Default bail is the right to be released because the investigating agency ran out of time, not because the case against you is weak. If the chargesheet is not filed within 60 or 90 days, depending on how serious the offence is, an accused person who applies and is ready to furnish bail is entitled to be released, whatever the allegations say. Under the anti-terror law the clock runs longer and can be extended to 180 days, which is why default bail so often becomes the whole fight in a UAPA case.
Part of the bail and anticipatory bail practice at S Jain & Attorneys, Bangalore.
When the Supreme Court cancelled the default bail of two accused in the Haldwani riots matter, many readers met the phrase for the first time. It sounds technical, but it protects one of the most basic ideas in criminal justice: the State cannot keep a person locked up indefinitely while it slowly builds a case. This article stays neutral on that underlying incident and explains the rule, the arithmetic and the traps.
What default bail is, and where it comes from
Default bail, also called statutory or compulsory bail, is the right of an arrested person to be released if the agency fails to complete its investigation and file the chargesheet within the time the law allows. It is now in Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which carries forward the principle earlier found in Section 167(2) of the Code of Criminal Procedure, 1973. Cases registered before 1 July 2024 may still be governed by the old Code, so always confirm which one applies to your FIR.
The right does not depend on the strength of the prosecution case. That is the whole point of it. A court hearing a default bail application is not asked whether the accusation looks true; it is asked whether the period expired without a chargesheet.
The standard time limits
- 90 days where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.
- 60 days for every other offence.
On the expiry of that period, the accused shall be released on bail if he is prepared to and does furnish bail. Courts call this an indefeasible right, but it is one the accused must claim at the right moment.
The phrase "ten years or more" has been litigated hard. In Rakesh Kumar Paul v. State of Assam, decided on 16 August 2017, the Supreme Court was asked to interpret the words "imprisonment for a term not less than ten years" in the old provision. The Court read the liberty-protecting construction: where the offence is punishable with imprisonment that may extend up to ten years but the statute does not prescribe a minimum of ten years, the applicable period is 60 days, not 90. That single distinction has decided a great many bail applications.
Key takeaway. Before you count days, get the offence classification right. The difference between "punishable up to ten years" and "punishable with not less than ten years" is the difference between the 61st day and the 91st day. Read the punishment clause in the Sanhita or the special Act itself, not the summary in the FIR.
How the clock actually runs
Three practical points decide most disputes about the arithmetic.
Remand, not arrest, starts the count in most reckonings. The period under Section 187 is a period of detention authorised by the Magistrate, so the date the accused was first remanded is the anchor rather than the moment of arrest. Where a day or two matters, this must be argued from the remand orders on the file and not from memory.
Police custody works differently under the BNSS. Section 187(2) allows the Magistrate to authorise police custody of not more than fifteen days in the whole, but that fifteen days may now be taken in parts at any time during the initial forty or sixty days of the sixty or ninety day period. Under the old Code the fifteen days had to be taken in the first fifteen days after remand. That is a real change and it affects how a defence plans the first two months.
The right must be claimed while the window is open. The right accrues when the time expires without a chargesheet, but the accused must apply and be ready to furnish bail. In Sanjay Dutt v. State through CBI, Bombay (II) a Constitution Bench held that the right is indefeasible but must be availed of, which means filing the application and offering bail before the chargesheet is filed. In Uday Mohanlal Acharya v. State of Maharashtra, decided in March 2001, the Court explained what "availed of" means in practice, so that an accused who has done everything required is not defeated by court delay in taking up the application.
The Supreme Court has also made clear that the right is not a technicality to be construed grudgingly. In M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence the Court held that the default bail right is intrinsically linked to Article 21 and is not extinguished merely because the prosecution later files a chargesheet or an additional complaint. And in Bikramjit Singh v. State of Punjab the Court held that the right under the first proviso is not merely statutory but part of the fundamental right to personal liberty.
Four points decide the arithmetic in almost every default bail application.
Ninety days or sixty
Where the offence is punishable up to ten years but the statute prescribes no ten-year minimum, the period is 60 days and not 90, following Rakesh Kumar Paul.
Remand, not arrest
The period is one of detention authorised by the Magistrate, so the first remand order is the anchor. Argue from certified remand orders, not from the arrest memo.
Fifteen days, taken in parts
Section 187(2) allows police custody of not more than fifteen days in the whole, and it may now be taken in parts within the initial forty or sixty days.
Claim it, or lose it
The right accrues when the time expires without a chargesheet, but the accused must apply and be ready to furnish bail before the chargesheet is filed.
Deadline warning. File on the very first day the right accrues, in writing, with an express offer to furnish bail, and get the filing acknowledged with a date and time stamp. If the chargesheet is filed later the same day, the sequence on the record is what saves the application. Waiting a week because the next hearing is anyway listed is how this right is most often lost.
What defeats a default bail application
Three answers come up again and again from the prosecution side, and only one of them is generally good.
"The chargesheet is already filed." This works if it was filed before the application. It does not work if the application was on record first.
"The chargesheet is incomplete." This is the accused's argument, and it has become harder. In Central Bureau of Investigation v. Kapil Wadhawan, decided on 24 January 2024, the Supreme Court held that a report under the chargesheet provision is complete if it contains the prescribed details and is accompanied by the documents and witness statements required, and that the pendency of further investigation against other accused, or the absence of some documents, neither vitiates the chargesheet nor entitles the accused to default bail on the ground that it was incomplete. The default bail granted in that case was set aside.
"An extension of time was granted." Under the ordinary law there is no power to extend the 60 or 90 days. Extensions exist only where a special statute creates them, and then only on the conditions that statute lays down.
How the UAPA changes the picture
The Unlawful Activities (Prevention) Act, 1967 deliberately makes release harder, in four distinct ways.
Every offence gets the longer clock. Section 43D(2)(a) directs that in a UAPA case the references to "fifteen days", "ninety days" and "sixty days" are read as "thirty days", "ninety days" and "ninety days". So even an offence that would ordinarily carry a 60-day period gets 90 days, and the police custody ceiling doubles to thirty days.
The 90 days can be stretched to 180. Under the further proviso inserted by Section 43D(2)(b), if the investigation cannot be completed in 90 days the Court may extend the period up to one hundred and eighty days, but only if it is satisfied with a report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for continued detention of the accused. Both limbs matter. A bare application by the police, or a prosecutor's report that gives no specific reasons, is open to challenge.
Anticipatory bail is barred outright. Section 43D(4) says that nothing in Section 438 of the old Code, the anticipatory bail provision now Section 482 BNSS, applies to a person accused of a UAPA offence.
Regular bail faces a statutory embargo. Section 43D(5) says that a person accused under Chapters IV and VI shall not be released on bail if the court, on a perusal of the case diary or the police report, is of the opinion that there are reasonable grounds for believing the accusation is prima facie true. In National Investigation Agency v. Zahoor Ahmad Shah Watali the Supreme Court held that at the bail stage the court must take the material in the chargesheet as it stands and cannot conduct a mini-trial into its admissibility or weight, which set a demanding standard for the defence.
Two decisions cut the other way. In Fakhrey Alam v. State of Uttar Pradesh, decided in March 2021, the accused had been arrested, the Magistrate had granted the full 180 days, a chargesheet was filed without the UAPA offences because sanction had not come, and the UAPA chargesheet followed later. The Supreme Court treated the default bail right on the UAPA charge as having accrued and rejected the attempt to defeat it by labelling the later filing a supplementary chargesheet. And in Union of India v. K.A. Najeeb, decided on 1 February 2021, the Court held that the presence of a statutory restriction such as Section 43D(5) does not oust the power of constitutional courts to grant bail where a long undertrial incarceration with no prospect of an early trial violates Part III of the Constitution.
Which law gives how long
| Situation | Ordinary period | Extension available | Provision |
|---|---|---|---|
| Offence punishable with death, life, or ten years or more | 90 days | None | Section 187(3)(i) BNSS |
| Any other offence | 60 days | None | Section 187(3)(ii) BNSS |
| Offence punishable up to ten years, no ten-year minimum | 60 days | None | Section 187(3) BNSS, read with Rakesh Kumar Paul |
| UAPA offence, any category | 90 days | Up to 180 days, on a Public Prosecutor's report showing progress and specific reasons | Section 43D(2), UAPA |
| NDPS, commercial quantity or offences under Sections 19, 24 or 27A | 180 days | Up to one year, on a Public Prosecutor's report to the Special Court | Section 36A(4), NDPS Act, 1985 |
| Police custody component | 15 days, in whole or in parts within the first 40 or 60 days | Not applicable | Section 187(2) BNSS |
| Police custody component in a UAPA case | 30 days | Not applicable | Section 43D(2)(a), UAPA |
How to claim default bail, step by step
- Fix the correct starting date. Take the remand order from the court file and note the date on which detention was first authorised. Do not rely on the arrest memo alone.
- Classify each offence. Check the punishment clause for every section in the FIR and any special Act invoked. The longest applicable period governs, so one added section can move you from 60 days to 90.
- Check for a valid extension. In a UAPA or NDPS case, inspect the extension order and the Public Prosecutor's report behind it. An extension granted without a prosecutor's report indicating progress and specific reasons is open to attack, and in UAPA cases the Special Court, not the Magistrate, is the competent court.
- Diarise the accrual date and file on that day. The application should state the dates, assert the right, and expressly say the accused is prepared to and will furnish bail.
- Have sureties ready before you file. The right is to be released on furnishing bail. If the order comes and the sureties are not in place, the delay in release is your own.
- If it is refused, move up at once. The Sessions Court and then the High Court can be approached, and delay is what allows the chargesheet to overtake the application.
Common mistake. Treating default bail as an alternative to regular bail and arguing the merits in the same application. It is a separate right on a separate footing. Mixing the two invites the court to look at the strength of the case, which is exactly what a default bail application is meant to keep out of the discussion.
What the Haldwani matter illustrates
Without commenting on the facts of that case, it shows how default bail can be granted by one court and cancelled by another. That normally happens where the higher court finds that the right had not actually accrued, for instance because a valid extension of time was in place, or because a chargesheet had already been filed when the application was made, or because the offence attracted the longer period. It does not mean the right itself is weak. It means the arithmetic and the record have to be right.
What I tell clients
In custody matters the calendar does more work than the argument. On the day of the first remand we write down the accrual date for every offence on the FIR and we work backwards from it, because if the chargesheet does not come, that date is the client's best chance of release for months. Where these applications fail, it is rarely because the law was unclear. It is because nobody obtained certified copies of the remand orders, or because an extension order in a special-Act case went unchallenged when it was passed, or because the application was drafted in a hurry a week after the right accrued. Fight the extension when it is sought, not after the 180 days are gone.
Frequently Asked Questions
What is default bail in simple terms?
Bail you are entitled to if the police fail to file the chargesheet within the fixed time, 60 or 90 days for most offences, under Section 187 of the BNSS, formerly Section 167(2) CrPC.
How many days does the investigation get?
Generally 90 days for the most serious offences and 60 for others. Under the UAPA every offence gets 90 days and that can be extended up to 180 days if the Special Court permits on a Public Prosecutor's report. Under the NDPS Act, for commercial quantity and certain sections, the period is 180 days and can be extended up to one year.
Is default bail automatic once the time runs out?
The right accrues when the period expires without a chargesheet, but the accused must apply and be ready to furnish bail before the chargesheet is filed. Courts describe it as indefeasible, but it still has to be claimed.
Why is it so hard to get bail under the UAPA?
Besides longer timelines, Section 43D(5) bars regular bail if the court finds reasonable grounds to believe the accusation is prima facie true, and Section 43D(4) rules out anticipatory bail altogether.
Can default bail be cancelled after it is granted?
Yes. A higher court can cancel it, for example if the right had not actually accrued, if a valid extension was in place, or if a complete chargesheet had already been filed when the application was made.
Does the 60 or 90 days count from arrest or from remand?
The period under Section 187 is a period of detention authorised by the Magistrate, so the first remand order is the reference point. Where the arrest and the first remand fall on different days, get certified copies and argue from the order.
Can the police defeat default bail by filing an incomplete chargesheet?
Not easily any more. In CBI v. Kapil Wadhawan the Supreme Court held that a chargesheet is complete if it contains the prescribed details and the required documents, and that pending further investigation against other accused does not make it incomplete or revive the default bail right.
Can bail be refused because the offence is serious?
Not on a default bail application. Seriousness is relevant to regular bail on merits. On default bail the only questions are whether the period expired without a chargesheet and whether the accused applied in time and offered bail.
What happens after default bail is granted?
The prosecution continues. The accused remains an accused, must comply with the bail conditions and attend the trial, and the bail can be cancelled for misuse of liberty, tampering with evidence or breach of conditions.
This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.
