Right to default bail can’t be nullified by post facto complaint: SC

The Supreme Court has held that an accused cannot be continuously detained on account of a report seeking time extension


On October 26, 2020 the Supreme Court Bench of Justices Uday Umesh Lalit, Mohan M. Shantanagoudar and Vineet Saran, observed in M. Ravindran vs. The Intelligence Officer (Criminal Appeal No. 699 of 2020) that when an accused already applies for default bail, the Prosecutor cannot defeat the enforcement of this right of the accused by subsequently filing an additional complaint or a final report or a report asking for extension of time.

Ms. Arunima Singh appeared for the Appellant M Ravindran, whereas Additional Solicitor General Aman Lekhi represented the Respondent State. The court allowed the appellant’s bail application, setting aside the Madras High Court’s order, directed him to submit his passport to the authorities and not leave the limits of Chennai without permission of the Trial Court.


When does it accrue?

In a 56-page long judgment the three-Judge Bench said that as soon as an accused files an application for default bail, and is ready to pay surety under proviso to Section 167(2) CrPC, he is deemed to have availed of the right. “Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency”, it added.

This indefeasible right remains enforceable once the accused has applied for it. Pendency of his/her bail application or a subsequent filing of the chargesheet with additional charges will not have any bearing on this right once an application for it has been made. Therefore, an accused cannot be denied default bail on account of delay in deciding on his application, nor can he be kept in continued detention thereafter “on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed”, the court reiterated.

When does it extinguish?

The Bench further commented on a scenario where the accused fails to file an application for default bail which leads to extinguishment of such right. It said that when the accused person has not moved the court seeking default bail, and the prosecution moves the court with a plea for extension of custody or if it files the chargesheet, the person’s right to default bail shall stand extinguished. 

“However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a 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 still be released on bail under other provisions of the CrPC,” said the court.

The court emphasised on complying with bail directions and said that, “Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.”

The Bench also made an important observation with respect to an accused’s right to be informed about his indefeasible right to default bail under section 167(2) of the Cr.PC. Referring to the decision in Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, the court observed, “As a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge­s-haring by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld.”



The Appellant was arrested and remanded to judicial custody on August 4, 2018 for offences under the NDPS Act. As soon as 180 days of investigation period was over, on January 31, 2019, he filed an application for bail under section 167(2) of the CrPC before the Special Court for Exclusive Trial of cases under the NDPS Act, Chennai as mandated on grounds that the investigation was not complete and chargesheet had not been filed. Accordingly, on February 2, 2019 the Trial Court granted him bail. In an appeal to the High Court, it dismissed the default bail application on grounds that a subsequent second complaint was filed by the prosecution while his bail plea was still pending.

Section 167(2) gives the power to the Magistrate to authorise an individual’s detention period extending from 15 days to 90 days, as he/she may deem fit depending on the category of offence and once the 90-day period is over, grant the accused bail. 

The 3 Judge Bench added that the accused had filed an application for default bail on the 181st day of his arrest and it was only after that an additional complaint came to be lodged by the investigating agency. Therefore, the Bench said that the accused was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint. While setting aside the High Court order, the bench finally observed: “It is clear that in the case on hand, the State/the investigating agency has, in order to defeat the indefeasible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the Appellant on the bail application. If such a practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercises his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy.”

The order may be read here: 



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