Criminal

Application for Default Bail under Proviso to Section 187(3) BNSS

An application for default bail, also known as statutory bail, is a filing that enforces the accused's indefeasible right to be released on bail. This right arises automatically by operation of law when the investigating agency fails to file a charge-sheet or final report within the prescribed statutory period.

The application is filed before the same court where the accused is produced, typically a Judicial Magistrate or Sessions Court. It rests on the proviso to Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), or its equivalent, Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), depending on the date of the FIR.

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Governing law
Proviso to s.187(3) BNSS 2023 (s.167(2) CrPC) — 60/90-day default bail
Sections
s. 187
Filed before
Sessions Court / Judicial Magistrate / Special Court

When this is the right filing

  • The accused is in judicial custody and the statutory period for investigation has expired: 60 days for offences punishable with less than 10 years, or 90 days for offences punishable with death, life imprisonment, or a term of 10 years or more.
  • The right must be availed by the accused before the investigating agency files the charge-sheet or final report.
  • The computation of the 60 or 90-day period runs from the date of the first remand order by the Magistrate, not the date of arrest.
  • Do not use this application for seeking regular bail on the merits of the case. A regular bail application is filed under Section 483 BNSS or Section 439 CrPC.

What the court looks for

  • Proof that the accused is in judicial custody and the date of the first remand order to establish the start of the statutory period.
  • A clear calculation showing that the mandatory 60 or 90-day period has expired without the filing of a charge-sheet.
  • An assertion that the right to default bail is indefeasible and non-discretionary, requiring release once the right has accrued.
  • A sworn affidavit from the applicant or their Pairokar verifying the facts and the custody status.

The structure the court expects

The components of the filed format, in the order they appear. LexPilot fills every one of them from your facts and papers.

  1. 1Index
  2. 2Memo of parties
  3. 3Synopsis and list of dates and events
  4. 4Grounds
  5. 5Prayer
  6. 6Affidavit
  7. 7Verification
  8. 8Annexures
  9. 9Vakalatnama
  10. 10Proof of service
How it opens
APPLICATION UNDER THE PROVISO TO SECTION 187(3) OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) FOR GRANT OF DEFAULT / STATUTORY BAIL ON BEHALF OF THE APPLICANT [applicant name] IN FIR NO. [fir no]/[fir year], U/S [sections], REGISTERED AT P.S. [police station], [district].

Bracketed items are filled from your case.

Frequently asked questions

What is the difference between default bail and regular bail?

Default bail is an indefeasible right that arises automatically when the investigation is not completed within 60 or 90 days. Regular bail is a discretionary relief granted by the court based on the merits of the case, such as the nature of the offence and the likelihood of the accused fleeing justice.

From which date is the 60 or 90-day period calculated?

The period is calculated from the date of the first remand, which is the date the accused is first produced before a Magistrate and sent to judicial custody. It is not calculated from the date of arrest.

Can default bail be claimed after the charge-sheet is filed?

No. The right to default bail must be exercised before the charge-sheet or final report is filed. If the application is made after the charge-sheet is filed, the right is extinguished, even if the statutory period had expired earlier.

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