Power to Conduct Further Investigation Under Section 193(9) BNSS Not Unfettered – Safeguards Exist Against Misuse: Delhi High Court Upholds Validity

“Further Investigation Under Section 193(9) BNSS Can Only Be Done With Court’s Permission, Subject to Time Limit of 90 Days”, Delhi High Court dismissed a Public Interest Litigation (PIL) that sought to declare Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) as arbitrary and violative of Article 21 of the Constitution. The Division Bench comprising Hon’ble Chief Justice Devendra Kumar Upadhyaya and Hon’ble Justice Tushar Rao Gedela held that the provision does not curtail the right to default bail and contains sufficient judicial safeguards to prevent misuse.

PIL Challenges Section 193(9) as a Tool to Evade Default Bail Rights Under Section 187(3) BNSS

The petitioner, Advocate Yash Mishra, appearing in person, contended that Section 193(9) of BNSS, 2023 enables the police to file incomplete charge sheets followed by “further investigation” merely to circumvent the time-bound right to statutory bail under Section 187(3) BNSS. He argued that this mechanism violates the “Right to Personal Liberty” enshrined under Article 21, as there is no upper time limit mentioned for such “further investigation” in the statutory text.

He submitted that this legal loophole was being exploited to continue detention beyond 90 days in serious cognizable offences even though no complete charge sheet was filed within the prescribed period, thereby defeating the accused’s right to seek ‘default bail’.

The key legal issues raised were:

• Whether Section 193(9) permits arbitrary curtailment of default bail under Section 187(3) of BNSS.

• Whether the provision lacks reasonable time limits for further investigation, enabling potential misuse.

• Whether such a statutory structure violates Article 21 of the Constitution.

To substantiate the challenge, the petitioner relied on decisions like Maneka Gandhi v. Union of India (1978), Ritu Chabbaria v. Union of India (2023), Bikramjit Singh v. State of Punjab (2020), and Arvind Kejriwal v. CBI (2024), all of which emphasize the importance of personal liberty and due process in preventive detention and bail jurisprudence.

On the other hand, the Union of India and State of NCT of Delhi defended the provision, arguing that the law contains clear safeguards, including a requirement of court permission and a 90-day time limit for further investigation during trial, with any extension subject to judicial discretion.

They relied heavily on the principle that “mere apprehension of misuse does not render a provision unconstitutional”, citing Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (2000), Padma Sundara Rao v. State of Tamil Nadu (2002), and Mafatlal Industries Ltd. v. Union of India (1997).

The Court read down the petitioner’s concerns as unfounded and made the following key observations:

“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.”

Quoting Section 193(9), the Court emphasized that further investigation during trial is subject to the permission of the trial court, and must be completed within 90 days, extendable only with the court’s leave. Hence, it could not be termed as lacking procedural safeguards.

On the issue of alleged curtailment of default bail, the Court clarified:

“The provision contained in Section 193(9) and those of Section 187(3), operate in different fields… Section 193(9) does not in any manner act as a camouflage to such right [of default bail].”

Further rejecting the petitioner’s fear that Section 193(9) might be misused to routinely deny default bail, the Court reiterated that judicially permissible misuse is not a ground to declare a statute unconstitutional:

“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.”

The Court leaned on Padma Sundara Rao (2002) and Mafatlal Industries (1997) to affirm that the judiciary cannot interfere with the legislative domain unless a provision is prima facie arbitrary, which Section 193(9) is not.

In a significant ruling on the interpretation of the BNSS, the Delhi High Court upheld the constitutional validity of Section 193(9), observing that:

“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 PIL was accordingly dismissed, with no order as to costs.

Date of Decision: August 27, 2025