📖 Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 (five Judges)

Facts: The question referred to the Constitution Bench was the nature of the right to be released on bail on the expiry of the period prescribed for completing an investigation, and in particular at what point that right ceases to be available.

Held: The Constitution Bench held that the right to be released on bail on the default of the investigating agency is an indefeasible right of the accused, but that it is a right which enures to him and is enforceable by him only from the time of default till the filing of the challan, and does not survive or remain enforceable on the challan being filed. The Court held that the expression indefeasible means that the right, once it accrues and is availed of, cannot be defeated; but that if the accused does not exercise it before the charge sheet is filed, it is extinguished — and he is thereafter left to bail on the merits. It held that the right is availed of when the accused applies and is prepared to furnish bail, and that a mere expiry of the period without more does not release him. The Court emphasised that the provision is a safeguard against indefinite detention during investigation, and not a reward for the passage of time.

Ratio: The right to default bail is indefeasible but enforceable only from the time of default until the charge sheet is filed. It is availed of by applying and being prepared to furnish bail; if not exercised before the report is filed, it is extinguished.

📖 Union of India v. Thamisharasi, (1995) 4 SCC 190

Facts: It was contended that where a special statute imposes stringent conditions on the grant of bail, those conditions govern an application for release on the default of the investigating agency as well, so that a person cannot be released on default unless he satisfies them.

Held: The Supreme Court held that the right to be released on default is not a grant of bail on the merits, and that the conditions which a special statute imposes on the grant of bail have no application to it. The Court reasoned that the two operate in different fields: a stringent condition governs the exercise of discretion in granting bail, whereas release on default arises because the statutory period has expired and the authority to detain has ceased, there being no discretion to exercise at all. It held that to apply such conditions to a default release would mean that a person could be detained indefinitely despite the expiry of the period, which is precisely what the provision exists to prevent. The Court held that the right on default is therefore available notwithstanding the special conditions, and must be given effect on the accused applying and being prepared to furnish bail.

Ratio: Release on default is not a grant of bail on the merits, and stringent conditions which a special statute imposes on the grant of bail have no application to it — the two operating in different fields, there being no discretion to exercise on a default release.

⚠ Three further points

Which period applies is the question most often argued. The ninety-day period applies only where the offence is punishable with imprisonment for a term of not less than ten years. Where the maximum is ten but there is no minimum of ten, the period is sixty days.

No court can extend the period. Sixty and ninety days are fixed by the statute, and an order purporting to enlarge them is without jurisdiction — the right accruing notwithstanding it.

And a supplementary report does not defeat an accrued right. Where the period has run and the right has been claimed, adding offences or filing further material afterwards does not extinguish it.

But default bail can be cancelled. The release being deemed to be under Chapter XXXV, it may be cancelled on the ordinary grounds if the accused afterwards abuses his liberty — though the mere subsequent filing of the report is not such a ground.

The position stated shortly

1. Default bail asks two questions only: has the period expired, and has the report been filed? Regular bail asks whether the risks justify release.

2. Gravity is irrelevant to default bail — it decides only which period applies. It is central to regular bail.

3. Default bail cannot be refused where the conditions are satisfied; regular bail may be, for recorded reasons.

4. The two are not alternatives. An accused may apply for both, and a refusal of one does not affect the other.

5. The right is indefeasible but enforceable only from the default until the charge sheet is filed, and does not survive its filing: Sanjay Dutt.

6. It is availed of by applying and being prepared to furnish bail — the mere expiry of the period does not release him.

7. Stringent conditions in a special statute do not apply to a default release, the two operating in different fields: Thamisharasi.

8. The ninety-day period applies only where the offence carries a minimum of ten years; where the maximum is ten but no minimum, it is sixty days.

9. No court can extend the period, and a supplementary report does not defeat a right already claimed.

10. But the release is deemed to be under Chapter XXXV, so it may be cancelled on the ordinary grounds — though not merely because the report has since been filed.