Default Bail Under Section 187 BNSS: Incomplete Chargesheet Cannot Defeat the Right, Rules Supreme Court

NEW DELHI — A chargesheet filed without the forensic report on which the prosecution's case depends is not a complete police report, and does not stop the clock on an accused person's right to default bail, a three-judge bench of the Supreme Court held on 16 October in Ravi Shekhar v. State of Maharashtra. The ruling settles a question that has divided High Courts since 2023 and binds every trial court in the country.

The accused, arrested in a narcotics case, had applied for default bail on the sixty-first day of custody after the police filed a chargesheet that recorded the forensic analysis of the seized substance as "awaited". The trial court refused, treating the filing as a complete report, and the Bombay High Court agreed. The Supreme Court set both orders aside and directed his release on bail.

"The right to default bail is indefeasible. It cannot be whittled down by a paper filing," the bench said.

What is default bail?

Default bail — also called statutory bail — is the right of an arrested person to be released when the investigating agency fails to file its final report within the time the law allows. Under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 167(2) of the Code of Criminal Procedure, a magistrate cannot authorise detention beyond 90 days where the offence is punishable with death, life imprisonment or imprisonment of ten years or more, and beyond 60 days in any other case. Once that period expires without a chargesheet, the accused "shall be released on bail" if prepared to furnish it.

Special statutes stretch the clock. Under Section 43D(2) of the Unlawful Activities (Prevention) Act, 1967, the 90-day period can be extended to 180 days on a public prosecutor's report; under Section 36A(4) of the NDPS Act, 1985, the 180-day period can be extended to one year. The principle is the same across all of them: the right accrues the moment the period ends, and it must be claimed before a chargesheet is filed.

The question: when is a chargesheet "complete"?

Section 193 BNSS (formerly Section 173 CrPC) requires the police report to be filed "as soon as" investigation is completed. In practice, agencies began filing reports while the forensic analysis was still pending in order to beat the deadline, and then supplementing them through further investigation under Section 193(9), the successor to Section 173(8).

In Ritu Chhabaria v. Union of India (April 2023), a two-judge bench held that a chargesheet filed without completing the investigation does not extinguish the right to default bail. Within days, on the Union's application, a three-judge bench directed courts to decide default bail pleas without relying on Ritu Chhabaria, effectively keeping the judgment in abeyance. The same month, in Judgebir Singh v. National Investigation Agency, the court held that a chargesheet filed without prosecution sanction is not an incomplete chargesheet. High Courts then split on the forensic-report question: some granted default bail, others refused. That is the conflict the three-judge bench has now resolved.

What the Supreme Court held

1. Complete in substance, not in form. A police report is complete when it sets out the evidence on which the prosecution proposes to proceed. Where the offence cannot be established without the forensic report — as in a narcotics case, where the nature and quantity of the substance is the offence itself — a report that records the analysis as awaited is a report in name only.
2. Pending forensic reports do not extend the period. The statutory period is fixed. The remedy for delay is the extension that special laws provide on a public prosecutor's report, not a nominal filing. Further investigation under Section 193(9) supplements a complete report; it cannot substitute for one.
3. Decide the same day. Applications for default bail must be decided on the day they are filed. The right is enforced from the moment the accused applies and offers to furnish bail, following Uday Mohanlal Acharya (2001) and M. Ravindran (2021), and any chargesheet filed after the application cannot defeat it.

The bench affirmed Ritu Chhabaria on this point and recorded that the May 2023 direction deferring applications founded on it no longer operates.

The right to default bail is indefeasible. It cannot be whittled down by a paper filing.

From the judgment

Default bail under BNSS: what changed from Section 167 CrPC

• Police custody in parts. Section 187(2) BNSS allows the 15 days of police custody to be taken in parts during the first 40 or 60 days of the 60 or 90-day period, a departure from the CrPC, under which police custody had to be sought within the first 15 days.
• The limits are unchanged. The 60 and 90-day limits, and the right to release on their expiry, are carried into Section 187(3).
• Counting the days. In CBI v. Kapil Wadhawan (January 2024) the court held that the day of remand is included in computing the period.

What it means in practice

• For accused persons and defence counsel: file the application on the day the period expires and record readiness to furnish bail. If the chargesheet on record says a forensic or expert report is awaited and the offence turns on that report, the application should succeed.
• For investigating agencies: complete forensic analysis before filing, or seek extension under the special statute where one is available. A chargesheet filed to beat the deadline will be treated as no chargesheet.
• For trial courts: decide default bail applications the same day, and do not adjourn them to allow a chargesheet to be filed in the meantime.

Precedents on default bail

• 1994 — Sanjay Dutt v. State, (1994) 5 SCC 410: the right is indefeasible but must be availed before the chargesheet is filed.
• 2001 — Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453: the accused is deemed to have availed the right once an application is made.
• 2017 — Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67: 60 days applies where the maximum punishment is "up to" ten years.
• 2020 — Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616: default bail is a fundamental right flowing from Article 21.
• 2021 — M. Ravindran v. Intelligence Officer, DRI, (2021) 2 SCC 485: a chargesheet filed after the application cannot defeat the right.
• 2023 — Ritu Chhabaria v. Union of India: an incomplete chargesheet does not extinguish the right; later kept in abeyance by a three-judge bench.
• 2026 — Ravi Shekhar v. State of Maharashtra: a chargesheet without the forensic report on which the case depends is not complete.

The Counsel will update this report when the judgment is uploaded. Anyone in custody whose chargesheet records a pending forensic or expert report should consult a qualified criminal lawyer about an application under Section 187(3).

This report is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances. Case citations are to The Counsel Reports (TCR) unless otherwise stated.