Doesn't Defeat Accused's Right To Seek Default Bail: Delhi High Court Dismisses Plea Challenging Constitutional Validity Of Section 193(9) BNSS

The Delhi High Court, while dismissing a petition challenging the constitutional validity of Section 193 (9) of the Bharatiya Nagarik Suraksha Sanhita, 2023, has ruled that the provision does not defeat the right of the accused person to seek ‘default bail’ under Section 187(3) BNSS 2023.

The Court was considering a Writ Petition wherein it was stated that the impugned provision of Section 193(9) read with Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is arbitrary and violates Article 21 of the Constitution of India and camouflages the statutory right of ‘default bail’ as provided for in Section 187(3) of the BNSS, 2023.

The division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela observed, "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."

The Petitioner appeared in-person while the Respondent was represented by Assistant Standing Counsel Amol Sinha.

Facts of the Case

The Petitioner submitted that Section 187 (2) and (3) of BNSS 2023, embodies a statutory right to ‘default bail’ to the accused in cases where investigation is pending exceeding beyond the period of 90 days in cases of cognizable offences from the date of arrest, however by virtue of the impugned provision of Section 193(9) of BNSS 2023, the said right of seeking default bail, may be denied for which no plausible reason or rationale exists.

The Counsel drew Court's attention to the specific language in which Section 193(9) of BNSS 2023, was couched and it was argued that the said provision does not provide for any duration within which further investigation is to be completed, whereas Section 187(3) of the BNSS 2023, states that accused shall be released on bail if charge-sheet is not filed within the time stipulated therein. He went on to submit that by resorting to further investigation, an incomplete charge-sheet is being filed, as a result of which an accused is not able to exercise their right of ‘default bail’.

The Petitioner further submitted that Right to Personal Liberty is a Fundamental Right emanating from Article 21 of the Constitution of India and any curtailment thereof has to be in compliance of due process, and further the time limit prescribed in Section 187(3) is, in fact, a safeguard against arbitrary detention which also ensures that investigating agencies do not prolong the detention without any lawful reason.

On the Central Government Standing Counsel argued that the grounds urged by the Petitioner challenging Section 193(9) of BNSS 2023, are completely misconceived for the reasons that the alleged misuse by Police/investigating agencies to deny the right to ‘default bail’ under Section 187(3) is not tenable as the proviso appended thereto contains complete safeguard against any possible misuse. It was further argued that the Supreme Court in Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000) held that when a statutory provision is unambiguous, any apprehension regarding possible misuse is not a valid ground to challenge its constitutional validity.

It was also argued on behalf of the Union of India that if the words and phrases occurring in a statute are clear and unambiguous, it is not permissible for the Courts to interpret any word into the statute. Reliance was placed on Padma Sundara Rao (Dead) & Ors. vs. State of Tamil Nadu & Ors. (2002) wherein it was contended that, in case, a provision of law is misused and subjected to abuse of process of law, it is for the legislature to amend or repeal or modify if it is found necessary to do so and not for the Court.

Reasoning By Court

The Court noted that as per Section 193(9) of BNSS 2023 further investigation in respect of an offence is permissible even after a report under Section 193(3) is filed before the Magistrate and the provision further provides that if, on further investigation, any further evidence is to be obtained, the same is to be forwarded to the Magistrate with further report/reports regarding such evidence.

"......what we find is that the power to conduct further investigation as conferred on the investigating agencies under Section 193(9) is not unfettered; the proviso appended thereto contains adequate safeguards on the arbitrary use of the power for further investigation, for the reason that further investigation during trial can be conducted only with the permission of the Court. We may also note that such further investigation to be conducted with the permission of the Court is to be completed within 90 days, which, though, is extendable; however, such extension is permissible only with leave of the Court. Thus, it is difficult to hold that Section 193(9) of BNSS 2023 contains a provision which is unfettered and, therefore, it is arbitrary", the Court observed.

With regard to the submission that Section 193(9) does not contain any time period for completion of further investigation is concerned, the Court indicated that Section 193(1) mandates that investigation shall be completed without unnecessary delay, and as already pointed out above the proviso clearly stipulates 90 days period for completion of further investigation that too with the permission of the Court, which is extendable only if the Court permits such extension.

"Accordingly, we are unable to agree with the submission of the petitioner that adequate safeguards have not been provided to the accused persons to make them realize their right of seeking a ‘default bail’ in a situation where further investigation is undertaken by the investigating agencies. Even otherwise, any possible potential misuse of a statutory provision is not a ground available to challenge the same and to term it unconstitutional", the Court observed.

It referred to Supreme Court's decision in Padma Sundara Rao (Dead) wherein it was held that it is for the legislature to amend, modify or repeal in case a provision of law is found to be misused and is subjected to abuse of the process of law. It further cited Rishabh Agro Industries Ltd. (supra) wherein it was held that Courts are empowered only to interpret the law and they cannot legislate and Mafatlal Industries Ltd. (supra), wherein the Supreme Court clarified that the mere possibility of abuse of a provision cannot be a ground for holding a provision procedurally or substantively unreasonable.

The Petition was accordingly dismissed.

Cause Title: Yash Mishra vs. State of NCT of Delhi & Ors. (2025:DHC:7325-DB)

Appearances:

Petitioner- Yash Mishra (in person), Advocate Yuvraj Singh, Advocate Harshvardhan Singh, Advocate Siddhant Kumar, Advocate Nikhil Kr. Singh, Advocate Tanushree Karnawat, Advocate Shasya Singh

Respondent- Assistant Standing Counsel Amol Sinha, Advocate Ashvini Kumar, Advocate Kshitiz Garg, Central Government Standing Counsel Ishkaran Singh Bhandari, Advocate Piyush Yadav

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