Repealed Law Can’t Deny Liberty: Orissa High Court Upholds 90-Day Default Bail Rule Under BNSS, Trashes CrPC Amendment

“Once the Code is gone, its shadow cannot linger – right to bail flows from the law in force, not from the law repealed.”, In a decisive ruling that settles the debate over applicability of state amendments under the repealed CrPC, the Orissa High Court ruled that an accused in custody beyond 90 days is entitled to default bail under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—not the 120-day extension previously available under the Odisha Amendment to the CrPC.

Justice A.K. Mohapatra observed: “By operation of Section 531(1) of BNSS, while the Code of Criminal Procedure, 1973 was repealed, the effect of the State Amendment including Odisha Act 11 of 1997 gets obliterated.”

The Court quashed the trial court’s rejection of default bail and remanded the matter for fresh consideration under the BNSS, holding that the right to be released on bail had crystallised in favour of the petitioners once the 90-day period expired.

“A 90-Day Right Cannot Be Denied by a 120-Day Memory”

The petitioners, Vicky Kumar @ Kashyap and another, were arrested on 10.05.2025 in a cybercrime case involving serious offences under the Bharatiya Nyaya Sanhita, 2023, and Sections 66-C and 66-D of the IT Act, 2008. They remained in custody while investigation lingered, and on the 92nd day, they filed for default bail under Section 187(3) BNSS.

The trial court rejected their application, citing the Odisha Amendment to the CrPC which extended the investigation period from 90 to 120 days for serious offences. The learned magistrate relied on two notifications dated 16.07.2024 and 27.09.2024—misinterpreting them as validation of the continued applicability of the state amendment.

The High Court was unequivocal in its correction:

“The notifications dated 16.07.2024 and 27.09.2024 are general in nature… They do not interfere in any manner with either Section 187 or Section 531 of the BNSS.”

“Repeal Means Repeal — State Amendments Perish With the Parent Act”

The State argued that since the Odisha Amendment formed part of the CrPC at the time of repeal, it must continue unless specifically repealed. The Court, however, dismantled that reasoning by interpreting Section 531 of BNSS.

“On a close scrutiny of Section 531, it appears that the State Amendment made to the CrPC have not been specifically saved… Therefore, the Odisha Amendment vide Act 11 of 1997 has also been repealed along with the Parent Act.”

Justice Mohapatra stressed that the saving clause in Section 531(2) only preserved pending proceedings commenced under the CrPC before 01.07.2024. In this case, the FIR itself was registered after BNSS came into force, on 17.03.2025, and thus, only BNSS applies.

“When the Law Prescribes 90 Days, Courts Cannot Inject 120”

The ruling has major implications for trial courts and investigating agencies across Odisha and other states grappling with transition from the CrPC to the BNSS.

The Court clarified that:

“The period of limitation for filing of the charge-sheet for the purpose of Section 187 of BNSS would be 90 days.”

“There is no saving of the 120-day rule under BNSS. The trial court misdirected itself in relying on a repealed law.”

Even more significantly, the Court referenced the Odisha Police Rules framed under BNSS, which reiterate a 90-day period for filing the final report in serious cases and the right of the accused to be released on bail upon failure to do so.

“Default Bail Is a Right, Not a Charity – It Kicks In the Moment the Clock Strikes 90”

Reaffirming the well-established jurisprudence that default bail is a statutory right, the Court declared:

“An indefeasible right has accrued in favour of the Petitioners to be released on bail… Even at the time of hearing the charge-sheet was not before the court.”

With that, the High Court quashed the impugned order dated 11.08.2025 passed by the S.D.J.M., Balasore and directed the trial court to reconsider the bail application afresh within two weeks, applying only the BNSS standard.

Key Takeaways for Criminal Law Practitioners:

“The switch from CrPC to BNSS is not cosmetic. It reshapes procedural timelines, and courts must avoid nostalgic application of repealed provisions.”

This ruling serves as a reminder to all trial courts that once the BNSS is in force, any procedural benefit under the old CrPC ceases to apply—unless specifically saved. The default bail window is now 90 days under Section 187(3), and not a day more.

Date of Judgment: 24 November 2025