Periods Police Custody and Default Bail | Section 187 BNSS

Section 187 BNSS: Investigation Beyond Twenty-Four Hours, the Fifteen and Sixty and Ninety Day Periods, and the Right to Default Bail

Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 answers a single question: for how long may a person be detained while the police investigate? The answer is a set of nested periods. Twenty-four hours without any judicial order. Fifteen days in police custody, in the whole. Sixty or ninety days of detention altogether. And at the end of the last of those, if no police report has been filed, the accused shall be released on bail — not because the case against him is weak, but because the agency has failed to complete its work in the time the statute allows.

That last entitlement is called default bail, or statutory bail. It is not a concession and it is not discretionary. It is part of the procedure established by law under Article 21, and the only way to lose it is to fail to ask for it in time. This topic sets out the periods, the computation, and the law on when the right accrues, how it is availed, and what happens when a charge sheet is filed after it has accrued.

1. The Architecture

Figure 1: The periods, and what happens at each

Section 187(3), BNSS 2023: the outer periods

The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but 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.

⚠ “Not less than ten years” means a minimum of ten years

The ninety-day limb applies where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years. The last expression means that the minimum sentence prescribed is ten years.

An offence punishable with imprisonment which may extend to ten years does not fall within it, because the punishment may be less. Such an offence attracts the sixty-day period.

The distinction has decided a great many applications, and it is the point on which default bail applications most often succeed. Where the offence carries “imprisonment of either description for a term which may extend to ten years”, the period is sixty days, and an accused detained for seventy-five days without a report is entitled to be released.

1.1 From when do the periods run?

📖 Chaganti Satyanarayana v. State of Andhra Pradesh, (1986) 3 SCC 141

Facts: The accused were arrested on one date and produced before a Magistrate on the next, when the first order of remand was made. They applied for default bail, computing the period of ninety days from the date of arrest. The State contended that the period ran from the date of the first remand order. The difference decided whether the right had accrued.

Held: The Supreme Court held that the periods prescribed in the remand provision run from the date of the order of remand, and not from the date of arrest. The reasoning is that the section speaks of the total period for which the Magistrate may authorise detention, and the Magistrate authorises nothing until he makes the first order; the twenty-four hours before production are governed by the separate provision limiting police detention without a judicial order. The Court accordingly held that the period is to be computed from the date on which the Magistrate first authorises detention, and that the earlier period of police detention within the twenty-four hours does not count towards it.

Ratio: The sixty and ninety day periods run from the date of the first order of remand, not from the moment of arrest. The twenty-four hours before production are governed by a different provision and do not count.

2. Police Custody: the Cap and the Window

Detention in the custody of the police is limited to fifteen days in the whole. That figure is unchanged from the Code of Criminal Procedure. What the Sanhita has changed is the period within which those fifteen days may be taken.

	Section 167, CrPC	Section 187, BNSS
The cap	Fifteen days in the whole	Unchanged
The window	The first fifteen days from the first remand	The first forty days in a sixty-day case; the first sixty days in a ninety-day case
Splitting	Not in practice, the window and the cap being the same length	Expressly permitted: the days may be authorised in whole or in parts
Return from judicial custody	Not possible after the first fifteen days	Possible at any time within the window, for the unused balance
Who may authorise it	Not a Magistrate of the second class unless specially empowered	Unchanged: section 187(5)

The change is not cosmetic. Under the old provision the fifteen days were effectively lost if they were not used within the first fortnight, and an officer who later needed the accused’s presence had no means of obtaining it. Under the new one an accused in judicial custody remains liable to be returned to police custody, for the unused balance, at any point in a window of forty or sixty days. The argument for the change is that leads emerge late; the argument against is that the prospect of return is itself a pressure, and it now operates for a far longer period.

3. Default Bail

Figure 2: How the right arises, is availed, and is lost

3.1 The nature of the right

The right arises from the failure of the investigating agency and has nothing to do with the merits. The court does not consider the gravity of the offence, the strength of the material, the likelihood of the accused absconding, or the objections of the prosecution. The only questions are whether the period has expired, whether a police report has been filed, and whether the accused is prepared to and does furnish bail.

📖 M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485

Facts: The accused applied for default bail on the expiry of the statutory period. The application was pending when the prosecution filed the complaint or charge sheet, and the courts below held that the filing extinguished the right. The question was the nature of the right, and whether it survives the filing of the report during the pendency of an application already made.

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, being part of the procedure established by law; it is the legislative recognition that a person cannot be detained indefinitely while the State investigates. The Court held that the right accrues on the expiry of the period and that it is indefeasible: once the accused has applied for default bail and is prepared to furnish bail, the subsequent filing of the charge sheet does not defeat the application, and the court is bound to release him. It rejected the argument that the right is extinguished the moment the report reaches the court, holding that a contrary view would permit the prosecution to defeat an accrued right by the accident of the time the court takes to hear the application. The Court also held that the provision must be construed liberally in favour of the accused, being a provision that protects liberty.

Ratio: Default bail is a fundamental right under Article 21, not a mere statutory concession. Where the accused has applied before the report is filed, the subsequent filing does not defeat the application and release must follow.

3.2 But it must be availed of

📖 Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410 (Constitution Bench)

Facts: A question referred to a Constitution Bench concerned the nature of the right to be released on the expiry of the period prescribed for the investigation, and in particular whether the right subsists after a charge sheet has been filed where the accused had not applied for bail before the filing.

Held: The Constitution Bench held that the right to be released on default is an indefeasible right of the accused on the failure of the prosecution to file the charge sheet within the prescribed period, but that it is a right which enures to, and is enforceable by, the accused only from the time of default till the filing of the charge sheet, and does not survive or remain enforceable on the charge sheet being filed. The Court held that the right must be availed of by the accused: he must offer to furnish bail and apply for release. If he does not apply before the charge sheet is filed, the right is extinguished, and thereafter he may seek bail only on the merits. The Court emphasised that an accused released on default bail is released under the bail provisions, so his bail may be cancelled on the ordinary grounds.

Ratio: The right is indefeasible but is enforceable only from the default until the charge sheet is filed. It must be availed of by an application offering to furnish bail; if it is not, the filing of the charge sheet extinguishes it.

⚠ Holding the two decisions together

They do not conflict, and the sequence is what matters.

Application before the report is filed — the right has been availed of, and the subsequent filing of the report does not defeat it. The court is bound to release: M. Ravindran.

No application before the report is filed — the right has not been availed of, and the filing extinguishes it. Thereafter bail must be sought on the merits under section 480: Sanjay Dutt.

The practical rule follows directly: apply on the day the period expires. An application costs nothing and no particular form of words is required; an oral application before the Magistrate will do. Waiting, in the hope of a better opportunity, is how the right is lost.

4. The Questions That Arise in Practice

Question	Position
When does the period start?	From the date of the first order of remand, not the date of arrest: Chaganti Satyanarayana
Must the accused apply?	Yes. The right accrues automatically but is not self-executing. No particular form is required and an oral application will do, but an application there must be
Must he offer to furnish bail?	Yes. The section says he shall be released if he is prepared to and does furnish bail. An application that does not offer bail is incomplete
What if he cannot furnish sureties?	The right is not defeated by poverty. The court should fix terms he can meet, and the general principle that an indigent person is to be released on a bond without sureties applies
Does an incomplete charge sheet defeat it?	No. A document filed merely to stop the clock, without the investigation being complete and without the material section 193 requires, is not a police report, and the right survives
Can the period be extended?	Not under the Sanhita. Certain special statutes permit an extension on the application of the prosecution, with reasons, and an extension granted by a court not competent to grant it does not defeat the right
Can bail so granted be cancelled?	Yes. A person released on default bail is deemed to be released under Chapter XXXV, so his bail may be cancelled on the ordinary grounds — but not merely because the charge sheet has since been filed
Does it apply where the accused is in custody in another case?	The right relates to the case in which he is remanded. Detention in another matter does not extend the period in this one
What of an investigation pending on 30 June 2024?	Section 531(2)(a) keeps it under the Code of Criminal Procedure, and the periods and the right that accrues are those of section 167 of the old Code

5. The Other Requirements in Section 187

Section 187(1). On the investigation not being completed within twenty-four hours, and there being grounds for believing the accusation well-founded, the officer shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary and shall at the same time forward the accused.
Section 187(2). The Magistrate may authorise detention for a term not exceeding fifteen days in the whole, whether or not he has jurisdiction to try the case; and if he has not jurisdiction and considers further detention unnecessary, he may forward the accused to a Magistrate having jurisdiction.
Section 187(4). No detention shall be authorised unless the accused is produced in person for the first time and every time thereafter while in custody; production may be through audio-video electronic means.
Section 187(5). No Magistrate of the second class, not specially empowered by the High Court, shall authorise detention in the custody of the police.
Summons cases. Where the investigation in a summons case is not concluded within six months from the date of the arrest, the Magistrate shall stop further investigation unless the officer satisfies him that for special reasons and in the interests of justice its continuation is necessary; and the Sessions Judge may, on an application, vacate that order.

6. Key Takeaways

The position stated shortly

1. Section 187 permits detention beyond the twenty-four hours allowed by section 58, on the accused being forwarded to the nearest Magistrate with a copy of the entries in the case diary.

2. The Magistrate may authorise detention for a term not exceeding fifteen days in the whole, and detention in police custody is confined to that cap.

3. The Sanhita permits the fifteen days to be taken in whole or in parts, at any time during the first forty days of a sixty-day case or the first sixty days of a ninety-day case. The cap is unchanged; the window is much wider.

4. Total detention during the investigation may not exceed ninety days where the offence is punishable with death, imprisonment for life or imprisonment for not less than ten years, and sixty days in any other case.

5. “Not less than ten years” means a minimum of ten years. An offence punishable with imprisonment which may extend to ten years attracts the sixty-day period.

6. The periods run from the date of the first order of remand, not from the date of arrest: Chaganti Satyanarayana.

7. On the expiry of the period without a police report, the accused shall be released on bail if he is prepared to and does furnish bail, and is deemed released under Chapter XXXV.

8. The right is a fundamental right under Article 21 and is indefeasible; where the accused has applied before the report is filed, the subsequent filing does not defeat the application: M. Ravindran.

9. But the right must be availed of. Where no application is made before the report is filed, the right is extinguished and bail must thereafter be sought on the merits: Sanjay Dutt.

10. An incomplete report filed merely to stop the clock is not a police report and does not extinguish the right; and in a summons case the Magistrate must stop an investigation not concluded within six months unless special reasons are shown.

7. Frequently Asked Questions

What is default bail?

The right to be released on bail on the expiry of the period allowed for the investigation without a police report having been filed — sixty days in ordinary cases, and ninety days where the offence is punishable with death, imprisonment for life or imprisonment for not less than ten years. It arises from the failure of the agency and has nothing to do with the merits of the case.

From when are the sixty or ninety days counted?

From the date of the first order of remand, not from the date of arrest. The twenty-four hours of police detention before production are governed by section 58 and do not count: Chaganti Satyanarayana v. State of A.P.

Does an offence punishable with imprisonment up to ten years attract ninety days?

No. The ninety-day limb requires a punishment of death, imprisonment for life, or imprisonment for a term of not less than ten years, which means a minimum of ten years. An offence punishable with imprisonment which may extend to ten years attracts the sixty-day period.

Must the accused apply for default bail?

Yes. The right accrues automatically on the expiry of the period but is not self-executing. No particular form of words is required and an oral application will do, but an application must be made and the accused must be prepared to and must furnish bail.

What if the charge sheet is filed after the right has accrued?

If the accused had already applied before the filing, the subsequent filing does not defeat the application and the court is bound to release him: M. Ravindran. If he had not applied at all, the filing extinguishes the right and he must thereafter seek bail on the merits: Sanjay Dutt.

Can a person released on default bail have his bail cancelled?

Yes, on the ordinary grounds, because he is deemed to have been released under Chapter XXXV. But his bail cannot be cancelled merely on the ground that the charge sheet has since been filed.

How long can police custody last, and when may it be taken?

Fifteen days in the whole. Under the Sanhita those days may be taken in whole or in parts at any time during the first forty days of a sixty-day case or the first sixty days of a ninety-day case, so an accused in judicial custody may be returned to police custody for the unused balance within that window.

Related Topics

Police Custody and Judicial Custody Compared
Remand during Investigation under the BNSS, 2023
Bail and Bonds under the BNSS, 2023: Sections 478 to 496
Release of a Person Arrested under the BNSS, 2023
Police Report under the BNSS, 2023: Section 193
When the BNSS Applies and When the CrPC Continues