Default bail: when police miss the 60 or 90 day chargesheet deadline

After an arrest, the police investigate and then file a chargesheet, the report that sets out the evidence and names the accused. But what if the police take too long? Can a person be kept in jail indefinitely while the police "investigate"?

No. The law sets a deadline. If the police miss it, the accused gets a right to bail. This is called default bail or statutory bail, because it arises from the State's default, not from the strength or weakness of the case.

What the law says

The rule is in Sec 187 BNSS of the Bharatiya Nagarik Suraksha Sanhita, which replaced Sec 167 of the earlier CrPC from 1 July 2024. A Magistrate can authorise detention while investigation continues, but under Sec 187(3) only up to a total of:

• 90 days, where the offence is punishable with death, imprisonment for life, or imprisonment for a term of ten years or more;
• 60 days, for any other offence.

Once that period ends and no chargesheet has been filed, the accused "shall be released on bail" if he is prepared to and does furnish bail. The court has no discretion to refuse on the ground that the charge is serious or the evidence strong. The Supreme Court treats this as part of the right to personal liberty under Art 21; in Bikramjit Singh v. State of Punjab (2020) it called it an "indefeasible right", one that cannot be defeated once it arises, as long as the accused claims it in time.

Special laws stretch the clock. Under the Unlawful Activities (Prevention) Act the period can be extended by the court up to 180 days, and under the NDPS Act up to one year, on a prosecutor's report showing progress and specific reasons. If you are charged under such a law, ask your lawyer which deadline applies to you.

Which limit: 60 or 90 days?

The 90-day limit applies only where the offence is punishable with death, life imprisonment, or "ten years or more". For an offence whose maximum is ten years but which can be punished with less, under the earlier CrPC the Supreme Court in Rakesh Kumar Paul v. State of Assam (2017) applied the 60-day limit. The BNSS wording changed slightly, and in State of Karnataka v. Kalandar Shafi (2024) the Karnataka High Court read "ten years or more" the same way, as a minimum of ten years, so that offences punishable up to ten years fall in the 60-day category. Other High Courts may read it differently, so check how your High Court has treated it.

How the days are counted

The clock starts from the date the Magistrate first orders the accused into custody (the first remand order), not from the date of arrest. In Enforcement Directorate v. Kapil Wadhawan (2023), a three-judge bench held that the day of remand itself counts. So if the chargesheet is not filed by the end of the 60th or 90th day, the right arises on the 61st or 91st day. Days in police custody and judicial custody both count. Days you spent on interim bail or otherwise outside custody generally do not.

When the right is lost, and when it is not

The right must be claimed before the chargesheet is filed. If the deadline passes, nobody applies, and the police then file the chargesheet, the right is usually gone and you are back to ordinary bail on the merits. But in M. Ravindran v. Intelligence Officer, DRI (2020), the Supreme Court held that once you have applied after the deadline, the police cannot defeat your right by rushing in a chargesheet before the court decides your application. Even an oral request made in court on the right day, and recorded, has been accepted.

What if the police file an incomplete report just to stop the clock? The Supreme Court has said a report filed without completing the investigation does not defeat the right, but the law on what counts as "incomplete" has gone back and forth and is still being settled. Raise it through your lawyer.

Step by step

1. Write down the first remand date. Get it from the remand order or the court record. Count 60 or 90 days from that day, including that day.
2. Note the offences and their maximum punishment. This decides which limit applies and whether a special law is involved.
3. Check the court record on the last day. Your lawyer, or the jail legal aid clinic, checks whether a chargesheet has been filed.
4. Apply the very next day. File a short written application under Sec 187(3) BNSS stating the remand date, the days elapsed, and that no chargesheet has been filed, and that you are ready to furnish bail. If a lawyer is not available, say it to the Magistrate yourself when produced and ask that it be recorded.
5. Be ready with bail the same day. Arrange a surety and documents in advance. If you cannot, tell the court and ask for a personal bond or a lower amount.
6. Get free help. Every person in custody is entitled to a legal aid lawyer. Ask the Magistrate, call 15100, or contact the District Legal Services Authority. Prisons have legal aid clinics for exactly this.