A legal analysis of Section 187 of India's Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) examines how the omission of the phrase 'otherwise than in the custody of police' from the new law's remand provisions may have removed the explicit 15-day cap on police custody that existed under the CrPC, leaving the restriction open to judicial interpretation.
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A closer examination of police detention under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 finds that the removal of the phrase "otherwise than in the custody of police" from the statutory text has reshaped the legal framework governing remand, leaving open the possibility that police custody could extend beyond the 15-day ceiling previously understood to apply.
Under Article 21 of India's Constitution, every individual holds an entitlement to both life and personal liberty — protections that may be curtailed only when a lawfully established procedure authorises such an action. The constitutional case of Maneka Gandhi tested the boundaries of personal liberty under Indian law. In interpreting the phrase "Procedure established by Law," the apex court's ruling in Union of India [(1978) 1 SCC 248] set out that any such procedure is to satisfy standards of fairness and reasonableness, leaving no room for arbitrariness. Restricting a person's liberty — or any other protected right — is permissible only when the governing legislation behind that restriction meets standards of fairness and proportionality.
Under both the Criminal Procedure Code of 1973 and its successor legislation, the Bharatiya Nagarik Suraksha Sanhita of 2023, detention of an accused person may take the form of either police custody or custody overseen by a judicial authority. Police custody — in which a detained person is held at a station lock-up — is typically authorised so that investigators can question that individual and piece together what actually took place during the alleged offence. Questioning detainees held in police custody stands as the acknowledged practical purpose behind remand proceedings.
Judicial remand serves a dual function under the law: shielding witnesses and physical evidence from interference by the person charged, while also offering that same individual a degree of protection against potential acts of violence directed at them. Persons held under judicial remand are typically detained in a prison or a facility that the Central or State Government has formally designated for that purpose.
When a person under arrest cannot have their case fully investigated within a single day, provisions governing remand during the inquiry period come into play — specifically Section 167(2) of the CrPC alongside Sections 187(2) and 187(3) of the BNSS. Under both provisions, a Magistrate holds the authority to order that an accused person be held in whatever form of custody the Magistrate judges to be appropriate.
In V. Senthil Balaji v. State [(2024) 3 SCC 51], the court noted that the phrase "such custody as such Magistrate thinks fit" served to reaffirm the breadth of discretionary authority vested in the Magistrate.
Under Section 167(2) of the CrPC, the total duration of police custody cannot extend beyond 15 days, with the relevant Magistrate holding authority to determine the form that custody takes — whether before a judicial body, an investigating agency, or some other appropriate entity in the circumstances of the case. In CBI v. Anupam J. Kulkarni [(1992) 3 SCC 141], the court laid down that the statutory window of 15 days available for police custody runs from the point of arrest itself, leaving no room for any further remand to police custody once that initial fortnight has elapsed.
A panel of three judges returned to that same legal position in Budh Singh v. State of Punjab [(2000) 9 SCC 266]. In that ruling, which diverged from earlier precedents, police custody remand was held to be permissible in portions or in full across an aggregate span of 15 days falling anywhere within the broader 60-day or 90-day window — whichever applied — rather than being confined to the opening 15 days of that period.
Under sub-section (3) of Section 187, the BNSS placed a cap on custodial remand — allowing it to run in full or in portions across the opening 40 or 60 days of a broader detention window that extends to either 60 or 90 days, depending on the nature of the matter. Under the proviso attached to Section 167(2) of the CrPC, a Judicial Magistrate held the power to extend an accused person's detention beyond the initial 15-day period — confining that person somewhere other than police custody — for a total span reaching either 60 or 90 days, depending on which category the offence fell into.
The phrase "otherwise than in the custody of police," embedded as a proviso within Section 167(2) CrPC, drew a boundary between the 15-day police custody window and the broader detention period that the provision permits in total — though courts have interpreted that boundary differently. The deletion of that phrase during the legislative conversion of the Section 167(2) CrPC proviso into sub-section (3) of Section 187 BNSS had the effect of extending the remand-beyond-15-days exception — operative within the 60-day or 90-day outer limit depending on the offence — to cover accused persons held under either form of custody, whether by the police or by a judicial authority.
Within sub-section (3) of Section 187 BNSS, the phrase "such custody" drawn from sub-section (2) carries forward its meaning without any narrowing of the custody category it covers. The BNSS contained no provision setting an upper boundary on how long an accused person could be held in police custody beyond the 15-day mark, and Section 187(2) of the BNSS contains no language that expressly caps police remand at a 15-day ceiling, according to the review. The detention period was folded into the broader framework of judicial remand rather than treated as a separate category.
The question of whether the gap in the law stems from a legislative oversight or another cause is one that may ultimately fall to the courts to resolve.