The proviso to section 187(3), BNSS 2023

No Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding —

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

⚠ Which period applies is the question most often argued

The ninety-day period applies only where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years.

The words are “not less than ten years”. Where the statute prescribes a maximum of ten years but no minimum of ten — for instance, imprisonment which may extend to ten years — the offence does not fall within clause (i), and the applicable period is sixty days.

The distinction decides a great many applications, and the error of reading “punishable with ten years” as equivalent to “not less than ten years” has cost accused persons thirty days of liberty in a large number of cases.

And where an accused is charged with several offences, the period is determined by reference to the offence attracting the longer period, the investigation being one.

📖 Achpal @ Ramswaroop v. State of Rajasthan, (2019) 14 SCC 599

Facts: The investigation not having been completed within the statutory period, the Court before which the matter was pending passed orders which had the effect of extending the time for filing the report, and the accused was denied release on that footing. The Supreme Court considered whether a court may extend the period prescribed by the statute.

Held: The Supreme Court held that the periods of sixty and ninety days are fixed by the statute, and that no court has the power to extend them. Where the investigation is not completed within the period, the right to be released on bail accrues to the accused, and an order of a court purporting to enlarge the time for completing the investigation, or to keep the accused in custody beyond the period on that footing, is without jurisdiction and cannot defeat the right. The Court held that the entitlement is indefeasible, and that it is not open to the prosecution to rely on the court’s own order extending time as an answer to it. It emphasised that the provision exists to ensure that an accused is not detained indefinitely while an investigation proceeds at leisure, and that reading a power of extension into it would defeat the object of the safeguard.

Ratio: The statutory periods cannot be extended by any court. Where the investigation is not completed within the period the right to release accrues, and an order purporting to enlarge the time is without jurisdiction and cannot defeat that right.

📖 Fakhrey Alam v. State of Uttar Pradesh, (2021) 13 SCC 309

Facts: An accused applied for default bail, the investigation into the offences for which he was in custody not having been completed within the applicable period. A charge sheet was filed for some of the offences within time, and a supplementary report adding a further offence was filed later, the prosecution contending that the right did not accrue.

Held: The Supreme Court held that the right to default bail is not a mere statutory right but a fundamental right flowing from Article 21, and that it cannot be defeated by the device of filing a supplementary charge sheet or by adding further offences after the period has run. Where the period applicable to the offence has expired and the investigation in respect of that offence has not been completed, the right accrues, and it is not extinguished by material filed afterwards. The Court held that once the right has accrued and been claimed, the prosecution cannot frustrate it retrospectively, and that permitting it to do so would enable the investigating agency to keep an accused in custody indefinitely by filing successive reports. It emphasised that the provision is a safeguard of personal liberty and must be construed so as to advance, not defeat, that object.

Ratio: The right to default bail flows from Article 21 and cannot be defeated by filing a supplementary charge sheet or adding offences after the period has run. Once accrued and claimed, it cannot be frustrated retrospectively.

⚠ The consequence of the deeming provision

The proviso provides that a person released under it shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The practical effect is that default bail, once granted, is ordinary bail. It carries the same conditions, the same bond and surety requirements, and the same liability to cancellation under section 483(2) if the accused afterwards abuses his liberty.

What cannot be done is to refuse it in the first place on the ground that the offence is grave. The proviso admits of no such enquiry, and a Court which refuses default bail for reasons going to the merits has asked itself the wrong question.

Nor can the prosecution ask for its cancellation merely because the charge sheet has since been filed. The filing of the report is not, by itself, a change of circumstance justifying the taking away of liberty already conferred.

The position stated shortly

1. The right arises from the proviso to section 187(3) and is nowhere called “default bail” in the Sanhita.

2. It asks two questions only: has the period expired, and has the report been filed? The merits are irrelevant.

3. The periods are ninety days where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, and sixty days for any other offence.

4. “Not less than ten years” does not mean “up to ten years”. Where the maximum is ten years but there is no minimum of ten, the applicable period is sixty days.

5. The right is indefeasible but not self-executing. The accused must apply and be prepared to and does furnish bail.

6. It is extinguished where the report is filed before he applies; it is not defeated by a report filed after the right has accrued and been claimed.

7. It cannot be defeated by a supplementary charge sheet or by adding offences after the period has run — the right flowing from Article 21: Fakhrey Alam.

8. No court can extend the statutory periods. An order purporting to do so is without jurisdiction, and the right accrues notwithstanding it: Achpal.

9. A release under the proviso is deemed to be under Chapter XXXV, so it carries the ordinary conditions and is liable to cancellation on the ordinary grounds.

10. But it cannot be refused on the ground that the offence is grave, and the mere subsequent filing of the report is not a ground for its cancellation.