Default Bail

Default Bail

When the prosecution fails to provide sufficient evidence or timely opposition to the grant of bail, bail is granted to the defendant in a criminal case by default.

In other words, the court might set default bail if the prosecution doesn't present enough justifications or evidence to persuade the judge that the defendant needs to be detained.

Legal systems that place a high priority on defending individual rights and making sure that defendants are not unjustly detained pending trial frequently have default bail provisions. The goal of default bail is to avoid the prolonged or indefinite detention of an accused person in the absence of good cause to withhold bail.

According to the jurisdiction and legal system, different standards may apply when granting default bail. The accused may be eligible for default bail if the prosecution does not submit a charge sheet or present evidence within a certain amount of time following the defendant's arrest. The pertinent laws and regulations of the jurisdiction control the deadline for filing the charge sheet and the requirements for default bail.

  • This right to bail, also referred to as statutory bail, arises when the police fail to finish an investigation into a person who is in judicial custody within a predetermined time frame.
  • This is outlined in Section 167(2) of the Code of Criminal Procedure (CrPC), which states that if the police are unable to wrap up their investigation in 24 hours, they must present the suspect in court and ask the judge to grant them either police or judicial custody.
  • A Magistrate may order that an accused person be held in police custody for 15 days under Section 167(2) of the Code.  Following the initial 15 days of police custody, the Magistrate may, in certain circumstances, grant permission for the accused to be held in judicial custody, which is equivalent to jail. 
  • However, the accused cannot be detained for more than:
    • 90 days, when an authority is investigating an offense punishable with death, life imprisonment or imprisonment for at least ten years; or
    • sixty days, while the relevant authority is investigating any additional offenses.
    • This time frame may change under some other special laws, such as the Narcotic Drugs and Psychotropic Substances Act. For instance, the period is 180 days under the Narcotic Drugs and Psychotropic Substances Act.
  • The person will be freed by the court "if he is prepared to and does furnish bail" at the end of this time period if the investigation is not finished. This is referred to as default bail.


  • No matter what kind of crime was committed, it is a right.
  • The day the accused is first placed on remand is when the specified time frame within which the charge sheet must be filed begins.
  • Days spent under arrest by the police or by a judge are included, but days held in a home are excluded.
  • The right must be asserted by the person in custody in order for statutory bail to be granted.
  • There is no automatic bail if the charge sheet is not submitted within the required time frame but there is no application for bail under Section 167(2)..
  • The accused is deemed to have exercised the right to release on default bail once he or she submits a section 167(2) bail application.
  • After the allotted amount of time for the investigation has passed, this right only becomes effective.
  • The right to default bail is no longer available if the accused fails to apply for it after the investigation time period has passed and the investigating agency files a charge-sheet or requests more time before the accused makes such an application. 
  • The Magistrate may then give the investigation more time to be completed.
  • Other legal provisions of the Code, however, may still allow for the accused's release on bail.

Default Bail as Fundamental Right:

  • Default bail under the first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution, according to the Supreme Court when hearing an appeal regarding default bail. 

When does default bail not apply?

The right to default bail is lost if the accused does not request it after the investigation time period has passed and the investigating agency files a charge-sheet or requests more time before the accused requests such a request for default bail. The Magistrate may then give the investigation more time to be completed. However, in accordance with other legal provisions of the Code, the accused may still be released on bail.

It is crucial to remember that even if the court grants default bail, the accused person's actual release from custody depends on the court's rulings. The accused will remain in custody if they don't provide the required bail money or follow the bail order's rules and requirements as set forth by the court.

Benefits of Default Bail

Default bail is a crucial safeguard in the criminal justice system and has many advantages. The following are some of the main benefits of default bail:

Protection of individual rights: Default bail safeguards the right to liberty and stops people from being arbitrarily or protractedly detained. It makes sure that defendants aren't kept in jail or prison for an extended period of time without sufficient proof or justification. 

Innocent until proven guilty: Default bail upholds the presumption of innocence. It acknowledges that suspects should be permitted to remain at large until their guilt is established beyond a reasonable doubt. Until their guilt is proven through a fair trial, defendants should be treated as innocent until default bail is granted.

Avoidance of undue hardship: For the accused, their families, and their dependents, default bail helps avoid needless hardship. While awaiting trial, it enables the defendant to get back to living normally, keeping their job, and taking care of their family and community obligations.

Avoidance of case backlog: Default bail promotes prompt progress in criminal cases by putting a deadline on when the prosecution must present evidence or submit an accusation. It ensures that cases advance effectively by preventing pointless delays and lightening the load on the judicial system.

Encouragement for diligent prosecution: The availability of default bail provides a motivation for the prosecution to diligently compile evidence, file charges, and present their case within the allotted timeframe. It motivates prosecutors to give their work top priority and guarantees that they fulfill their legal obligations on time.

Equal treatment under the law: Equal treatment in the criminal justice system is promoted by default bail. No matter their socioeconomic status or personal circumstances, it makes sure that all defendants receive equal treatment. It eliminates the chance that some people will be wrongfully detained while others are freed as a result of the prosecution's failure to act quickly enough.

Drawbacks of Default Bail

Although default bail plays a crucial role in upholding people's rights and a just justice system, there are also some potential risks and issues that should be taken into account before using it. 

Keep in mind the following negative aspects:

Risk to public safety: Public safety may be at risk if default bail is granted without careful consideration of the accused's potential threat to the community. There may be situations where defendants with potential risks are released back into society without having their potential danger properly assessed in cases where the prosecution fails to present evidence in a timely manner.

Risk of flight: Defendants who are held without bail may be more likely to run away or disappear before their trial. Defendants who pose a flight risk may use the situation to their advantage and evade justice if the prosecution fails to present evidence or file charges by a certain deadline. Due to this, it might be difficult to find the accused and to administer justice properly.

Impact on victims and witnesses: Involved victims and witnesses may suffer as a result of default bail. If the defendant is released on default bail, it may result in witness intimidation or interference, which would impede the case's progress and add to the stress of everyone involved.

Legal system burden: Although default bail clauses are intended to avoid case backlogs, they may also add to the legal system's workload. If a sizable proportion of defendants are released on default bail, it might increase the number of cases that need to be handled by the courts, which might cause delays and inefficiencies in the administration of justice as a whole.

Lack of individual evaluation: Default bail may occasionally fail to take the accused's unique situation into account, which could be unfair. Instead of taking into account specific elements like the seriousness of the alleged offense or the defendant's criminal history, the decision to grant default bail is primarily based on the prosecution's failure to present evidence within the allotted time period. 

How should things move forward?

  • Review and Refine Time Limits: In order to ensure a thorough investigation and prevent unnecessarily long delays, review and revise current time limits for filing charges in light of case complexity.
  • Involve Judicial Discretion: Judges may be better able to make decisions based on unique circumstances if the judiciary is given the discretion to refuse default bail in cases where doing so could endanger the public or impede the investigation process.
  • Additional Review and Conditions: Give default bail more careful consideration and impose suitable conditions, like strict reporting demands.
  • Expedite Legal Proceedings: Speed up the legal process by investing in facilities, improving investigation abilities, recruiting more judges and court employees, and implementing case management techniques.

Follow Victim-Centered Approach: When necessary, include victims in the decision-making process regarding bail to ensure a fair approach and respect their rights and interests by providing timely updates on the status of the case.