The court upheld the constitutional validity of Section 193(9) of BNSS, 2023, affirming that rights to default bail are preserved and potential misuse doesn't invalidate statutory provisions.

JUDGMENT :

DEVENDRA KUMAR UPADHYAYA, CJ.

1. The instant Public Interest Litigation(hereinafter referred to as PIL) petition has been filed with the following prayers:-

“In view of the above facts and circumstances it is most respectfully prayed that this Hon’ble Court may be pleased to issue any order/ direction/ declaration:

“a) Section 193 (9) read with 187 (3) is arbitrary to article 21 of constitution of India and hence ultra vires;

b) directing that the powers granted with the usage of words “further investigation” under section 193(9) of BNSS , 2023, is not unlimited and the accused cannot be detained for more than the maximum amount of detention period as specified under section 187(3) of BNSS , 2023 if the chargesheet has been filed, he shall be released by virtue of default bail;

c) Pass any such order as this Hon’ble Court may feel fit and proper in the facts and circumstances of the case.”

2. Heard the petitioner in person and the learned counsel representing the respondents.

3. It has been contended in support of the prayers made in this writ petition by the petitioner that the impugned provision of Section 193 (9) read with Section 187 (3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS , 2023) is arbitrary and violates Article 21 of the Constitution of India qua the accused persons, who are facing criminal trial, and accordingly, specific guidelines need to be formulated to ensure timely completion of further investigation under Section 193 (9) of BNSS , 2023. Further submission of the petitioner is that the provision of Section 193 (9), if read in conjunction with the provision of Section 187 (3) of the BNSS , 2023, camouflages the statutory right of ‘default bail’ as provided for in Section 187 (3) of the BNSS , 2023.

4. The petitioner submits 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.

5. Drawing our attention to specific language in which Section 193 (9) of BNSS 2023, is couched, it has been 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. Accordingly, the submission is 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’.

6. The petitioner has 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. To bring home the grounds