Custody & Remand under BNSS, 2023 Section 187, the 15-Day Rule, 40/60-Day Window & Default Bail
Section 187 BNSS replaces Section 167 Cr.PC and carries the single most consequential change in the new procedure code: police custody of 15 days may now be taken in parts, spread across the first 40 or 60 days of remand, instead of only the opening fortnight. This post lays out every number, every safeguard, and the July 2026 Supreme Court ruling that settled the dispute.
What Is Custody?
Custody refers to the detention of a person by law enforcement after an arrest, during which the individual is not free to leave and is under the control of the authorities.
- BNSS: Section 187
- Cr.PC (repealed): Section 167
Arrest and Custody Are Not the Same Thing
Figure 1 — Custody is the wider concept; arrest is one route into it
- Arrest → Custody: the moment a person is arrested, he passes into custody. The two are joined at that point.
- Custody without arrest: a person who surrenders before a court and submits to its directions is in the court's custody even though no police officer arrested him
In Niranjan Singh v. Prabhakar Rajaram Kharote (1980) the Supreme Court held that custody is wider than arrest — a person is in judicial custody the moment he surrenders before the court and submits to its jurisdiction, whether or not the police have physically arrested him. This is why an accused who surrenders can immediately apply for bail: he is already "in custody" for the purposes of the bail provisions.
Judicial Magistrate vs Executive Magistrate
Figure 2 — The two magistracies and their very different remand powers
The BNSS has abolished the concept of metropolitan areas and Metropolitan Magistrates, which existed under the Cr.PC. The classes of criminal courts are now the Court of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates. Any answer that still refers to a "Chief Metropolitan Magistrate" under the BNSS is dated.
The Fork in the Road — 24 Hours
Once an offence is committed and an arrest is made, investigation begins. Everything turns on one question:
- Investigation completed within 24 hours → no remand is needed; the person is released or charged
- Investigation not completed within 24 hours → Section 187 is triggered, and the accused must be produced before a Magistrate
The 24-hour rule itself comes from Section 58 BNSS, which mirrors Article 22(2) of the Constitution. The period excludes the time necessary for the journey from the place of arrest to the Magistrate's court.
Section 187(1) — What the Police Must Do
- Where the investigation cannot be completed within 24 hours and there are grounds for believing the accusation or information is well-founded
- The officer in charge of the police station or the investigating officer — not below the rank of Sub-Inspector — shall forthwith transmit to the nearest Magistrate a copy of the entries in the case diary
- And shall at the same time forward the accused to that Magistrate
The Remand Timeline — Every Number in One Picture
Figure 3 — Section 187: the two remand tracks, their windows and their ceilings
Section 187(2) — The 15-Day Police Custody Rule
The Magistrate to whom the accused is forwarded may — whether or not he has jurisdiction to try the case — authorise detention from time to time in such custody as he thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days respectively. If he has no jurisdiction and considers further detention unnecessary, he may forward the accused to a Magistrate who does have jurisdiction.
| Punishment for the Offence | Total Detention | Window for Police Custody | Max Police Custody |
|---|---|---|---|
| Death, imprisonment for life, or 10 years or more | 90 days | First 60 days | 15 days in whole or in parts |
| Any other offence (less than 10 years) | 60 days | First 40 days | 15 days in whole or in parts |
Under Section 167 Cr.PC, following CBI v. Anupam J. Kulkarni, police custody could be sought only within the first 15 days of remand — once that fortnight passed, the accused could not be sent back to police custody at all. The BNSS deliberately changed this, and in July 2026 the Supreme Court confirmed that Sections 187(2) and (3) permit police custody to be granted in parts across the first 40 or 60 days, while the total police custody remains capped at 15 days. The Court reasoned that investigators need the flexibility to act on fresh leads that surface later in an investigation. The Karnataka High Court had earlier held that for offences punishable up to 10 years, police custody must fall within the first 40 days.
Section 187(3) — The Outer Ceiling and Default Bail
- The Magistrate may authorise detention beyond fifteen days if satisfied that adequate grounds exist
- But no Magistrate shall authorise a total period exceeding:
- 90 days — offence punishable with death, imprisonment for life, or imprisonment for a term of ten years or more
- 60 days — any other offence
- On expiry, the accused shall be released on bail if he is prepared to and does furnish bail — this is default bail
- Such release is deemed to be under Chapter XXXV (Provisions as to Bail and Bonds) for all purposes of that Chapter
The Six Safeguards Built into Section 187
Figure 4 — The procedural safeguards and the two Explanations to Section 187
Section 187(4) — Production of the Accused
- No Magistrate shall authorise police custody unless the accused is produced before him in person the first time, and subsequently every time the accused remains in police custody
- But further detention in judicial custody may be extended on production of the accused either in person or through audio-video electronic means
The distinction is deliberate and heavily examinable: police custody demands physical production every single time; judicial custody permits video linkage.
Section 187(5) — Which Magistrate May Order Police Custody
- A Magistrate of the second class, not specially empowered in this behalf by the High Court, shall not authorise detention in police custody
Section 187(6) — When No Judicial Magistrate Is Available
- Where a Magistrate is not available, the officer in charge or the investigating officer, not below the rank of Sub-Inspector, may transmit the diary entries to the nearest Executive Magistrate on whom the powers of a Magistrate have been conferred, and forward the accused to him
- That Executive Magistrate may, for reasons to be recorded in writing, authorise detention in such custody as he thinks fit for a term not exceeding seven days in the aggregate
- On expiry of those seven days the accused shall be released on bail, unless a Magistrate competent to do so has ordered further detention
- Where such further detention is ordered, the days spent under the Executive Magistrate's order are counted towards the 60 or 90-day total
Sections 187(7) and (8) — Recording and Reporting
- A Magistrate authorising detention in police custody shall record his reasons for doing so
- Any Magistrate other than the Chief Judicial Magistrate making such an order shall forward a copy of the order, with his reasons, to the Chief Judicial Magistrate
Section 187 ↔ Section 167 Cr.PC — What Actually Changed
| Point | Cr.PC, Section 167 | BNSS, Section 187 |
|---|---|---|
| Total police custody | 15 days | 15 days — unchanged |
| When police custody may be taken | Only within the first 15 days of remand | In whole or in parts across the first 40 or 60 days |
| Total detention ceiling | 90 days / 60 days | 90 days / 60 days — unchanged |
| Wording of the 90-day bracket | "not less than ten years" | "ten years or more" |
| Extension of judicial custody | Physical production | Permitted through audio-video electronic means |
| Executive Magistrate's power | 7 days in the aggregate | 7 days in the aggregate — retained |
Section 187 has drawn sustained criticism for omitting the phrase "otherwise than in the custody of the police" that appeared in Section 167(2) Cr.PC. That phrase was what marked the boundary between police custody and judicial custody. Its absence created the argument that police custody might run through the whole remand period — an argument the Supreme Court has now closed by capping total police custody at 15 days. For Mains, this is a clean illustration of how legislative drafting quality directly affects personal liberty under Article 21.
Fifteen days of police custody is unchanged on paper. What changed is the calendar it may be spread across — and a power that can be exercised on day thirty-nine is a very different power from one that expires on day fifteen.
— Legacy IAS Faculty
Key Takeaways
- Custody = Section 187 BNSS (earlier Section 167 Cr.PC). Custody is wider than arrest — every arrest produces custody, but a person who surrenders before a court is in custody without any arrest.
- The 24-hour rule under Section 58 BNSS and Article 22(2) — excluding journey time — is the trigger: if investigation cannot finish in 24 hours, the accused must be produced before a Magistrate under Section 187(1) by an officer not below Sub-Inspector rank.
- Memorise the two tracks: death / life / 10 years or more → 90 days total, 60-day police-custody window; every other offence → 60 days total, 40-day window. Police custody is capped at 15 days in both, leaving 75 and 45 days respectively in judicial custody.
- The biggest change from the Cr.PC: police custody may now be taken in parts instead of only in the opening fortnight — confirmed by the Supreme Court in July 2026.
- Safeguards: reasons in writing for police custody · a second-class Magistrate cannot order police custody unless specially empowered by the High Court · physical production every time in police custody but video linkage permitted for judicial custody · a girl under 18 is detained in a remand home or recognised social institution.
- An Executive Magistrate (DM, ADM, SDM and others under the State Government) may remand for only 7 days in the aggregate and only when a Judicial Magistrate is unavailable — after which it is bail or transfer, and those days count towards the 60/90-day total.
