Section 167 provides for the concept of default bail. it is a section which is based on the fundamental right to life and liberty as provided in the constitution of India.
It provides for the release of the accused from jail when the accused is ready and actually furnishes bail in the condition wherein the investigation agency does not file the chargesheet within 60 or 90 days after the arrest of the accused.
It must be noted that this section is applicable on at pre cognizance stage. This stage comes to an end as soon as the chargesheet is filed by the IO.
The grant of bail under section 167(2) Crpc is not on the merits of the cae but primarily a statutory and technical right of the accused which accrues in the vent of delay in completion of the investigation by the police.
The Hon’ble supreme court in Hussainara Khatoon Vs State of Bihar 1979 has held that it is the duty of the magistrate to inform the accused that he has a right to be released on bail under this section and if the accused is prepared to furnish bail and does furnish bail as ordered, he has to be released.
The kerala high court in State of kerala vs Sadanandan 1984 has held that the court is no clog on investigation and prosecution is no lever for humiliation. freedom of individual is not licence to commit crime; personal liberty can have no conflict with the public interest. It is the duty of the court to strike a balance.
Hence the court is duty bound to release the accused on bail when there is a default on the part of the IO in filling the chargesheet within the period of 60/90 days as the case may.