Manveer Singh Oberoi, Author
Manveer Singh Oberoi, a first-year law student at Maharaja Agarsain Institute of Management Studies. Read More
ABSTRACT
Default bail, commonly referred to as statutory bail, acts as an essential protection against prolonged detention, upholding the basic right to personal freedom as outlined in Article 21 of the Indian Constitution. Previously guided by Section 167(2) of the Code of Criminal Procedure (CrPC), 1973, and now reflected in Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, this provision ensures that an accused can obtain bail if the investigating agency does not present a chargesheet within the specified 60-day or 90-day period, depending on the seriousness of the offense. While maintaining its essential framework, the transition to BNSS brings up worries about how the law might be interpreted, possible delays in procedures, and the risk of investigative agencies misusing it to extend detention times. Courts hold an essential position in making sure that default bail is an enforceable right instead of merely a discretionary relief.
This paper examines the legal framework of default bail under BNSS, judicial precedents, practical challenges, and the careful balance between personal liberty and the necessity for a comprehensive investigation. An examination of global practices reveals the need for more straightforward classifications and procedural improvements to support the constitutional mandate while ensuring the effectiveness of criminal justice processes.
Keywords: Default Bail under BNSS, Statutory Bail India, Section 187(2) BNSS, Article 21 Right to Liberty, 60 vs 90 Days Bail Rule
INTRODUCTION
Default bail, which is frequently referred to as statutory bail, serves as a legal protection that guarantees individuals are not held indefinitely without formal charges being brought against them. The investigating agency is granted this when it does not finish its investigation and submit a chargesheet within the set timeframe. This provision supports the right to personal freedom as outlined in Article 21 of the Constitution of India, finding harmony between the rights of the accused and the state’s need to carry out a comprehensive investigation. Default bail ensures that detention is not arbitrary and holds the prosecution accountable to operate within the time limits set by law.
In the past, default bail was regulated by Section 167(2) of the Code of Criminal Procedure (CrPC), 1973. According to this provision, if the investigation is not finished within 60 days for offenses that carry a maximum imprisonment of up to 10 years, or within 90 days for offenses that could lead to more than 10 years, life imprisonment, or the death penalty, the accused has the right to seek bail. The introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces the CrPC, maintains the same structure as outlined in Section 187(2) of BNSS. Although the core provisions stay the same, the way courts interpret them and the procedures involved might affect the enforcement of these timelines. Under CrPC, courts frequently encountered difficulties in categorizing offenses within the 60-day or 90-day framework, resulting in varied rulings. With BNSS now in effect, legal experts are eager to observe whether it provides clarity or maintains the same precedents.
The difference between the 60-day and 90-day rule is important, as it directly affects the accused’s right to bail. Yet, uncertainties in understanding, slowdowns in inquiry, and improper use of procedural delays frequently make the process more complex. Courts are essential in making sure that the provision is not exploited by investigating agencies to extend detention unnecessarily. Considering its importance in protecting personal freedoms, the idea of default bail under BNSS calls for a thorough legal examination to grasp its effects, judicial patterns, and real-world difficulties in application.
LEGAL FRAMEWORK OF DEFAULT BAIL UNDER BNSS
Default bail is a legal entitlement that guarantees an accused individual is not held for an extended period because of delays in the investigative process. Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the provision governing default bail remains similar to its predecessor in the Code of Criminal Procedure (CrPC), 1973 but is now codified under Section 187(2) of BNSS. This section outlines the timeframes that the investigating agency must adhere to in order to finish its investigation and submit a chargesheet; if these time limits are not met, the accused has the right to seek bail.
The conceptual framework of default bail is outlined in Section 187(2) of BNSS, which takes the place of Section 167(2) of CrPC. This provision highlights the essential elements, which are:
- When someone is taken into custody, the magistrate has the authority to permit police custody for a period of up to 15 days, while judicial custody can extend to 60 or 90 days, depending on how serious the offense is.
- If the investigation isn’t finished within the set timeframe, the accused should be granted bail if they apply for it, as long as they agree to meet the bail conditions specified by the court.
- Once the right to default bail is established, it cannot be eliminated by submitting a chargesheet after the designated period has passed but before bail is granted.
BNSS maintains a two-tier system for default bail that reflects the gravity of the offense:
- Sixty-Day Rule
If the offense carries a potential imprisonment of up to ten years, the investigation should be wrapped up within 60 days. If not, the accused is entitled to bail by default.
- Ninety-Day Rule
If the offense carries a punishment of more than ten years in prison, life imprisonment, or the death penalty, the investigation period is extended to 90 days before default bail may be granted.
This distinction is important because courts frequently look closely at the specific nature of the offense to decide if it fits within the 60-day or 90-day category. When an offense may lead to several penalties, such as those with different levels of seriousness, discussions emerge about which timeframe should be considered.
To effectively secure default bail under BNSS Section 187(2), certain conditions need to be fulfilled:
- Failure to File a Chargesheet: The investigating agency likely did not submit a chargesheet within the required 60 or 90 days, based on the nature of the offense.
- Application by the Accused: Default bail is not given automatically; the accused needs to request it from the court.
- Willingness to Furnish Bail: The accused should be prepared to follow the bail conditions established by the court.
- No Subsequent Chargesheet Before Grant of Bail: If the accused has already sought default bail prior to the filing of a chargesheet, their entitlement to bail remains intact.
- No Exceptional Circumstances to Extend Detention: In some situations, the prosecution might request additional time for investigation under specific laws (like UAPA or NDPS), but in standard cases under BNSS, default bail is required to be granted once the time period has expired.
Therefore, default bail is a legal entitlement, and any postponement or refusal beyond the specified timeframe would constitute an infringement of personal freedom under Article 21 of the Constitution. Courts have consistently ruled that once the period has lapsed and an application is submitted, bail should be granted as a matter of right, rather than at the judge’s discretion.
INTERPRETATION OF SIXTY DAYS VS. NINETY DAYS
The categorization of offenses plays an essential role in deciding if a person facing charges can receive default bail after sixty or ninety days of being held in custody. The time limit set for the accused depends on the characteristics and seriousness of the offense, which influences their ability to secure bond. The highest penalty set for the offense is often assessed by courts to see if the sixty-day or ninety-day guideline applies. However, legal disagreements about how to interpret the statutory timeline come up when an offense has different possible punishments or when there are several charges with different punishment levels involved. The way offenses are classified holds significant importance, as a misclassification can directly affect the accused’s freedom by either prolonging or hastening the access to a default bond.
The sixty-day limit is relevant for offenses that carry a potential imprisonment of up to ten years. If the investigating agency does not submit a chargesheet within sixty days from the date of the first remand, the accused is entitled to the legal right to default bail. This provision applies regardless of whether the offense is cognizable or non-cognizable, bailable or non-bailable. Nonetheless, conflicts emerge in situations where an offense allows for imprisonment that could exceed ten years, yet does not require it as the least punishment. In these situations, courts have looked into whether the highest possible punishment or the specific punishment outlined in a particular case should influence the duration of bail. Some economic offenses, corruption cases, and non-violent crimes typically fall within the sixty-day limit, yet classification issues frequently result in legal challenges.
The ninety-day limit is relevant for offenses that carry a punishment of over ten years in prison, life imprisonment, or the death penalty. In these situations, the state receives an extended timeframe to finish the investigation, taking into account the intricacy and seriousness of the offense. Crimes like murder, activities related to terrorism, violations of the NDPS Act involving large amounts of drugs, and specific instances under POCSO or UAPA generally belong to this group. Complications emerge when an offense offers alternative sentences, like ten years of imprisonment or life imprisonment, leading to questions about which threshold should set the default bail period. Courts have frequently stepped in to shed light on these uncertainties, highlighting that the interpretation should resonate with the principle of personal freedom while making sure that serious offenses are not unfairly confined to the sixty-day limit.
Judicial precedents have significantly influenced the understanding of the sixty-day and ninety-day rule. Courts have consistently maintained that the punishment outlined for the offense, rather than the punishment that may be imposed in a particular case, dictates the relevant time limit. In various instances, the Supreme Court and High Courts have determined that when an offense allows for alternative punishments, the more severe punishment should be taken into account when deciding the bail period. In situations where uncertainty occurs, the courts tend to interpret matters in a way that supports the accused’s freedom. Furthermore, court decisions have made it clear that the characteristics of the offense, the purpose behind the legislation, and the fairness of the procedures should be taken into account when categorizing offenses under the sixty-day or ninety-day rule. This developing legal framework is influencing the way default bail is awarded under BNSS, making sure that the time limits are enforced fairly and uniformly.
LEGISLATIVE INTENT BEHIND THE TIME LIMITS
The difference between the sixty-day and ninety-day time frames stems from the idea that more serious offenses necessitate a deeper level of investigation. Challenging situations that involve serious offenses, criminal networks, acts of terrorism, or extensive financial scams typically demand extended investigative work, which may include detailed forensic studies, international inquiries, and interviews with witnesses. A more extended period allows investigating agencies to collect ample evidence without the pressure of strict deadlines. On the other hand, for offenses with a maximum penalty of up to ten years, it is anticipated that the investigation will be simpler, leading to a quicker timeframe for filing a chargesheet. This classification seeks to harmonize the accused’s right to freedom with the state’s requirement for efficient law enforcement, ensuring that detention is not extended unnecessarily while providing sufficient time for investigation in more serious cases.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, maintains the sixty-day and ninety-day framework established by the Code of Criminal Procedure (CrPC), 1973, showing that the legislature is adhering to the same reasoning. There has been no significant change from the established principle that default bail is granted based on the seriousness of the offense. Nonetheless, the shift to BNSS seeks to streamline and update procedural law, prompting inquiries into whether the uncertainties in CrPC—particularly concerning offenses with alternative penalties—have been sufficiently resolved. Although BNSS closely resembles its predecessor, the implementation of default bail provisions relies on judicial interpretation, with courts often addressing disagreements related to the categorization of offenses under the sixty-day or ninety-day rule.
Discussions in Parliament regarding the introduction of BNSS, along with insights from the Law Commission of India, suggest that the aim of setting these time limits was to honour the principles of due process while enhancing the frameworks of criminal justice. Conversations highlighted that default bail serves not just as a procedural right but as a protection against unjust detention, strengthening Article 21 of the Constitution. The Law Commission, in several reports, has emphasized the importance of clear distinctions between offenses in the sixty-day and ninety-day categories, as inconsistent application frequently results in legal challenges. Although BNSS aimed to simplify procedural complexities, worries remain about whether the law sufficiently covers gaps that were once used to prolong detention beyond legal limits. The current judicial interpretation of BNSS provisions will reveal if these concerns have been adequately addressed or if additional legislative action is necessary.
JUDICIAL APPROACH TO DEFAULT BAIL UNDER BNSS
The Supreme Court and various High Courts have been essential in interpreting default bail provisions, safeguarding the right to personal liberty and preventing procedural misuse. Several landmark judgments have clarified that default bail is not a matter of discretion but a statutory right that arises when the investigation is not completed within the designated timeframe.
Rakesh Kumar Paul v. State of Assam (2017)[1]
The Supreme Court determined that in cases where an offense carries a potential imprisonment of up to ten years, the sixty-day limit is applicable. The Court highlighted that any uncertainties in classification should be settled in Favor of the accused, underscoring that default bail is a legal right that cannot be denied due to a misinterpretation of punishment thresholds.
Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2020)[2]
The Supreme Court determined that when an accused seeks default bail after the statutory period has lapsed, this right cannot be undermined by the later submission of a chargesheet. The Court highlighted that default bail is a right that can be enforced under Section 167(2) CrPC, which now has its counterpart in Section 187(2) of BNSS.
Union of India v. K.A. Najeeb (2021)[3]
In situations concerning specific laws like UAPA, the Supreme Court confirmed the rejection of default bail, emphasizing that courts need to weigh personal freedom against the interests of national security. The Court explained that the statutory bail provisions in general laws do not necessarily take precedence over specific laws that permit longer investigation periods.
Fakhrey Alam v. State of Uttar Pradesh (2021)[4]
The Supreme Court emphasized that once the statutory period has passed, the accused is entitled to bail, regardless of the seriousness of the offense. The Court determined that delays in procedure cannot justify the denial of personal freedom, as this would contravene Article 21 of the Constitution.
Acharya Ranjit Bhattacharya v. State of Maharashtra (2021)[5]
The Bombay High Court determined that an incomplete or supplementary chargesheet does not prolong the statutory period, emphasizing that default bail should be granted if the investigation is not finalized within the designated timeframe. The Court cautioned against the improper use of procedural strategies that could infringe upon the legal rights of the accused.
Mohammed Iqbal Madar Sheikh v. State of Maharashtra (1996)[6]
The Supreme Court determined that misclassifying an offense to prolong the investigation period constitutes an abuse of process. The Court ordered the prompt release of the accused and highlighted that investigating agencies cannot unjustly classify an offense under the ninety-day rule to postpone default bail eligibility.
These judgments emphasize the judiciary’s active role in making sure statutory timelines are not unnecessarily prolonged and that BNSS provisions are understood in a way that aligns with legislative intent and constitutional protections.
PRACTICAL CHALLENGES AND ISSUES IN IMPLEMENTATION
Investigating agencies frequently request extensions to prevent the granting of default bail, pointing to the intricacies of the case, outstanding forensic reports, or the necessity for custodial questioning of co-accused individuals. Although specific laws such as UAPA and NDPS Act outline provisions for prolonged detention, in typical criminal cases under BNSS, agencies might try to submit incomplete chargesheets or extra documents to demonstrate “substantial compliance” with procedural norms. This practice has faced scrutiny from courts, as it directly impacts the accused’s right to statutory bail. In numerous cases, agencies seek extra time even after the statutory period has lapsed, resulting in delays in judicial decisions and extended detention of undertrial prisoners. Courts have often stepped in to stop such misuse, asserting that simply having an extension application pending does not take away the accused’s right to bail. Nonetheless, the issue remains, particularly in prominent or delicate situations where law enforcement agencies cite national security or public interest as reasons for ongoing detention.
The delay in filing chargesheets poses a significant challenge to the effective implementation of default bail provisions. Investigating authorities, especially in intricate financial crimes, cyber offenses, and organized criminal activities, frequently do not finish their inquiries within the set sixty-day or ninety-day timeframe. The reasons differ, such as overwhelmed forensic labs, awaiting approvals for prosecution measures, and challenges in tracking down fleeing suspects. However, the result of such delays is that individuals accused of serious crimes may gain release simply because of procedural oversights. The prosecution occasionally tries to address this by submitting fragmented chargesheets, which courts have consistently ruled as invalid unless they fulfil the essential criteria of a thorough investigation. When chargesheets are delayed for valid reasons, like international cooperation in transnational crimes, courts tend to be hesitant in imposing strict statutory deadlines. This has resulted in an uneven application of default bail provisions in various jurisdictions.
The uncertainty in identifying the relevant time limit continues to be a recurring challenge within the legal structure of default bail under BNSS. The categorization of offenses according to the highest allowable punishment frequently results in disagreements regarding the applicability of the sixty-day or ninety-day limit. Some offenses come with different punishments, like ten years in prison or life imprisonment, leading to uncertainty about which threshold should determine the bail period. Furthermore, situations with several charges that carry different punishment ranges introduce additional complexities, as courts need to determine if the most serious offense should determine the time frame or if each charge should be evaluated on its own. Another area of concern emerges when investigating officers intentionally charge an offense under a provision that entails a longer punishment, purely to take advantage of the ninety-day period. Courts have consistently warned against such practices, highlighting that default bail provisions should be understood in a way that Favors the accused when there is any ambiguity. Nonetheless, the absence of a consistent standard for addressing these disputes remains a challenge, necessitating regular judicial involvement to guarantee the effective application of the law.
BALANCING INDIVIDUAL LIBERTY AND INVESTIGATION NEEDS
The right to personal liberty is a core principle established under Article 21 of the Constitution, guaranteeing that no individual is stripped of their freedom except through a just and reasonable process. Default bail acts as an essential protection against endless detention and guarantees that investigative bodies operate within set timeframes. Simultaneously, law enforcement agencies contend that serious and intricate offenses, like terrorism, financial fraud, and organized crime, necessitate thorough investigation that surpasses the sixty-day or ninety-day limit. The challenge is to find harmony between these opposing interests—making sure that someone accused is not wrongfully held because of delays in investigation, while also avoiding hasty releases that could undermine justice. Courts have sought to address this conflict by firmly upholding default bail as a legal entitlement, while also permitting exceptions under specific laws that allow for prolonged detention. Nonetheless, worries persist regarding the potential misuse of procedural strategies by investigating agencies, which occasionally pursue multiple extensions to bypass statutory bail provisions.
A closer look alongside other legal systems reveals various methods of harmonizing individual freedom with the requirements of investigation. In the United States, pretrial detention laws allow courts more flexibility to deny bail by considering factors like flight risk and potential harm to society, rather than just adhering to a strict investigation timeline. Nonetheless, there are essential measures in place to ensure that prolonged detention does not occur. In the United Kingdom, the limits for pre-charge detention differ depending on the offense, with a general maximum of ninety-six hours for serious crimes as outlined in the Police and Criminal Evidence Act (PACE), 1984. For offenses related to terrorism, extensions of up to twenty-eight days are allowed with judicial approval. In contrast to India, where default bail is automatically granted after surpassing statutory limits, certain legal systems assess each case on its own merits before deciding if ongoing detention is warranted. These models indicate that India’s fixed sixty-day and ninety-day rule might benefit from increased adaptability to tackle investigative challenges, while also ensuring enhanced judicial oversight to avoid misuse.
To enhance understanding and equity in BNSS provisions, some changes are needed. A vital recommendation is to clearly classify offenses under the sixty-day or ninety-day rule, removing any uncertainty about alternative punishments and combined charges. A transparent legislative framework outlining the circumstances under which the ninety-day period is applicable would help avoid misuse by investigating agencies. Moreover, a judicial review mechanism might be established, permitting courts to prolong investigation deadlines solely in rare instances, like when vital evidence is awaited due to international collaboration or forensic holdups. Additionally, reforms ought to emphasize minimizing procedural delays in investigations, such as enhancing resource distribution for forensic labs and speeding up sanction approvals. Making sure that default bail provisions under BNSS are in harmony with constitutional principles and global best practices will enhance the equilibrium between individual rights and the state’s duty to carry out effective investigations.
CONCLUSION
Default bail is essential for ensuring fairness and protecting individual freedom, helping to avoid unnecessary detention when investigations are not conducted promptly. Although the shift from CrPC to BNSS maintains the core structure, there are ongoing challenges related to how offenses are classified, delays in procedures, and the risk of misuse concerning investigative extensions. Judicial interpretations have emphasized that default bail is a statutory right, not a discretionary privilege, ensuring that any ambiguity is resolved in favor of the accused. Nonetheless, practical challenges like the misclassification of offenses, delays in forensic reports, and fragmented chargesheets persist, making its implementation more complex. Comparative legal perspectives indicate that introducing a more adaptable yet organized judicial review process could enhance the equilibrium between protecting individual rights and providing law enforcement agencies with adequate time for intricate investigations. Moving ahead, clear legislation, streamlined procedures, and careful judicial review will be essential in making sure that default bail under BNSS truly fulfils its role of safeguarding fundamental freedoms while maintaining the integrity of the criminal justice system.
REFERENCES
- https://indiankanoon.org.
- https://www.livelaw.in/
- Live Law,Default Bail Under BNSS: Sixty Days or Ninety Days — The Confusion Continues, (Jan. 30, 2025), https://www.livelaw.in/top-stories/bnss-right-to-default-bail-under-bharatiya-nagarik-suraksha-sanhita-282457.
[1] Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67.
[2] M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485.
[3]Union of India v. K.A. Najeeb, (2021) 3 SCC 713.
[4] Fakhrey Alam v. State of Uttar Pradesh, (2021) 2 SCC 243.
[5] Acharya Ranjit Bhattacharya v. State of Maharashtra, 2021 SCC OnLine Bom 516.
[6] Mohammed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722.
