The 90 day period indicated by the first proviso to Section 167(2) of The Code of Criminal Procedure, 1973 can be extended up to a maximum period of 180 days under the first proviso in Section 43-D(2)(b) of The Unlawful Activities (Prevention) Act, 1967.
As long as an application, which need not even be in writing, for grant of default bail is made on expiry of the period of 90 days, the right to default bail becomes complete, so long as such application is made before the Charge Sheet is filed. It is of no moment, Criminal Court in question either does not dispose of such application before the Charge Sheet is filed or disposes of such application wrongly before such Charge Sheet is filed. So long as an application has been made for default bail on expiry of the stated period, before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right under the first proviso to Section 167(2), kicks in and must be granted. The right to default bail, as has been correctly held, are not mere statutory rights under the first proviso to Section 167(2), but is part of the procedure established by law under Article 21, which is, therefore, a fundamental right granted once the conditions of the first proviso to Section 167(2) are fulfilled.
– Hon’ble Justice R.F. Nariman, Bikramjit Singh v. State of Punjab, [Criminal Appeal No. 667 of 2020].
Thus, ‘house arrest’ has been resorted to in India, in the context of law relating to ‘preventive detention’. The concept of ‘house arrest’ though familiar in the law relating to preventive detention, therein the underpinnings are different. The ‘house arrest’ was not purported to be under Section 167 of The Code of Criminal Procedure, 1973 and cannot be treated as passed thereunder.
– Hon’ble Justice K.M. Joseph, Gautam Navlakha v. NIA, [Criminal Appeal No. 510 of 2021] decided on 12.05.2021.
Also see, Naser Bin Abu Bakr Yafai v. State of Maharashtra, [Criminal Appeal No. 1165 of 2021] decided on 20.10.2021 and Serious Fraud Investigation Office v. Rahul Modi, [Criminal Appeal No. 185-186 of 2022] decided on 07.02.2022.
At this stage, we may note, in Sanjay Dutt v. CBI, Bombay (II), (1994) 5 SCC 410 as well as in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 this Court held, grant of default bail does not prevent re-arrest on cogent grounds after filing of Charge Sheet. However, as held by this Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 re-arrest cannot be made only on ground of filing of Charge Sheet. It all depends on facts of each case.
– Hon’ble Justice Abhay S. Oka, Jigar v. State of Gujarat, [Criminal Appeal No. 1656 of 2022] decided on 23.09.2022.