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.

The post Default Bail Under Section 187 BNSS: Latest 2026 High Court Rulings appeared first on Bhatt & Joshi Associates.

In the ordinary criminal justice system, the investigating agency has 60 or 90 days to file a charge-sheet before the accused earns the right to default bail. Under the Unlawful Activities (Prevention) Act, 1967 (UAPA), however, this timeline operates differently, and the right to default bail is shaped by a more stringent statutory framework. The initial 90-day period can be extended up to 180 days — but only by a court order following a specific procedure. This extension mechanism is not automatic, and it is not a blank cheque for the State. It is a regulated process with strict procedural safeguards. When those safeguards are violated, the extension order is invalid — and the accused’s right to default bail revives.

This article examines that mechanism in depth. It explains the role of the Public Prosecutor, the legal standards for the extension report, and the three most commonly occurring procedural violations that invalidate an extension order. It also explains how the much-cited Supreme Court ruling in State (NCT of Delhi) v. Raj Kumar @ Lovepreet @ Lovely, 2024 INSC 11 should be correctly understood — and why it does not protect a State that has committed any of the three violations discussed here.

This is the second article in a three-part series on default bail in India. Article 1 explains the foundational concept of remand, custody periods, and default bail for a general audience. Article 3 addresses the limitation period for appeals under the NIA Act.

Default Bail under UAPA: The Architecture of Section 43D(2)(b)

The framework governing default bail under UAPA is set out in Section 43D(2), which provides that, in the investigation of an offence under the Act, the period of ninety days can be extended up to one hundred and eighty days if the Public Prosecutor files a report to the effect that the investigation has not been completed, together with the specific reasons for such detention of the accused beyond the period of ninety days. The extension is granted by the Special Court.

Three distinct actors are involved:

• The Investigating Officer (IO): Conducts the investigation and prepares an application for extension when more time is needed.
• The Public Prosecutor (PP): Reviews the IO’s material and prepares an independent report to the Special Court.
• The Special Court: Considers the PP’s report (not the IO’s application), hears the accused, and decides whether to grant the extension.

Each of these roles is distinct. The IO is part of the investigating agency. The PP is not. This distinction is foundational to the entire extension framework and lies at the heart of the most common ground for challenging an extension order.

Who Is the Public Prosecutor? Why Does Independence Matter?

The Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 — the foundational ruling on extension proceedings — described the Public Prosecutor as follows:

“A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The Public Prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation.”

This passage is critical. The PP is not the police’s messenger. The PP is an independent statutory authority whose function is to assess — independently — whether the extension is genuinely warranted. This distinction matters because the Special Court is not entitled to grant an extension on the basis of the IO’s application alone. It must have a PP’s report. If the ‘PP’s report’ is merely a copy or re-statement of the IO’s application — with no independent assessment — it is a nullity, and the extension based on it is invalid.

The Public Prosecutor’s independence obligation also exists at the level of individual accused persons. The PP cannot submit a single omnibus report saying ‘investigation is incomplete and extension is needed’ without specifying the reasons for each accused’s continued detention. A generic justification for the case as a whole does not satisfy Section 43D(2)(b). Each accused is entitled to a distinct assessment.

What Must the PP’s Report Contain?

Based on a synthesis of Hitendra Vishnu Thakur (1994), Sanjay Dutt v. State through C.B.I., Bombay (1994) 5 SCC 410, and the 2019 Supreme Court ruling in Criminal Appeal No. 264 of 2019, the PP’s report must:

• State the progress of investigation clearly, not in generic or boilerplate terms.
• Provide specific reasons for detention of this accused beyond 90 days — not reasons for the case in general.
• Demonstrate the PP’s independent application of mind — i.e., the PP must have considered the IO’s material and formed their own assessment, not merely endorsed it.
• Address why 90 days have been insufficient and why the full 180 days are required.

The Supreme Court in Criminal Appeal No. 264 of 2019 (decided 13 February 2019) expressly noted that the mandatory requirements under Section 43D(2)(b) mirror those developed by Hitendra Vishnu Thakur for TADA Section 20(4)(bb), and that faulting the PP’s report on independent-application-of-mind grounds was an established and available ground for challenging an extension.

The Three Procedural Violations

Violation Type 1 — Non-Production of the Accused Before the Special Court

The Supreme Court’s Constitution Bench in Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 held that the accused has an indefeasible right to be produced before the court when the PP’s extension report is being considered. This is not a mere courtesy — it is an Article 21 requirement. The accused must be produced, either physically or (post-pandemic) through video-conferencing, so that they can be informed of and given the opportunity to oppose the extension.

This principle was directly applied to UAPA-equivalent statutes by the Supreme Court in Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, Criminal Appeal No. 1656 of 2022, decided on 23 September 2022. The Court quashed extension orders granted by the Gujarat Special Court because the accused were not produced before the court at the time the extension application was considered. The Court held:

“The failure to produce the accused before the Court while considering the application for extension of time for investigation vitiates the entire extension proceedings. The accused is entitled to be heard and the mere non-production of the accused is not a curable irregularity — it goes to the root of the extension order.”

The State frequently argues that non-production is excused by a ‘notice’ sent to jail — typically a paper delivered to the jail superintendent, allegedly served on the accused, sometimes marked as ‘refused to sign.’ This argument has no basis in any Supreme Court precedent under UAPA, TADA, POTA, or MCOCA. Notice is not a substitute for production. The two are distinct requirements: (a) the accused must be produced, and (b) the accused must be informed of the PP’s report. Both conditions must be met. Meeting one does not dispense with the other.

Furthermore, the burden of production lies on the State, not the accused. A prisoner has no legal obligation to counter-sign a jail despatch register to facilitate the State’s compliance with its own procedural duty. An accused’s alleged ‘refusal to sign’ a jail notice is not a waiver of an Article 21 right — the Supreme Court has never recognised such a waiver in any reported decision under any special anti-terrorism or narcotic law.

Violation Type 2 — The PP Acting as a ‘Post Office’: No Independent Application of Mind

Where the PP’s report is a verbatim copy, translation, or near-identical restatement of the IO’s application, the PP has failed the Hitendra Vishnu Thakur standard. The ‘report’ submitted in such circumstances is a nullity, and the extension order built upon it is liable to be quashed.

This was directly applied by the Bombay High Court (Nagpur Bench) in its ruling of 25 August 2025 (MCOCA matter, Pansare and Nerlikar, JJ.), where default bail was granted to three accused and the extension orders were quashed with the following finding:

“The applications filed by the Additional Public Prosecutor in Chandrapur were merely translations of reports prepared by the police. The Public Prosecutor had not independently applied his mind to the material before submitting the report to the court. This is a fundamental failure that goes to the root of the extension proceedings.”

The Kerala High Court (Ernakulam) in its ruling of 7 December 2022 (NDPS Section 36A(4) matter) held that an extension is void ab initio where the IO himself files the petition or where the PP does no more than forward the IO’s request. The PP is, as described in Hitendra Vishnu Thakur, an ‘independent statutory authority’ — a description that imposes an active duty, not a passive one.

The practical test for this violation is simple: obtain both the IO’s application and the PP’s report. If they are verbatim identical, or if the PP’s report contains no independent analysis beyond what appears in the IO’s document, the Violation Type 2 argument is squarely available.

Violation Type 3 — Sealed Cover PP Report: Denial of Broad Reasons

Section 43D(2)(b) UAPA requires the PP’s report to contain specific reasons for the accused’s continued detention. The accused’s right to a limited objection to the extension — recognised in Sanjay Dutt and Hitendra Vishnu Thakur — presupposes that the accused knows at least the broad reasons why continued detention is sought. An accused who is given no reasons cannot mount any objection, however limited.

The Supreme Court in Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366 (decided 5 April 2023, by CJI D.Y. Chandrachud and Hima Kohli, J.) held as follows:

“Sealed cover procedures violate both the principles of natural justice and open justice. By submitting material in a ‘sealed cover,’ and the High Court relying on it in the course of its judgment, the principles of natural justice were negated. The absolute immunity from disclosure for investigative reports is antithetical to a transparent and accountable system.”

Applied to the UAPA extension context, the Madhyamam Broadcasting ruling means that a PP’s report filed entirely in sealed cover — with no gist, summary, or broad reasons communicated to the accused — vitiates the extension hearing. The accused is reduced to a cipher, present in the courtroom but unable to participate in the proceeding that determines whether they stay in prison.

The Delhi High Court (Division Bench) in CRL.A. 405/2021 (decided 24 February 2023) recognised a middle ground: while the full text of the PP’s report need not be supplied to the accused while investigation is in progress (since disclosure could frustrate the investigation), the accused must receive at least the broad reasons for continued detention. A sealed cover filing that provides nothing to the accused fails this minimum standard.

After the charge-sheet is filed and the investigation is concluded, the rationale for withholding the PP’s report disappears entirely. At that stage, the ‘live apprehension of tampering’ that justified non-disclosure while investigation was pending has elapsed. The accused is entitled to the PP’s report as part of the documents to be supplied under Section 207 CrPC / Section 230 BNSS before trial. Any attempt to maintain the ‘sealed cover’ after charge-sheet filing is not only procedurally unjustifiable — it is constitutionally impermissible under Madhyamam Broadcasting.

Understanding State (NCT of Delhi) v. Raj Kumar @ Lovepreet @ Lovely, 2024 INSC 11

This Supreme Court ruling of 3 January 2024 is frequently cited by the State in UAPA default bail proceedings. Understanding it precisely — and distinguishing it — is essential.

The factual matrix: FIR No. 154 of 2020 was registered against Raj Kumar under UAPA, IPC, and the Arms Act. He was arrested on 18 June 2020. The 90-day period elapsed on 15 September 2020. The prosecution had obtained an extension order from the Special Court. The prosecution argued that the extension was validly granted because a Section 45(2) UAPA sanction was pending and FSL reports on arms were awaited. The Delhi High Court granted default bail under UAPA, finding the reasons for extension insufficient. The Supreme Court reversed this, holding that the High Court erred in:

• Applying the TADA-era Hitendra Vishnu Thakur standard mechanically, when UAPA has its own independent jurisprudence developed in Surendra Pundlik Gadling (2019) 9 SCC 797.
• Misreading the record on the sanction position under Section 45(2) UAPA.
• Overlooking that the charge-sheet was ultimately filed within the extended period.

What Raj Kumar (2024) does not decide: The case contains no discussion of, and no ratio on, non-production of the accused, the sealed cover issue, or the ‘PP as post office’ question. The challenge before the Court in Raj Kumar was exclusively about the sufficiency of disclosed reasons in the PP’s report — not about the procedural validity of the extension hearing itself.

Raj Kumar (2024) therefore cannot be invoked by the prosecution to defeat a default bail claim grounded in Violation Type 1 (non-production), Violation Type 2 (PP acting as post office), or Violation Type 3 (sealed cover). Those issues were simply not before the Court. To read Raj Kumar as impliedly overruling Jigar @ Jimmy Pravinchandra Adatiya (2022) on non-production would be to extend its ratio far beyond the facts and issues decided — a form of reasoning expressly prohibited by the Supreme Court’s own jurisprudence on precedent.

Cumulative Effect: When Multiple Violations Coexist

The three violation types can coexist in a single case — and their cumulative effect is more powerful than any one alone. Where the accused was not produced, the PP’s report was a copy of the IO’s application, and the report was placed in sealed cover with no reasons communicated to the accused, the entire extension hearing was a nullity. The accused was absent, the PP did not exercise independent judgment, and the accused had no material on which to object. In such circumstances, the extension order cannot stand on any ground.

The practical step is: obtain copies of (a) the IO’s extension application, (b) the PP’s report (even in redacted form through an application to court), (c) the production warrant or absence thereof, and (d) the jail despatch register entry. Compare the IO’s application and the PP’s report. Examine whether the accused was produced or not. Assess whether any reasons — even broad ones — were communicated. If all three violations are present, the case for default bail is strong and substantially protected against the Raj Kumar (2024) argument.

Conclusion

The UAPA extension mechanism under Section 43D(2)(b) is a powerful tool for the State — but it is a regulated tool, not an unlimited one. The Public Prosecutor’s independence obligation, the accused’s right to be produced and heard, and the minimum-transparency floor required by Madhyamam Broadcasting are not technicalities. They are the procedural safeguards that distinguish a legitimate extension of custody from arbitrary detention. When any of these safeguards is breached, the extension order is invalid and the accused’s indefeasible right to default bail revives in proceedings under UAPA.

Article 3 in this series addresses the next layer of difficulty: what happens when the incarcerated accused wants to challenge the extension order but is delayed in receiving a certified copy of the order — and how the doctrine of actus curiae neminem gravabit and the Supreme Court’s January 2024 interim order on Section 21(5) NIA Act protect that right.

FAQ

1. What is default bail under UAPA?
Default bail is the right of an accused to be released if the charge-sheet is not filed within 90 days, unless this period is validly extended to 180 days under Section 43D(2)(b) of the UAPA.

2. When can the 90-day period be extended to 180 days under UAPA?
Only when the Public Prosecutor files a valid report showing progress of investigation and specific reasons for continued detention.

3. Is extension to 180 days under UAPA automatic?
No. The court must grant it after following strict procedural safeguards.

4. Can default bail be claimed if the extension order is invalid?
Yes. If the extension violates legal requirements, the accused regains the right to default bail.

5. Is the accused required to be produced in court during extension proceedings?
Yes. Non-production of the accused can invalidate the extension order.

6. What happens if the Public Prosecutor does not apply independent mind?
The extension becomes invalid if the PP merely copies the Investigating Officer’s request.

7. Can the UAPA extension report be filed in a sealed cover?
Only limited confidentiality is allowed. The accused must still be given broad reasons for continued detention.

8. What are the most common grounds to challenge a UAPA extension order?
Non-production of accused, lack of independent PP report, and complete sealed cover with no disclosed reasons.

9. Does the Supreme Court ruling in Raj Kumar (2024) prevent default bail claims?
No. It applies only to sufficiency of reasons, not procedural violations like non-production or lack of PP independence.

10. What documents should be checked to challenge an extension order?
The IO’s application, PP’s report, court order, and records of accused production.

References and Legal Citations

[1] Unlawful Activities (Prevention) Act, 1967 — Section 43D(2)(b): Extension of investigation period  https://www.mha.gov.in/sites/default/files/UAPA1967.pdf

[2] Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 — PP independence; extension proceedings under TADA  https://cjp.org.in/wp-content/uploads/2022/07/Hitendra-Vishnu-Thakur-Ors.-vs.-State-of-Maharashtra-Ors.-1994-4-SCC-602.pdf

[3] Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 — Constitution Bench; accused must be produced; indefeasible right  https://indiankanoon.org/doc/1655328/

[4] Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, Criminal Appeal No. 1656 of 2022 (SC, 23.09.2022) — Non-production vitiates extension  https://api.sci.gov.in/supremecourt/2021/23563/23563_2021_3_1501_38491_Judgement_23-Sep-2022.pdf

[5] State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 INSC 11 — Sufficiency of reasons in PP report; Raj Kumar distinguished  https://api.sci.gov.in/supremecourt/2021/6064/6064_2021_8_1505_49160_Judgement_03-Jan-2024.pdf

[6] Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366 — Sealed cover proceedings violate natural justice  https://api.sci.gov.in/supremecourt/2022/6825/6825_2022_1_1501_43332_Judgement_05-Apr-2023.pdf

[7] Supreme Court of India, Criminal Appeal No. 264 of 2019 (decided 13.02.2019) — PP’s independent application of mind under Section 43D UAPA  https://api.sci.gov.in/supremecourt/2018/40223/40223_2018_Judgement_13-Feb-2019.pdf

[8] Bombay High Court (Nagpur Bench), August 2025 — MCOCA default bail; PP’s applications were translations of police reports (Pansare & Nerlikar, JJ.)  https://courtbook.in/posts/bombay-high-court-grants-default-bail-to-three-accused-quashes-extensions-under-mcoca

[9] Delhi HC Division Bench, CRL.A. 405/2021 (decided 24.02.2023) — PP report in UAPA; accused need not receive full report but broad reasons must be communicated  https://www.livelaw.in/pdf_upload/mug24022023crla4052021172642-460671.pdf

[10] Bar & Bench: Accused Not Entitled to Copy of PP’s Report at Time of Extension of Remand Under UAPA: Delhi High Court (February 2023)  https://www.barandbench.com/news/litigation/public-prosecutor-report-cannot-supplied-accused-extending-remand-uapa-delhi-high-court

[11] LiveLaw: Failure to Produce Accused Before Court While Considering Extension — Supreme Court (September 2022)  https://www.livelaw.in/top-stories/supreme-court-extension-of-time-investigation-accused-produced-jigar-jimmy-pravinchandra-adatiya

[12] Law Times Journal: Extension Proceedings and Default Bail — Revisiting Hitendra Thakur v. State of Maharashtra  https://lawtimesjournal.in/extension-proceedings-and-default-bail-revisiting-the-landmark-ruling-of-hitendra-thakur-vs-state-of-maharashtra/

[13] Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 — Default bail as fundamental right  https://main.sci.gov.in/supremecourt/2020/4337/4337_2020_36_1501_24283_Judgement_12-Oct-2020.pdf

[14] Surendra Pundlik Gadling v. National Investigation Agency, (2019) 9 SCC 797 — UAPA-specific default bail jurisprudence  https://indiankanoon.org/doc/55093836/

The post UAPA Default Bail: When 180-Day Extension Under Section 43D(2)(b) Becomes Invalid appeared first on Bhatt & Joshi Associates.

When a person is arrested in India, a countdown begins. Most people — and even many families of those arrested — have no idea that the law places strict time limits on how long an investigation can continue before the accused must be released. This article explains, in plain language, exactly what happens from the moment of arrest to the point where an accused can claim default bail as a matter of fundamental right in India. No legal background is needed to follow this guide.

Understanding these rights is not merely academic. Hundreds of undertrial prisoners in India — including those charged under stringent special laws — sit in custody well past the legal deadline simply because neither they nor their families knew a clock was running. This article is the first in a three-part series. The later articles address more technical questions about extensions and procedural violations. This one starts at the very beginning.

The 24-Hour Rule: Where It All Starts

Article 22(2) of the Constitution of India is short and unambiguous: every person who is arrested and detained in custody must be produced before the nearest Magistrate within 24 hours of arrest, and no person can be detained beyond that period without the Magistrate’s authority. This is not a procedural nicety — it is a foundational constitutional guarantee separating India’s criminal justice system from arbitrary imprisonment.

In practical terms, this means the police cannot lawfully hold a person in a police station lock-up for more than one day without taking that person before a judge. This requirement is the first built-in check on police power in the Indian criminal justice system. It ensures an independent judicial authority — not the investigating agency — decides whether continued custody is justified.

The Supreme Court has repeatedly emphasised that this right is absolute and cannot be waived or circumvented by any administrative arrangement. It applies to every arrested person, including those charged under special laws such as UAPA, NDPS, or the Arms Act.

What Is Remand? Police Custody vs. Judicial Custody

When the arrested person is produced before the Magistrate, the police will typically seek ‘remand’ — permission from the court to continue holding the person for a further period. The word ‘remand’ simply means ‘to send back into custody.’ It is the judge’s written authorisation for detention to continue beyond the initial 24 hours.

There are two distinct types of remand, and understanding the difference matters enormously:

• Police Custody Remand: The accused is held at the police station and is available for interrogation by the investigating officers. This type of remand may be granted only for the first 15 days of custody from the date of arrest. After 15 days, the Magistrate cannot send a person to police custody, even if the investigation is incomplete.
• Judicial Custody Remand: The accused is sent to prison (sub-jail or district jail) while the investigation continues. The police may apply to the court to interrogate the accused even during judicial remand, but only with explicit court permission. This type of remand can continue — in theory — until the investigation concludes, but only up to the statutory ceiling described below.

A critical point that is frequently misunderstood: the Magistrate granting remand is not a rubber stamp. The Supreme Court has held consistently that remand is a judicial function — the Magistrate must apply an independent mind to whether continued custody is justified, and cannot mechanically extend remand simply because the investigating agency asks for it. Magistrates who grant remand without application of mind risk being held accountable in superior court proceedings.

The Investigation Clock: How Many Days Does the Agency Have?

The law places an outer time limit on how long the investigating agency can continue investigating before it must either file a charge-sheet or release the accused on bail. This limit is not a guideline — it is a hard statutory ceiling with serious consequences if breached.

From 1 July 2024, the governing provision is Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the old Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC). The time limits under both provisions are the same:

• 90 days — for offences punishable with death, life imprisonment, or imprisonment for a term of 10 years or more.
• 60 days — for all other offences.

These periods run from the date of the first remand order (i.e., when the Magistrate first authorised custody). They include both police custody and judicial custody. If the charge-sheet is not filed within 60 or 90 days, as applicable, the accused has an automatic right to bail.

An important nuance from a 2025 High Court ruling: the phrase ‘imprisonment for a term of ten years or more’ in BNSS Section 187(3)(i) refers to the minimum threshold punishment, not merely the maximum. If an offence can be punished with up to 10 years but has no minimum of 10 years, it falls in the 60-day category, not the 90-day category. This distinction is being actively litigated and has direct relevance for BNSS cases filed after July 2024.

What Is Default Bail in india? Why Is It Called ‘Indefeasible’?

If the charge-sheet is not filed within the prescribed period, the first proviso to Section 187(3) BNSS (and formerly Section 167(2) CrPC) mandates that the accused shall be released on bail if the accused is prepared to furnish bail. This is called ‘default bail’ in india — because it arises by default of the investigating agency, not as a grant of judicial discretion.

Courts describe this right as ‘indefeasible’ because once it accrues, it is unconditional. The Supreme Court in Bikramjit Singh v. State of Punjab (2020) 10 SCC 616 held:

“The right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.”

This language — ‘fundamental right’ — is significant. It means the State cannot simply ignore or talk around this right. Three things must happen for the right to be effectively invoked:

• The prescribed period (60 or 90 days) must have elapsed without a charge-sheet being filed.
• The accused must apply for default bail — even orally — before the charge-sheet is filed.
• The accused must be prepared to furnish bail (a surety or bond as the court directs).

The moment these three conditions are met, the right is complete and indefeasible. If the prosecution subsequently files a charge-sheet the same day — even within hours of the bail application — the right is not extinguished, provided the application was made first. This was confirmed in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485.

However, if the accused fails to apply while the right is alive and the charge-sheet is then filed, the right is extinguished. It is, therefore, critical for accused persons and their families to monitor the deadline carefully and apply promptly.

The Investigation Deadline Visualised

The following timeline captures the key milestones:

• Day 1 — Arrest. Police must produce the accused before the nearest Magistrate within 24 hours.
• Days 1–15 — Police custody remand is possible (maximum 15 days in total). During this period, the police may interrogate the accused at the police station.
• Days 15 onwards — Only judicial custody remand is available. The accused is in prison. Investigation continues.
• Day 60 or Day 90 (as applicable) — The deadline. If no charge-sheet has been filed, the accused’s fundamental right to default bail accrues at the stroke of midnight.
• After the deadline — The accused (or their lawyer, or even a family member on their behalf) may apply for default bail. The Magistrate or Special Court must grant it if the conditions are met.
• Charge-sheet filed before deadline — No default bail is available. The case proceeds to trial.

What About Serious Cases? UAPA, NDPS, and PMLA — Different Clocks

Special statutes contain their own extension mechanisms that modify the ordinary 60/90-day deadline. The most important are:

• UAPA (Unlawful Activities Prevention Act): Under Section 43D(2)(b), the initial 90-day period can be extended up to 180 days if a Public Prosecutor submits an independent report to the Special Court stating that sufficient progress has been made and more time is needed. This is not automatic — it requires a specific court order after a hearing at which the accused must be produced.
• NDPS Act (Narcotic Drugs and Psychotropic Substances Act): Under Section 36A(4), the ordinary 90-day period can similarly be extended up to 180 days on a PP’s report.
• PMLA (Prevention of Money Laundering Act): 60-day period applies, with extension possible. The ‘twin conditions’ for bail under Section 45 PMLA make bail additionally difficult even after charge-sheet.

There is a critical and frequently overlooked point: the extension mechanism is itself governed by strict procedural rules. The accused cannot simply be held for 180 days automatically because the case falls under UAPA. Someone must apply for the extension; the Public Prosecutor must file an independent report; and — most importantly — the accused must be produced before the court and given an opportunity to oppose the extension. If these conditions are not met, the extension order is invalid, and the original 90-day deadline applies, triggering the right to default bail.

This is the subject of Article 2 in this series, which examines these procedural requirements in detail and explains the three most common violations that allow an accused to claim default bail even in UAPA cases.

Key Takeaways for Families and Accused Persons

• Note the date of first remand. The 60/90-day clock starts running from that date.
• Keep a diary. Track every court date, every remand extension, and every communication from the jail.
• Speak to a lawyer before the deadline. Do not wait until the deadline has passed.
• Apply for default bail promptly. Even an oral application before the charge-sheet is filed is sufficient.
• If the case is under UAPA/NDPS, check whether the extension was properly ordered. The mere fact that the case is serious does not automatically justify an extension.
• A jail notice is not a court hearing. If the accused was simply handed a paper in jail and not produced before the court, ask a lawyer to evaluate whether the extension was validly granted.

Conclusion

The right to default bail is one of the few absolute procedural rights in Indian criminal law. It is not a favour or a concession — it is a constitutional guarantee tied to Article 21’s promise that no person shall be deprived of liberty except by procedure established by law. The investigating agency’s failure to file a charge-sheet within the prescribed period is itself the procedure that entitles the accused to freedom. Understanding this right — and acting on it in time — can make all the difference.

The following two articles in this series build on this foundation. Article 2 examines the extension mechanism under UAPA in detail, identifying the three procedural violations that most commonly entitle an accused to default bail even after an extension order has been granted. Article 3 addresses the limitation period for appeals under the NIA Act and the legal doctrines that protect an accused person from losing the right to appeal due to institutional delay.

Frequently Asked Questions (FAQs)

1. What is default bail under Indian law?
Default bail in india is a legal right that allows an accused person to be released on bail if the investigating agency fails to file a charge-sheet within the prescribed time limit under Bharatiya Nagarik Suraksha Sanhita, 2023 or the earlier Code of Criminal Procedure, 1973.

2. What is the time limit for filing a charge-sheet in India?
The time limit is 60 days or 90 days, depending on the seriousness of the offence. For serious offences punishable with death, life imprisonment, or 10 years or more, the limit is 90 days; for other offences, it is 60 days.

3. From which date does the 60/90-day period start?
The countdown begins from the date of the first remand order by the Magistrate, not the date of arrest.

4. Is default bail a fundamental right?
Yes. The Bikramjit Singh v. State of Punjab (2020) judgment held that default bail is part of the fundamental right to personal liberty under Article 21 of the Constitution of India.

5. What happens if the charge-sheet is filed after the deadline?
If the accused has already applied for default bail before the charge-sheet is filed, they must be released on bail. Filing the charge-sheet later does not cancel this right.

6. Can default bail be denied if the offence is serious (like UAPA or NDPS)?
No. Even in serious cases under laws like Unlawful Activities (Prevention) Act or NDPS Act, default bail applies unless a valid extension of time has been granted by the court.

7. What are the conditions to get default bail in india?
To claim default bail in india:

• The 60/90-day period must have expired
• No charge-sheet must be filed
• The accused must apply for bail
• The accused must be ready to furnish bail

8. Can default bail be applied for orally?
Yes. Courts have recognised that even an oral application is sufficient to claim default bail in india, as long as it is made before the charge-sheet is filed.

9. What is the maximum period of police custody in India?
Police custody can only be granted for a maximum of 15 days from the date of arrest. After that, only judicial custody is allowed.

10. Can the investigation period be extended beyond 90 days?
Yes, but only in special laws like UAPA and NDPS, where courts may extend the period up to 180 days based on a report by the Public Prosecutor and after hearing the accused.

11. What happens if the accused does not apply for default bail on time?
If the charge-sheet is filed before the accused applies for default bail, the right is lost. Timing is critical.

12. Is the Magistrate bound to grant default bail?
Yes. Once the legal conditions are satisfied, the court has no discretion and must grant default bail.

13. Does default bail mean the case is over?
No. Default bail only grants temporary release from custody. The trial will continue after the charge-sheet is filed.

14. What is the difference between police custody and judicial custody?
Police custody allows interrogation by police, while judicial custody means the accused is held in jail under court supervision.

15. Can family members apply for default bail on behalf of the accused?
Yes. A lawyer or even a family member can move an application on behalf of the accused.

References and Legal Citations

[1] Constitution of India, Article 22(2) — Right to be produced before Magistrate within 24 hours  https://legislative.gov.in/constitution-of-india/

[2] Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 187 (Default Bail provision replacing CrPC Section 167)  https://www.mha.gov.in/sites/default/files/250833_english_01042024.pdf

[3] Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 — Default bail as fundamental right under Article 21  https://main.sci.gov.in/supremecourt/2020/4337/4337_2020_36_1501_24283_Judgement_12-Oct-2020.pdf

[4] M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 — Indefeasible right preserved upon filing of application  https://indiankanoon.org/doc/82481898/

[5] Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 — Constitution Bench on default bail under TADA  https://indiankanoon.org/doc/1655328/

[6] UAPA, Section 43D(2)(b) — Extension of investigation period up to 180 days  https://www.mha.gov.in/sites/default/files/UAPA1967.pdf

[7] Drishti Judiciary: Grant of Default Bail Under Section 187(3) BNSS (2024)  https://www.drishtijudiciary.com/current-affairs/grant-of-default-bail-under-section-187-3-of-bnss

[8] LiveLaw: Default Bail Under BNSS — Sixty Days or Ninety Days? (January 2025)  https://www.livelaw.in/top-stories/bnss-right-to-default-bail-under-bharatiya-nagarik-suraksha-sanhita-282457

[9] Bhatt & Joshi Associates: Default Bail Under BNSS Section 187 — Comprehensive Guide (April 2026)  https://bhattandjoshiassociates.com/default-bail-under-bnss-section-187-comprehensive-guide-with-latest-high-court-rulings-2026/

[10] The Leaflet: Default Bail — An Explainer (November 2024)  https://theleaflet.in/criminal-justice/default-bail-an-explainer

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