Further Investigation under BNSS §193(9) is Court-Regulated and Distinct from Default Bail under §187(3): Delhi High Court Declines Constitutional Challenge

Introduction

In Yash Mishra v. State of NCT of Delhi & Ors. (2025 DHC 7325-DB), the Delhi High Court addressed a constitutional challenge to Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in tandem with Section 187(3). The petitioner, appearing in person, sought (a) a declaration that §193(9) read with §187(3) is arbitrary and violative of Article 21; (b) a ruling that the “further investigation” power in §193(9) is not unlimited and cannot be used to detain an accused beyond the maximum pre-trial detention limit in §187(3) (commonly linked to the right to “default bail”); and (c) ancillary directions to safeguard liberty.

The case sits at the intersection of two core BNSS provisions: Section 187 (the new analogue of the erstwhile CrPC §167 governing pre-trial detention and default bail) and Section 193 (the new analogue of CrPC §173 governing police reports/charge sheets and further investigation). The petitioner argued that “further investigation” can be abused to file incomplete or preliminary charge-sheets to defeat the accused’s statutory right to default bail. The Union and the State opposed, stressing that §193(9) contains adequate safeguards and that courts cannot strike down statutes based on apprehended misuse.

Summary of the Judgment

The Court dismissed the PIL, declining to strike down BNSS §193(9) or to “read in” additional restrictions beyond the statute’s text.
It held that the power of “further investigation” under §193(9) is not unfettered. The proviso requires court permission for further investigation “during the trial” and mandates completion within 90 days (extendable only with court leave).
Section 193(9) and Section 187(3) operate in different fields. The existence of further investigation does not “camouflage” or nullify the accused’s right to default bail under §187(3).
Section 193(1) imposes a general obligation to complete investigation “without unnecessary delay,” reinforcing timeliness.
Mere possibility of misuse cannot render a statutory provision unconstitutional. Courts interpret law; they do not legislate or supply omissions. Any perceived misuse is for the legislature to address.

Analysis

Precedents Cited and Their Influence

Petitioner’s authorities

Maneka Gandhi v. Union Of India (1978) 1 SCC 248: Articulated that the “procedure” depriving personal liberty must be just, fair, and reasonable. The petitioner invoked this to argue that open-ended “further investigation” undermines fair procedure. The Court acknowledged the centrality of fair procedure but found §193 to embody sufficient safeguards.
Bikramjit Singh v. State of Punjab (2020) 10 SCC 616; Rajnikant Jivanlal v. NCB (1989) 3 SCC 532: Reaffirm the indefeasible right to default bail upon expiry of the statutory period. The Court did not dispute these principles but held they do not support striking down §193(9), which operates independently from §187(3).
Ritu Chhabbaria v. Union of India (2023 SCC OnLine SC 502) and allied High Court rulings (e.g., Tunde Gbaja): Decry the practice of filing incomplete charge-sheets to thwart default bail. The Court did not undermine this line; it simply held that the possibility of such misuse is not a basis to invalidate §193(9) itself.
Other citations (Anand Prakash; Arvind Kejriwal; K. Vadivel): Invoked broadly to emphasize liberty and due process. The Court found the core issue here to be one of statutory interpretation and constitutional validity, guided by separation-of-powers and anti-misuse jurisprudence.

Union/State’s authorities (and those adopted by the Court)

Padma Sundara Rao (Dead) v. State of Tamil Nadu (2002) 3 SCC 533: Courts cannot add words to a statute or strike it down for possible abuse; legislative omissions (casus omissus) cannot be judicially supplied. Heavily relied upon by the Court.
Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (2000) 5 SCC 515: Courts interpret the law; they do not legislate. Misuse is for the legislature to cure. Explicitly quoted.
Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 and Collector Of Customs v. Nathella Sampathu Chetty (1962): Mere possibility of abuse does not make a statute invalid. Extensively quoted to buttress the rejection of the “apprehended misuse” argument.
Other authorities cited by the Union (Saregama; Sushil Kumar Sharma; Shiv Shankar Sharma) further support judicial restraint and skepticism toward PILs premised on misuse. The Court’s core reliance, however, was on Padma Sundara Rao, Rishabh Agro, Mafatlal, and Nathella Sampathu Chetty.

Legal Reasoning

Textual reading of §193(9): The provision allows “further investigation” even after submission of a police report, with any additional evidence to be forwarded to the Magistrate through supplementary reports. This mirrors the classic investigative continuum recognized in criminal procedure.
Proviso safeguards: During trial, further investigation requires the trial court’s permission and must be completed within 90 days, extendable only by the court. This operates as a concrete, judicially policed time-control, countering claims of unfettered discretion.
Complementary scheme with §187(3): The Court emphasized that §193(9) (further investigation) and §187(3) (default bail for delay in filing the police report) address different stages and objectives. The existence of a statutory mechanism to gather further evidence does not erase the accused’s entitlement to default bail if the initial statutory time for filing the report elapses without compliance.
Timeliness baked into §193(1): Investigations must conclude “without unnecessary delay.” This overarching command reinforces the fairness and reasonableness of the statutory scheme under Article 21.
No judicial legislation: The plea to declare §193(9) ultra vires because it can be “misused” would require either adding words (e.g., new timelines beyond those the statute provides) or judicially rewriting the provision. The Court refused, citing the separation-of-powers doctrine and the casus omissus rule.
Misuse is not unconstitutionality: Applying Supreme Court guidance, the Court held that even if misuse occurs in practice (e.g., incomplete charge-sheets to thwart default bail), the remedy is case-by-case judicial control and, where necessary, legislative amendment—not invalidation of the statutory text.

Impact

Clarity under BNSS: This is an early High Court affirmation that §193(9) is constitutionally sound and judicially supervised. It underscores that BNSS retains a robust “further investigation” mechanism, now explicitly time-bound during trial.
Default bail jurisprudence preserved: Courts adjudicating default bail applications under §187(3) can treat this judgment as confirmation that “further investigation” cannot be wielded to extinguish the statutory right to default bail. The right arises or does not arise based on statutory timelines and the completeness/legality of the police report, as per Supreme Court jurisprudence. This judgment simply holds the statute itself valid.
Operational guidance to investigating agencies: Agencies should seek trial court permission for further investigation during trial and complete it within the 90-day window unless extended by the court. The Court’s emphasis on “without unnecessary delay” counsels against perfunctory or dilatory add-ons.
For trial courts: The judgment validates a strong gatekeeping role. Trial courts should scrutinize requests for further investigation, police compliance with the 90-day period, and any extension requests on reasoned grounds.
Constitutional litigation trend: The ruling signals judicial reluctance to strike down BNSS provisions on the basis of speculative misuse. Future challenges will likely need to show demonstrable unreasonableness or manifest arbitrariness in the text itself, not merely poor implementation.

Complex Concepts Simplified

Default bail (BNSS §187(3)): A statutory right to be released on bail if the investigating agency fails to file the police report/charge-sheet within the prescribed period (typically 60 or 90 days depending on the offence). It is an “indefeasible” right that crystallizes upon expiry of the relevant period, provided the accused applies for bail.
Police report/charge-sheet (BNSS §193): The document filed upon completion of investigation, laying out the names of parties, the nature of information, evidence collected, and whether an offence appears to have been committed and by whom. It is the foundation for the court’s cognizance.
Further investigation vs. reinvestigation: “Further investigation” is a continuation of the original investigation to gather additional evidence; it is statutorily recognized and permissible even after a report is filed. “Reinvestigation” or “fresh investigation” implies starting afresh/set aside previous investigation and typically requires higher judicial order; it is not what §193(9) authorizes.
Casus omissus: A legislative omission. Courts generally cannot fill an omission by reading into a statute words that the legislature did not enact.
Mere possibility of misuse: A doctrinal principle that a law’s susceptibility to misuse in practice does not by itself make the law unconstitutional; remedies lie in judicial oversight and legislative refinement.

How the Decision Interacts with Established Supreme Court Principles on Default Bail

This judgment preserves, rather than dilutes, the Supreme Court’s default bail jurisprudence:

Cases like Rajnikant Jivanlal and Bikramjit Singh affirm that default bail crystallizes by operation of law when statutory timelines lapse.
Ritu Chhabbaria condemns incomplete or token charge-sheets designed to undercut default bail. The Delhi High Court’s ruling does not authorize such practices; it merely upholds §193(9) as a valid mechanism for further investigation accompanied by judicial oversight and timelines.
Accordingly, in individual cases, if the prosecution attempts to defeat default bail by filing a defective or incomplete report, trial or bail courts may still grant relief under existing Supreme Court direction. This judgment does not curtail that judicial power.

Practical Takeaways for Stakeholders

Investigating agencies:
- Seek trial court permission for further investigation during trial.
- Complete further investigation within 90 days; seek extensions only on demonstrable cause.
- Avoid filing perfunctory or incomplete reports to “stop the clock”; such tactics remain vulnerable under Supreme Court jurisprudence.
Defense counsel:
- Continue to assert default bail rights under §187(3) where timelines lapse.
- Challenge “incomplete” charge-sheets with reference to Supreme Court guidance (e.g., Ritu Chhabbaria) rather than by attacking the validity of §193(9).
- During trial, scrutinize permissions and time extensions for further investigation.
Trial courts:
- Exercise vigilant gatekeeping over requests for further investigation and time extensions.
- Ensure that additional evidence through supplementary reports is genuinely “further” and not a device to paper over investigative lapses.
- Adjudicate default bail strictly by statutory timelines and the completeness/legality of the police report.

Conclusion

The Delhi High Court’s decision in Yash Mishra v. State of NCT of Delhi consolidates an important early understanding of the BNSS framework: the statute’s “further investigation” clause (§193(9)) is a court-regulated, time-bound tool that coexists with and does not dilute the accused’s right to default bail under §187(3). By grounding its reasoning in Supreme Court doctrine on judicial restraint and the non-justiciability of speculative misuse, the Court refused to either strike down or judicially rewrite §193(9).

The upshot is twofold: first, default bail remains intact, to be adjudicated case by case on statutory timelines and the substantive quality of the police report; and second, further investigation remains available to the prosecution but only under judicial supervision and within tight temporal bounds during trial. This equilibrium preserves both the integrity of the investigative process and the constitutional primacy of personal liberty under Article 21.