Default bail: when the police do not file the chargesheet in time

An arrested person cannot be held in custody indefinitely while the police investigate. If the investigation is not completed within the time the law allows, the accused gets a right to be released on bail, however serious the accusation. This is called default bail, and is also known as statutory or compulsive bail.

The time limits

Under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Magistrate cannot keep the accused in custody beyond:

• 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more
• 60 days, for any other offence

When the period ends without a final report (the chargesheet) being filed, the accused is to be released on bail if prepared to furnish it. Section 167(2) of the Code of Criminal Procedure contained the same rule before the BNSS came into force on 1 July 2024.

Counting the days

The period runs from the date the Magistrate first authorises detention, not from the date of arrest. In Enforcement Directorate v. Kapil Wadhawan (March 2023), the Supreme Court held that the day of the first remand is included when counting the 60 or 90 days.

“Ten years or more”: a question still open

The old law used the words “not less than ten years”. In Rakesh Kumar Paul v. State of Assam (2017), the Supreme Court read that as a minimum sentence of ten years, so an offence punishable with imprisonment that may extend to ten years fell in the 60-day category. The BNSS now says “ten years or more”. In 2024 the Karnataka High Court held that the change makes no difference, but the Supreme Court has not yet decided the point. Where it matters, check the exact punishment for each offence alleged.

The right must be claimed in time

Default bail is not automatic. The accused must apply for it after the period ends and before the chargesheet is filed. In M. Ravindran v. Intelligence Officer, DRI (2020), the Supreme Court held that once the accused has applied, the right cannot be defeated by the prosecution filing the chargesheet afterwards, or by the court delaying its decision on the application. If the chargesheet is filed before the accused applies, the right is lost, and bail must then be sought on the merits.

Police custody can now be taken in parts

One change in the BNSS is that police custody of up to fifteen days in all can be authorised in parts, at any time during the first 40 days of a 60-day period, or the first 60 days of a 90-day period. This does not lengthen the 60 or 90 days for default bail.

Special laws allow longer periods

Some special laws give the police more time. Under the NDPS Act, for example, the period is 180 days for certain offences, including those involving commercial quantities, and the Special Court can extend it up to one year on the Public Prosecutor’s report. The UAPA allows the court to extend 90 days to 180 days.

Once granted

Default bail is not cancelled merely because the chargesheet is filed later. It can be cancelled on the usual grounds, such as breach of bail conditions or interference with witnesses.

For families in Coimbatore

If a family member has been in custody for close to 60 or 90 days, find out from the court records whether the chargesheet has been filed. If it has not, the default bail application should be ready to file before the Judicial Magistrate as soon as the period ends. See bail after an arrest for the wider process.

Common questions