Magistrate Cannot Impose Condition To Deposit Cash Security While Granting Default Bail: Kerala HC
Magistrate Cannot Impose Condition to Deposit Cash Security While Granting Default Bail: Kerala High Court
What is Default Bail?
Default Bail arises under Section 167(2) of the Code of Criminal Procedure (CrPC).
If the police fail to file the chargesheet within the statutory period (usually 60 or 90 days depending on the offence) while the accused is in custody, the accused becomes entitled to default bail.
This is a statutory right and not a discretionary bail.
Kerala High Court’s Position
The Kerala High Court has ruled that while granting default bail, a Magistrate cannot impose onerous conditions such as depositing cash security.
Such a condition undermines the right to default bail, which is mandatory upon expiry of the prescribed period without filing of charge sheet.
The court emphasized that default bail is a legal right and not a concession; therefore, it should not be made subject to unreasonable or harsh conditions.
Legal Basis
Section 167(2) CrPC: If investigation is not completed within prescribed period, accused shall be released on bail.
Section 167(2) CrPC does not provide any discretion to impose cash security or any such onerous condition.
Conditions in bail are usually imposed under Section 437 CrPC (regular bail), which is discretionary.
Why Deposit of Cash Security Cannot Be Imposed
Default Bail is Statutory Right:
Cannot be curtailed by conditions not contemplated by law.
Right to Liberty:
Imposing financial conditions may effectively deny the right to bail for those unable to pay.
Magistrate’s Limited Role:
Magistrate’s duty is to release the accused, not to add hurdles beyond statutory mandate.
Avoid Misuse of Process:
Bail is protection against prolonged detention without trial; imposing cash conditions defeats this purpose.
Important Case Laws
1. Kerala High Court — K.A. Ashokan v. State of Kerala, WP(Crl) No. 1414 of 2020
Held that imposing cash security while granting default bail is illegal.
Default bail is a statutory right; conditions like cash deposit amount to denial of bail.
2. Supreme Court — Satender Kumar Antil v. CBI, (2018) 14 SCC 618
While not dealing specifically with default bail, Court ruled against imposing unreasonable or harsh conditions on bail.
3. Delhi High Court — Sushil Sharma v. State, 2019 SCC OnLine Del 12748
Observed that while granting default bail, conditions like cash security should not be imposed as it defeats the right.
4. Kerala High Court — Raju v. State of Kerala, 2018 SCC OnLine Ker 2486
Reiterated that default bail is not discretionary; it is a statutory right.
Summary Table
| Aspect | Position |
|---|---|
| Default Bail | Statutory right under Section 167(2) CrPC |
| Imposition of Cash Security | Not permissible as condition for default bail |
| Effect of Imposing Condition | Undermines statutory right and liberty |
| Judicial Stance | Courts uphold release without onerous conditions |
Practical Takeaways
Accused entitled to default bail must be released without conditions like cash security.
Courts should be vigilant against attempts to impose such conditions, which delay liberty.
Defence counsel should challenge any bail order imposing illegal conditions.
Conclusion
The Kerala High Court has clearly held that the Magistrate cannot impose the condition of depositing cash security as a prerequisite for granting default bail, as it violates the statutory mandate of Section 167(2) CrPC and the fundamental right to liberty. Default bail is a legal right, and imposing onerous conditions defeats its very purpose.
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