In short. Default bail is the right of a person in custody to be released on bail if the police fail to file the chargesheet within 60 days, or 90 days for offences punishable with death, life or ten years or more, from the date of first remand. It must be claimed by application before the chargesheet is filed. It does not depend on the merits of the case.
Default bail, also called statutory or compulsive bail, comes from the proviso to Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 (old Section 167(2) CrPC). It exists because the law does not allow the police to keep a person in custody indefinitely while they take their time investigating. The Supreme Court has repeatedly described it as an indefeasible right flowing from Article 21, which the court cannot refuse on the ground that the case looks serious.
This post explains how to work out the deadline, how to claim the right, what defeats it, and how special laws change the periods. It assumes someone is already in custody. If no one has been arrested yet, see our post on what to do when an FIR is registered against you in Delhi; for all other kinds of bail, see our bail lawyer page.
- Law
- Proviso to Section 187(3) BNSS (old Section 167(2) CrPC)
- 60 days
- Offences punishable with less than ten years
- 90 days
- Offences punishable with death, life or ten years or more
- Clock starts
- Date of first remand by a magistrate
- Must apply
- Before the chargesheet is filed, ready to furnish bail
- Special laws
- UAPA up to 180 days; NDPS up to one year in some cases
What is default bail, and why does it exist?
Default bail is bail that the law grants because the investigating agency has defaulted on its deadline, not because the court thinks the accused is innocent or harmless. Section 187 allows a magistrate to authorise detention during investigation, but only for 60 or 90 days in total. Once that period expires without a chargesheet, the magistrate cannot authorise further detention, and the accused must be released if he is prepared to and does furnish bail.
Because the right comes from the statute and Article 21, the court has no discretion to refuse it on merits. The gravity of the offence, the strength of the evidence, the criminal record of the accused: none of these matter once the conditions are met. What does matter is whether the period has truly expired, whether a chargesheet was filed before the right was claimed, and whether the accused has offered to furnish bail.
Default bail is about custody during investigation only. Once the chargesheet is filed and the court takes cognizance, any further bail application is decided on ordinary principles under Section 480 or Section 483 BNSS.
Is it 60 days or 90 days in my case?
Under Section 187(3), the period is 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more, and 60 days for any other offence. Look at the maximum punishment for the most serious offence in the FIR or remand papers. Murder, rape, dowry death and attempt to murder where hurt is caused carry life imprisonment, so the 90 day period applies. Cheating, criminal breach of trust in its basic forms, cruelty by husband and criminal intimidation carry less than ten years, so the 60 day period applies.
The difficult cases are offences where the maximum is exactly ten years and there is no minimum. The old CrPC used the words 'not less than ten years', and the Supreme Court read that to mean such offences fell in the 60 day category. The BNSS now says 'ten years or more', which on a plain reading moves them to 90 days, but High Courts have not all read it that way and the point has not been finally settled. If your case turns on this, take advice on the current position in the court concerned and, where the argument is available, claim default bail on day 61 while preserving the point.
If the FIR was registered before 1 July 2024, Section 167(2) CrPC still governs, with its older wording. Our post on whether the IPC or the BNS applies to your FIR explains how to tell.
Time limits for filing the chargesheet under different laws
These are the periods after which default bail can be claimed, counted from the first remand. Check the exact section in the FIR.
| Type of case | Period for chargesheet | Can it be extended? |
|---|---|---|
| Ordinary offences punishable with less than ten years (BNSS) | 60 days | No |
| Offences punishable with death, life or ten years or more (BNSS) | 90 days | No |
| FIRs registered before 1 July 2024 (CrPC Section 167(2)) | 60 or 90 days, older wording | No |
| UAPA offences (Section 43D(2)) | 90 days | Up to 180 days, on the prosecutor's report showing progress and specific reasons |
| NDPS commercial quantity and offences under Sections 19, 24 and 27A (Section 36A(4)) | 180 days | Up to one year, on the prosecutor's report to the special court |
| Other NDPS offences | 60 or 90 days as under the BNSS | No |
Some state laws on organised crime also extend the period. If the case is under a special statute, read the statute before counting.
When does the clock start, and how are the days counted?
The period runs from the date the magistrate first authorises detention, that is, the first remand order, not from the date of arrest or the date of the FIR. The Supreme Court held in Enforcement Directorate v Kapil Wadhawan (2023) that the day of the first remand is itself counted as day one. So if the first remand was on 3 March, the 60th day is 1 May, and if no chargesheet has been filed by the end of 1 May, the right accrues on 2 May.
All custody authorised in the case counts, whether police custody or judicial custody. Under Section 187(2) BNSS police custody of up to fifteen days can be taken in parts during the first 40 days (in 60 day cases) or the first 60 days (in 90 day cases), but this does not stretch the outer limit. Time spent in custody in a different case does not count; if you are arrested in a second FIR while in jail in the first, the clock for the second case starts from the first remand in that case.
Count with the actual remand orders in front of you, not from memory or from what a relative was told. The order sheet of the magistrate's court and the custody warrant will show the dates. A mistake of one day either way can cost the right, or lead to an application that is dismissed as premature.
How to claim default bail, step by step
The application is simple. What matters is that it is made at the right moment and that the accused can furnish bail promptly.
Get the remand dates
Obtain the first remand order and later remand orders from the court file or through your advocate. Note the offence sections relied on for remand.
Work out the expiry date
Count 60 or 90 days, including the day of first remand. The right arises on the next day if no chargesheet has been filed.
Check whether a chargesheet has been filed
On the morning the right arises, check with the court's ahlmad or reader and on the e-courts record whether a chargesheet was filed. A chargesheet filed even on the last day defeats the claim.
File the application immediately
File a written application under the proviso to Section 187(3) before the magistrate or special court that has been granting remand, stating the dates and that no chargesheet has been filed. If the accused is produced that day, the claim can also be made orally and recorded.
Offer to furnish bail
State in the application that the accused is ready and willing to furnish bail, and keep the surety and documents ready in court the same day. An offer that is not backed by readiness can be questioned.
Ask for an order that day
Courts should decide such applications promptly and should not adjourn them to give the police time to file. If the prosecution asks for time, your advocate should object and ask that the date and time of filing be recorded.
Furnish bonds and secure release
Once bail is granted, furnish the personal bond and surety bond and get the release order sent to the jail.
The race between the application and the chargesheet
The right exists only until the chargesheet is filed. If the period expires but the accused does nothing, and the police file the chargesheet a week later, the right is lost; any bail application after that is decided on merits. This has been the settled position since the Supreme Court's judgments in the 1990s and early 2000s, and it is why families are told to watch the calendar closely.
On the other hand, once the accused has applied and offered to furnish bail after the period expires, a chargesheet filed afterwards does not defeat the right, even if the court has not yet decided the application. What the court looks at is the order of events: when the period expired, when the application was made, and when the chargesheet was filed. Make sure the application is received and its date and time recorded.
Do not file early. An application filed on day 60 in a 60 day case is premature and can be dismissed, and in the meantime the police may file. When Advocate B.K. Singh's office handles these, the application is prepared in advance, the dates are checked against the order sheet the day before, and it is filed on the morning the right arises, with the surety waiting in the court complex.
A made-up example: counting to day 61
Here's a made-up example. Sameer is arrested on 1 March 2026 in a cheating case under Section 318(4) BNS, which carries up to seven years. He is produced before the magistrate at the Rohini courts on 2 March and remanded to police custody for two days, then to judicial custody. The 60 day period applies. Counting 2 March as day one, the 60th day is 30 April. No chargesheet has been filed by the end of that day.
On the morning of 1 May his advocate checks with the court staff that nothing has been filed, and files a default bail application at 10:30 am, stating that Sameer is ready to furnish bail, with his uncle present as surety with property papers. The prosecutor tells the court the IO is on his way with the chargesheet. At 12:15 pm the chargesheet is filed.
Because the application was made before the chargesheet, the court grants default bail on a personal bond and one surety. Had the advocate waited until the afternoon, or had the family been unable to produce any surety for several days while the police filed in the meantime, the outcome could have been different.
What counts as a chargesheet for this purpose?
A chargesheet is the police report under Section 193 BNSS, filed in court, with the material collected. It is filing in court that counts, not preparation at the police station or approval by senior officers. If the IO tells you the chargesheet is 'ready', that does not stop the clock.
Arguments that a chargesheet was incomplete are frequently made: that the forensic report was not attached, that sanction for prosecution had not been obtained, that investigation against other accused was still pending. Courts have mostly held that such gaps do not, by themselves, make the chargesheet invalid for default bail purposes, and the Supreme Court's position on 'incomplete' chargesheets has shifted over the last few years. A chargesheet that is plainly a placeholder, filed only to defeat default bail with no real investigation behind it, can still be challenged, but you should not count on this argument.
A chargesheet filed for some offences but not others, or against some accused but not others, needs careful reading. If the chargesheet has been filed against the co-accused only and your client is shown as 'investigation pending', the right may still be available to him.
Extensions under UAPA, NDPS and other special laws
Under Section 43D(2) of the UAPA, the 90 day period can be extended up to 180 days, and under Section 36A(4) of the NDPS Act, the 180 day period in commercial quantity cases can be extended up to one year. In both, the extension is not automatic. The public prosecutor, not the IO, must file a report showing the progress of the investigation and the specific reasons for continued detention, and the court must apply its mind to it.
The accused has to be told that an extension is being sought and given a chance to oppose it, and courts have held that he must be produced, physically or by video link, when the extension is considered. An extension granted on a bare request from the IO, or without notice to the accused, can be challenged, and if it falls, the accused may be entitled to default bail as if no extension had been granted.
If the period expires without either a chargesheet or a valid extension, the right accrues under these laws as well, despite the strict bail conditions they otherwise impose. For drug cases, see our page on NDPS and NCB cases in Delhi and our post on commercial quantity NDPS bail and the Section 37 test; for terror cases, see our UAPA case lawyer page.
Papers for a default bail application
From the court file
- First remand order, with date
- All later remand orders and custody warrants
- Order sheet showing no chargesheet filed
- Any order extending time under a special law
About the case
- FIR copy with sections
- Arrest memo and grounds of arrest
- Details of any other case in which the accused is in custody
For the surety
- Surety's Aadhaar and address proof
- Property papers, fixed deposit or salary proof as required
- Photographs of the surety
- Accused's own address proof for the personal bond
What conditions can the court impose on default bail?
The court can require a personal bond and sureties and can impose the usual conditions, such as appearing on every date, not leaving India without permission and not contacting witnesses. What it should not do is attach conditions that turn the right into a privilege, such as requiring the accused to deposit the amount allegedly cheated, or conditions that depend on the merits of the case. The Supreme Court has disapproved of such conditions in default bail orders.
A frequent practical problem is the surety. Families who cannot arrange a surety in time risk losing the race to the chargesheet. If the surety amount is beyond the accused's means, the court can be asked to reduce it, and courts are now expected to keep the accused's financial position in mind when fixing bonds. Arrange the surety before the period expires, not after.
Does default bail end when the chargesheet is filed later?
No. Once default bail has been granted, filing the chargesheet afterwards does not cancel it automatically. The bail can be cancelled only on the ordinary grounds for cancellation, such as misuse of liberty, threatening witnesses or breaching conditions, and not simply because the investigation is now complete or the case looks strong.
That said, the accused must keep every condition strictly, because the prosecution will look for a reason. Our post on when bail can be cancelled and how to oppose it covers the grounds. After the chargesheet, the case moves to cognizance, supply of documents under Section 230 BNSS and charge; see what happens after a chargesheet is filed.
Who decides default bail: the magistrate, Sessions Court or High Court?
The application is made to the court that has been authorising detention, usually the magistrate, or the special court in cases under special laws. In cases triable by a Court of Session, the magistrate still handles remand until committal, so the default bail application goes to the magistrate.
If the magistrate wrongly refuses, for example by miscounting the days or treating an extension as valid when it was not, the order can be challenged before the Sessions Court or the High Court. In such a challenge, what counts is whether the right had accrued and been claimed at the time, so the record of dates and times made before the magistrate is often decisive.
What should the family do in the weeks before the deadline?
Start preparing as soon as the accused is sent to judicial custody, not in the last week. Get certified or photocopies of the remand orders, write the expiry date down, and follow the case on the e-courts portal so you can see each remand extension and any filing. Judicial custody is usually extended every fortnight or so when the accused is produced, often by video link from Tihar, Mandoli or Rohini jail, and each of those dates is a chance for your advocate to check what the police have done.
Meanwhile, nothing stops the accused from applying for regular bail on merits. A regular bail application does not give up the default bail right, and if the merits are reasonable it may get him out sooner. But if the regular bail application is still pending when the period expires, a separate default bail application should be filed at once; do not assume the court will treat the pending application as a default bail claim.
Line up the surety early. The surety should have identity proof, address proof and whatever the court usually asks for, such as property papers, a vehicle registration certificate, a fixed deposit receipt or salary slips. Courts in Delhi also verify sureties, and that verification can take time if the papers are incomplete.
Can the police keep the accused in by showing arrest in another FIR?
Each FIR has its own clock, so arrest in a second case, made while the accused is in jail in the first, starts a fresh 60 or 90 day period for that second case only. Default bail in the first case still has to be granted when it accrues, but the accused will remain in custody in the second case until he gets bail there too. This is lawful where the second FIR concerns genuinely separate offences.
Where it is used to defeat bail, for example by registering several FIRs on the same transaction and showing formal arrest in each just as the earlier period runs out, courts can be asked to look closely. The High Court can examine whether the FIRs are really about the same occurrence and, in suitable cases, give relief. Keep a list of every FIR in which the accused has been shown arrested, with the remand dates for each, so that each deadline is tracked separately.
Mistakes that cost people default bail
- Not knowing the remand date. Families often count from the arrest or the FIR, and file a day late or a day early.
- Waiting for the next date of hearing. The right has to be claimed when it arises, not when the case is next listed. A separate application can be filed on any working day.
- No surety ready. An application without the ability to furnish bail gives the prosecution an argument and gives the police time.
- Assuming the chargesheet is incomplete. Most chargesheets filed without a forensic report or sanction are still treated as chargesheets.
- Ignoring an extension application. Under UAPA or NDPS, the accused must oppose the prosecutor's extension report; silence can be read as acceptance.
- Applying on merits instead. A regular bail application on merits does not, by itself, preserve the default bail claim. Claim default bail expressly.
If default bail is not available: other routes out of custody
If the chargesheet was filed in time, the accused can still apply for regular bail on merits, first before the magistrate or Sessions Court and then before the High Court. The filing of the chargesheet often helps, because the investigation is over and the risk of tampering is lower. Long custody also counts: under Section 479 BNSS, an undertrial who has served half the maximum sentence, or one third for a first-time offender, is entitled to release, and courts consider long custody generally when deciding bail.
Our post on release of undertrial prisoners under Section 479 BNSS explains how that provision works. For the safeguards at the time of arrest and remand, see your rights on arrest in Delhi.
Default bail checklist for families
- Date of first remand confirmed from the order sheet
- Correct period identified: 60, 90 or a special-law period
- Expiry date counted, including the day of first remand
- Any extension application under a special law checked and opposed
- Application drafted in advance and ready to file on the right morning
- Chargesheet status checked on the morning of filing
- Surety present with documents
- Date and time of filing recorded
Getting help in time
Default bail is one of the few bail remedies that turns almost entirely on dates, which means it is won or lost by preparation. If someone in your family is in custody and you want the remand dates checked and the deadline worked out, the team of Advocate B.K. Singh at B.K. Singh & Associates can look at the order sheet and tell you when the right arises. Send the details through our online enquiry form, or see our page for a criminal lawyer in Delhi for how we work in the district courts.
Frequently asked questions
What happens if the chargesheet is not filed in 60 days?
If the offence is punishable with less than ten years and no chargesheet is filed within 60 days of the first remand, the accused can apply for default bail. The court must grant it if the accused is ready to furnish bail, regardless of the merits.
Is default bail automatic?
No. The accused has to apply for it and offer to furnish bail before the chargesheet is filed. If he does nothing and the chargesheet is filed late, the right is lost.
Is the day of arrest counted for default bail?
The period runs from the first remand by a magistrate, not from the arrest. The Supreme Court has held that the day of the first remand is counted as day one.
Can default bail be refused in a serious case?
Not on the ground that the case is serious, if the conditions are met. The court can still refuse if the period has not actually expired, if a chargesheet was filed before the application, or if the accused is not willing to furnish bail.
Can default bail be cancelled after the chargesheet is filed?
Not merely because the chargesheet has been filed. It can be cancelled on the usual grounds, such as misuse of liberty or breach of conditions.
What is the default bail period under UAPA?
Ninety days, which the court can extend up to 180 days on a report by the public prosecutor showing progress and specific reasons. The accused must be given notice of the extension request and a chance to oppose it.
What is the default bail period in NDPS cases?
For commercial quantity cases and offences under Sections 19, 24 and 27A, the period is 180 days, extendable up to one year on the prosecutor's report. Other NDPS offences follow the ordinary 60 or 90 days.
Can I apply for default bail orally?
An oral claim made when the accused is produced, and recorded by the court, has been accepted in some cases. It is safer to file a written application as well, so the date and time are on record.
Does a chargesheet without the FSL report defeat default bail?
Usually it does. Courts have mostly held that a chargesheet is not invalid simply because a forensic report or sanction is awaited, though a sham chargesheet filed only to defeat default bail can be challenged.
Can default bail be claimed in the Sessions Court?
It is claimed before the court authorising detention, usually the magistrate or a special court. If the magistrate wrongly refuses, the order can be challenged before the Sessions Court or High Court.
What if the accused cannot arrange a surety?
Ask the court to reduce the surety amount or accept a different form of security, explaining the accused's means. Arrange the surety before the period ends, because delay gives the police time to file.
Does default bail apply if I was never arrested?
No. Default bail is only for people in custody during investigation. If you were not arrested, the question is whether you need anticipatory bail or will simply appear on summons after the chargesheet.
Written and reviewed at B.K. Singh & Associates
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M., with more than twenty years of practice before the Supreme Court, the Delhi High Court, district courts and tribunals across Delhi NCR. This article explains the general law as of 24 October 2026; it is not legal advice on your facts.