Default Bail Order (Section 167(2) CrPC / Section 187(3) BNSS)

Default bail is the one species of bail where the merits of the case are irrelevant. The accused need not show that he is innocent, that he will not abscond, or that he will not tamper with evidence. He need show only one thing: that the investigating agency has failed to file its final report within the period the legislature allows, and that he is ready to furnish bail. The moment those two facts coincide, the right to be released crystallises and the Magistrate is left with no discretion to refuse. This chapter explains how to draft a sound default bail order under the first proviso to Section 167(2) of the Code of Criminal Procedure, 1973 and its successor, Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 — how to compute the statutory clock, when the indefeasible right accrues and is lost, and the precise findings a court must record. It builds on the foundations laid in our Bail & Misc Order Drafting hub and the anatomy of a bail order.

What default bail is — and what it is not

Default bail, sometimes called statutory bail or compulsive bail, is the right of an accused to be released because the prosecution has defaulted on its duty to complete the investigation within a fixed time. It is not a reward for good behaviour and it is not a finding on the strength of the prosecution case. It is a penalty visited on the State for keeping a person in custody longer than the law permits without placing the material against him before a court.

The provision is rooted in Article 21. A person under investigation may be detained only to enable the investigation to proceed; detention is not punishment and cannot be open-ended. The Supreme Court in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, held in terms that the right to default bail under the proviso to Section 167(2) is "not merely a statutory right but a part of the procedure established by law under Article 21 of the Constitution." This is the lens through which every default bail order should be drafted: liberty is the rule, continued custody beyond the statutory ceiling is a constitutional default.

It must be distinguished sharply from bail on merits in a non-bailable offence, where the court weighs the gravity of the offence, the likelihood of the accused fleeing, and the risk of evidence being tampered with. In default bail none of those considerations applies. As the cases below show, even a person accused of the gravest offence is entitled to release the moment the clock runs out, unless and until the final report is filed.

The statutory scheme: Section 167(2) CrPC and Section 187 BNSS

Section 167 of the CrPC governs the procedure when investigation cannot be completed within twenty-four hours. Sub-section (2) empowers a Magistrate to authorise detention of the accused, but caps that detention. The first proviso to Section 167(2) is the operative default-bail clause. It allows total detention pending investigation of up to ninety days where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, and up to sixty days in any other case; on the expiry of that period the accused "shall be released on bail if he is prepared to and does furnish bail."

The Bharatiya Nagarik Suraksha Sanhita, 2023 carries the scheme forward in Section 187. The default-bail clause now sits in Section 187(3), which retains the same ninety-day and sixty-day ceilings and the same mandatory language of release. The numbering has changed but the substantive entitlement is identical, so the entire body of CrPC case law on the indefeasible right continues to apply with full force to a BNSS order. A drafter today should cite both provisions in tandem: "the first proviso to Section 167(2) of the Code of Criminal Procedure, 1973, corresponding to Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023."

One structural change in the BNSS deserves attention. Under the old Section 167(2), police custody of up to fifteen days had to be sought within the first fifteen days of remand, a limit read into the provision by CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141. Section 187(2)–(3) BNSS re-engineers this: the fifteen days of police custody may now be sought in parts spread across the initial forty days (for the sixty-day category) or sixty days (for the ninety-day category) of the total detention period. The outer default-bail ceilings of sixty and ninety days, however, are untouched.

Sixty days or ninety days: classifying the offence

The single most litigated question in default bail is whether the ninety-day or the sixty-day ceiling applies, because it turns entirely on how the offence is punished. The ninety-day ceiling is reserved for offences punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years. Everything else attracts sixty days.

The phrase "not less than ten years" was decisively construed in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67. There the accused faced a charge under Section 13(1)(e) of the Prevention of Corruption Act, 1988, punishable with imprisonment which "may extend to" ten years (i.e. a maximum of ten years but with no statutory minimum of ten). By a 2:1 majority the Supreme Court held that the ninety-day window applies only where the offence carries a minimum sentence of ten years or more; where the punishment is "up to" ten years, the sixty-day window governs, and the accused became entitled to default bail on the sixty-first day. The drafting lesson is precise: never read "punishable with imprisonment for ten years" as automatically triggering ninety days. Read the punishment clause carefully and ask whether ten years is the floor or merely the ceiling.

An order that misclassifies the offence is liable to be set aside, and a wrongful denial of default bail is itself a violation of Article 21. The findings paragraph of the order should therefore expressly state the offence, the punishment prescribed, and the conclusion on which ceiling — sixty or ninety days — applies, with reasons.

Computing the statutory clock

Once the ceiling is fixed, the court must count days. The clock runs from the date the Magistrate first authorises detention, not from the date of arrest if these differ, and the contentious question of whether the first day of remand counts was settled in Enforcement Directorate v. Kapil Wadhawan, (2024) 3 SCC 734. The Supreme Court held that the day of remand is to be included in computing the sixty or ninety days. Excluding it would, in effect, extend the detention by a day beyond what the legislature sanctioned and render that extra day unauthorised. In Kapil Wadhawan the accused were remanded on 14 May 2020; the prosecution filed its complaint at 11 a.m. on what it called the sixtieth day, while the accused had moved their bail application at 8:53 a.m. that morning. Counting the remand day in, the Court found the report was actually filed on the sixty-first day and the accused had validly availed the right earlier that morning.

The practical takeaway for the order: identify the exact date and time of first remand, count that day as day one, and identify the exact date the statutory period expires. Where the timing is close, the order should record the hour at which the chargesheet was filed and the hour at which the accused applied, because the contest is often decided by who reached the court first on the critical day.

The indefeasible right and the duty cast on the Magistrate

The expiry of the statutory period does not by itself open the prison gate; it creates a right that the accused must claim. But once claimed, the right is, in the settled vocabulary of the courts, indefeasible. The proviso says the accused "shall be released on bail" — language that simultaneously confers a right on the accused and casts a duty on the Magistrate. The Magistrate has no discretion to refuse on the ground that the offence is grave or the accused dangerous; those are merit considerations alien to default bail.

The leading exposition is Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. A three-Judge Bench held that the accused "avails of" or "enforces" his indefeasible right the moment he files an application for default bail and offers to furnish bail — even if the court has not yet fixed the terms or the accused has not yet furnished the bond. The right is exercised by the application; it cannot be defeated by the court keeping the application pending while the prosecution scrambles to file its report. This corrected the narrower view that the right was lost unless bail was actually furnished before the chargesheet arrived.

The order should therefore record the date and time of the accused's application and his express readiness to furnish bail, and then state that on those facts the indefeasible right stood availed. For the architecture of such findings, see our note on the structure and components of a bail order.

When the right is lost: filing of the final report

The indefeasible right is not perpetual. It is enforceable only so long as the chargesheet has not been filed. The Constitution Bench in Sanjay Dutt v. State (II), (1994) 5 SCC 410, laid down the governing rule: the right accruing under the proviso to Section 167(2) is enforceable only up to the filing of the challan, and does not survive or remain enforceable once the challan is filed, if not already availed of. In short, the race is between the accused's application and the prosecution's final report.

This produces the central drafting fault line. If the accused applies before the report is filed, the right has been availed and a subsequently filed chargesheet cannot defeat it — affirmed in Uday Mohanlal Acharya and reinforced in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, where the Court held that once the application is made on expiry of the period, the right continues to be enforceable notwithstanding the later filing of a chargesheet or a report seeking extension of time. If, however, the accused sleeps on the right and the chargesheet arrives first, the right is extinguished and he is relegated to seeking bail on merits. An order granting default bail must therefore record affirmatively that no final report had been filed when the application was made.

Default bail as an Article 21 guarantee

The constitutional pedigree of the right was placed beyond doubt in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, arising under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court held that Section 167(2) is not a mere procedural technicality but "a legislative exposition of the constitutional safeguard" in Article 21, and that the provisions must be interpreted in favour of personal liberty. It rejected the argument that a subsequent complaint or an extension report could retrospectively wipe out a right already availed.

The point that this is a fundamental right, not a bounty, has real consequences for drafting. Because the right flows from Article 21, a court cannot deny default bail on equitable or discretionary grounds, cannot insist on the accused first satisfying merit-based parameters, and cannot use procedural delay of its own to defeat the right. Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, decided in the UAPA context, drove the same nail home: the right is a part of the procedure established by law and any denial offends Article 21. When drafting, anchoring the order in Article 21 — not merely in the proviso — fortifies it against challenge.

Courts cannot extend the investigation period

A recurring temptation is for an investigating agency, or even a court, to seek to stretch the sixty or ninety days. The Supreme Court has firmly closed that door for offences under the general law. In Achpal v. State of Rajasthan, (2018) 17 SCC 240, the Court held that the Code does not contemplate any extension of the period within which investigation must be completed; a court cannot, by ordering further investigation or fresh investigation, defeat the accused's right that has accrued on expiry of the statutory period. Where the law intends an extension — as under special statutes — it says so expressly.

That qualification matters. Special enactments such as the UAPA, the NDPS Act and the now-repealed TADA contain their own enhanced ceilings and their own extension mechanism. Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, construing TADA, held that any extension of the investigation period must be on a report of the Public Prosecutor and on cogent reasons recorded by the court, and that in the absence of a valid extension the right to default bail revives. So while the general rule of Achpal forbids judicial extension, a drafter handling a special-statute matter must check the specific extension clause and record either a valid extension or its absence. For the broader principles of imposing terms once bail is granted, see conditions imposed on grant of bail.

"Prepared to and does furnish bail": the condition of release

The proviso confers the right on a condition — the accused must be "prepared to and does furnish bail." The drafting subtlety lies in the gap between the right accruing and the bond actually being furnished. Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, resolves it: the right is availed when the accused applies and offers to furnish bail, but actual release follows only when he furnishes the bond on the terms the court fixes. If the accused, having availed the right, then fails or refuses to furnish the bond, he can be detained further once the chargesheet is filed; the availing of the right does not guarantee perpetual liberty if he never executes the bond.

For drafting, this means the operative part of a default bail order should grant bail subject to the accused furnishing a personal bond and sureties to the satisfaction of the court, and may impose reasonable conditions, but those conditions cannot be so onerous as to amount to a denial of the right. Excessive surety amounts or impossible conditions have repeatedly been struck down as defeating the very liberty the proviso secures.

The right cannot be suspended by extraneous orders

The robustness of the right was tested during the COVID-19 lockdown, when the Supreme Court's suo motu order extending limitation periods was invoked by prosecutors to argue that the time for filing chargesheets stood extended too. The Court rejected this in S. Kasi v. State, decided on 19 June 2020, holding that the limitation-extension order was "never meant to curtail any provision of the Code of Criminal Procedure or any other statute which was enacted to protect the personal liberty of a person." The order did not, and could not, extend the period under Section 167(2), and the lockdown could not be equated with a proclamation of Emergency under Article 352. Even in an Emergency, the Court noted, the right to default bail flowing from Article 21 could not be suspended.

The principle is general: no administrative order, no general limitation extension, and no executive exigency can dilute the proviso. A default bail order need not engage with such arguments at length, but where they are raised, the order should record that S. Kasi forecloses them.

Police custody, the fifteen-day rule, and the BNSS shift

The default-bail clock interacts with the rules on police custody. Under the CrPC, CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141, held that police custody could be granted only during the first fifteen days of remand and not thereafter; beyond fifteen days, any further detention had to be judicial. That fifteen-day-front-loaded rule has been doubted in recent years. In V. Senthil Balaji v. State, (2024) 3 SCC 51, the Supreme Court dismissed the challenge to ED custody but referred the correctness of Anupam Kulkarni — specifically whether police custody is confined to the first fifteen days — to a larger Bench, noting conflicting views.

The BNSS has, prospectively, recast the position. Section 187(2)–(3) permits the fifteen days of police custody to be sought in parts across the first forty or sixty days of the total detention period, rather than only the opening fifteen days. This affects the texture of remand orders but, importantly, does not enlarge the outer sixty/ninety-day default-bail ceilings. A drafter under the BNSS should keep the two clocks distinct: the police-custody clock (now spread over forty or sixty days) and the default-bail clock (sixty or ninety days), and ensure the order does not conflate them.

Drafting the default bail order: structure and findings

A well-drafted default bail order is short, factual and almost arithmetical. It should open with the cause-title and the provision invoked — the first proviso to Section 167(2) CrPC read with Section 187(3) BNSS. It should then set out, as findings of fact: the date and time of first remand; the offence and its punishment; the applicable ceiling (sixty or ninety days) with the reason for that classification, citing Rakesh Kumar Paul where the "up to ten years" point arises; the date on which the period expired, counting the remand day in per Kapil Wadhawan; the fact that no final report had been filed when the accused applied; and the date and time of the accused's application together with his readiness to furnish bail.

The reasoning paragraph should then state that on those facts the indefeasible right under Article 21 stood availed — citing Sanjay Dutt, Uday Mohanlal Acharya and M. Ravindran — and that the Magistrate has no discretion to refuse. The operative paragraph directs release on the accused furnishing a personal bond with sureties to the court's satisfaction, with such conditions as are reasonable but not onerous. For the general skeleton of a bail order and how default bail differs from bail in bailable offences and from anticipatory bail, consult the linked chapters. The discipline to remember is that this is the one order where the court records a default, not an exercise of judgment.

Common drafting errors to avoid

The first error is misclassifying the ceiling — treating "punishable up to ten years" as a ninety-day offence, contrary to Rakesh Kumar Paul. The second is miscounting the period by excluding the remand day, an error corrected by Kapil Wadhawan. The third is the most consequential: keeping the bail application pending while the prosecution files its chargesheet and then refusing relief on the footing that the report is now on record — a course expressly forbidden by Uday Mohanlal Acharya and M. Ravindran, because the right was already availed when the application was filed.

A fourth error is importing merit considerations — gravity of the offence, antecedents, flight risk — into a default bail order; these have no place here and their inclusion exposes the order to challenge. A fifth is imposing surety conditions so heavy that they nullify the right; default bail granted on impossible terms is no bail at all. Finally, under the BNSS, conflating the police-custody window with the default-bail ceiling is a fresh trap. Keeping the two clocks separate, classifying the offence correctly, counting the days precisely, and recording the timing of the rival filings will produce an order that survives appeal.