues in custody without
any charge-sheet being filed against him.50

RIGHT TO BAIL IS INDEFENSIBLE RIGHT UNDER S.167(2)

Right to bail under S.167(2) is indefensible and it occurs on the default of the chargesheet being filed
within the given time frame. However if it is filed within the given time, then there is no right under the
given section of CrPC.51 If the chargesheet is not filed within the given time frame then subsequent filing
of chargesheet does not waive off the right to bail of the accused under the given section. The released of
accused under this section is the order of legislature and does not require any discretion of any judge or
magistrate.52

This right is not absolute unless the accused furnished all the required securities and sureties. 53 The
prosecution may seek to cancel the bail of the accused if there is reasonable ground that the accused has
committed a non bailable offence and it is necessary to detain him in custody for the welfare of society. 54
The grant of bail is a statutory right and on the expiry of the period fixed by this provision, further
detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within such
period he would be entitled to an order of release on bail if he is prepared to and does furnish bail. 55
Detention of the accused beyond the period prescribed without putting up challan is illegal and the accused
is entitled to be released on bail under S. 439. 56 If the accused has not made application for his release on
bail, after expiry of the period prescribed by the proviso (a) to S. 167(2) and before filing of the charge-
sheet he has no right to claim his release on bail after filing of the charge-sheet/final report, solely on the
ground that the charge-sheet/final report was not submitted within the prescribed period.

50 Nishil v Station House Officer, Alathur Police Station 2008 CrLJ 2467 (2470)
51 Pramod Hariprasad Tiwari v State of Gujarat 1997 CrLJ 1605 (1610) (Guj)
52 Rajnikant v Intelligence Officer, Narcotic Control Bureau AIR 1990 SC 71
53 Powell Nwawa Ogechi v. State (Delhi Admn.), 1986 Crlj 2081 (Del-DB)
54 Raghubir Singh v State of Bihar AIR 1987 SC 149
55 State of U.P. v Lakshmi Brahman AIR 1983 SC 439
56 Prem Raj v State of Rajasthan 1976 Crlj 455 (Raj)
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The release of accused under default clause ia absolute in its term. After the expiry of prescribed period of
60/90 days the magistrate does not have any power in its hand to keep a person in remand. He has to pass
the required bail order and same need to communicate to accused for required bail bonds.57

This right is absolute but is subject to S.437(5). 58 There is no ground that provides rejection of bail
application if it is wrongly dismissed by the court and in the meanwhile the chargesheet is filed, in this
condition the right of accused to be released on bail cannot be curtailed. 59 if the chargesheet is filed on 91st
day then it cannot be treated as if it is filed under 90th days and in such circumstances bail granted to
accused the accused would be benefited under right to bail.

If a person is released on bail under this provision the provisions regarding the bail and bail bonds as laid down
under Chapter XXXIII will be applicable.60

57 M.P. Ramesh v State of Karnataka 1991 Crlj 1298, 1309 (Kant)

58 Code of Criminal Procedure, s 437(5)
59 M.P. Ramesh v State of Karnataka 1991 Crlj 1298, 1309 (Kant)
60 Ved Kumar Seth v State of Assam 1975 Crlj 647 (Gau-DB)
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 CASES RELATED TO THE APPLICATION OF S.167(2)

In the case of Uday Mohanlal Acharya v. State of Maharashtra,61 it was held that Where the accused was
arrested for commission of offence under S. 3 of Maharashtra Protection of Interest of Depositors (Financial
Establishment) Act of 1999, the investigating officer did not file charge-sheet under S. 167 within 60 days of
detention of accused in custody, the accused was entitled to bail under sub-section (2) of S. 167.62

Further, in the case of Santosh Kumar Mohapatra v. State of Orissa, where in case registered under S. 21(b),
NDPS Act63, charge sheet was not filed within 60 days of the arrest, the accused was admitted to bail.64

Moreover, when the FIR against the accused was under Ss. 419, 420, 465, 471 and 409, IPC and charge-sheet
was not filed within 60 days, accused was released on bail. 65 When the accused was arrested for offence under
S. 366 IPC, where punishment may extend upto 10 years, the case would fall under S. 167(2), (a) (ii) the
investigation period was 60 days, as the charge-sheet was not filed within 60 days, the accused was found
entitled to bail under default clause.66 Where accused is charged for offences under S. 366/34, maximum
punishment for the offence being imprisonment for ten years, Proviso (ii) to S. 167 (2) Cr.P.C. would apply, if
charge sheet is not filed within 60 days, the accused would be entitled to be released on bail.67

61 Uday Mohanlal Acharya v State of Maharashtra 2001 Crlj 4563 (Bom-DB)

62 Uday Mohanlal Acharya v State of Maharashtra 2001 Crlj 4563 (Bom-DB)
63 NDPS Act, s 21(b)
64 Santosh Kumar Mohapatra v State of Orissa 2004 (4) Crimes 59 (Ori)
65 Surinder Joshi v State of Punjab 2004 CrLJ 1100 (1102) (P&H)
66 Nijamuddin Mohammad Bashir Khan v State of Maharashtra 2006 CrLJ 4266 (4274) (Bom-DB)
67 Prakash Kumar Naik v State of Orissa, 2008 Crlj (NOC) 424 (Ori)
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 DIFFERENCE BETWEEN BAIL U/S 436 TO 439 & U/S 167(2)

Both the provisions of law provides remedy to grant bail, however these sections are different in nature.Remedy
provided under chapter 33 i.e. from sections 436 to 439 68 is very exhaustive in its nature and its application
depends on each and every case differently. However, the remedy under section 167(2) is very specific in nature
and it is applicable only on non filing of chargesheet/ police report to court within given time frame. 69
Cancellation of bail application is done only through S.437(5)70 & S. 439(2)71 CrPC whether is grant under
either merit or default clause.72 Only because the consequence of both the section is same that is the person is
releasing from jail cannot make both the section equivalent.73

An order of bail under this provisions is effective until an order is made under S. 437(5) or S. 439 (2) and is not
defeated by lapse of time, filing of the charge-sheet or by remand to custody under S. 309(2). 74 The right to bail
under default clause can be availed before charge-sheet is filed. Once charge-sheet is filed, bail petition lies
under S. 437 Cr.P.C.75

This proviso is to the effect that on the expiry of the period of 60 days the accused shall be released on bail if he
is prepared and does furnish bail, is not controlled by S. 437(1).76

68 Code of Criminal Procedure 1973, s 436 to 439

69 Guna v State 1997 Crlj 626 (633) (Mad)
70 Code of Criminal Procedure 1973, s 437(5)
71 Code of Criminal Procedure 1973, s 439(2)
72 Bhulabai v Shanker 1999 (3) Crimes 347 (Bom)
73 Md. Abdul v State of W.B. 1991 (2) Crimes 741
74 Jagdish v State of M.P. 1989 Crlj 531 (MP)
75 Abdul Wahid v State of Maharashtra (1991) 93 Bom LR 478
76 Ved Kumar Seth v State of Assam 1975 Crlj 647 (Gau-DB)
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 CONCLUSION

It is with regard to the command of legislature that the default clause under section 167(2) proviso provides bail
when judicial custody lapse. Judicial custody is that phase when accused is behind the bars and under the
control and direction of magistrate and his detention is necessary for the purpose of fair and free investigation.
Indian system of criminal administration is balanced and reasonable for both accused as well as for prosecution.
On the same line default clause for bail under section 167(2) provides release of accused if prosecution is failed
to submit chargesheet before the magistrate within the prescribed time period.
Thus, the conclusion of this research project is that right to bail under section 167(2) is indefensible until the
chargesheet is not filed within the prescribed time frame. For all other bail that are on merits, the accused can
make reference to Chapter XXXIII CrPC under section 436 to 439 of CrPC.

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 BIBLIOGARPHY

ARTICLE
 Judicial Custody and Police Custody-Recent Trends
<https://districts.ecourts.gov.in/sites/default/files/fct.pdf> accessed 21 March 2019

BLOG
 Rebecca Furtado, ‘Custody of a Person under Criminal Law in India’ (iPleaders, 5 July 2016)
<https://blog.ipleaders.in/custody-person-criminal-law-india/> accessed 21 March 2019

WEBSITES
 SCC ONLINE – www.scconline.com
 MANUPATRA – www.manupatra.in
 JSTOR – www.jstor.org
 HEINONLINE – www.heinonline.org
 LEXIS NEXIS – www.lexisnexis.com

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