Table of Contents

The following landmark judgments explain the law relating to remand and default bail under the Code of Criminal Procedure (now the Bharatiya Nagarik Suraksha Sanhita, 2023). These decisions deal with police remand, the indefeasible right to default bail, cancellation of default bail, filing of charge-sheet, and the powers of the Magistrate in relation to remand.

1. CBI v. Anupam Kulkarni (1992) 3 SCC 141)

Held: It was held that Police remand should not be resorted to after 15 days of arrest. (refer to change in law in BNSS)

2. Hussainara Khatoon (5) v. State of Bihar (1980) 1 SCC 108)

Held: It was held that It is the duty of the Magistrate to inform the accused that he has a right to be released on bail under Section 167(2) proviso. (now Section 187(3) of BNSS)

3. Kamlesh Chaudhary v. State of Rajasthan (2021) 1 SCC 553)

Held: It was held that An accused who was released on default bail cannot be re-arrested on filing of charge-sheet by police. It is open to the prosecution to file an application for cancellation of bail on the grounds known to law and the receipt of the charge sheet in the Court can by itself be no ground for cancellation of bail.

4. M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence (2020 SCC OnLine SC 867)

Held: It was held that where the accused has already applied for default bail, the Prosecution cannot defeat the enforcement of his indefeasible right by subsequently filing a final report, additional complaint or report seeking extension of time. Once the accused files an application for bail under the Proviso to Section 167(2) (now Section 187(3) of BNSS) is deemed to have 'availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may be released on bail under other provisions of the Cr.P.C. (now BNSS)

5. Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67)

Held: It was held that where the investigation is not completed within 60 days or 90 days, as the case may be, and no police report is filed on 60th or 90th day then the accused gets indefeasible right to default bail. The accused must apply for default bail and he should be prepared to furnish bail.

6. Sanjay Dutt v. State (1994) 4 SCC 410); Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272)

Held: It was held that Bail granted under Section 167 proviso (now Section 187(3) of BNSS) remains valid till it is cancelled and the receipt of charge-sheet in the court by itself is no ground for cancellation of bail.

7. Serious Fraud Investigation Office v. Rahul Modi (2022 SCC OnLine (SC) 153)

Held: Supreme Court has held that the indefeasible right to claim bail under Section 167(2) Cr.P.C. (now Section 187(3) of BNSS) arises only when the charge-sheet is not filed within the statutory period. Non-taking of cognizance by the magistrate is no ground for granting the default bail under Section 167(2) Cr.P.C. (now Section 187(3) of BNSS). The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes the custody of the accused for the purpose of remand after cognizance is taken.

8. State through CBI v. T. Gangi Reddy @ Yerra Gangi Reddy (2023 (123) ACC 706 (SC)

Held: Supreme Court held that in a case where an accused is released on default bail under Section 167(2) Cr.P.C. (now Section 187(3) of BNSS) and thereafter on filing of the charge-sheet, a strong case is made out and on special reasons being made out from the charge-sheet that the accused has committed a non-bailable offence and considering the grounds set out in Sections 437(5) (now Section 480(5) of BNSS) and Section 439(2) (now Section 483(3) of BNSS), his bail can be cancelled on merits and the Court is not precluded from considering the application for cancellation of the bail on merits.

9. Venkatesan Balasubramaniyan v. The Intelligence Officer, D.R.I. Bangalore (2020) 5 SCC 735)

Held: It was held that Default bail granted under Section 167(2) Cr.P.C. (now Section 187(3) of BNSS) can be cancelled under Section 439(2) Cr.P.C. (now Section 483(3) of BNSS). The proviso to Section 167 clarifies that every person released on bail under Section 167(2) (now Section 187(3) of BNSS) shall be deemed to be so released under Chapter XXXIII. If a person is illegally or erroneously released on bail under Section 167(2), (now Section 187(3) of BNSS) his bail can be cancelled by the appropriate order under Section 439(2) (now Section 483(3) of BNSS).