Isabella Mariam

The High Court of Punjab and Haryana Single Bench of Justice Anoop Chitkara held that the pendency of a regular bail petition before a higher court does not bar a Magistrate or Sessions Court from granting default bail under statutory provisions. The Court stated that such powers remain unaffected, regardless of simultaneous proceedings in superior courts, and that failure to grant default bail in such circumstances could potentially violate fundamental rights. In disposing of the matter, the Court declared the petition infructuous as the concerned trial court had already granted default bail to the accused on expiry of the statutory period for investigation, in compliance with Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) corresponding to Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC).

The proceedings arose from a criminal case registered under Sections 326, 148, and 149 of the Indian Penal Code at Police Station Ajnala, District Amritsar, Punjab. The accused was arrested on 25 July 2018. The petitioner filed a regular bail application before the High Court on 9 April 2025 while in custody.

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When the matter came up on 9 May 2025, it was not heard due to the abstention of the High Court Bar. Subsequently, the matter was adjourned because the State had not filed its reply. The case was finally listed for hearing on 5 August 2025. On this date, the State submitted a custody certificate dated 4 August 2025 indicating that the petitioner had undergone 5 months and 29 days of custody in the case, amounting to six months of pre-trial detention.

During the pendency of the petition, the petitioner's counsel informed the Court that the period of custody in the trial court had exceeded the statutory limit for investigation. Consequently, on 16 July 2025, the Sub Divisional Judicial Magistrate, Ajnala, granted bail to the petitioner under Section 167(2) CrPC, corresponding to Section 187(3) BNSS, which allows for default bail upon expiry of the statutory period if the investigation is incomplete. A downloaded copy of the Magistrate's order was placed before the High Court, and counsel submitted that the present petition had become infructuous.

The primary legal question identified by the Court was whether a Magistrate or Sessions Judge could grant default bail when a regular bail petition was already pending before the Sessions Court or High Court.

In addressing this question, the Court referred to Section 187 of the BNSS, which parallels Section 167 of the CrPC. This provision governs the procedure for authorising custody during investigation and prescribes the maximum period of detention—90 days for offences punishable with death, life imprisonment, or imprisonment for a term of ten years or more; and 60 days for other offences. Upon expiry of this period without the filing of a police report, the accused is entitled to bail if prepared to furnish it.

The judgment reviewed several precedents, including:

• Mantoo Majumdar v. State of Bihar (1980) 2 SCC 406, where the Supreme Court noted the constitutional safeguard of personal liberty, and condemned mechanical extensions of custody beyond statutory limits.

• Sanjay Dutt v. State through CBI Bombay (1994) 5 SCC 410, where a Constitution Bench held that the indefeasible right to default bail is enforceable from the date of default until the filing of the challan, and lapses thereafter.

• Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, which clarified that once an application for default bail is filed and readiness to furnish bail is expressed, the right cannot be frustrated by later filing of the chargesheet.

• Suresh Kumar Bhikamchand Jain v. State of Maharashtra (2013) 3 SCC 77, affirming that on the 61st or 91st day, if the accused applies for default bail before filing of the chargesheet, the court must release the accused on bail.

• Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, reiterating that default bail is a significant right and that both counsel and magistrates have a duty to inform accused persons of it.

• M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2020 SCC OnLine SC 867), which stated that the right to default bail remains enforceable despite the pendency of an application or subsequent filing of a chargesheet.

• Bikramjit Singh v. State of Punjab (2020) 10 SCC 616, confirming that default bail is part of the fundamental right to personal liberty under Article 21.

The Court noted that statutory powers to grant default bail originate from fundamental rights and cannot be curtailed by administrative rules or procedural instructions.

Justice Chitkara stated, "The statutory right of default bail originates from the fundamental rights guaranteed to every individual within the territories of India." The Court added that even if rules or instructions exist requiring intimation of pending bail petitions before higher courts, "no such Rules, Orders, or Instructions can even slightly dilute or negate the statutory powers of Magistrates and Sessions Court to grant default bail because these are deeply imbedded in the fundamental rights guaranteed by the Constitution of India."

The Court recorded that powers under Section 167(2) CrPC or Section 187(2) BNSS "do not eclipse unless the police report is filed within the timeframe as specified by the Legislature and as explained by the judicial pronouncements." It stated that the legislative intent was clear: if the investigation is not completed within the prescribed period, an accused in custody cannot be detained further.

It was further observed that "Even the issuance of office orders, notifications, or framing of rules cannot divest the Magistrates of their powers under Section 187 of BNSS, 2023, or Section 167 of CrPC, 1973, to grant the default bail."

On the specific proposition before it, the Court recorded: "A pendency of bail petition either in the High Court or the Sessions Court would not disentitle the Magistrate or even the Sessions Court, as the case may be, from their statutory powers under Section 187(2) BNSS, 2023 or Section 167(2) CrPC, 1973." It added that if such courts do not grant default bail in eligible cases, "then there might be a possibility of such Court(s) violating the fundamental right or contravening the judgments of the Hon’ble Supreme Court."

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The Court concluded that, "even when the regular bail petition was pending before the High Court, the Sessions Court is competent to grant default bail, also known as compulsive bail or statutory bail, and similarly the Magistrate is competent to grant default bail even when the regular bail petition was pending before the Sessions Court or the High Court."

It held that the present petition had become infructuous because the trial court had rightly granted default bail to the accused upon completion of the statutory period for investigation without filing of the police report. The Court stated that "the pendency of a petition for regular bail before this Court shall not undermine the powers of the Court to grant statutory bail under Section 187(2) of BNSS, 2023 or Section 167(2) of CrPC, 1973."

Accordingly, the petition was disposed of, and all pending applications were closed.

Advocates Representing the Parties:

For the Petitioners: Mr. Raghav Soni, Advocate

For the Respondents: Ms. Pooja Nayar Sharma, DAG, Punjab

Case Title: Gurmeet Singh v. State of Punjab

Neutral Citation: 2025: PHHC:100608

Case Number: CRM-M-21371-2025

Bench: Justice Anoop Chitkara