Default Bail Explained: Your Rights and Options

 


Over the ten-year period of my litigation practice in courts of Delhi NCR, one thing that I have noticed is that any person who does not have enough resources to hire an Advocate in a court of law, feels very helpless and almost gives up on the idea of getting out of the custody, regardless of if he is innocent or not. They just tend to surrender to authorities in a way where their rights might not be respected.

When I started working for Delhi Legal Services Authority (DLSA), during jail visits and remand duties I noticed that a substantial amount of the undertrials that were being marked to me, to look after their case in the court of law, either did not try to file a bail application or they flooded the court with multiple bail applications in the initial 10-20 days of their arrest. The courts in those initial days were not of the opinion that the undertrial should have bail, so they denied them bail. But for whatever reasons, their counsel at the time kept on filing similar multiple bail applications before the court, without there being any change in circumstances of the case, and hence were denied bail.

This rejection was presented upon the undertrials by their counsels at the time as if there was something different in their case and that they would never get bail in their case. For these reasons many of the undertrials lost hope after the initial days never filed their bail as if accepting their fate to remain in custody forever.

It was surprising to me that so many of those disheartened undertrials has drastic change in circumstances of their respective cases, in their favour, even before the time they met me but after the initial days of trial, perfect to file a bail application which shall have significant chance of getting allowed by the court of law. There were also multiple instances where their advocate should have filed for default bail in the court and the court would have no other option than to grant them bail.

But this was the time I realised that common knowledge is not so common and that not all legal professionals have the same level of intellect. Distorted morals and low intellect when coupled with latent employment goals in life have plagued this judicial system. All such legal professionals with half-baked knowledge of litigation practice result in injustice with the helpless person trapped in the bounds of a criminal trial. Not just that, even the courts sometimes fail such people, by not being able to prescribing them to avail opportunities like a default bail when available to the undertrial. But looking at the overloaded status of the courts, it can still be argued that it might not be possible for them to be vigilant in every case presented before them.

Regardless, we shall be discussing about the provisions of a Default bail/ Statutory bail as per the provisions of Bhartiya Nagarik Suraksha Sanhita (BNSS) and would be discussing when to file it, how to file it and the effects it has on a trial. There will be a separate blog post on Arrest procedures in BNSS and types of remand procedures available in BNSS, which shall discuss in detail about the provisions we are referring to in entirety, which shall be coming soon on LegalProbe.in, so stay tuned. Let’s probe:

Default Bail under BNSS (Bhartiya Nagarik Suraksha Sanhita), 2023

The Right to Default Bail

Default bail, also known as statutory bail, acts as a safeguard against prolonged detention without trial. It ensures that individuals are not held indefinitely without a formal legal process. Any time when the prescribed timelines in case of arrest and detention of accused, appearance of accused in custody, filing of police report by the police or trial guidelines in general are exceeded, the undertrial has the right to apply for a default bail. Whenever the magistrate so concerned has the liberty to decide the application without going into the merits of the case and completely based on the exceeded timelines, the said bail is called a default bail. Here’s how it works with help of examples:

According to Section 187(3) of the BNSS, a Magistrate cannot detain an accused in custody under this provision for a total period exceeding 90 days for offenses punishable by death, life imprisonment, or imprisonment for ten years or more and 60 days for all other offenses.

Or in Section 193 BNSS, where for crimes punishable by death, life imprisonment, or imprisonment exceeding ten years, the charge sheet must be filed within 90 days of the individual’s arrest and in cases of other offenses, the charge sheet has to be submitted within 60 days.

Now, if in such a situation the investigative agencies fail to complete their investigation and file a charge sheet within the stipulated timeframe, the accused becomes eligible for a default bail. The law prescribes specific time limits for filing charge sheets/ Police reports under Section 193 BNSS, which if exceeded by the police, the court shall be deem it to be an attempt by the police to misuse the process against a undertrial and keeping him in custody without any reasonable or justifiable cause for doing so.

Default bail is a legal right, and the accused must apply for it once the prescribed time frame expires. The court is legally obligated to grant bail, provided the accused is willing to furnish the required bail bonds as prescribed by the court.

Other instances in which Default Bail/ Statutory Bail may be granted

The court also has powers to grant default bail in the following situations:

  • If the accused has been served in police custody exceeding 15 days, without any request been made by the police for any extension of the custody thereof and/ or where he has not been presented before the magistrate within the stipulated timelines as prescribed in BNSS.
  • If the accused has served in custody, timelines exceeding maximum timelines for custody period prescribed for that specific offence, as per BNSS he/she shall be released on bail. 

Conditions for Default Bail

When an accused is entitled to default bail, the court can still apply certain conditions that must be met by the accused in order for the court to grant bail. They might be a condition to providing bail bonds and sureties as determined by the court or it may be compliance with any additional stipulations set during the bail hearing. Once adhered to, the undertrial accused can be released on bail.

Exceptions to Default Bail

The provisions with respect to Statutory bail/ default bail are not absolute and there are certain exceptions to granting of default bail. While default bail is a crucial protection, there are following exceptions:

  • If the accused has committed an offense that falls under the purview of terrorism or organized crime, the default bail provisions may not apply.
  • If the crime is against women and children or any crime that threatens the sovereignty and integrity of India
  • If in the opinion of the court, the gravity of the offence and the circumstances of the case prescribe the court to not allow default bail in that particular case. The court must write down a detailed written order with details of all such circumstances and the nature and gravity of the offence which lead to the court dismissing such application. Any such order can be challenged in the High court by the accused if he so wishes.  

Conclusion

In summary, default bail serves as a vital mechanism to protect individual liberty, prevent arbitrary detention, and ensure that the legal process unfolds in a timely and fair manner. For serious legal professionals, knowing about the provisions of default bail or statutory bail is crucial. For any person who wants to practice law, it is important to gram the complete knowledge about the domain of your practice before starting it as a lot depends on what you do and what you don’t. Any legal professional should be vigilant enough to be able to file such applications at appropriate time so as to help your client as well as the society and the courts. I am saying this from past experience that one correct application at the right time can make all the difference to a case.  

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Sources:

Learn more: Default Bail under BNSS (Bhartiya Nagarik Suraksha Sanhita).

Bhartiya Nagarik Suraksha Sanhita

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Related Blogs:

Conditions Apply: What You Need to Know About Anticipatory Bail

 Compensation for Wrongful Arrests: BNSS Section399 Explained

Habeas Corpus Lite: Understanding Section 100BNSS

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Disclaimer: This Article/essay provides general information and does not constitute legal advice. Consult a qualified legal professional for specific cases.

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