Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Police Custody and Judicial Custody Compared
Police Custody and Judicial Custody under the BNSS, 2023: the Difference, the Fifteen-Day Cap, the New Splitting Window and Moving Between the Two
A person remanded to custody is sent to one of two places. In police custody he is kept in the lock-up, in the charge of the very officers who are investigating him. In judicial custody he is kept in prison, in the charge of the jail authorities, who have no interest in the outcome of the case. Everything that distinguishes the two follows from that single fact, and so does the rule that judicial custody is the ordinary form of detention and police custody the exception that has to be justified.
The Bharatiya Nagarik Suraksha Sanhita, 2023 has made one change of real consequence in this area. The fifteen-day cap on police custody is unchanged. But the window within which those fifteen days may be taken has been widened from the first fifteen days after the first remand to the first forty days of a sixty-day case and the first sixty days of a ninety-day case, and the days may be taken in whole or in parts. The practical effect is that an accused already in judicial custody may be taken back into police custody weeks later.
1. The Two Compared
Figure 1: The two forms of custody
1.1 Why the difference matters
The reason police custody is treated as exceptional is not that the lock-up is less comfortable than the prison. It is that police custody places the accused in the hands of the persons who are building the case against him, at a time when no charge has been framed, no evidence has been tested, and nobody independent is present. Every safeguard in Chapter V exists because of that fact.
The safeguard | What it answers |
|---|---|
Section 53: mandatory medical examination of every arrested person, recording injuries and the approximate time of infliction, with a copy of the report to him | It fixes the condition of the person at the moment he enters custody, so that a later injury can be located in time |
Section 36(b): a memorandum of arrest attested by a family member or a respectable person of the locality and countersigned by the arrested person | It fixes the time and place of the arrest, so that a period of unrecorded detention cannot be inserted before it |
Sections 36(c) and 48: information to a relative, friend or nominee and to the designated police officer, with an entry in the station register | It ends incommunicado detention, which is the condition in which custodial abuse is possible |
Section 38: the right to meet an advocate of his choice during interrogation | It introduces a person independent of the investigation into the period of questioning |
Section 187(4): production in person every time detention is authorised | It places the person physically before a judicial officer at regular intervals |
Section 56: a duty on the person having custody to take reasonable care of his health and safety | It makes the custodian answerable for what happens while the person is in his charge |
Section 183(3): where the accused says he is unwilling to confess, the Magistrate shall not authorise police custody | It removes the pressure that returning him to the same officers would create |
2. The Fifteen-Day Cap, and the New Window
The police-custody provision in section 187, BNSS 2023 The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so — Provided that the fifteen days of detention may be authorised in 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, as the case may be. |
Figure 2: Moving between the two
2.1 What changed and what did not
Under section 167, CrPC | Under section 187, BNSS | |
|---|---|---|
The cap on police custody | Fifteen days in the whole, however many times granted | Unchanged |
The window | The first fifteen days from the date of the first remand | The first forty days in a sixty-day case, and the first sixty days in a ninety-day case |
May it be split? | In practice no, because the window and the cap were the same length | Yes, expressly: “in whole or in parts” |
Can a person in judicial custody be taken back to police custody? | Not after the first fifteen days | Yes, at any time within the window, for the unused balance |
The outer detention periods | Sixty or ninety days | Unchanged |
Default bail on expiry | Available | Unchanged |
⚠ The argument on both sides For the change. A modern investigation produces leads late. A forensic report comes back in the sixth week; a co-accused is arrested in the fifth; a recovery becomes possible only when a third party is traced. Under the old rule the fifteen days were exhausted or lost within a fortnight, and an officer who later needed the accused’s presence had no way of obtaining it. The change lets the custody be used when it is actually required rather than when the clock happens to allow it. Against the change. The old rule gave the accused a fixed point after which he knew he would not be returned to the officers investigating him. The new rule replaces that with a period of forty or sixty days during which he may be taken back at any time. The prospect of return is itself a pressure, and it operates for the whole of the window whether or not it is ever exercised. The practical control is therefore the Magistrate. Police custody within the window is not available on demand: it must be asked for and justified by reference to what remains to be done and why the accused’s presence with the investigators is required for it. A request made late in the window, without an explanation of why the need arose only then, invites the question whether it has arisen at all. |
📖 V. Senthil Balaji v. State represented by Deputy Director, (2024) 3 SCC 51 Facts: A person arrested by an investigating agency under a special statute was produced before a court, which remanded him to custody; a question arose as to the computation of the period of custody, whether the period spent in hospital counted, and whether the agency could seek custody of the accused for interrogation after the initial fifteen days had begun to run. Held: The Court examined the remand provision and held that the fifteen-day period of custody with the investigating agency is available to be exercised within the whole of the sixty or ninety day period prescribed for the investigation, and is not confined to the first fifteen days from the first remand. It held that an investigating agency must be given a reasonable opportunity to interrogate a person it has lawfully arrested, and that a construction which effectively denies custody altogether where the early days are lost — for instance through hospitalisation — would defeat the purpose of the provision. At the same time it emphasised that custody with the agency is not available for the asking: the court must be satisfied on material that it is required, must record its satisfaction, and the total period cannot exceed fifteen days. Ratio: The fifteen days of custody with the investigating agency may be taken within the wider investigation period and need not be exhausted at the outset; but the fifteen-day cap is absolute and each grant must be justified on material and supported by recorded satisfaction. |
3. Moving Between the Two
- The cap is on the whole. Fifteen days is the total of all the periods of police custody granted in the case, not fifteen days on each occasion. An officer who has taken seven days has eight left, and no more.
- The window is the outer limit. Police custody cannot be granted at all after the fortieth day in a sixty-day case, or the sixtieth day in a ninety-day case, however many of the fifteen days remain unused.
- Each grant must be justified. Police custody is not granted because it is asked for. The application must show, from the case diary, what remains to be done and why it requires the accused to be with the investigators rather than in prison.
- Interrogation does not require police custody. A person in judicial custody may be interrogated with the permission of the court, ordinarily in the prison. An application for police custody founded only on a wish to question the accused does not establish the necessity.
- Section 183(3) forbids it in one situation. Where the accused was produced for the recording of a confession and stated that he was unwilling to make one, the Magistrate shall not authorise his detention in police custody.
- On each transfer the safeguards apply again. The accused must be produced in person, and he is medically examined on being sent to and returned from police custody, so that his condition on each transfer is on record.
4. Custody after Cognizance
📖 State v. Dawood Ibrahim Kaskar, (1997) 5 SCC 253 Facts: Persons were arrested during a further investigation conducted after the charge sheet had been filed and the court had taken cognizance. The prosecution applied for their police custody. It was contended that once cognizance had been taken the remand provision ceased to apply, and that the court could act only under the provision permitting adjournment and remand during an inquiry or trial, which does not permit custody with the police. Held: The Supreme Court held that the two provisions operate in different fields. The provision for adjournment during an inquiry or trial is directed at an accused who is already before the court; it is concerned with securing his presence as the proceeding goes on. The remand provision is directed at a person arrested in the course of an investigation, and the power it confers to authorise police custody remains available in respect of a person newly arrested during a lawful further investigation, even though cognizance has been taken in the case. The fifteen-day cap and the safeguards apply to him as they would to any other arrested person. Ratio: Taking cognizance does not extinguish the power to authorise police custody in respect of a person newly arrested during a lawful further investigation. The adjournment provision addresses a different situation and does not cover him. |
Stage | Provision | Custody available |
|---|---|---|
Before production, within 24 hours of arrest | Section 58 | Police, as an incident of the arrest. No judicial order yet |
On first production and during the investigation | Section 187 | Police, within the fifteen-day cap and the forty or sixty day window, on recorded satisfaction; otherwise judicial |
After the sixty or ninety day period, no report filed | Section 187, proviso | None. The accused shall be released on bail if he furnishes it |
After cognizance, accused already before the court | Section 346 | Judicial, by warrant, for not more than fifteen days at a time |
After cognizance, person newly arrested in a further investigation | Section 187 | Police is available, within the cap and the window: Dawood Ibrahim Kaskar |
On conviction, pending appeal | Sections 430 and 431 | Custody under the sentence, or suspension of sentence and release on bail |
5. Key Takeaways
The position stated shortly 1. In police custody the person is in the lock-up, in the charge of the investigating agency. In judicial custody he is in prison, in the charge of the jail authorities under the orders of the court. 2. Judicial custody is the rule and police custody the exception, because police custody places the accused in the hands of the persons building the case against him. 3. Police custody is limited to fifteen days in the whole, however many times it is granted. The cap is unchanged by the Sanhita. 4. What the Sanhita changed is the window: the fifteen days may now be taken in whole or in parts, at any time during the first forty days of a sixty-day case or the first sixty days of a ninety-day case. 5. The practical consequence is that a person in judicial custody may be taken back into police custody weeks later, for the unused balance. 6. The fifteen days need not be exhausted at the outset and may be taken within the wider investigation period; but the cap is absolute and each grant must rest on material and recorded satisfaction: V. Senthil Balaji. 7. Interrogation does not require police custody. A person in judicial custody may be interrogated with the permission of the court, ordinarily in the prison. 8. A Magistrate of the second class, not specially empowered, cannot authorise police custody: section 187(5). 9. Where the accused was produced for a confession and declined to make one, section 183(3) forbids the Magistrate to authorise police custody. 10. The power to authorise police custody survives the taking of cognizance in respect of a person newly arrested during a lawful further investigation: Dawood Ibrahim Kaskar. |
6. Frequently Asked Questions
What is the difference between police custody and judicial custody?
In police custody the person is kept in the police lock-up in the charge of the investigating agency, for the purposes of the investigation. In judicial custody he is kept in prison in the charge of the jail authorities, to secure his presence. Judicial custody is the ordinary form of detention; police custody is the exception and must be justified.
How many days of police custody are permitted under the BNSS?
Fifteen days in the whole, as under the Code of Criminal Procedure. The cap is on the total of all periods granted in the case, not on each occasion.
Can police custody be split under the BNSS?
Yes. The proviso permits the fifteen days to be authorised in whole or in parts, at any time during the initial forty days of a sixty-day case or the initial sixty days of a ninety-day case. That is the principal change the Sanhita has made in this area.
Can a person already in judicial custody be sent back to police custody?
Yes, within the window and within the unused balance of the fifteen days, and only on the Magistrate being satisfied on material that it is required. Under the earlier law that was not possible after the first fifteen days.
Can the police interrogate a person who is in judicial custody?
Yes, with the permission of the court, and ordinarily in the prison. An application for police custody founded only on a wish to question the accused does not by itself establish the necessity for it.
Can a second class Magistrate order police custody?
No, unless he has been specially empowered in that behalf by the High Court: section 187(5). He may authorise detention in judicial custody.
Related Topics
- Section 187 BNSS: the Periods, Police Custody and Default Bail
- Remand during Investigation under the BNSS, 2023
- Rights of an Arrested Person under the BNSS, 2023
- Custodial Violence and Custodial Death under the BNSS, 2023
- Statement Before a Magistrate: Section 183, BNSS
- Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196