Introduction
The concept of default bail, also known as statutory bail, is one of the most significant procedural safeguards in Indian criminal law. It ensures that the State cannot indefinitely detain an accused person without completing its investigation and filing the charge sheet. This right, first recognised under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), has been preserved under the new Section 187(3) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS).
The BNSS, which came into effect to replace the CrPC, continues to strike a delicate balance between the powers of investigation and the individual’s fundamental right to personal liberty under Article 21 of the Constitution of India.
Legal Provision: Section 187(3) BNSS
Section 187 of the BNSS governs the procedure for detention and investigation. Sub-section (3) corresponds to the old Section 167(2) CrPC and reads as follows:
“No Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding—
(a) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years;
(b) sixty days, where the investigation relates to any other offence;
and on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail…”
In essence, the provision recognises a statutory right to bail when the investigation is not completed within the prescribed time and the charge sheet has not been filed.
Time Limits for Investigation
The time limits under Section 187(3) remain identical to those under the CrPC:
| Nature of Offence | Maximum Period of Custody During Investigation | Right to Default Bail Arises After |
| Offences punishable with death, life imprisonment, or ≥10 years | 90 days | On the 91st day |
| Other offences | 60 days | On the 61st day |
If the investigation is not completed within these periods, the Magistrate is bound to release the accused on bail, provided he makes an application and is ready to furnish surety.
Rationale Behind Default Bail
The principle of default bail reflects a constitutional commitment to liberty and due process. It prevents the investigative machinery from misusing its power to keep a person incarcerated without filing a charge sheet. The safeguard ensures accountability of the police and prosecution to act within statutory timelines.
The Supreme Court, in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, described this as an “indefeasible right” that cannot be taken away once it has accrued.
When Does the Right Arise?
The right to default bail crystallises the moment the statutory period expires without the filing of a complete charge sheet.
If the charge sheet is filed on or before the 60th or 90th day, the right does not arise.
If it is filed even one day later, the accused becomes entitled to release.
The right must, however, be claimed by filing an application before the Magistrate and expressing readiness to furnish bail. It is not automatic.
What if the Charge Sheet Is Filed on the 60th or 90th Day?
This is a common area of confusion. The law is settled that once a charge sheet is filed within the prescribed period, the right to default bail ceases to exist — even if the Magistrate takes cognisance later or fixes another date for scrutiny.
The filing date, not the cognisance date, is decisive.
This position has been affirmed by the Supreme Court in:
- Sanjay Dutt v. State through CBI (1994) 5 SCC 410
- State of M.P. v. Rustam (1995) 3 SCC 221
- M. Ravindran v. Intelligence Officer, DRI (2021) 2 SCC 485
Thus, the mere procedural act of taking cognisance has no bearing on the accused’s entitlement to default bail.
Incomplete or Defective Charge Sheets
While the filing of a charge sheet stops the clock, it must be a complete “police report” as defined under Section 193 BNSS (formerly Section 173 CrPC).
If what is filed is merely a forwarding memo without the requisite documents, statements, or sanction, it will not qualify as a valid report. Courts have repeatedly held that a sham or incomplete charge sheet cannot defeat the right to default bail.
(Dinesh Dalmia v. CBI, (2007) 8 SCC 770)
Is Default Bail Automatic?
No.
The right arises automatically but must be exercised by the accused through an application.
If the accused does not apply before the charge sheet is filed, he loses the right even if the statutory period has expired.
In Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, the Court reiterated that the accused must actively claim this right before the charge sheet is filed.
Can Default Bail Be Cancelled Later?
Yes, but only under limited circumstances.
Once granted, default bail can be cancelled if the accused:
- Misuses the liberty (e.g., tampers with evidence, threatens witnesses, absconds), or
- Commits a subsequent offence.
However, it cannot be cancelled merely because the charge sheet is later filed — that would defeat the very purpose of the safeguard.
Computation of 60 or 90 Days
The 60/90-day period begins from the date of the first remand order by the Magistrate, not the date of arrest by the police.
For example, if the first remand order was passed on 1 March, the 60th day ends on 29 April, and the right to default bail arises on 30 April.
Special Laws with Extended Periods
Several special enactments prescribe longer investigation periods that override Section 187 BNSS, such as:
- NDPS Act: up to 180 days (extendable to one year with judicial approval).
- UAPA: up to 90 or 180 days.
- PMLA: 90 days for non-serious, 180 days for major predicate offences.
These special provisions prevail where applicable.
Key Judicial Takeaways
- The right to default bail is statutory and indefeasible once accrued.
- The date of filing of the charge sheet, not taking of cognisance, decides entitlement.
- An incomplete charge sheet cannot defeat the right.
- The accused must apply for bail before the charge sheet is filed.
- Default bail once granted can be cancelled only for misuse of liberty, not for procedural completion.
Conclusion
Section 187(3) of the BNSS reaffirms the constitutional ethos that liberty cannot be held hostage to administrative delay. It continues the CrPC’s legacy of balancing the State’s interest in investigation with the individual’s right to personal freedom.
Default bail is not a loophole; it is a statutory safeguard ensuring that the machinery of law remains accountable and that detention never becomes arbitrary. In the spirit of due process, it reminds both prosecutors and defenders that justice begins not just with conviction, but with the fairness of procedure.
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