Default Bail Under Section 187 BNSS: Latest 2026 High Court Rulings

Executive Summary

Default bail under Section 187 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) is one of the most significant procedural safeguards in Indian criminal law, providing an accused person with an indefeasible right to bail upon the failure of the investigating agency to file a chargesheet within the statutory time limits. This right — which corresponds to the right previously available under Section 167(2) of the Code of Criminal Procedure 1973 (CrPC) — is not a concession or a discretionary grant but a right that accrues by operation of law the moment the prescribed period expires without a complete chargesheet being filed before the Magistrate. The BNSS 2023, which came into force on 1 July 2024, preserved this indefeasible right in materially the same terms as its predecessor provision. The principle has been affirmed and refined by a long line of Supreme Court and High Court decisions, including landmark rulings that have established the conditions under which the right is extinguished and the circumstances in which its exercise may be displaced by the subsequent filing of a chargesheet. This article examines the statutory basis of default bail under Section 187 BNSS, the time limits applicable to different categories of offences, the procedure for claiming the right, the circumstances that do and do not defeat it, and the most recent judicial developments from the High Courts, including the Gujarat High Court.

Statutory Framework

Section 187 BNSS 2023

Section 187 of the BNSS 2023 corresponds directly to Section 167(2) of the CrPC 1973. Section 187 provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within a period of twenty-four hours, the officer in charge of the police station or the investigator shall transmit to the nearest Magistrate a copy of the entries in the diary relating to the case and shall at the same time forward the accused to such Magistrate.

The Magistrate to whom an accused person is forwarded may, from time to time, authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding fifteen days in the whole at any one time, with the total period not exceeding sixty days or ninety days as the case may be, depending upon the gravity of the offence.

The critical sub-provision — corresponding to the proviso to Section 167(2) CrPC — provides that if the investigation is not completed within the period of sixty days (for offences punishable with imprisonment for a term of less than ten years) or ninety days (for offences punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years), the accused shall be released on bail if he is prepared to and does furnish bail. This right to be released on bail upon the expiry of the statutory period without a chargesheet is what is referred to as “default bail” or “statutory bail.”

The Time Limits

Two distinct time limits apply under Section 187 BNSS, depending upon the maximum punishment prescribed for the offence under investigation.

Where the offence is punishable with a term of imprisonment of less than ten years, the investigating agency must file the chargesheet within sixty days of the accused being taken into custody. If a chargesheet is not filed within this period, the accused becomes entitled to default bail upon expiry of the sixtieth day.

Where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, the investigating agency has ninety days within which to file the chargesheet. If no chargesheet is filed by the ninetieth day, the accused becomes entitled to default bail.

The calculation of the period begins from the date on which the accused was first taken into custody, and includes all periods of custody whether in police custody or in judicial custody. The Magistrate may grant police custody for a maximum of fifteen days in total, and the remainder of the sixty or ninety day period is spent in judicial custody.

Extensions Under the BNSS

Section 187 of the BNSS, like Section 167(2) of the CrPC before it, provides that the Magistrate may, on a report from the officer in charge of the police station, extend the period of detention beyond fifteen days at a time, subject to the overall outer limit of sixty or ninety days. There is no provision under Section 187 for extending the sixty or ninety day outer limit on the mere application of the prosecution. Certain special statutes — such as the Unlawful Activities (Prevention) Act 1967 — provide for longer periods of detention without chargesheet, and Section 187 BNSS provides that nothing in this section shall be deemed to affect the provisions of any law for the time being in force relating to bail. These special statutory provisions operate as exceptions to the general regime of default bail under Section 187.

The Bharatiya Sakshya Adhiniyam 2023 and BNSS

The BNSS 2023 replaced the CrPC 1973, and the Bharatiya Sakshya Adhiniyam 2023 (BSA) replaced the Indian Evidence Act 1872, both with effect from 1 July 2024. The transition from the CrPC to the BNSS preserved the substantive right to default bail under Section 187 BNSS, and the judicial interpretation of Section 167(2) CrPC continues to be applicable as precedent for construing the corresponding BNSS provision, subject to any differences in the text of the two provisions.

Procedural Landscape

How the Right Accrues

The right to default bail accrues automatically upon the expiry of the prescribed period (sixty or ninety days as the case may be) without a complete chargesheet being filed. The accused need not make any application or take any procedural step for the right to accrue; the right arises by operation of law. However, to give effect to the right, the accused must make an application to the Magistrate before whom the accused is produced, indicating that the period has expired without a chargesheet being filed and claiming the right to bail.

The Application and the Procedure

The accused or the accused’s counsel presents an application to the Magistrate noting the date of first arrest, the lapse of the prescribed period, and the absence of a chargesheet. Upon the application being moved, the prosecution is typically heard. If it is established that no chargesheet has been filed, the Magistrate is bound to release the accused on bail, subject to the accused furnishing bail in accordance with the conditions imposed.

The Magistrate has no discretion to refuse bail once the right under Section 187 BNSS has accrued. The right is an indefeasible one, and the Magistrate cannot impose conditions that effectively make the release unavailable. However, the Magistrate may impose reasonable conditions as to the nature of bail, the surety amount, and conditions of attendance, consistent with the general law of bail.

What Happens After the Chargesheet Is Filed

If a chargesheet is filed after the sixty or ninety day period, the statutory right to default bail has already accrued to the accused, and that accrued right cannot be extinguished by the subsequent filing of the chargesheet. However, once a chargesheet is filed, the right to default bail lapses for the future: a fresh period of statutory detention begins, and the accused can no longer claim bail on the ground that the investigation is incomplete, because the investigation has been concluded. The accused must then apply for regular bail under Section 480 or 483 BNSS (corresponding to Sections 437 and 439 CrPC), and the court exercises its discretion in accordance with the usual bail jurisprudence.

The distinction between an accrued right and a lapsed right is critical: if the accused has moved the application before the chargesheet is filed, the right has been exercised and cannot be defeated by the prosecution rushing to file the chargesheet after the application is moved but before it is heard. If, on the other hand, the accused has not moved any application and the chargesheet is filed, albeit after the expiry of the period, the right to default bail lapses, and the accused must seek regular bail.

Incomplete Chargesheets

Courts have consistently held that the filing of an incomplete chargesheet — one that does not contain all the material required by law, or that is filed as a preliminary report without the formal application for cognizance — does not satisfy the requirement of Section 187 and does not extinguish the right to default bail. The chargesheet filed must be a complete chargesheet as contemplated by the statute, one upon which the Magistrate can take cognizance of the offence.

Key Judicial Precedents

Sanjay Dutt v. State Through CBI (1994) 5 SCC 410

The Supreme Court’s decision in Sanjay Dutt v. State Through CBI (1994) 5 SCC 410 is the foundational ruling on default bail in India. The Court authoritatively held that the right conferred upon an accused under the proviso to Section 167(2) CrPC (now Section 187 BNSS) is an indefeasible right — a right that, once it has accrued and been exercised by the accused, cannot be taken away. The Court further held that the right lapses if not exercised before the chargesheet is filed, but that if it has been exercised, the subsequent filing of a chargesheet does not defeat the bail already obtained. The Court distinguished between the two stages: the stage at which the right accrues (upon expiry of the period) and the stage at which it can still be exercised (before the chargesheet is filed).

Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67

In Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, a three-judge bench of the Supreme Court revisited and clarified the law on default bail. The Court held that the right to default bail under the proviso to Section 167(2) CrPC arises even where the accused has not expressly applied for bail upon the expiry of the period, provided that the accused indicates his willingness to furnish bail. The Court reaffirmed that the right is indefeasible and cannot be defeated by the subsequent filing of a chargesheet once the right has been exercised. The Court also examined the question of which offences attract the sixty-day period and which attract the ninety-day period, holding that the test is the maximum punishment prescribed for the offence under investigation, not the maximum punishment for the offence ultimately charged.

The Principle of Non-Defeat by Incomplete Chargesheet

The Supreme Court in Dinesh Dalmia v. CBI (2007) 8 SCC 770 held that the filing of a chargesheet that is incomplete — in the sense that it is not accompanied by all the required material for the Magistrate to take cognizance — does not satisfy the requirement of Section 167(2) CrPC and does not extinguish the right to default bail. This ruling has been consistently followed by High Courts across India, including the Gujarat High Court, in proceedings arising under both the CrPC and the BNSS.

Gujarat High Court and Recent 2025-2026 Rulings

The Gujarat High Court has, in the period following the coming into force of the BNSS on 1 July 2024, continued to apply the established principles of default bail under Section 187 BNSS in a manner consistent with the Supreme Court’s jurisprudence under the corresponding CrPC provision. The Court has confirmed in recent matters arising before it that the transition from the CrPC to the BNSS does not alter the substantive right to default bail, and that the interpretation accorded to Section 167(2) CrPC by the Supreme Court applies with equal force to Section 187 BNSS. The Court has also addressed the procedural question of the stage at which the application for default bail must be filed, confirming that the application must be filed before the chargesheet is placed before the Magistrate and cognizance is taken.

In the context of cases registered under the BNSS 2023, the Gujarat High Court has emphasised that the transition from the CrPC to the BNSS with effect from 1 July 2024 requires courts to identify whether the offence was committed and the arrest made before or after that date, since the applicable procedural law is determined by the date of the commencement of the proceedings. Cases where the arrest was made before 1 July 2024 continue to be governed by the CrPC, including Section 167(2), while cases where the arrest was made on or after 1 July 2024 are governed by the BNSS, including Section 187.

Conclusion

Default bail under Section 187 BNSS is a constitutionally grounded safeguard against prolonged pre-trial detention, rooted in the right to personal liberty under Article 21 of the Constitution of India. The right is indefeasible in character once it accrues, and the courts — including the Supreme Court in Sanjay Dutt (1994) and Rakesh Kumar Paul (2017) — have consistently rejected attempts by the prosecution to defeat the right by filing incomplete chargesheets or by filing complete chargesheets after the application for default bail has already been moved. The transition from the CrPC to the BNSS with effect from 1 July 2024 has not altered the substance of this right; Section 187 BNSS preserves the framework of Section 167(2) CrPC in materially the same terms. The procedural nuances — in particular, the timing of the application and the distinction between an accrued right and a lapsed one — are of critical importance in practice. An accused who fails to move an application before the chargesheet is filed loses the right to default bail and must thereafter seek regular bail on merits. Courts in Gujarat and across India continue to apply these principles in the post-BNSS era, ensuring that the fundamental protection against indefinite pre-trial custody remains effective.