Regular Bail and Default Bail

22 May, 2024

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In the Indian legal system, bail is a crucial aspect that ensures a balance between the rights of the accused person and the interests of justice. Bail refers to releasing a person from legal custody by submitting a security such as money or bond to ensure that the person released will appear at a future trial. Bail is generally divided into four types Regular Bail, Anticipatory Bail, Interim Bail, and Default Bail. In this article, we will explore the concepts of Regular Bail and Default Bail.

Regular Bail

In layman’s language, a bail granted to an accused who is already in legal custody or jail is known as regular bail or ordinary bail. Bail becomes right if a person is detained on suspicion of committing a bailable offence and he/she may be released on bail as per the condition mentioned under Section 436 of the Code of Criminal Procedure (CrPC), 1973. As per Section 436 of the CrPC, when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person should be released on bail, provided that “such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.” Furthermore, Bail is discretionary in case of a non-bailable offence. The process of obtaining regular bail typically begins with the filing of a bail application by the accused or their legal representative. This application is usually submitted to the court having jurisdiction over the case. The court then considers various factors before deciding whether to grant bail or not.

Bail Provisions under CrPC

Section 437 of the Code of Criminal Procedure of 1973 deals with ‘When bail may be taken in case of non-bailable offence’. Section 437(1) states that if any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of session then he may be released on bail, but:

“such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.”

Section 439 of the CrPC deals with ‘Special powers of High Court or Court of Session regarding bail’. As per this Section, a High Court or Court of Session may direct:

“that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.”

Provided that before granting bail to a person who is accused of an offence that is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, the High Court or the Session Court should give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Grounds to Consider while Granting Bail

While granting bail to an accused, certain aspects should be considered. Some of those factors are listed as follows:

The gravity of the crime.
The nature of the charge (serious, trustworthy, frivolous) on the accused.
Likelihood of the accused fleeing from justice if released on bail.
Potential risk to public safety posed by granting bail to the accused.
Severity of the punishment or penalty.
Health, age, and gender of the accused.
The social status and position of the accused.
Possibility of repeating the offence.
The accused’s interference with the judicial process, if released on bail.
Interest of the state and public.

Default Bail

Default bail, also known as statutory bail, is a right to bail that arises when an investigation in respect of a person in judicial custody is not completed by the police within a certain period. If a person is arrested and police fail to complete the investigation within 24 hours then he/she must be presented before a Magistrate, as mentioned under Section 167(1) of CrPC. Further, Section 167(2) states that the Magistrate can authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole. Section 167(2) of the CrPC illustrates that in cases where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than 10 years, the detention period cannot exceed 90 days. For other offences, the detention period cannot exceed 60 days. The Section also illustrates that on the expiry of the said period of 90 days, or 60 days, as the case may be, the accused person should be released on bail (default bail).

Cancelation of Bail

The Code of Criminal Procedure allows the public prosecutor, accused, complainant, High Court, Session Court, or other lower courts to cancel or terminate bail. As per Section 437(5), any Court which has released a person on bail, may, if it considers it necessary, direct that such person be arrested and commit him to custody. Also, Section 439(2) of the CrPC states that “A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

Related Case Laws

Aslam Babalal Desai vs. State of Maharashtra (September 15, 1992)
Dolat Ram vs. State of Haryana (November 24, 1994)
Uday Mohanlal Acharya vs. State of Maharashtra (march 29, 2001)
Bikramjit Singh vs. The State of Punjab (October 12, 2020)
Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors. vs. National Investigation Agency (May 01, 2023)

Conclusion

To conclude, by understanding the process, criteria, and implications of bail either regular bail or default bail, individuals can navigate the legal system more effectively while awaiting trial. It is imperative to respect the conditions of bail and adhere to the requirements set forth by the court to ensure the smooth functioning of the legal process.