Default bail, also known as statutory bail, compulsive bail or bail on default, is an important safeguard against prolonged detention during an incomplete criminal investigation. It becomes relevant when the investigating agency fails to file the police report or charge sheet within the statutory period prescribed by law.
With the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replacing the Code of Criminal Procedure, 1973 (CrPC) from July 1, 2024, the principal provision governing default bail is now Section 187(3) BNSS, which corresponds substantially to the erstwhile Section 167(2) CrPC. The Supreme Court has repeatedly recognised that the right to default bail is closely connected with the accused’s fundamental right to personal liberty under Article 21 of the Constitution.
What Is Default or Statutory Bail?
Default bail is not bail granted because the court has examined the merits of the criminal allegations. Instead, it arises because the investigating agency has failed to complete the investigation and file the requisite charge sheet within the statutory period.
Under Section 187(3) BNSS, the Magistrate cannot authorise detention beyond:
- 90 days where the investigation concerns an offence punishable with death, imprisonment for life, or imprisonment for 10 years or more; and
- 60 days in other cases.
Once the applicable period expires without the charge sheet being filed, the accused becomes entitled to be released on bail if he or she is prepared to furnish bail and actually furnishes the required bail bond/surety in accordance with the court’s order.
The provision is therefore commonly called “default bail” because the entitlement arises from the prosecution’s default in completing the investigation within the statutory time.
Section Number for Default Bail: CrPC vs BNSS
The legal position can be summarised as follows:
| Earlier Law | Current Law | Subject |
|---|---|---|
| Section 167(2) CrPC | Section 187(3) BNSS | Default/statutory bail |
| Section 173 CrPC | Section 193 BNSS | Police report/charge sheet |
| Section 173(5) CrPC | Section 193(7) BNSS | Documents accompanying police report |
| — | Section 193(8) BNSS | Additional copies of police report |
| Section 437 CrPC | Section 480 BNSS | Bail in non-bailable offences |
| Section 439 CrPC | Section 483 BNSS | Special powers of High Court/Court of Session regarding bail |
The Supreme Court has specifically held in 2026 that Section 167(2) CrPC and Section 187(3) BNSS are substantially identical in their operation, despite differences in wording.
60 Days or 90 Days: When Does Default Bail Arise?
The most important question in a default-bail application is determining whether the applicable period is 60 days or 90 days.
90-Day Period
The 90-day period applies where the offence is punishable with:
- Death;
- Imprisonment for life; or
- Imprisonment for a term of 10 years or more.
60-Day Period
The 60-day period applies to other offences falling outside the 90-day category.
Importantly, the Supreme Court under the old CrPC had clarified that an offence carrying a maximum sentence of 10 years or more does not automatically fall within the 90-day category if the statutory minimum punishment is less than 10 years. In State (NCT of Delhi) v. Rajeev Sharma, decided on April 2, 2025, the Supreme Court reaffirmed the interpretation of the 90-day provision under Section 167(2)(a)(i) CrPC, holding that the expression concerning imprisonment of “not less than 10 years” refers to an offence carrying a minimum sentence of 10 years, not merely a maximum sentence of 10 years or more.
The BNSS has altered the statutory language to “imprisonment for a term of ten years or more.” Therefore, lawyers must examine the precise punishment clause applicable to the offence rather than mechanically calculating 90 days merely from the maximum punishment.
Grounds for Obtaining Default Bail
Default bail is principally based on statutory non-compliance rather than the merits of the prosecution case. The principal grounds include:
1. Failure to File Charge Sheet Within 60 or 90 Days
The most fundamental ground is that the investigating agency has failed to file the police report within the applicable statutory period.
For example, if an offence falls within the 60-day category and no charge sheet is filed within the prescribed period, the accused may invoke Section 187(3) BNSS.
2. Expiry of the Statutory Period
The accused must establish that the statutory period has expired. The computation of custody and the applicable period therefore becomes crucial.
The Supreme Court has repeatedly emphasised that Section 187(3) exists to prevent an accused from being kept in custody indefinitely while the investigation remains incomplete.
3. Accused Must Be Ready and Willing to Furnish Bail
The statutory right does not mean automatic physical release without compliance with the bail order.
Section 187(3) specifically provides that the accused is to be released if he or she is prepared to and does furnish bail. Explanation I to Section 187 also makes clear that custody can continue if the accused does not furnish bail after the statutory period has expired.
4. Application Should Be Made When the Right Accrues
A crucial practical point is that an accused should move the default-bail application immediately after the statutory period expires and before the prosecution files the charge sheet, wherever possible.
The Supreme Court has consistently treated default bail as an indefeasible right once the statutory conditions are fulfilled, subject to the established rules concerning the filing of the charge sheet and furnishing of bail bonds.
5. Special Statutes May Provide Longer Investigation Periods
The ordinary 60/90-day periods do not apply mechanically to every criminal case.
Special statutes may prescribe extended investigation periods. For example, the UAPA permits an extended period, subject to statutory conditions, while the NDPS Act contains its own framework concerning investigation and extension of the period.
Consequently, before filing a default-bail application, counsel must check whether the alleged offence is governed by a special statute containing a modified investigation period.
Is Default Bail a Fundamental Right?
Yes, the Supreme Court has repeatedly described the right to default bail as an indefeasible right flowing from Article 21 of the Constitution, once the statutory requirements are satisfied.
In Bikramjit Singh v. State of Punjab, the Supreme Court held that default bail is not merely a statutory right under Section 167(2) CrPC but forms part of the procedure established by law under Article 21. The Court also held that the court should not adopt an overly technical approach when personal liberty is at stake.
Similarly, in Fakhrey Alam v. State of Uttar Pradesh, the Supreme Court reiterated that default bail is a fundamental right once the statutory conditions are fulfilled. The Court also accepted that an oral application for default bail can suffice, emphasising that courts should not be overly technical in matters concerning personal liberty.
Procedure to Apply for Default Bail
A typical procedure under Section 187(3) BNSS is as follows:
Step 1: Determine the Date of Arrest and Custody
The defence should obtain the arrest/remand records and accurately calculate the statutory period.
Step 2: Identify Whether the Case Falls Within 60 or 90 Days
The punishment prescribed for the offence should be examined carefully. Counsel should also check whether a special statute modifies the ordinary period.
Step 3: Check Whether the Charge Sheet Has Been Filed
The defence should ascertain whether the police report has actually been filed before the competent court within the statutory period.
Step 4: File an Application Under Section 187(3) BNSS
The accused should move an application before the competent Magistrate or Special Court claiming statutory/default bail.
The application should ordinarily mention:
- Date of arrest;
- Date of first remand;
- Applicable statutory period;
- Date on which the statutory period expired;
- Whether the charge sheet was filed;
- Whether any lawful extension was obtained under the applicable special statute;
- The accused’s readiness to furnish bail;
- Relevant Supreme Court precedents.
Step 5: State Readiness to Furnish Bail
The accused should expressly state that he or she is ready and willing to furnish the bail bond and comply with the conditions imposed by the court.
Step 6: Oppose Any Attempt to Defeat the Statutory Right
If the prosecution files the charge sheet after the statutory period has expired, the defence should examine the exact chronology and whether the accused had already invoked the right to default bail.
Step 7: Approach the Higher Court if Necessary
If the statutory-bail application is wrongly rejected, appropriate remedies may be pursued before the Sessions Court or High Court. Section 483 BNSS confers special bail powers on the High Court and Court of Session.
Can the Prosecution Defeat Default Bail by Filing a Charge Sheet After the Statutory Period?
The answer depends heavily on when the accused asserted the right and what happened thereafter.
The Supreme Court in Bikramjit Singh v. State of Punjab held that where the accused applies for default bail after expiry of the statutory period and before the charge sheet is filed, the subsequent filing of the charge sheet cannot ordinarily defeat the accrued right.
However, the Supreme Court has also made clear that the right to default bail does not survive indefinitely once a valid charge sheet has been filed within the prescribed period.
This makes timing critical.
Latest Landmark Supreme Court Judgment: Shaurya Sunil Kumar Singh v. CBI, 2026
One of the most important recent Supreme Court decisions on default bail is Shaurya Sunil Kumar Singh v. Central Bureau of Investigation, decided on July 1, 2026, and reported as 2026 INSC 666.
The case concerned the interpretation of Section 187(3) BNSS and the effect of the investigating agency’s failure to provide additional copies of the charge sheet as contemplated under Section 193(8) BNSS.
The appellant argued that because copies of the charge sheet and related documents had not been filed/supplied within the relevant period, he was entitled to default bail.
The Supreme Court rejected that argument.
Supreme Court’s Key Findings
The Court held that:
Step 7: Approach the Higher Court if Necessary
If the statutory-bail application is wrongly rejected, appropriate remedies may be pursued before the Sessions Court or High Court. Section 483 BNSS confers special bail powers on the High Court and Court of Session.
Can the Prosecution Defeat Default Bail by Filing a Charge Sheet After the Statutory Period?
- Section 187(3) BNSS and Section 167(2) CrPC are substantially identical in their legal operation.
- Default bail is triggered by the failure to file the charge sheet within the prescribed 60- or 90-day period, as applicable.
- The right to default bail is an indefeasible right flowing from Article 21.
- Default bail is not bail granted on the merits of the criminal case.
- Once a valid charge sheet is filed within the statutory period, the right to default bail comes to an end.
- Mere non-filing or non-supply of additional copies of the charge sheet under Section 193(8) BNSS does not, by itself, create a right to default bail.
- Section 230 BNSS provides a mechanism for supply of the police report and documents to the accused; failure to supply those copies within that framework does not transform an otherwise valid and timely charge sheet into a default-bail situation.
The Supreme Court therefore dismissed the appeal, while clarifying that the accused remained entitled to have his regular-bail application considered independently on its merits.
This judgment is particularly important under the BNSS because it prevents an accused from treating every procedural defect concerning copies of the police report as equivalent to failure to file the charge sheet itself.
Supreme Court Judgments on Default Bail
1. State (NCT of Delhi) v. Rajeev Sharma — 2025 INSC 456
Date: April 2, 2025
The Supreme Court considered whether an offence punishable with imprisonment extending to 14 years, but without a minimum sentence of 10 years, would attract the 90-day period under Section 167(2)(a)(i) CrPC.
The Court reaffirmed that the 90-day category under the old provision was linked to offences carrying a minimum punishment of 10 years, rather than merely a maximum punishment of 10 years or more.
Why it matters: The judgment is important when determining whether the accused becomes entitled to default bail after 60 or 90 days.
2. Bikramjit Singh v. State of Punjab — (2020) 10 SCC 616
This is one of the leading authorities on default bail.
The Supreme Court held that default bail is an indefeasible right and forms part of the fundamental right to personal liberty under Article 21.
The Court further held that an application for default bail may be oral and that courts should not adopt an excessively technical approach where personal liberty is concerned.
3. M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence — (2021) 2 SCC 485
The Supreme Court explained the mechanism of default bail and emphasised that once the statutory period expires and the accused applies for bail, the court must act promptly.
The Court also explained the significance of the accused furnishing bail and the circumstances in which the right can cease if the accused fails to take the necessary steps.
4. Fakhrey Alam v. State of Uttar Pradesh — 2021 INSC 183
The Supreme Court held that the prosecution cannot use a subsequent supplementary charge sheet to artificially extend the statutory period where the relevant investigation was not completed within the prescribed period.
The Court reiterated that default bail is a fundamental right under Article 21 and that an oral application can be sufficient.
5. State v. T. Gangi Reddy — (2023) 4 SCC 253
The Supreme Court has relied upon this decision for the principle that default bail is not a release on the merits of the allegations. Its purpose is to ensure that the investigating agency completes the investigation within the period prescribed by law. The 2026 Shaurya Sunil Kumar Singh judgment specifically relied on this principle.
6. Judgebir Singh v. National Investigation Agency — (2023) 17 SCC 48
The Supreme Court clarified that filing a charge sheet within the statutory period can extinguish the right to default bail even where certain issues, such as sanction for prosecution, arise subsequently.
The Court distinguished completion of investigation and filing of the final report from the later question of whether the court can take cognizance.
7. CBI v. Kapil Wadhawan — (2024) 3 SCC 734
The Supreme Court held that the fact that all documents relied upon by the prosecution may not accompany the charge sheet does not automatically make the charge sheet invalid for default-bail purposes.
The 2026 Shaurya Sunil Kumar Singh judgment relied on this principle in holding that the absence of additional copies under Section 193(8) BNSS does not itself create a default-bail right.
Does an Incomplete Charge Sheet Automatically Entitle an Accused to Default Bail?
Not necessarily.
This is an important distinction.
The Supreme Court’s recent jurisprudence focuses on whether the investigating agency has filed a legally sufficient police report within the statutory period. A charge sheet does not necessarily become invalid merely because some further investigation is pending or some additional documents are to be filed later.
The latest Supreme Court judgment in Shaurya Sunil Kumar Singh makes the position particularly clear under the BNSS: non-supply of additional copies of a timely filed charge sheet is not, by itself, a ground for default bail.
Therefore, an accused seeking statutory bail should not merely argue that the prosecution has not supplied every document. The more fundamental question is:
Was the requisite police report legally filed within the applicable statutory period?
Default Bail vs Regular Bail
Default bail and regular bail are legally distinct remedies.
| Default/Statutory Bail | Regular Bail |
|---|---|
| Based on prosecution’s failure to complete investigation within statutory time | Based primarily on judicial assessment of the case and bail factors |
| Section 187(3) BNSS | Section 480/483 BNSS, depending on the court and circumstances |
| Linked to Article 21 | Also governed by constitutional liberty and statutory bail principles |
| 60/90 days ordinarily | No fixed 60/90-day trigger |
| Merits of allegations are generally not the basis of entitlement | Court examines factors such as gravity, evidence, flight risk, tampering, etc. |
| Becomes available on statutory default | Discretionary remedy, subject to applicable statutory restrictions |
The Supreme Court in Shaurya Sunil Kumar Singh expressly clarified that consideration of default bail is not a consideration of the accused’s case on merits. If default bail is unavailable because the charge sheet was timely filed, the accused may still seek regular bail on merits.
Important Practical Points for Lawyers and Accused
Before filing an application for default bail, the defence should carefully verify:
- The exact date of arrest.
- The date from which statutory custody is to be calculated.
- Whether the offence attracts the 60-day or 90-day period.
- Whether a special statute prescribes a longer investigation period.
- Whether a valid extension order was passed by the competent court.
- The exact date and time of filing of the charge sheet.
- Whether the accused moved for default bail before the charge sheet was filed.
- Whether the accused expressed readiness to furnish bail.
- Whether the prosecution’s report satisfies the statutory requirements.
- Whether the case involves further investigation under the applicable law.
- Whether any special bail restrictions apply.
Conclusion
Default or statutory bail under Section 187(3) BNSS is one of the strongest procedural safeguards protecting personal liberty during criminal investigation. It prevents the investigating agency from keeping an accused in custody indefinitely without completing the investigation and filing the requisite police report.
The current legal position is that the ordinary statutory period is 90 days for specified serious offences and 60 days for other offences, subject to special statutes that prescribe different periods. Once the applicable period expires without a legally sufficient charge sheet being filed, an accused who is ready to furnish bail can invoke the statutory right.
At the same time, the Supreme Court’s latest decision in Shaurya Sunil Kumar Singh v. CBI, 2026 INSC 666 has clarified an important limitation: mere non-supply of copies or additional documents does not itself create a right to default bail when the charge sheet has been filed within the statutory period in the prescribed form.
The jurisprudence therefore continues to balance two competing concerns—the investigating agency’s legitimate need to complete a criminal investigation and the constitutional protection of individual liberty under Article 21.
Legal Disclaimer: This article is intended for general legal information and educational purposes only and should not be treated as legal advice. The applicability of default bail depends on the facts of each case, the exact offence alleged, the governing statute, custody dates, charge-sheet filing, extension orders and subsequent judicial developments.