Kerala High Court: Custody in multiple spells for the same crime makes accused eligible for “default bail”

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A single-judge bench of the Kerala High Court comprising of Justice C.S. Dias while hearing a bail application has ruled that an accused can avail the “default bail” provided under Section 167(2)(a)(i) of the Code of Criminal Procedure when he has been in custody for a combined period of 90 days, regardless of the investigating agency.

“Default Bail” Under The Code of Criminal Procedure

The 41st Report of the Law Commission of India, explained in great depth, the intent with which each section of the Code of Criminal Procedure was drafted. Initially, the Code envisioned the completion of an investigation within 15 days. This was later changed, to 90 days for serious offences as they found that it was not possible to have an investigation completed in 15 days. In this case, the punishment for the offence that is alleged was life imprisonment or, the death penalty which is the requirement for “default bail” in 90 days under Section 167(2)(a)(i). The legislative intent has always been to ensure that a speedy investigation is carried out, which would facilitate the right to a speedy trial guaranteed under Article 21 of the Constitution.

Right to “Default Bail” an indefeasible right

The Supreme Court has held, in Uday Mohanlal Acharya v. the State of Maharashtra,

On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

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In this particular case, the investigating agency had changed, and therefore, the accused had not spent 90 days in judicial custody in one spell but had done so over two intervals of 43 and 47 days. Justice Dias recognized the importance of individual liberty and the fact that every law expects a speedy investigation. On the possibility of the arrest for the second time being a fresh arrest, despite it being for the same crime, he observed,

Furthermore, if such an interpretation is permitted, just prior to the expiry of the statutory time period under the proviso to subsection (2) to Section 167 of the Code, if another investigating agency is entrusted with the investigation of the crime, it would render Section 167 of the Code a dead letter and otiose; which is not the intention of the legislature…

The Court’s ruling

The Kerala High Court ruled that an accused would be liable for “default bail” if the accused has been in judicial custody for the required period prescribed by Section 167 depending on the nature of the offence. Accordingly, the bail application was allowed, subject of course to certain conditions, failing which the accused would return to custody.


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