Under Section 167(2) of the 1973 Code of Criminal Procedure (CrPC), the maximum period for which the Judicial Magistrate can grant custody of an accused in the course of investigation is 90 days for offenses punishable with not less than 10 years, and 60 days for offenses punishable with less than 10 years. Thus, if the investigation is not completed within the stipulated period of time, the magistrate will no longer be competent in the course of investigation to send the accused into custody. Accordingly, the magistrate will have to grant bail to the accused. Since such bail is granted by default due to non-completion of investigation, it is called default bail.

Bail is often granted depending on various factors, but under Section 167(2), the Judicial Magistrate grants bail on non-completion of the investigation, i.e., under 60 or 90 days. After the completion of the aforementioned period, the accused can move an application for the grant of bail. If he does not move an application before the court, then he cannot avail the benefit of default bail. The Supreme Court in Natbar Parinda v. State of Orissa observed that the accused has a right to be released “even in serious and ghastly types of crimes.”

SECTION 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him.

A three-judge bench of the Supreme Court comprising of Justices Rohinton Fali Nariman, Navin Sinha and KM Joseph has held that right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the CrPC, but that it is part of the procedure established by law under Article 21 of the Constitution of India (Bikramjit Singh v. State of Punjab).

Therefore, it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.

Right to default bail under Section 167(2), CrPC not merely a statutory right, but part of procedure established by law under Article 21: SC

The Court held that there is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.

Source: Bar and Bench, Jurist