Default Bail, Incomplete Final Report and First-Time Offender
On 1 March 2024, X is arrested by the Hyderabad police for offences under Sections 318(4) and 316(2) of the Bharatiya Nyaya Sanhita, 2023, punishable with imprisonment up to seven years. He is produced before the Magistrate on 2 March and remanded to judicial custody. The 60-day period under Section 187(2) BNSS expires on 30 April. On 2 May, the investigating officer files a final report without the FSL report on a seized mobile phone and without the statement of the bank manager. On 3 May, X applies for default bail. The Magistrate takes cognizance on 6 May. The co-accused Y, a first-time offender, has been in custody for 14 months and applies for release under Section 479 BNSS. The offences are triable by a Magistrate of the first class.
1. Is X entitled to default bail under Section 187(2) BNSS?
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Section 187(2) BNSS fixes 60 days for offences punishable with imprisonment of less than ten years. X’s offences carry a maximum of seven years, so the 60-day period applies. The final report was filed on 2 May, after the period expired on 30 April. The right to default bail accrued on 30 April and is not defeated by the later filing of the chargesheet. X applied on 3 May. The Magistrate must release him on bail if he furnishes bail; the court cannot refuse default bail on the merits of the accusation. The fact that cognizance was taken on 6 May does not cure the delay. The application must be allowed, though the court may impose conditions to secure attendance.
2. What is the effect of the final report being incomplete because the FSL report and a witness statement are missing?
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A final report need not contain every piece of evidence. The absence of the FSL report or a witness statement does not by itself make the report a nullity; the police may continue further investigation. If the report had been filed within 60 days, default bail would not be available merely because investigation was incomplete. Here, however, the report was filed after the 60-day period. The right to default bail had already accrued. The incompleteness is therefore irrelevant to the default-bail claim. The Magistrate can take cognizance and proceed, but must first decide the bail application. The prosecution cannot use further investigation to defeat a right that has already vested.
3. Is Y entitled to mandatory release under Section 479 BNSS?
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Section 479 BNSS applies to a first-time offender who is not punishable with death or imprisonment for life and has served one-half of the maximum sentence. For a seven-year offence, one-half is three and a half years. Y has served only 14 months, so Section 479 does not entitle him to mandatory release. His application should be treated as one for regular bail under the applicable bail provisions. The court may consider the period already undergone, the nature of the offence, the stage of trial, and the risk of abscondence. Y’s status as a first-time offender is a relevant circumstance, but it does not create a statutory right to release at 14 months.