If the police have not completed their investigation when the accused has spent 90 days in custody (offences punishable with death, life imprisonment or ten years or more) or 60 days (any other offence), Section 187(3) BNSS says he "shall be released on bail" if he is prepared to and does furnish bail. This is default bail, which used to be Section 167(2) CrPC. It does not depend on the merits of the case. It depends on the calendar. But it is not automatic: an application has to be made on the day the period runs out, before the charge-sheet is filed.
Scope and jurisdiction at a glance
- The provision
- Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("Procedure when investigation cannot be completed in twenty-four hours"). It corresponds to Section 167 of the Code of Criminal Procedure, 1973.
- The two limits
- Section 187(3)(i): ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more. Section 187(3)(ii): sixty days, where it relates to any other offence.
- Who decides
- The Magistrate who has been authorising the accused's detention. The application is made to that court.
- What triggers it
- The custody period expires and the investigation is still incomplete, which in practice means no charge-sheet (police report) has been filed.
- What the accused must do
- Apply, and be prepared to furnish bail and actually furnish it. Explanation I to Section 187 says the accused stays in custody so long as he does not furnish bail.
- Special statutes
- Some special laws, for example the UAPA and the NDPS Act, change these periods for offences under them. Check the specific statute before counting.
Why the limit exists
After an arrest the police have 24 hours to produce the accused before a Magistrate. If they need more time to investigate, the Magistrate can authorise further custody, but Section 187 puts an outer limit on that. Once the limit is reached, the State cannot keep someone in jail just because its investigation is unfinished. The law makes the police finish within the time allowed, or let the person out on bail while they keep investigating.
That is why default bail does not involve the usual bail questions about flight risk, tampering or the strength of the evidence. The only questions are whether the period has expired, whether the investigation is still incomplete, and whether the accused has applied and is ready to furnish bail.
60 days or 90 days: which limit applies
The test in the section is the punishment the offence carries, not the sentence the accused is likely to get:
- 90 days: the offence is punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.
- 60 days: every other offence.
Where the FIR names several offences, the most serious one usually decides which limit applies. If the police add or drop a section part-way through the investigation, the limit can change. That is worth checking against the latest remand order, not just the original FIR.
How custody is counted
- Count from the Magistrate's first remand order, not from the arrest. Keep a copy of every remand order. The dates on them are the calendar the court will use.
- Police custody and judicial custody both count towards the 60 or 90 days. Under Section 187(2), police custody can total at most fifteen days, which may be taken all at once or in parts at any time during the first forty days (60-day cases) or sixty days (90-day cases). That differs from the old CrPC position.
- Custody ordered by an Executive Magistrate where no Judicial Magistrate was available also counts. Section 187(6) says so expressly.
- A one-day error defeats the application. Count from the remand orders and do the count twice. If the application is filed a day early, it fails, and the police may file the charge-sheet before it can be moved again.
Bail, default bail and remand-stage work in Delhi. What happens at each stage, and how representation is structured.
Criminal litigation & bail →When to apply, and why timing matters
The section uses mandatory language ("shall be released on bail"). Even so, the accused has to claim the right and offer bail. Courts have generally treated it as available only while no charge-sheet has been filed. If the police file one before the application is made, it is usually too late for default bail, and the accused is left with an ordinary bail application on the merits.
So the practical rule is simple. Prepare the application before the last day, and file it on the day the period expires. Have the surety and bail bond ready at the same time, so release does not wait on paperwork.
What the application should contain
- The FIR number, police station and sections, with the punishment for the most serious offence, to show whether the 60 or 90 day limit applies.
- The date of the first remand and a list of every remand order since, with the count of days.
- A statement that no charge-sheet has been filed as of the date of the application.
- A clear statement that the accused is prepared to furnish bail, with the proposed surety's details.
After release
Section 187(3) says a person released this way is treated as released under the ordinary bail chapter of the BNSS (Chapter XXXV). The usual bail conditions, appearances and consequences of breach then apply. The investigation continues, and the charge-sheet can still be filed after release.
Other limits in the same section
Section 187(9) adds a different time limit for less serious cases. If a case triable as a summons case has not been investigated within six months of the arrest, the Magistrate shall stop further investigation, unless the investigating officer satisfies the Magistrate that there are special reasons, in the interests of justice, to continue. Under Section 187(10), a Sessions Judge can vacate that order.
Counting down to day 60 or day 90?
Send the FIR and the remand orders. The count and the application can be checked before the last day.