Default Bail, the Ninety-Day Period and a Charge-Sheet Filed After the Right Accrued

1. The period. Section 167(2)(a)(i) CrPC (now Section 187(3) BNSS) allows 90 days where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for ten years or more; clause (ii) gives 60 days for other offences. Section 467 IPC - forgery of a valuable security - is punishable with imprisonment for life. Where the FIR and the charge-sheet include such an offence, the 90-day period governs; the shorter maxima of Sections 406 and 420 do not cut it down.

2. Computation. The day of arrest is excluded. Counting from 6 February 2024, the ninetieth day fell on 6 May 2024. The indefeasible right accrued at midnight between 6 and 7 May, and the application filed on 6 May was well founded.

3. Effect of the charge-sheet. The right is not lost merely because the charge-sheet is filed before the application is taken up or the order is pronounced. If the accused has applied and is ready to furnish bail, the subsequent filing of the charge-sheet does not defeat the right (Sanjay Dutt v. State, (1994) 5 SCC 410; Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453). Default bail is not discretionary once the conditions are met; it is a facet of Article 21 (Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67). The Magistrate could not, by taking cognizance on 7 May, retrospectively extinguish the right that had already accrued.

Conclusion. The applicable period was 90 days, the right accrued on 6 May, and the application should have been allowed. The Magistrate's reasoning on both limbs is erroneous. Since the arrest and the charge-sheet pre-date 1 July 2024, the CrPC governs by virtue of the savings provision in Section 531 BNSS.

A report under Section 173(2) is the police officer's report of the facts and the evidence collected, with the list of witnesses and documents. It is not required to be exhaustive; Section 173(8) expressly preserves the power of further investigation and of filing a supplementary report, and the trial court may permit it.

Effect where the report is filed before the period ends: if what is filed is a genuine report under Section 173(2) - disclosing the offence, the accused and the material - it ends the accused's right to default bail, and the pendency of an FSL result is not a ground to claim default bail thereafter. The Supreme Court has taken the view that once a charge-sheet is filed, an application for default bail on the plea that the investigation is incomplete is not maintainable; the remedy lies in regular bail (Bhikamchand Jain v. State of Maharashtra, (2016) 3 SCC 668).

Where the report is a mere device: the position differs where the document filed is not a report at all - a bald final report with no material, filed solely to pre-empt the right. The court is entitled to look at what has actually been filed and ask whether it substantially complies with Section 173(2). The delay in obtaining an FSL report, without more, does not make a charge-sheet otherwise complete into a nullity.

Application to this case: the point is academic on the facts, because the charge-sheet was filed on 7 May after the right had already accrued on 6 May and an application was pending. The pendency of the FSL report cannot cure the earlier lapse; it only shows the investigation continues, which is a relevant factor on regular bail.

The rejection of a default bail plea does not bar consideration on merits; the court must independently apply the ordinary bail jurisdiction under Section 437 CrPC (Section 483 BNSS) or Section 439 in the higher court.

Factors to be weighed:

• Custody: arrest on 5 February 2024 means over three months in custody; the charge-sheet has been filed, so the investigation against this accused is substantially complete.
• Antecedents and roots: no criminal antecedents; the addresses are local; the allegation is of a financial transaction trail, which is documentary and difficult to tamper with now that the records are with the investigating agency.
• Tampering and influence: eleven depositors are cited witnesses; if the accused is a local operator with influence over them, conditions are needed rather than refusal.
• Parity: the co-accused arrested the same day has been released; parity is a relevant, though not conclusive, consideration.
• Seriousness: Section 467 IPC is serious and carries life, but seriousness alone is not a ground to refuse bail where the trial will take time.

Order: release on bail on a personal bond and sureties, with conditions that the accused not contact the witnesses, not leave the jurisdiction without permission, surrender the passport, and appear on every date; the trial court should be directed to frame charges and examine the complainant and the FSL witness within a fixed period, since speedy trial is itself a condition of bail.