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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