The default bail would not be available to the accused in the following circumstances

Title : Benefit of Default Bail under THE CODE OF CRIMINAL PROCEDURE, 1973 (CrPC) would not be available to the accused if investigation against the accused is complete but the investigation against other accused is pending.

Section 167(2) (Proviso i.e. part that starts from Provided that -) of the CODE OF CRIMINAL PROCEDURE, 1973 provides that an accused ( person accused of committing an offence) has a right to be released on bail if he has been in custody for 60 or 90 days ( depending upon the punishment for the alleged office, 90 days if the offence provides for a punishment of not less than 10 years and 60 days for offences for with lesser punishment) and this provision is also known as default bail. The accused can avail the right of default bail subject to the satisfaction of the following:-

1. The period of 60/90 days explained above has expired and the accused has been in custody during this period.

2. Investigation against the accused has not been completed and the police has failed to file the chargesheet (also known as challan in some states).

3. If the chargesheet though filed but does not include all the information mentioned in section 173(2) CrPC.

1. The investigation against the accused is complete and the chargesheet has been filed however the investigation against some of the other accused in the case has not been filed.

2. In case the chargesheet has been filed but the police also prayed for further investigation under section 173(8).

3. If some of the documents relied upon by the prosecution are not filed along with the chargesheet.

The Supreme Court has dealt with the aforesaid / similar issue in the case titled CENTRAL BUREAU OF INVESTIGATION VERSUS KAPIL WADHAWAN & ANR. (CRIMINAL APPEAL No. 391 / 2024).

The relevant paragraphs of the aforesaid judgment have been reproduced below:

“22. In view of the above settled legal position, there remains no shadow of doubt that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. The report under Section 173 is an intimation to the court that upon investigation into the cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.

25. In view of the afore-stated legal position, we have no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section 167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside. “