Month: September 2023

What is Default bail  and whats the provision of law ?

What is default bail  is a  question  asked very often . A default bail under Section 167(2) of the CrPC in simple words can be said in cases when   chargesheet is still not filed within the prescribed time period . Apart from that in  cases  the right  to default bail would arise when  the  prosecution files a preliminary or an  incomplete chargesheet, within the period prescribed for offences mentioned therein only to defeat the cause of bail .

How is Article 21 of the constitution of India and Section 167(2) CrPc connected 

Under Article 21 of the Constitution of India,  has its  co-relation with 167(2) of the CrPC which is fundamental rights , of right to life and liberty . There are  many Judicial precedents of the Hon’ble Supreme Court and various High Courts  which have laid emphasis on the co relation between the two.

It is important to keep in mind that  Section 167 of the CrPC  deals with investigation and not about cognizance by the Magistrate.

Is there a concept of automatic bail due to failure in filing charge sheet within prescribed time?

Yes,  when there is  failure on the part of investigation  to file the charge sheet within the prescribed 90/60 day period, as the case may be , that in  itself would result in automatic grant of default bail.

When does the time start for calculation of default bail?

When the  Magistrate remands  the accused person or persons from that day onwards , and within the time   no charge sheet filed within 60 or 90 days  as is contemplated under section Section 167 (2)(a)(ii) of the CrPC,

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Petition under Section 25 of the Guardians and Wards Act, 1890

Welfare of the child is of paramount importance while deciding cases of child custody . When the a ward is not in custody of the guardian , the court weighs various grounds before deciding whether the ward should be given back to the guardian considering the welfare of the child will be justified .  Either of the party if dissatisfied with the order of the Family court may approach the High Court in appeal against the Order of the Family court. A petition under S.25 Guardians and Wards Act is a first step towards informing the court of your grievances.

Appeal under Section 47 of the Guardians and Wards Act, 1890

Against order of impugned  judgment  passed by Family court one has the option of preferring an  Appeal under Section 47 of the Guardians and Wards Act, 1890

The financial status of either party is not the sole determining factor when considering the issue of custody though it may be relevant as has been held in the case of Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 and reiterated in Smriti Madan Kansagra v.Perry Kansagra 2020 SCC OnLine Del 1414.

Visitation Rights

Usually visitation rights are granted to either spouse who does not have custody of the child. Only in extreme cases where it appears that visitation rights should be denied in such cases court disallows but that’s very rare.

Very notable judgment of  Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, the Hon’ble Apex Court observed that the child, especially of tender age, requires love, affection, company and protection of both the parents, he is not an inanimate object which can be tossed from one parent to the other. The Court must weigh each and every circumstance very carefully before deciding the manner in which the custody should be shared between the parents. This is to ensure that the child does not lose social, physical and psychological contact with either of the parents. It is only in extreme circumstances that even the visitation rights may be denied.

Conclusion

In case of custody of the ward it is always seen that the welfare of child is of paramount importance . Company of both parents are essential for love and affection of the child. A child grows well in a healthy environment and therefore irrespective of whether is it the mother or father , the essential condition is welfare of the child , the other spouse is not denied visitation rights unless its an extreme case.

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