An accused entitled to default bail
The CrPC is introduce for set up and establish procedures governing the investigation of crimes in order to get the perpetrators of the crime punished. A crime is an act which is prohibited by law attracting certain legal consequences like punishment, fine etc. Obviously, acts or omissions constituting offences/crimes are capable of being committed only by persons either natural or intentional.
The CrPC imposes a duty on the investigating officer to complete the investigation(collect the necessary evidence) within specific period timeline after the occurrence of a crime and to trace out the perpetrators of the crime in order to get them punished. A Punishment shall be inflicted only by a competent Court not by the investigating agency. The Courts are authorised to inflict punishment if only they are satisfied that the evidence collected by the investigating officer is sufficient to establish that (1) a crime had been committed; and (2) the persons charged with the offence (accused) and brought before the Court by the investigating agency for trial are the perpetrators of the crime.
Under the CrPC, any investigating agency (normally the police) is duty bound to investigate the crime as per the following the procedure and within prescribed period of time mentioned therein once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under Section 173. Section 173(2)(i)(d) inter alia stated that the report should contain a statement:
“Whether any offence appears to have been committed and if so by whom?”
The conclusions reached by the police officer/police after investigation the crime into the above questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence gathered by the investigating agency is sufficient in law to punish the accused, such accused can be punished. In the process, First court taking cognizance of an offence. Thereafter, the investigating agency is need to gather the all evidence (investigate) and put up the same before the Court under Section 173 Cr.P.C.
In case police couldn’t complete the investigation of crime and filed the charge sheet between the period of 60 days or 90 days ( depend on the nature of crime /offence) then accused is entitled to the “default bail”.
Procedure when investigation cannot be completed in twenty-four hours –
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that, –
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Default Bail –
The section 167 was introduced in the code of criminal procedure in 1898 which described the procedure to be followed in the event the investigation into an offence is not completed within twenty-four hours. IN 1898 when section 167 was added in the code of Criminal Procedure it was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence.
As per the code of Criminal procedure an investigation of a crime should be completed in the 24 hours and maximum in 15 days. later on (CR.P.C of 1973)the period of 15 days extended to 60 days and if the investigation was relatable to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years extended to 90 days and for the rest of offences, the period of 60 days remained unchanged.
The significance of the period of 60 days or 90 days, as the case may be, is that if the investigation is not completed within that period then the accused is entitled to ‘default bail’ if no charge sheet or challan is filed on the 60th or 90th day, the accused applies for ‘default bail’ and is prepared to and does furnish bail for release.
This is duty of the counsel who representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to ‘default bail’. In the various judgment Courts also stated that judicial magistrate also not encourage wrongful detention and must inform the accused of his right.