Feb 25, 2022

Can you get bail if the investigating authority does not finish its investigation on time? 

The Supreme Court has asked the National Investigation Agency (NIA) to respond to activist Gautam Navlakha’s default bail application. Navlakha was arrested as an accused in the Elgaar Parishad-Bhima Koregaon case under the Unlawful Activities (Prevention) Act, 1967.  


What is default bail?

Default bail is the bail an accused is entitled to apply for if the authority prosecuting them fails to complete its investigation in time. 


During an investigation, a Magistrate can order an accused person to remain in police custody for fifteen days. Beyond this period, the Magistrate can authorise the accused’s detention in judicial custody i.e., jail, if necessary. A person accused of a crime should not be detained in jail for more than:


  • Ninety days, when an authority is investigating an offence punishable with death, life imprisonment or imprisonment for at least ten years; or


  • Sixty days, when the authority is investigating any other offence.


After ninety/sixty days, if the authority does not complete the investigation and file the charge-sheet, the accused has the right to be released on bail, if they apply for bail and agree to fulfil other bail conditions (such as providing the required bail amount).


When can an accused apply for default bail?

The accused can apply for bail under Section 167(2) of the Code of Criminal Procedure once the time limit for investigation has expired. 


The court will consider the default bail application as long as it is filed before the investigating authority files the charge-sheet.


When does default bail not apply?

If the accused fails to apply for default bail after the investigation time period has expired, and the investigating agency files a charge-sheet or seeks more time before the accused makes this  application, then the right of default bail does not apply. 

The Magistrate can then grant further time for completion of the investigation. However, using other legal provisions of the Code, the accused can still apply for  bail. To know more about these provisions, read our explainer.