Chargesheet Not Filed in Time? Default Bail in Delhi

What default bail is and why it is a right, not a favour

Default bail is the bail the law gives an accused because the investigating agency did not finish its job in time. Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), which replaced Section 167(2) of the CrPC, says that a magistrate cannot keep an accused in custody during investigation beyond 90 days where the offence is punishable with death, life imprisonment or imprisonment of ten years or more, and beyond 60 days for any other offence. When that period ends without a chargesheet, the accused shall be released on bail if he or she is prepared to and does furnish bail.

This is why lawyers call it statutory, compulsive or indefeasible bail. The magistrate does not weigh the seriousness of the offence, the strength of the evidence or the accused's antecedents. The only questions are: has the period expired, has the chargesheet been filed, and has the accused applied and offered bail. If the answers are yes, no and yes, release must follow.

The right is real but fragile. It exists only in the window between the end of the period and the filing of the chargesheet. If the accused does not claim it in that window and the police then file the chargesheet, the right is lost and the accused must seek regular bail on the merits. For FIRs registered before 1 July 2024, Section 167(2) CrPC applies under the savings clause in Section 531 BNSS, but the rule is the same.

The law on default bail in one place

Which time limit applies to which case

Under the old CrPC, the Supreme Court held in Rakesh Kumar Paul v. State of Assam (2017) that an offence punishable with imprisonment that may extend to ten years fell in the 60-day category. The BNSS words the 90-day category as offences punishable with ten years or more, and High Courts have since differed on whether a ten-year maximum now attracts 90 days. At least one High Court has held that the 60-day period still applies. Until the Supreme Court settles it, counsel should check the latest Delhi High Court view before relying on either count.

Default bail is available in ED cases too. The PMLA does not extend the period, so the ED must file its prosecution complaint within 60 days in most cases, and Section 45 PMLA does not stand in the way of default bail. Our page on bail in ED and PMLA cases covers the rest of the ED bail process.

How to count the 60 or 90 days correctly

Start counting from the date of the first remand order by the magistrate, and include that day, following Kapil Wadhawan. Do not count from the date of the FIR. If the accused was arrested late at night and produced before the duty magistrate the next day, the remand date is the next day. Police custody days and judicial custody days are added together.

Write the dates out on a calendar. For a 90-day case where the first remand was on 5 March, day 90 falls on 2 June, and the right arises on 3 June if no chargesheet has been filed by the end of 2 June. Do this exercise twice, with the remand order sheet in hand, because a mistake of one day either way is costly. Applying a day too early means rejection; applying a day too late may mean the chargesheet has already arrived.

When an accused is arrested in one FIR and later shown arrested in a second FIR while in jail, each FIR has its own clock, running from the remand in that FIR. Release on default bail in one FIR does not end custody in the other. When Advocate B.K. Singh is asked to check a default bail claim, the first document he asks for is the order sheet with the first remand date, and the second is a list of every FIR in which the person is shown arrested.

Claim it before the chargesheet arrives

The right to default bail is not automatic in the sense of release without asking. The accused must apply, in writing, and express readiness to furnish bail. Many people lose the right because the family assumes the jail or the court will release the person on the 61st or 91st day. They will not. Unless an application is filed, the police can file the chargesheet on day 95 and the window closes.

File on the first day the right arises, before the magistrate who has the case. If that day is a holiday, the application goes to the duty magistrate. Ask for the application to be taken on record with the time noted, and get a copy with the court's receipt. Under M. Ravindran, if the chargesheet comes in later the same day, the accused's right survives because it was claimed first.

It is common for the police to rush the chargesheet to court on the last day or the day after, sometimes late in the evening. The race is real. A default bail application drafted in advance, with the surety ready and documents in a folder, is what wins it.

What counts as a chargesheet, and incomplete filings

The right to default bail ends when the police file a report under Section 193 BNSS (old Section 173 CrPC) within the period. It is the filing that counts, not cognizance by the court. The Supreme Court has held that if the chargesheet is filed in time, the accused cannot claim default bail simply because the magistrate has not yet taken cognizance.

Harder questions arise when the police file a chargesheet that is plainly incomplete: without the forensic report on which the case depends, without the sanction required for prosecution, or with a note that the investigation continues on the main allegation. The Supreme Court examined this in 2023 in Ritu Chhabaria, and the position has since been revisited by the Court, with later rulings holding that default bail does not arise merely because further investigation continues on some aspects after a chargesheet is filed in time. The law here has moved more than once, so an argument that a chargesheet is only a paper filing must be built on the latest rulings and on the specific gaps in that report.

In practice, the Delhi courts look at whether the chargesheet places enough material before the court to take cognizance of the offence against that accused. A report that names the accused, lists witnesses and documents and sets out the evidence is usually accepted even if some reports are pending. A report filed against one accused does not stop the clock for another accused who is not charged in it.

Extensions in NDPS and UAPA cases

In NDPS cases involving commercial quantity and certain other offences, the period is 180 days, and under the UAPA it is 90 days. Both can be extended, but only by the court, on a report of the Public Prosecutor showing the progress of the investigation and the specific reasons why the accused needs to be detained beyond the period. A request from the investigating officer alone is not enough.

The accused must be informed and given a chance to oppose the extension. The Supreme Court has set aside extensions granted behind the accused's back, holding that the accused is entitled to be produced and heard when the prosecutor seeks more time. If an extension was granted without notice, that is a ground for default bail despite the extension.

UAPA cases follow a different route to the High Court. Under Section 21 of the NIA Act, an order of a special court granting or refusing bail in a scheduled offence, including an order on default bail, is challenged by appeal to a Division Bench within 90 days, not by a bail petition before a single judge. Our page on bail and appeals in UAPA and NIA cases explains that route and the strict bar in Section 43D(5) UAPA, which does not apply to default bail.

NDPS bail in the Delhi High Court has its own rules under Section 37 of the NDPS Act, but Section 37 does not override default bail. If the 180 days expire without a chargesheet or a valid extension, the right arises. Our page on bail in NDPS cases at the Delhi High Court covers the rest of that area.

Which court decides default bail, and when the High Court comes in

Default bail is first claimed before the magistrate who is remanding the accused, at the district court complex where the case sits: Tis Hazari, Patiala House, Saket, Karkardooma, Rohini, Dwarka or Rouse Avenue. In cases before special courts, such as NDPS courts, PMLA and CBI courts at Rouse Avenue, or courts under the POCSO Act, the application goes to that special court, because it exercises the remand power.

The Delhi High Court comes in when the right is refused or frustrated. If the magistrate wrongly refuses default bail, sits on the application until the chargesheet arrives, or wrongly counts the days, the accused can approach the Sessions Court or file a petition in the High Court under Section 483 BNSS (old Section 439 CrPC), or invoke its inherent powers under Section 528 BNSS (old Section 482 CrPC). Given that the right is time-sensitive, High Court petitions on default bail are usually treated as urgent. A single judge hears them according to the roster.

The Delhi High Court decides default bail claims arising from FIRs in Delhi and from cases pending before Delhi courts. If the FIR is in Noida, Ghaziabad or Gurugram, the Allahabad or Punjab and Haryana High Court has jurisdiction, even if the family lives in Delhi.

Step by step: claiming default bail in Delhi

1. Get the remand order sheet

   Obtain the order sheet showing the date of first remand by the magistrate and every later remand. If the family has no copy, counsel can inspect the court file or get a certified copy.

2. Fix the correct period and the exact date

   Check the offences in the FIR and their maximum punishments to decide whether 60, 90 or a special period applies. Count from the first remand date, including that day, and mark the first day on which the right arises.

3. Confirm that no chargesheet has been filed

   On the last day of the period, check with the court's ahlmad or through the court's records whether a chargesheet has been filed. Do this again on the morning you file.

4. File the written application on day one of the right

   File a written application under Section 187(3) BNSS before the magistrate, or the duty magistrate on a holiday, stating the dates and that the accused is ready to furnish bail. Get the time of filing recorded.

5. Offer bail and produce the surety

   Keep the surety present with identity proof and documents. The court can only release on bail if the accused furnishes it, so the surety's availability matters as much as the application.

6. If refused, move the Delhi High Court at once

   If the magistrate refuses or delays, file a petition in the Sessions Court or the Delhi High Court with the order sheet and the application. Mention the urgency, because each day in custody after the right arose is unlawful detention.

7. Complete release formalities

   Once bail is ordered, bonds are furnished and the surety verified, and a release order goes to the jail. Our guide on release from Tihar after bail covers this last stage.

Time and cost at each stage

Checklist of papers for a default bail claim

• Copy of the FIR with the sections and police station
• Arrest memo and date and time of arrest
• Remand order sheet showing the first remand date and each extension
• Any order extending the period under NDPS or UAPA, and the prosecutor's report if supplied
• A printout or note from the court record showing that no chargesheet has been filed
• List of every other FIR in which the person is shown arrested
• Vakalatnama signed by the accused in jail
• Identity and address proof of the accused and of the surety
• Property papers, fixed deposit or vehicle RC of the surety if a surety of value is likely

Conditions on default bail and when it can be cancelled

A court granting default bail can impose the usual conditions: personal bond, surety, appearance on dates, surrender of passport and no contact with witnesses. It cannot add conditions that turn default bail into a merit-based exercise. In Saravanan v. State (2020), the Supreme Court held that a condition requiring the accused to deposit money was not proper while granting default bail, because the right depends only on the expiry of time.

Default bail is not cancelled merely because the chargesheet is filed afterwards. It can be cancelled on the ordinary grounds that apply to any bail, such as misuse of liberty, threatening witnesses or breaking conditions, and the State may also apply for cancellation where the chargesheet later shows strong grounds, following the principles the Supreme Court has laid down on this. Those applications need more than the filing of the chargesheet itself. Our page on cancellation of bail covers both sides.

If the accused cannot arrange a surety in time, the right does not vanish. Under M. Ravindran, the accused who applied in time remains entitled, and the court should give reasonable time to furnish bail. But do not test this. Arrange the surety before day one.

Mistakes families make with default bail

• Assuming release is automatic. No one releases the accused without a written application. Families who wait lose the right when the chargesheet arrives.
• Counting from the FIR or the arrest. Count from the first remand by the magistrate, including that day.
• Using the wrong period. Read the maximum punishment of every offence in the FIR. One added section can change 60 days to 90.
• Filing a regular bail application instead. A regular bail application argued on merits may not be read as a claim for default bail. Make the default bail claim expressly.
• No surety on the day. The court can only release on bail if bail is furnished. Line up the surety in advance.
• Ignoring other FIRs. Default bail in one case does not free a person who is in custody in another.
• Leaving it to the next date. If the next remand date falls after the right arises, do not wait for it. File on the first day.

For the complainant and the prosecution

Complainants are often upset when an accused in a serious case is released on default bail. It helps to understand that the release says nothing about guilt. It is a consequence of the investigation not being completed in time, and the trial continues once the chargesheet is filed. The complainant can press the investigating officer and the DCP's office to file the chargesheet promptly, and can bring threats or misconduct by the released accused to the court's notice through an application for cancellation.

For the prosecution, the lesson is about timing. Where the investigation genuinely needs more time in NDPS or UAPA cases, the prosecutor must apply for extension before the period ends, with specific reasons and notice to the accused. In ordinary cases there is no extension, and the chargesheet must be filed within the period. If you are the complainant and want to follow the case, our page on regular bail from the Delhi High Court explains how bail is argued once the chargesheet is filed.

What to do this week

Find the first remand date from the order sheet and count the days with a calendar. Check the maximum punishment for every section in the FIR. Confirm with the court whether the chargesheet has been filed. Arrange a surety with documents. If the date is close, have the application drafted now so that it can be filed the morning the right arises. Our guide on what default bail is and when you can claim it and our guide on how long Delhi Police get to file a chargesheet give more background.

If the chargesheet has already been filed and the right is lost, the next step is a regular bail application on merits. Fees are discussed at the first meeting and agreed in writing, stage by stage.

If you would like Advocate B.K. Singh to check the dates in a family member's case before the window closes, or want an update on how the courts are reading Section 187 BNSS, contact Advocate B.K. Singh.