Police Custody and Remand Section 187

Section 187, BNSS 2023 — the substance

(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the investigating officer, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom the accused is forwarded may, irrespective of whether he has or has no jurisdiction to try the case, authorise the detention of the accused 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, as the case may be.

(3) The Magistrate may authorise detention otherwise than in the custody of the police beyond fifteen days if satisfied that adequate grounds exist, but no Magistrate shall authorise detention for a total period exceeding — (i) ninety days where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years; (ii) sixty days for any other offence — on the expiry of which the accused shall be released on bail if he is prepared to and does furnish bail.

⚠ Why the change was made

Under the Code, the fifteen days of police custody had to be taken within the opening fifteen days of detention, and once that window closed it could not be reopened.

An accused who frustrated police custody during those opening days — by feigning illness, by securing admission to hospital, or by other device — could defeat it altogether, and the investigating agency was left with a suspect it could never interrogate.

The courts had begun to recognise a narrow exception to meet that abuse, but the exception sat uneasily with the rule and produced uncertainty.

Section 187(2) resolves it by spreading the window rather than by enlarging the power — which is the important point: the accused gains no additional protection from the rule’s rigidity, and loses none of the substantive limit of fifteen days.

📖 Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, (2023) 6 SCC 49

Facts: An accused was remanded to police custody, and during the currency of that custody secured admission to hospital, with the result that the investigating agency was unable to interrogate him for the period granted. By the time he was fit, the first fifteen days of detention had expired, and it was contended that police custody could no longer be granted at all.

Held: The Supreme Court held that the rule confining police custody to the first fifteen days of detention cannot be permitted to be used as a device by an accused to frustrate the investigation. The Court observed that an accused who deliberately avoids or thwarts the police custody granted to him — by getting himself admitted to hospital or otherwise — and thereby exhausts the period, would, on a rigid application of the rule, succeed in defeating the investigation altogether; and that such a consequence would reward the very conduct the law seeks to prevent. It held that in such circumstances the investigating agency cannot be denied the police custody which it was granted and of which it was deprived by the conduct of the accused, and that the period during which the accused frustrated the custody is to be taken into account. The Court permitted the agency the custody it had been denied.

Ratio: The rule confining police custody to the first fifteen days cannot be used by an accused as a device to frustrate the investigation. Where he deliberately thwarts the custody granted, the agency cannot be denied what it was deprived of by his own conduct.

📖 Rini Johar v. State of Madhya Pradesh, (2016) 11 SCC 703

Facts: The petitioners were arrested and taken into custody in circumstances in which, the Court found, the safeguards governing arrest had not been observed — no notice had been issued where the offence permitted it, the arrest was not shown to be necessary, and the manner of the detention was oppressive.

Held: The Supreme Court held that an arrest made without observing the statutory safeguards and without any demonstrable necessity is a violation of the right to life and personal liberty under Article 21, and that the consequence is not confined to the invalidity of the detention: the person so deprived is entitled to compensation in public law. The Court held that the dignity of the individual is at the heart of Article 21, that an arrest conducted in a humiliating manner or without regard to the safeguards infringes that dignity, and that a court is not powerless to remedy it merely because the criminal proceeding itself may continue. It emphasised that the power to arrest and the justification for exercising it are different questions, that an officer must be able to show the necessity in the particular case, and that a subsequent order of remand does not cure an arrest which was unlawful when made.

Ratio: An arrest made without the statutory safeguards and without demonstrable necessity violates Article 21 and sounds in compensation. The power to arrest and the justification for its exercise are different questions, and a later remand does not cure an unlawful arrest.

⚠ Four points that recur in practice

Police custody and judicial custody are different things. A request for police custody must state what it is for — interrogation, recovery, confrontation with a co-accused — and a Magistrate should ask.

The fifteen days are a ceiling, not an entitlement. A Magistrate may grant less, and should grant only what the stated purpose requires.

The spreading of the window does not enlarge the power. It permits police custody to be taken later; it does not permit more of it, nor dispense with the requirement that each period be separately justified.

And the outer limit is absolute. On the expiry of sixty or ninety days without a report, the right to default bail accrues, and no order of remand can defeat it.

The position stated shortly

1. Where the investigation cannot be completed within twenty-four hours, the officer shall forthwith transmit the case diary entries to the nearest Judicial Magistrate and forward the accused.

2. The change: the fifteen days of police custody may now be taken in whole or in parts, at any time during the initial forty or sixty days of the total detention period.

3. The quantum is unchanged. The Sanhita has not increased police custody beyond fifteen days.

4. The window is the initial forty days where the total period is sixty, and the initial sixty days where it is ninety.

5. The outer limits are unchanged: ninety days for an offence punishable with death, life or not less than ten years; sixty days otherwise.

6. The change answers a real abuse: an accused who frustrated police custody in the opening fifteen days could defeat it altogether: Vikas Mishra.

7. It does so by spreading the window, not by enlarging the power — which is why the accused loses no substantive protection.

8. Remand is a judicial act. The Magistrate must apply his mind to necessity, see the accused, examine the case diary entries, and record reasons.

9. Police custody and judicial custody are different things, and a request for the former must state what it is for.

10. An arrest without the safeguards and without demonstrable necessity violates Article 21 and sounds in compensation, and a later remand does not cure it: Rini Johar.