Default Bail: 90 Days Run From Added Offences, Says Raj HC

Default Bail: 90 Days Count From Investigation of Added Offences, Not From FIR, Holds Rajasthan High Court

Published: 18 October 2026 · NyayVidhan

The Rajasthan High Court dismissed a revision seeking default bail under Section 167(2) CrPC. The accused was first held for a day under Section 363 IPC and bailed; after further offences, including offences under the POCSO Act, were added, he was re-arrested on 27.10.2021 and charge-sheeted on 24.01.2022. The Court held that the 90 days run from when investigation of the added offences began, not from the FIR, and that an application filed after the charge-sheet is not maintainable (paras 17-27).

Key holdings

Where new offences are found during investigation, the 90-day period under Section 167(2)(a)(i) CrPC is computed afresh (paras 17, 17.1).

Earlier custody for the original offence, ended by bail, was not counted; the period ran from the re-arrest (paras 18, 20).

The right to default bail becomes indefeasible only after the period expires and lasts until the charge-sheet is filed (paras 21, 21.1, 26).

An application made before the charge-sheet survives even if the charge-sheet is filed while it is pending (para 21.2).

An application filed after the charge-sheet is not maintainable, even if the charge-sheet was filed late (paras 25, 27).

Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.

Brief Facts

An FIR under Section 363 IPC alleged that the petitioner and others had abducted a girl (para 4). Arrested on 19.10.2021, he was granted bail by a Magistrate on 20.10.2021 (paras 12, 15). The investigating officer later found further offences under the IPC and the POCSO Act; on his application under Section 437(3) CrPC, the Magistrate permitted the petitioner's arrest on 26.10.2021. He was re-arrested on 27.10.2021 and charge-sheeted on 24.01.2022 (paras 12, 16). On 22.02.2022 he applied for default bail, which the trial court refused on 24.02.2022 (paras 7, 13, 19). His third bail application was registered as this revision (para 2). He counted 92 days of custody, including the first day (paras 5, 5.1).

Court's Findings

The Court framed two issues: whether the earlier custody had to be counted, and whether a default-bail application filed after a late charge-sheet was maintainable (paras 11, 11.1, 11.2). Under Section 167(2)(a)(i), the 90 days are computed from when investigation of the particular offence began. The Section 363 offence alone attracted clause (a)(ii), but where new offences are found during the investigation, the period is computed afresh (paras 17, 17.1). The trial court therefore rightly counted from 27.10.2021, and the charge-sheet of 24.01.2022 was within 90 days (para 18). On the second issue, the Court followed Suresh Kumar Bhikamchand Jain and the Constitution Bench in Sanjay Dutt: the right becomes indefeasible only after the period expires and until the charge-sheet is filed, and does not survive the charge-sheet unless already availed of (paras 21, 21.1). An application made in that window survives a later charge-sheet (para 21.2), and the right is availed only by applying (para 22). Under Achpal, courts cannot extend the period without statutory power (para 23); Rakesh Kumar Paul and M. Ravindran confirm that the right ends with the charge-sheet (para 24). An application filed after the charge-sheet, even a late one, is not maintainable (para 25).

Legal Principle

For default bail under Section 167(2)(a)(i) CrPC, the 90-day period runs from when investigation of the offence concerned began; if new offences are found during the investigation, it is computed afresh, not from the FIR. The indefeasible right must be availed by an application made after the period expires and before the charge-sheet is filed (paras 17, 20, 25-27).

Precedents Relied Upon

Serious Fraud Investigation Office v. Rahul Modi & Ors. Criminal Appeal Nos. 185-186 of 2022, decided on 07.02.2022
Referred To Discussed at ¶ 6, 6.1
Cited by the petitioner: filing of the charge-sheet within the statutory period is sufficient compliance with Section 167(2) CrPC; taking of cognizance is not required, and the indefeasible right arises only if the charge-sheet is not filed before the period expires.
Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Ors. (2013) 1 SCC (LS) 480
Relied Upon Discussed at ¶ 6.2, 21, 22
The right to default bail gains the status of an indefeasible right only after the total period under Section 167(2) CrPC expires and until the charge-sheet is filed; once a charge-sheet is filed in time, default bail does not arise.
Sanjay Dutt v. State through C.B.I. Bombay (1994) 5 SCC 410
Relied Upon Discussed at ¶ 8.1, 21, 21.1, 22
The indefeasible right of default bail is enforceable only before the charge-sheet is filed and does not survive once it has been filed, unless the right had already been availed of.

View all precedents (7)

Mohamed Iqbal Madar Sheikh and Ors. v. State of Maharashtra (1996) 1 SCC 722
Relied Upon Discussed at ¶ 8.2, 22
The right to default bail may be availed only after an application for it has been made by or on behalf of the accused before the Magistrate.
Achpal & Ors. v. State of Rajasthan (2019) 14 SCC 599
Relied Upon Discussed at ¶ 14.1, 23
Unless a particular statute provides for extension, courts cannot extend the total period of detention under Section 167(2) CrPC or overlook the delay in filing the charge-sheet where the accused has applied for bail.
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67
Relied Upon Discussed at ¶ 14.2, 24
The indefeasible right to default bail is enforceable only before the charge-sheet is filed and is extinguished as soon as it is filed after the statutory period has expired.
M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485
Relied Upon Discussed at ¶ 14.3, 24
The right to default bail remains enforceable if the accused has applied for it, notwithstanding a subsequently filed charge-sheet; otherwise it ends when the charge-sheet is filed.

Statutory Provisions