The introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), brought sweeping changes to India’s criminal procedure framework. One of the most debated provisions is Section 193(9), which empowers investigating agencies to conduct further investigation even after the filing of a police report under Section 193(3). The controversy arises from the interplay between Section 193(9) and Section 187(3), which guarantees the right to default bail when the investigation is not completed within the prescribed time.
In Yash Mishra v. State of NCT of Delhi & Ors. (2025), the Delhi High Court examined whether Section 193(9) effectively camouflages or dilutes the statutory and constitutional right to default bail and personal liberty under Article 21 of the Constitution.
Factual Background
- The petitioner, appearing in person, challenged Section 193(9) read with Section 187(3) BNSS 2023.
- He argued that the provisions are arbitrary and violate Article 21, as they potentially deprive accused persons of their right to “default bail.”
- The challenge was made through the PIL route on the grounds of larger public interest and to safeguard liberty against indefinite detention.
Key Prayers
The petitioner sought:
- Declaration that Section 193(9) read with Section 187(3) BNSS is ultra vires Article 21.
- Judicial clarification that powers of “further investigation” under Section 193(9) are not unlimited, and that once the maximum detention period under Section 187(3) expires, the accused must be released on default bail.
- Any other order deemed fit in the interest of justice.
Petitioner’s Argument
The petitioner, appearing in person, challenged the constitutional validity of Section 193(9) BNSS on three main grounds:
1) Arbitrariness under Article 21
The provision allows indefinite continuation of investigation without specifying a time limit, leading to arbitrary curtailment of personal liberty.
2) Camouflage to Defeat Default Bail (Section 187(3))
By filing an incomplete charge-sheet and resorting to “further investigation,” the investigating agency can effectively bypass the accused’s statutory right to default bail.
3) Violation of Due Process
Since personal liberty is a fundamental right, any provision that indirectly prolongs detention without a completed charge-sheet is unconstitutional. The petitioner relied on precedents such as Maneka Gandhi v. Union of India (1978), Bikramjit Singh v. State of Punjab (2020), and Ritu Chhabbaria v. Union of India (2023).
Respondents’ Counter
On behalf of the Union of India and the State of NCT Delhi, the Central Government Standing Counsel opposed the challenge, contending:
1) Statutory Safeguards Exist
Section 193(9) includes a proviso requiring court permission for further investigation during trial, with a prescribed limit of 90 days (extendable only with court approval). Hence, the provision is not unfettered.
2) No Overlap with Section 187(3)
The right to default bail under Section 187(3) operates in a distinct field. Section 193(9) merely facilitates the discovery of new evidence post-charge-sheet and does not obstruct the bail entitlement of an accused.
3) Apprehension of Misuse Not Ground for Invalidation
The government cited rulings like Rishabh Agro Industries v. PNB Capital Services (2000) and Padma Sundara Rao v. State of Tamil Nadu (2002) to argue that the mere possibility of misuse cannot render a provision unconstitutional.
Court’s Analysis
Division Bench (Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela) rejected the petitioner’s arguments and upheld the validity of Section 193(9). Key observations included:
1. Scope of Section 193(9)
The provision explicitly states that further investigation can be conducted even after a police report is filed, but only with court permission during trial. This ensures judicial control over the process
2. Time Limits and Safeguards
Section 193(1) requires the investigation to be completed without unnecessary delay.
- The proviso to Section 193(9) mandates that further investigation during trial be completed within 90 days, extendable only with court approval.
- Thus, concerns of indefinite detention are unfounded.
3. No Dilution of Default Bail
The Court emphasised that Sections 193(9) and 187(3) operate in different spheres. While Section 187(3) governs default bail for failure to file a charge-sheet within 90 days, Section 193(9) governs the continuation of investigation post-charge-sheet. One does not nullify the other.
4. Misuse Not a Ground for Striking Down Law
Relying on Mafatlal Industries v. Union of India (1997) and Nathella Sampathu Chetty (1962), the Court reiterated that the mere possibility of misuse does not make a law invalid. If misuse occurs, it is the legislature’s responsibility to amend, not the judiciary’s role to strike it down.
Precedents Considered
- Maneka Gandhi v. Union of India (1978) – Liberty cannot be curtailed without fair, just, and reasonable procedure.
- Bikramjit Singh v. State of Punjab (2020) – Default bail is part of Article 21 rights.
- Ritu Chhabbaria v. Union of India (2023) – Filing incomplete charge-sheets to deny bail is impermissible.
- Padma Sundara Rao v. State of Tamil Nadu (2002) – Courts interpret laws but cannot legislate.
- Mafatlal Industries v. Union of India (1997) – Possibility of abuse is not a ground for invalidation
Judgment
Delhi High Court dismissed the writ petition, holding:
- Section 193(9) does not dilute or camouflage the right to default bail under Section 187(3).
- Adequate judicial safeguards exist to prevent misuse.
- Apprehension of abuse cannot be a ground to declare a provision unconstitutional.
Accordingly, the petition was rejected with no order as to costs.
Key Highlights of the Decision
Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela stated:
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.
Conclusion
Delhi High Court has clarified that Section 193(9) BNSS does not dilute the statutory right of default bail under Section 187(3), nor does it infringe Article 21 of the Constitution. Instead, it provides a structured mechanism for further investigation, with court permission and fixed timelines serving as safeguards against misuse.
Thus, while concerns about potential abuse exist, the Court reaffirmed that liberty and procedural fairness are safeguarded through judicial control and legislative intent, not through striking down provisions merely on speculative grounds.
Important Link
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