In short. Default bail is the right of an arrested person to be released on bail if the police do not file the chargesheet within 60 or 90 days of remand, depending on the offence, under Section 187(3) BNSS. It is a right, not a favour, but you must claim it by applying before the chargesheet is filed. The application is decided by the remand court, often within days. This week, work out the date of first remand, count the days, and keep a written application ready for the day the period ends.
Is this your situation?
- A family member has been in judicial custody for close to 60 or 90 days and the chargesheet has not been filed.
- You are not sure whether the offence in your case carries a 60-day or a 90-day limit.
- The police filed a chargesheet on the last day and you suspect it is incomplete.
- The case is under the NDPS Act or UAPA and the prosecution has asked for more time to investigate.
- A default bail application was filed but the court adjourned it and the chargesheet came in meanwhile.
- Default bail was granted but the accused cannot arrange the surety.
Key points
- Default bail is a statutory right. If the chargesheet is not filed within the time limit, the accused is entitled to bail on applying and furnishing bail.
- The limit is 60 or 90 days. It is 90 days for offences punishable with death, life imprisonment or ten years or more, and 60 days for the rest, with a disputed middle ground.
- The clock starts from the first remand. The day of remand is counted, and days in police and judicial custody both count.
- You must apply before the chargesheet is filed. If the police file first, the right is lost, even by a few hours.
- Special laws allow longer periods. NDPS and UAPA cases can run to 180 days or more after a proper extension.
- The right does not vanish because the court sits on the application. Once you have applied and are ready to furnish bail, a later chargesheet does not defeat it.
What default bail means
Default bail, also called statutory bail, is bail that the law grants because the investigation agency has defaulted. Under Section 187(3) BNSS (old Section 167(2) CrPC), a magistrate cannot keep an accused in custody beyond a fixed period unless the police have filed their final report, the chargesheet under Section 193 BNSS (old Section 173 CrPC). Once that period ends without a chargesheet, the accused must be released on bail if he is prepared to and does furnish bail.
Unlike regular bail, the court does not weigh the seriousness of the offence, the strength of the evidence or the risk of tampering. The only questions are factual: was the period over, was the chargesheet filed, did the accused apply, and is he ready to give bail. The Supreme Court has repeatedly called this an indefeasible right flowing from Article 21, most clearly in M. Ravindran v. Intelligence Officer, DRI (2020) and Bikramjit Singh v. State of Punjab (2020).
The point of the rule is to stop open-ended detention while the police take their time. It puts pressure on the investigating agency to finish within a fixed time, and it protects the accused when they do not. For a broader view of how bail works under the new code, our guide on how bail works under the BNSS covers regular and anticipatory bail alongside default bail.
Cases registered before 1 July 2024 continue under the old CrPC, by Section 531 BNSS, so the application in such a case is made under Section 167(2) CrPC. The time limits are the same.
The provisions behind statutory bail
Section 187, BNSS (old Section 167 CrPC)
Procedure when investigation cannot be completed in 24 hours. Section 187(3) sets the outer limits of custody before the chargesheet: 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment of ten years or more, and 60 days for any other offence. A person released under it is treated as released on bail under the bail chapter of the BNSS.
Section 193, BNSS (old Section 173 CrPC)
The police report on completion of investigation, called the chargesheet. Filing this report within time is what stops the default bail clock. Further investigation and supplementary reports are allowed later under the same section.
Section 36A(4), NDPS Act
For offences involving commercial quantity and certain other NDPS offences, the 90-day limit becomes 180 days, which the special court can extend up to one year on a report of the public prosecutor showing progress and reasons.
Section 43D(2), UAPA
For UAPA offences, the limit is 90 days, extendable to 180 days by the court on the public prosecutor's report showing progress of investigation and specific reasons for continued detention.
Statutory bail in 60 or 90 days: which limit applies?
The limit depends on the maximum punishment for the offence being investigated, not on what the police think the accused will finally get. Murder under Section 103 BNS (old Section 302 IPC), rape under Section 64 BNS (old Section 376 IPC) and dowry death under Section 80 BNS (old Section 304B IPC) carry life imprisonment, so the limit is 90 days. Cheating under Section 318(4) BNS (old Section 420 IPC), which carries up to seven years, and cruelty under Section 85 BNS (old Section 498A IPC), which carries up to three years, fall in the 60-day class.
The difficult cases are offences where ten years is the maximum, or where the punishment is "which may extend to" ten years. Under the old Code, the Supreme Court in Rakesh Kumar Paul v. State of Assam (2017) held that the 90-day period applied only where the minimum punishment was ten years or more, so an offence punishable with up to ten years attracted 60 days. The wording of Section 187(3) BNSS has led different High Courts to differ on whether that reasoning still holds. The point is unsettled: check the latest Delhi High Court view before relying on either period.
Where several sections are invoked, the most serious offence usually decides the period. Police sometimes add a serious section at the remand stage, which pushes the limit from 60 to 90 days. If the added section has no real basis in the FIR or the case diary, that can be challenged, but the challenge has to be raised early, not after 60 days have passed.
When Advocate B.K. Singh reads a custody file, he writes two dates on the front cover before anything else: the date of first remand and the date on which the 60th or 90th day falls. He then checks the sections in every remand order, because the period is calculated on the offences under investigation, and a section added halfway through can change the date.
How the days are counted
The period runs from the date the magistrate first authorises detention, not from the date of the FIR. The Supreme Court held in Enforcement Directorate v. Kapil Wadhawan (2023) that the day of remand itself is counted. So if the first remand is on 1 March in a 60-day case, the 60 days end on 29 April, and the right accrues on 30 April if the chargesheet has not been filed by then. Work this out with a calendar and double-check it, because one day can decide the outcome.
Both police custody and judicial custody count. Days spent in hospital while in custody also count. Days spent in custody in a different case do not, unless the accused was formally arrested and remanded in this case during that time. If the accused was arrested in one case and then shown arrested in another while in jail, the period in the second case begins from the remand in that case.
The BNSS changed one feature of remand. Police custody of up to 15 days can now be taken in parts during the first 40 days (in 60-day cases) or the first 60 days (in 90-day cases), rather than only in the first 15 days. That does not extend the overall 60 or 90 day limit for the chargesheet.
Court holidays do not extend the period. If the right accrues on a Sunday, an application can be moved before the duty magistrate. Chargesheets are also sometimes filed before duty magistrates on holidays for the same reason, which is why timing matters on both sides. How long police usually take to file in Delhi is covered in our guide on how long Delhi Police get to file a chargesheet.
The right has to be claimed, and claimed in time
Default bail is not automatic. The accused has to apply for it, and must be willing to furnish bail. The Supreme Court held in Uday Mohanlal Acharya v. State of Maharashtra (2001) and again in M. Ravindran (2020) that once the period expires and the accused applies, the right is enforceable. If the accused does not apply and the police then file the chargesheet, the right is extinguished.
Once the application is made, the court cannot defeat it by delay. If the magistrate adjourns the application and the chargesheet is filed in the meantime, the accused is still entitled to default bail, because the right crystallised on the date of application. M. Ravindran is clear on this. So the application must be filed promptly, in writing, with the date and time noted, and a copy should be served on the public prosecutor.
In practice, the race often comes down to hours. The police may file the chargesheet on the 60th or 90th day. The defence files the application on the next day, first thing in the morning. A lawyer who has checked the court record, through the court's filing counter or the eCourts entry, knows whether the chargesheet is in before moving.
An oral request has sometimes been accepted, but relying on it is risky. A short written application, signed and filed, stating the date of first remand, the offences, the expiry date and that no chargesheet has been filed, removes argument about when the right was claimed.
What does and does not defeat default bail
A chargesheet filed within the period defeats the claim, even if the court has not yet taken cognizance of it. The Supreme Court held in CBI v. Kapil Wadhawan (2024) that cognizance is not the test; filing is. The same judgment held that the right does not arise merely because further investigation is continuing on other aspects or against other accused, once a chargesheet against the applicant is on record.
Absence of sanction for prosecution at the time of filing does not entitle the accused to default bail. The Supreme Court held this in Judgebir Singh v. NIA (2023): sanction is needed for cognizance, not for completing the investigation.
The harder question is the incomplete chargesheet, filed only to stop the clock while the real investigation continues. In Ritu Chhabaria v. Union of India (2023), the Supreme Court held that such a chargesheet cannot defeat default bail, but later orders of the Supreme Court directed courts not to rely on that ruling while the issue was reconsidered. Check the current position before building an application around it. Courts still examine whether what was filed is a genuine report on the investigation or a shell.
Default bail, once granted, is not cancelled just because the chargesheet is filed later. The Supreme Court said so in Aslam Babalal Desai v. State of Maharashtra (1992). It can be cancelled on the ordinary grounds, such as misuse of liberty, which our guide on whether bail can be cancelled after it is granted explains.
NDPS, UAPA and other special laws
Some special laws extend the period, and the extension has rules of its own. Under the NDPS Act, Section 36A(4) allows 180 days for offences involving commercial quantity and certain others, and the special court can extend it up to one year on a report of the public prosecutor. Under UAPA, Section 43D(2) allows 90 days, extendable to 180 days on the public prosecutor's report.
An extension is not a formality. The Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) and Jigar v. State of Gujarat (2022) held that the report must be the public prosecutor's own assessment, showing progress of the investigation and specific reasons, and that the accused must be produced and informed when extension is sought. An extension granted without these safeguards can be challenged, and if it falls, the default bail right revives from the original date.
In ED cases under the PMLA, the agency files a prosecution complaint rather than a police report, and the ordinary BNSS periods apply to the complaint. Since most PMLA offences carry up to seven years, the 60-day period usually applies, but check the scheduled offence and the exact punishment. For NDPS bail more generally, see our page on bail in drug cases at the Delhi High Court.
How to claim default bail, step by step
Find the date of first remand
Get the first remand order from the magistrate's court or the arrest papers. Note the date and the sections mentioned. Check every later remand order for added sections.
Count to day 60 or day 90
Count from the remand date, including that day. Mark the expiry date and the next day on a calendar. If the offence is in the disputed ten-year category, prepare for both dates.
Check whether the chargesheet has been filed
On the expiry day and the morning after, check the court record, the filing counter or the eCourts entry. Ask the court staff whether a chargesheet has come in, including before the duty magistrate.
File a written application at once
File a short application under Section 187(3) BNSS stating the dates, the sections and that no chargesheet has been filed. Say the accused is ready to furnish bail. Serve a copy on the public prosecutor and note the time of filing.
Keep sureties ready
Default bail is granted on bail bonds and usually sureties. Have the surety's identity proof, address proof and proof of means ready before the hearing, so release is not delayed after the order.
Go to the High Court if refused
If the magistrate or special court wrongly refuses, the order can be challenged in the Delhi High Court through a bail application or a petition under Section 528 BNSS. Speed matters, because every day counts in custody.
Complete release formalities
Once bail is granted, the bonds are accepted, the release order goes to the jail, and the accused is released, usually the same day or the next.
Advocate B.K. Singh's practical tip for families is to keep the default bail application drafted and signed a week before the expiry date, with only the final date left blank. When the day comes, the application can be filed in the first hour of court, before anyone can argue about who moved first.
Typical time and cost for a default bail claim
| Stage | Typical time range | Court fee in general terms | Notes |
|---|---|---|---|
| Working out the expiry date | Same day, once remand orders are available | None | Get certified copies of remand orders if needed |
| Filing the application in the remand court | On the day after expiry | Small fixed court fee, if any | Note the date and time of filing |
| Hearing and order | Same day to a few days | None | Court may call for the prosecutor's reply |
| Surety verification and release | Same day to about a week | None | Faster if surety papers are ready |
| High Court challenge if refused | Listing in days; decision in weeks | Small fixed court fee | Urgent listing can be sought |
| NDPS or UAPA extension challenge | Weeks to a few months | Small fixed court fee | Depends on whether safeguards were followed |
Documents for a default bail application
- FIR copy showing the police station and sections
- Arrest memo and the first remand order, with the date
- All later remand orders, to check for added sections
- Any public prosecutor's report seeking extension (NDPS or UAPA cases) and the order on it
- Court record or eCourts printout showing no chargesheet filed by the expiry date
- Identity and address proof of the accused
- Surety's identity proof, address proof and proof of means such as property papers, salary slips or bank statements
- Vakalatnama signed by the accused in jail
Which court decides default bail
The application is made to the court that is authorising detention: the magistrate in an ordinary case, or the special court in NDPS, PMLA, UAPA or POCSO matters. In Delhi that means the magistrate or special court in the district court complex for the police station: Tis Hazari, Patiala House, Saket, Karkardooma, Rohini or Dwarka, or the special courts at Rouse Avenue for CBI and ED cases.
If the remand court refuses default bail when the right has clearly accrued, the Delhi High Court can be approached. The High Court looks at the dates and the record; it does not reopen the merits. These matters are usually short, but they need the full set of remand orders and proof of the filing time. In NIA Act cases, the route against a special court's order is an appeal to a Division Bench under Section 21(4) of the NIA Act.
This website belongs to a private law firm and is not the Delhi High Court's official site. For official case status and cause lists, use the court's own website. Our page on default bail in Delhi explains how we handle these matters at the remand court and in the High Court.
A made-up example: a race of a few hours
Here's a made-up example. Imran, a delivery supervisor from Seelampur, is arrested in a cheating and forgery case registered at an East Delhi police station. He is first remanded on 10 January. The offences carry up to seven years, so the limit is 60 days. Counting 10 January as day one, the 60th day is 10 March. His lawyer marks 11 March as the day the right accrues.
On 11 March, at 10:15 in the morning, the lawyer checks with the court's filing counter at Karkardooma: no chargesheet. The default bail application is filed at 10:30 and served on the public prosecutor. At 2:00 in the afternoon, the IO arrives with the chargesheet. The magistrate notes the times and holds that the application came first. Imran is granted default bail on furnishing a bond with one surety.
Now change one fact. Suppose the lawyer had waited for the next date of remand, 14 March, to raise the point. The chargesheet filed on 11 March would have defeated the claim, and Imran would have had to seek regular bail on the merits, which is a harder and slower application.
Mistakes that cost people their default bail
The most common mistake is not counting. Families assume the court will release the accused automatically when the period ends. It will not. Someone has to apply. The second is waiting for the next remand date, which may fall several days after the right accrued, giving the police a window to file.
The third mistake is getting the period wrong: treating a 60-day offence as 90, or failing to notice that a section added at remand changed the period. The fourth is not keeping sureties ready. A default bail order with no surety in sight leaves the accused in jail, and courts have held that the accused must be prepared to furnish bail for the right to be enforced.
The fifth mistake is assuming default bail will last no matter what. It is bail like any other. If the accused misuses it, threatens witnesses or misses dates, it can be cancelled. Surety amounts and what courts in Delhi usually ask for are covered in our guide on how much surety is required for bail in Delhi.
If you are the complainant or the victim
A complainant has a real interest in the chargesheet being filed on time, because a default bail release is not a finding on the merits and the court does not consider the gravity of the offence. If you are worried about delay, you can write to the SHO and the DCP about the progress of investigation, and in serious cases ask the public prosecutor to ensure the report is filed before the deadline.
If the accused is released on default bail, the case continues. The chargesheet will still be filed, the trial will still proceed, and the accused must attend every date. If the accused threatens you or a witness, that is a ground to seek cancellation of bail, and it should be reported to the police in writing at once.
What to do this week
If someone in your family is in custody, collect the first remand order and every later remand order, and write down the sections. Count the days using the rule that the remand day is day one. If the expiry date is close, draft the application now, arrange the surety's papers and decide who will check the court record on the morning after expiry.
If the period has already passed and the chargesheet is still not filed, the application should be filed today. If the chargesheet has been filed, default bail is no longer available, and the next step is regular bail before the sessions court and then the High Court, where long custody and a completed investigation are strong points in the accused's favour. Our page on default bail when the chargesheet is not filed in time sets out how we prepare these applications.
If you want the dates in your case checked, or an update on the disputed ten-year question, contact Advocate B.K. Singh for advice on your papers or for updates on the law.
Frequently asked questions
Does default bail mean the case against me is over?
No. Default bail only releases you from custody because the chargesheet was late. The investigation continues, the chargesheet will be filed, and the trial goes ahead on the merits.
Can the court refuse default bail in a serious case like murder?
No, if the period has expired, no chargesheet is filed and you have applied and are ready to furnish bail. The seriousness of the offence is relevant to the length of the period (90 days for murder), not to whether bail is granted after it.
What if I cannot afford the surety after default bail is granted?
You can ask the court to reduce the surety amount or accept a personal bond, explaining your means with documents. Courts are expected not to impose conditions that a person cannot meet.
Is the 60 days counted from the date of arrest or the FIR?
From the date the magistrate first authorises detention, which is usually the day after arrest. The remand day itself is counted. The FIR date is not the starting point.
Can default bail be claimed if the police filed a chargesheet without the sanction to prosecute?
No. The Supreme Court has held that sanction is needed for cognizance, not for filing the chargesheet. A chargesheet filed in time without sanction still stops the default bail clock.
Do I lose default bail if the chargesheet is filed while my application is pending?
No, if you filed the application first and were ready to furnish bail. The right is fixed on the date you applied, and the court's delay in deciding cannot take it away.
How long can NDPS accused be held without a chargesheet?
For commercial quantity and certain other NDPS offences, up to 180 days, which the special court can extend up to one year on a proper report of the public prosecutor. The accused must be informed and produced when extension is sought.
Can default bail be cancelled once the chargesheet is filed?
Not on that ground alone. It can be cancelled for misuse of liberty, such as threatening witnesses or missing court dates, like any other bail.
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M. More than twenty years in practice before the Supreme Court, the Delhi High Court, Delhi district courts and tribunals. This guide was written and reviewed by his team.
This guide explains the law in general terms and is not legal advice. For advice on your own papers, contact the team.
Related guides
BailHow Long Does Bail Take in Delhi High Court?
How long bail takes in Delhi High Court: filing, first listing, status report, order and release from Tihar, with realistic time ranges and what...
BailAnticipatory Bail in Delhi: Step by Step
How to get anticipatory bail in Delhi step by step: when you need it, which Sessions Court, interim protection, papers, timing and the Delhi High...
BailWhat Is the Difference Between Regular Bail and Anticipatory Bail?
Regular bail vs anticipatory bail explained: when each applies, BNSS sections, which Delhi court hears it, conditions, duration and the chargesheet...
BailCan You Apply Directly to Delhi High Court for Bail Without Going to Sessions Court?
The law allows a direct bail application to the High Court, but Delhi practice expects the sessions court first. When a direct filing is heard and...
BailWhat Documents Are Needed for a Bail Application in Delhi High Court?
Bail application documents for Delhi High Court: FIR, Sessions Court order, custody certificate, affidavit, vakalatnama, annexures and common filing...
BailHow Much Surety Is Required for Bail in Delhi?
How much surety is needed for bail in Delhi, who can stand surety, documents courts ask for, how verification works and what to do if you cannot...