Constitutional Bail Jurisprudence under BNSS and Special Statutes

1. Contextual Foundations: Article 21 and the Architecture of Liberty

In the Indian criminal justice system, bail is the primary instrument through which the guarantee of personal liberty under Article 21 is made real at the trial‑court level. The Supreme Court, beginning with State of Rajasthan v. Balchand and Gudikanti Narasimhulu, has consistently affirmed that “bail is the rule and jail is the exception”, subject only to clearly articulated risks such as absconding, witness intimidation, or repeated offending.

For a District Judge, the adjudication of bail is therefore not a matter of discretion in the loose sense, but a structured constitutional function: to balance individual liberty and the presumption of innocence against the State’s obligation to maintain public order and ensure a fair trial. The trial court becomes the first and most important “custodian of the sword of justice”, ensuring that pre‑trial detention remains a protective measure, not a pre‑emptive punishment.

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Whether Non-Filing of CA/FSL Report With Chargesheet in NDPS Case Gives Right to Default Bail? Bombay High Court Conflict and Supreme Court Reference in Hanif Ansari

In NDPS cases, an important question frequently arises before Special Courts: if the chargesheet is filed within the statutory period, but the Chemical Analyser/FSL report is not filed along with it, can the accused claim default bail? The answer, as on date, is not finally settled by the Supreme Court. The precise issue has been referred to a larger Bench in Hanif Ansari v. State (Govt. of NCT of Delhi), SLP (Crl.) No. 15293 of 2023.

At present, the correct legal position is that default bail is not automatic merely because the CA/FSL report was not filed with the chargesheet. However, in a given case, the accused may still contend that the chargesheet is incomplete if the report is indispensable to establish that the seized substance is in fact a narcotic drug or psychotropic substance.

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Delhi HC : Whether the court can reject default bail application of accused if further investigation is going on?

 So far as the submission that provision of 'further investigation' as contained in Section 193(9) is camouflage to defeat the right of the accused person to seek 'default bail' under Section 187(3) of BNSS 2023, we may only observe that the provision contained in Section 193(9) and those of Section 187(3), operate in different fields and further that Section 193(9) does not in any manner acts as a camouflage to such right. 

{Para 14}

 IN THE HIGH COURT OF DELHI

W.P. (Crl) 3101/2024

Decided On: 27.08.2025

Yash Mishra Vs. State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

D.K. Upadhyaya, C.J. and Tushar Rao Gedela, J.

Author: D.K. Upadhyaya, C.J.

Citation:  MANU/DE/7613/2025.

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P & H HC: Even when the regular bail petition is pending before the High Court, the Sessions Court or Magistrate court are competent to grant default bail

Resultantly, 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. On the contrary, if the Magistrate or the Sessions Court does not grant default bail, in such circumstances, then there might be a possibility of such Court(s) violating the fundamental right or contravening the judgments of the Hon'ble Supreme Court. {Para 16}

17. Given the above and in the light of the binding judicial precedents, the answer to the proposition is 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.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-21371-2025

Decided On: 05.08.2025

Gurmeet Singh Vs. State of Punjab

Hon'ble Judges/Coram:

Anoop Chitkara, J.

Citation: 2025:PHHC:100608, MANU/PH/1919/2025

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Kerala HC: Period Of Release On Interim Bail Not To Be Computed As 'Detention Period' For Granting Statutory Bail U/ S.187 BNSS

  In the present case, the petitioner remained in detention at

the first instance from 18.02.2025 till 24.05.2025 (96 days), and at

the second instance from 09.09.2025 to 22.10.2025 (44 days). In

view of the declaration of law by the Supreme Court, the broken

periods could be taken together to appreciate the claim of statutory

bail. The question now arises is: “Could the period during which the petitioner remained in interim bail be counted for calculating the requisite period for statutory bail?”. {Para 9}

12. The learned Amicus Curiae has taken me to the various

decisions and the relevant statutory provisions. The learned

Amicus Curiae relaying on Amir Hassan Mir v. UT of J & K and

others, (Manu/JK/0206/2022), submitted that the petitioner could not be treated to be in detention or custody for the period he was released on temporary bail. The learned Amicus Curiae submitted that only the actual  custody undergone by the accused will be counted for computing the period for default bail. The learned Amicus Curiae, on going through the facts of the case, submitted that the petitioner has remained in detention only for 140 days. Therefore, he is not entitled to statutory bail.

13. What matters for statutory bail is detention, as provided in

the statutory provisions, whether it is in one spell or in two spells.

An accused person is entitled to be released on statutory bail by

adding the truncated periods of detention suffered by him. I have

no doubt in concluding that the period during which the accused

person was released on temporary/interim bail should not be

computed for the purpose of reckoning the period for statutory bail, as only the actual period of detention undergone by the accused need be counted for. Therefore, the necessary conclusion is that the petitioner is not entitled to statutory bail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

BAIL APPL. NO. 11634 OF 2025

FISAL PJ,  Vs  STATE OF KERALA

PRESENT

THE HONOURABLE MR.JUSTICE K. BABU

Citation: 2025:KER:79121

Dated this the 23rd day of October, 2025

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Bombay High Court Declares Arrest Illegal For Failure To Produce Accused Within 24 Hours

The Hon'ble Bombay High Court (Division Bench) held that arrest begins when liberty is restrained, not when formally recorded. Since the Petitioner was not produced within 24 hours of being taken into custody, the arrest was declared illegal and violative of constitutional safeguards.The 'arrest" is complete when such restraint by an authority commences. The arrest commences with the restraint placed on the liberty of the person and not with the time of "arrest" recorded by the Arresting Officer.

31. In the case in hands, the journey of the Petitioner, in custody of the Police, from Palanpur to Ahmedabad to Mumbai, was followed with the Police team taking him to the office of the EOW where he was detained and shown to be arrested at 2.20 PM. There is no explanation as regards the transportation of the Petitioner, after medical examination, for an overnight stay in the lock-up, only to be produced in the Court of the Magistrate, at 1.15 PM, on 17.08.2024. In the light of the above facts, the violation of Article 22(2) is writ large. Section 58 does not contemplate the exclusion of the time required for such a journey, interjected with several events, while computing the time of 24 hrs.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 54 of 2025

Decided On: 27.06.2025

Hanumant Jagganath Nazirkar Vs. The State of Maharashtra

Hon'ble Judges/Coram:

M.S. Sonak and Jitendra Jain, JJ.

Author: Jitendra Jain, J.

Citation: MANU/MH/3610/2025.

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Karnataka HC: As per S.187 of BNSS ,Police Custody Must Be Within First Forty Days For Offences Punishable Upto 10 Years Imprisonment

SUMMARY OF FINDINGS:

(i) A slight tweak in the new regime qua 187(3) of BNSS in juxtaposition to Section 167(2) of the earlier regime - the Cr.P.C. has not changed the purpose of the provision.

(ii) The phraseology of the words 'ten years or more' found in sub-clause (i) of Section 187(3) of the BNSS would mean, the minimum threshold punishment imposable on an offence under the BNS should be ten years.

(iii) The offence in the case at hand, does not bear a minimum threshold sentence of ten years, but is extendable or to an extent of ten years, which would mean, discretion available to the concerned Court to impose punishment up to ten years. Therefore, the minimum threshold is not ten years.

(iv) Completion of investigation in a punishment which is up to ten years is undoubtedly 60 days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.

(v) If the investigation is to complete within 60 days, the period of police custody would run from day one day forty of registration of the crime. If it is 90 days, it would run from day one to day 60, maximum period in both the cases is 15 days of police custody.

(vi) In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.

15. For the aforesaid reasons, finding no warrant to interfere with the order passed by the concerned Court, the petitions deserve to be rejected and are accordingly, rejected.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 13459 of 2024 and Writ Petition No. 33526 of 2024 (GM - RES)

Decided On: 13.12.2024

State of Karnataka Vs. Kalandar Shafi and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4163/2024.

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Gauhati HC: [S.187 BNSS] Status Of Hospitalised Arrestee Cannot Remain Unknown, Magistrate Must Verify Through Visit Or VC

Though, there is no dispute at the bar regarding the proposition of law, as mandated by Article 22 of the Constitution of India, that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of his arrest excluding the time taken for the journey from the place of arrest to the Court or the Magistrate and no such person shall be detained in custody beyond the said period without authority of a Magistrate, however, in the instant case, though the petitioner was arrested on 14.04.2025 (as apparent from the arrest memo of the petitioner available in the record), however, there is no order of remand either judicial or police neither the petitioner is released on bail. {Para 13}

14. It appears that the learned Magistrate has erred in not passing any order regarding production of the petitioner through video conferencing mode when such a prayer was made by the Investigating Officer on 15.04.2025 by simply allowing the Investigating Officer to produce the petitioner before the Magistrate as and when he is released from the hospital. Such an order without clarifying the status of the petitioner, as to whether he is in custody or a free person, when the arrest of the petitioner was reported to the said Magistrate stating the reasons for not producing him before such Magistrate, is in violation of the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India.

15. It is settled constitutional position that an arrestee shall have to be produced before the nearest Magistrate within 24 hours excluding the time required for his production before such Magistrate. There may be exceptions to such requirement, like in the instant case where the arrestee is injured and requires urgent medical care so that instead of producing such an arrestee before the Magistrate, he might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police. After the arrest of a person if he is not released on bail, an order for remand to judicial custody has to be made though it can be qualified by clarifying that the petitioner may continue to stay in the hospital after ascertaining such a requirement. For the said purpose, the Magistrate may also call for a report from the hospital where the arrestee has been admitted.

16. However, as Section 187 of BNSS categorically states that subject to condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless, such an order is passed, the initial arrest of the petitioner beyond the period of 24 hours from the time of his arrest, would become illegal.

17. In this case, the petitioner has been admitted in hospital for last 45 day after the date of his arrest. Though, he is admitted in the hospital and it appears that his status is not of a free person but of an arrestee as he has not been granted bail in this case, however, no order under Section 187 BNSS was passed by the Magistrate. In absence of any order of remand beyond the period of 24 hours from the time of his arrest, his arrest gets vitiated on completion of 24 hours in custody. Since such non-production of the petitioner, even through video conferencing mode, beyond 24 hours in custody amounts to violation of Article 22(2) of the Constitution of India, his fundamental right to liberty guaranteed under Article 21 of the Constitution of India is also violated and, on that count, the petitioner is entitled to go on bail.

 In the High Court of Gauhati

(Before Mridul Kumar Kalita, J.)

Bittu Kumar  Vs  State of Assam 

Bail Appln./1662/2025

Decided on June 2, 2025

Citation: 2025 SCC OnLine Gau 2842,

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Bombay High Court Quashes Arrest for Breach of 24-Hour Rule and Failure to Inform Nominated Person

Background of the Case

In Hemang Jadavji Shah v. State of Maharashtra & Ors., Writ Petition No. 2989 of 2025, the Bombay High Court was called upon to decide the legality of the arrest and subsequent detention of the petitioner, Hemang Jadavji Shah, a businessman embroiled in a family dispute that escalated into criminal allegations. The case revolved around an FIR registered late at night based on a complaint by the petitioner's brother, involving alleged offences under the Bharatiya Nyaya Sanhita, 2023 (BNS), and a Look Out Circular (LOC) issued to prevent the petitioner from leaving India.

Sequence of Events

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Supreme Court upheld Karnataka High court judgment on police custody remand under S 187 of BNSS(Old S 167 of CRPC)

 The concerned Court itself came to the conclusion that police custody is not required and has dismissed the application(s) of the prosecution as well as the Complainant. We see no reason to interfere with the order of the High Court, in exercise of our jurisdiction under Article 136 of the Constitution of India.

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 18063/2024

[Arising out of impugned final judgment and order dated 13-12-2024

in WP No. 33526/2024 (GM-RES) passed by the High Court of Karnataka  at Bengaluru]

HYDER ALI Vs STATE OF KARNATAKA & ORS.

Date : 08-01-2025 This petition was called on for hearing today.

CORAM :

 HON'BLE MR. JUSTICE SUDHANSHU DHULIA

 HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

Read Karanataka HC Judgment here: Click here.

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Karnataka HC laid down the principles for grant of police custody under S 187 of BNSS(Old S 167 of CRPC)

 SUMMARY OF FINDINGS:

(i) A slight tweak in the new regime qua 187(3) of BNSS in juxtaposition to Section 167(2) of the earlier regime - the Cr.P.C. has not changed the purpose of the provision.

(ii) The phraseology of the words 'ten years or more' found in sub-clause (i) of Section 187(3) of the BNSS would mean, the minimum threshold punishment imposable on an offence under the BNS should be ten years.

(iii) The offence in the case at hand, does not bear a minimum threshold sentence of ten years, but is extendable or to an extent of ten years, which would mean, discretion available to the concerned Court to impose punishment up to ten years. Therefore, the minimum threshold is not ten years.

(iv) Completion of investigation in a punishment which is up to ten years is undoubtedly 60 days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.

(v) If the investigation is to complete within 60 days, the period of police custody would run from day one day forty of registration of the crime. If it is 90 days, it would run from day one to day 60, maximum period in both the cases is 15 days of police custody.

(vi) In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.

Summary of Judgment

The High Court of Karnataka addressed the issue of whether police custody could be extended beyond 40 days for accused Kalandar Shafi and others, charged with offenses under the BNS, which carry a maximum punishment of up to ten years. The State of Karnataka and the complainant argued for a 90-day investigation period, claiming the offenses warranted it. However, the court interpreted Section 187 of the BNSS, akin to Section 167 of the Cr.P.C., to mean that only offenses with a minimum threshold punishment of ten years qualify for a 90-day period. Since the alleged offenses were punishable up to ten years, the court upheld the Magistrate's decision to deny extended police custody, affirming that the investigation should be completed within 60 days, with police custody permissible only within the first 40 days. 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 13459 of 2024 and Writ Petition No. 33526 of 2024 (GM - RES)

Decided On: 13.12.2024

State of Karnataka Vs. Kalandar Shafi and Ors.

and

Hyder Ali Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4163/2024.

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