In Thokchom Gyaneshor v. Directorate of Enforcement, W.P.(CRL) 3157/2026 (decided 27 October 2026), a Division Bench of the Delhi High Court comprising Justice Navin Chawla and Justice Arun Bhardwaj dismissed a writ petition seeking release from custody in a case under the Prevention of Money Laundering Act, 2002. The petitioner argued that the 60/90-day period under Section 187 of the BNSS had expired without valid cognizance of the ED complaint, entitling him to release. The Bench held that a complaint filed within the statutory period is enough — the absence or setting aside of cognizance does not resurrect default bail — and that the petitioner was in any event re-agitating an issue already decided against him up to the Supreme Court.
How the case reached the Division Bench
The two answers the Bench gave
The first answer was preclusive. The release argument built on the irregular remand and the set-aside cognizance had already been considered and rejected by the single judge, and the challenge to that ruling had failed in the Supreme Court. The Bench recorded that the petitioner was trying to re-open an issue which already stands determined, and that it was not sitting in appeal over a co-ordinate ruling — a ground sufficient by itself to dismiss the writ.
The second answer went to the merits. Relying on Judgebir Singh, (2023) 17 SCC 48, which follows Suresh Kumar Bhikamchand Jain (2013), the Bench reiterated that the filing of the chargesheet or complaint within the 60/90-day window is what defeats default bail. Cognizance — a judicial act that may be delayed, deferred for a pre-cognizance hearing, or even set aside and re-taken — is not the event the statute watches. Since the ED complaint had been filed within the Section 187 period, the continued remand was lawful, and the petitioner's remedy lay in a bail application on merits.
Why the distinction matters
| Event | Effect on default bail |
|---|---|
| Complaint or chargesheet filed within 60/90 days | Right to default bail never crystallises |
| Cognizance taken late, or deferred for a Section 223 BNSS hearing | No effect — remand continues under the ordinary law |
| Cognizance order set aside on procedural grounds | Cognizance is considered afresh; no fresh default-bail right arises |
| Complaint or chargesheet not filed in time | Indefeasible right to release arises, if claimed before filing |
The judgment also illustrates a quieter point of PMLA practice under the new codes: the pre-cognizance hearing under Section 223 BNSS is a genuine procedural safeguard — it undid a cognizance order here — but it is not a lever for release. Procedural irregularity in remand, once cured or superseded, does not convert into liberty.
Practice note: For accused persons in long ED investigations, the realistic sequence is to watch the 60/90-day window closely and apply the moment it lapses; once the complaint is on file, energy is better spent on a merits bail application under Section 45 PMLA than on collateral writs attacking cognizance. The findings here are confined to the legality of remand and decide nothing about the merits of the money-laundering allegation.
Frequently Asked Questions
What is default bail and when does the right arise?
Default bail — now housed in Section 187 BNSS, corresponding to Section 167(2) CrPC — is the indefeasible right to be released if the investigating agency fails to file its chargesheet or complaint within 60 or 90 days of the first remand, depending on the offence. The right arises from the failure to file, and it is extinguished once the chargesheet or complaint is filed within time.
Does delay in taking cognizance revive the right to default bail?
No. Following Suresh Kumar Bhikamchand Jain (2013) and Judgebir Singh (2023), the Supreme Court position is that filing within the statutory period is what matters. Cognizance is a judicial act that may follow later; its absence or even its setting aside does not create a fresh default-bail right.
What happens if an order taking cognizance is set aside?
The consequence is procedural: the court takes up the question of cognizance afresh — in this case after a pre-cognizance hearing under Section 223 BNSS — while the accused remains governed by the ordinary law of remand and bail. The remedy for the accused is a regular bail application on merits.
Can a question decided in earlier proceedings be reopened by a fresh writ?
Not between the same parties on the same issue. The Bench noted that a single judge had already rejected the release argument, and the Supreme Court had dismissed the special leave petition against that order, leaving liberty only to seek regular bail. A fresh writ on the same point invited dismissal on that ground alone.