Default Bail (S.167 CrPC / S.187 BNSS): Your Right If Police Fail to File Chargesheet

What Is Default Bail?

Default bail — also called statutory bail — is the right of an accused person to be released on bail if the police fail to file a charge sheet within the statutory deadline while the accused remains in judicial custody. This right is guaranteed under Section 187 of the BNSS, 2023 (formerly Section 167(2) CrPC).

The Supreme Court in Rakesh Kumar Paul v. State of Assam called default bail an “indefeasible right” — once the deadline passes without a charge sheet, the accused has an absolute right to bail that the court cannot deny on merits.

The Deadlines — When Does the Right Arise?

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

The clock starts from the date of remand — when the accused was first sent to judicial custody. If no charge sheet is filed by day 60 or 90, the right to default bail arises on the very next day.

How to Claim Default Bail

1. Your lawyer tracks the custody period precisely from the remand date.
2. On or after the deadline, the lawyer appears before the Magistrate and files an application for default bail under S.187 BNSS.
3. If no charge sheet has been filed, the Magistrate must grant bail — this is not discretionary.
4. The accused must apply before the prosecution files the charge sheet — once a charge sheet is filed, even one day late, the right is typically extinguished.

Critical Timing: Apply Before They File

This is the most important practical point. Prosecutors in Pune are aware of default bail deadlines and sometimes file an incomplete charge sheet on the last day to defeat the right. Your lawyer must be monitoring the deadline and have the application ready to file on day 60 or 90. If the charge sheet is filed even minutes before your application, you may lose the right — even if the charge sheet is incomplete.

After Default Bail Is Granted

The prosecution can continue investigating and file a supplementary charge sheet. The accused must comply with all bail conditions. Default bail does not mean acquittal — it simply means you are out of custody while the case continues.

Frequently Asked Questions

Does filing an incomplete charge sheet defeat default bail?

Courts have grappled with this question. The Supreme Court has held that the charge sheet filed must be a complete charge sheet — a shell document filed only to defeat default bail may not qualify. If the prosecution files an obviously incomplete charge sheet on the last day, your lawyer should argue that it does not constitute a valid charge sheet under S.187 BNSS. This is a nuanced legal argument that requires preparation.

Does default bail apply in NDPS commercial quantity cases?

Yes. The right to default bail under S.187 BNSS applies to NDPS commercial quantity cases (90-day deadline). The S.37 NDPS restrictions on bail do not apply to default bail — once the right arises, the Magistrate must grant it regardless of the S.37 twin test. This is confirmed by the Supreme Court in Rakesh Kumar Paul.

What if the accused is in police custody — does the 60/90 day period apply?

The 60/90-day period applies to judicial custody (remand). Police custody is time-limited separately — the police can seek police custody remand for a maximum of 15 days total for most offences (60 days for certain terrorism/special law matters). The clock for default bail purposes starts running from the first date of judicial remand.

If a family member has been in judicial custody in Pune and the charge sheet deadline is approaching, contact Advocate Akash Chikate immediately. Timely action can secure release as a matter of statutory right.