When Parliament replaced the Code of Criminal Procedure with the Bharatiya Nagarik Suraksha Sanhita, it left untouched dozens of special statutes that speak of the old Code by section number. The Unlawful Activities (Prevention) Act, 1967 is one of them. In a judgment of 18 August 2026, a Division Bench of the Delhi High Court answered the question that transition created: does an accused in a UAPA case become entitled to default bail after 90 days because Section 43D(2) of the UAPA modifies only "Section 167 CrPC", a provision that no longer exists? The Bench held that he does not.
The case
The appeal — Jasir Bilal Wani @ Danish v. National Investigation Agency, CRL.A. 444/2026 — arose out of the improvised explosive device blast near the Lal Qila Metro Station in November 2025. The appellant was arrested on 17 November 2025 for offences under the Bharatiya Nyaya Sanhita, the Unlawful Activities (Prevention) Act, 1967 and the Explosive Substances Act, 1908. The trial court granted the investigating agency a first extension of 45 days on 13 February 2026 and a second on 27 March 2026, taking the permissible custody during investigation to 180 days. The charge-sheet was filed on 14 May 2026, within that window.
The appellant sought default bail on a clean question of statutory construction. Section 43D(2) of the UAPA extends the ordinary custody timeline during investigation — 90 days — up to 180 days, where the court is satisfied with the Public Prosecutor's report indicating the progress of the investigation and the specific reasons for continued detention. But Section 43D(2) achieves this by textually modifying Section 167 of the Code of Criminal Procedure, 1973. The CrPC stands repealed since 1 July 2024. The BNSS provision that replaced Section 167 — Section 187 — is nowhere mentioned in the UAPA. Therefore, the argument ran, the extension machinery had lapsed, the ordinary 90-day ceiling in Section 187(3) BNSS governed, and the appellant — in custody beyond 90 days without a charge-sheet — was entitled to default bail.
What the Division Bench held
The Bench of Justice Prathiba M. Singh and Justice Vikas Mahajan, in a judgment reserved on 23 July 2026 and pronounced on 18 August 2026, rejected the argument. The court applied Section 8(1) of the General Clauses Act, 1897: where an Act repeals and re-enacts a provision, references to the repealed provision in any other enactment are to be construed, unless a different intention appears, as references to the provision re-enacted. The reference in Section 43D(2) UAPA to Section 167 CrPC is what the law terms legislation by reference — a dynamic reference that travels with the general law — rather than legislation by incorporation, which freezes the referred text as on a given date.
In the words of the Bench, the appellant is "not entitled to default bail after 90 days merely because there is no reference to Section 187 of the BNSS in Section 43D(2) of the UAPA. The reference to Section 167 of the Cr.P.C. has to be construed as a reference to Section 187 of the BNSS." The court added that the intention of the special law — the UAPA — prevails over the general law, and that Parliament cannot be taken to have diluted the custody framework for terrorism investigations by the mere act of re-enacting the general procedural code.
A second, independent strand also weighed with the court: the appellant had not promptly challenged the first extension order of 13 February 2026. Default bail is a right that must be exercised diligently; acquiescence in extension orders erodes it.
Old code, new code, same framework
Under the CrPC
Section 167(2) capped investigation custody at 90 days for grave offences. Section 43D(2) UAPA modified Section 167, permitting extension up to 180 days on the Public Prosecutor's report showing progress of investigation and specific reasons for detention beyond 90 days.
Under the BNSS
Section 187(3) BNSS carries the same 90-day ceiling for such offences. Following this judgment, the reference to Section 167 CrPC in Section 43D(2) UAPA is read as a reference to Section 187 BNSS — the 180-day extension framework for UAPA investigations continues to operate.
Why the judgment matters beyond the UAPA
The transition from the CrPC to the BNSS left a large body of special legislation — statutes creating their own bail thresholds, custody timelines and procedural modifications — still speaking in the vocabulary of the old Code. The reasoning of this judgment supplies the bridge for all of them: absent a contrary intention, references to repealed CrPC provisions in special statutes are to be construed as references to their BNSS successors. Arguments built purely on the absence of a BNSS cross-reference are unlikely to travel far, at least before the Delhi High Court.
For those advising accused persons, the practical lessons are two. First, default bail under Section 187(3) BNSS remains a potent and immediate right in the ordinary run of cases — but in special-statute cases the extended timelines will apply as they always have. Second, timing is everything: an extension order that is not challenged when passed may, on this judgment's logic, defeat a later default bail plea through acquiescence. Each extension hearing is a moment at which the defence must be heard, and must speak.
A closing word
Default bail sits at the meeting point of personal liberty and investigative necessity, and questions of statutory transition make that boundary momentarily uncertain. This judgment settles one such question for the UAPA in Delhi. The careful practitioner will read every special statute's custody clause afresh against the BNSS — and will treat extension hearings, not only the eventual bail application, as the place where the right is won or lost.
Frequently Asked Questions
What is default bail?
Default bail — statutory or compulsive bail — arises when the investigating agency does not complete its investigation and file the final report within the period the law allows for keeping an accused in custody. Under Section 187(3) BNSS, corresponding to Section 167(2) CrPC, the accused becomes entitled to be released on bail once that period expires, if he applies and furnishes bail. It flows from the statute, not from the merits of the case.
Why did the accused argue that only 90 days applied?
Section 43D(2) of the UAPA extends custody in UAPA investigations from 90 days up to 180 days, but it does so by modifying Section 167 of the CrPC by name. The argument was that once the CrPC stood repealed and the BNSS made no appearance in Section 43D(2), the extension machinery fell away, leaving only the ordinary 90-day ceiling in Section 187 BNSS.
How did the High Court answer it?
By applying Section 8(1) of the General Clauses Act, 1897 and the doctrine of legislation by reference: where a statute refers to a provision that is later repealed and re-enacted, the reference is construed as a reference to the re-enacted provision. The mention of Section 167 CrPC in Section 43D(2) UAPA is therefore read as Section 187 BNSS, and the 180-day framework survives.
Does this affect ordinary criminal cases?
The 90-day and 60-day default bail periods in Section 187(3) BNSS for ordinary offences are unchanged. The judgment matters for special statutes — such as the UAPA — whose custody and default bail timelines operate by modifying the general Code. Its reasoning suggests that references to the CrPC in such statutes will generally be read as references to the corresponding BNSS provisions.