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Criminal law guide | India

Maximum Police Custody, Judicial Detention and Default Bail under BNSS

Indian criminal procedure limits how long a person may be held without judicial authority, regulates police and judicial remand, and provides a statutory right to default bail when the investigation is not completed within the prescribed period.

Important update: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force on 1 July 2024, replacing the Code of Criminal Procedure, 1973 (CrPC), subject to applicable saving and transitional provisions. Detention and bail procedure is governed by procedural law, not by the Indian Penal Code (IPC). Earlier CrPC decisions may remain relevant depending on the provision and circumstances.

Police custody and judicial custody: meaning

Police custody means detention of an arrested person under the control of the police pursuant to lawful authority, ordinarily for investigation and questioning. Judicial custody means detention pursuant to a magistrate's judicial remand order, usually in a prison or other legally authorized facility. Neither form of custody can continue merely at police discretion.

Can the police detain a person for more than 24 hours?

Under Article 22(2) of the Constitution, an arrested person must ordinarily be produced before the nearest magistrate within 24 hours, excluding the journey time. Section 58 BNSS likewise prohibits police detention beyond 24 hours without a special order of a magistrate under Section 187, excluding necessary travel time. Constitutional exceptions, including preventive detention provisions, require separate analysis.

The corresponding earlier provisions were Sections 57 and 167 CrPC. An arrested person also has constitutional protections concerning information about the grounds of arrest and consultation with a legal practitioner, subject to applicable exceptions.

How long can police custody be ordered?

Section 187(2) BNSS allows a magistrate, where statutory requirements are satisfied, to authorize detention in police custody for up to 15 days in total, in one stretch or in parts, during the initial 40 days of the 60-day remand period or the initial 60 days of the 90-day remand period, as applicable. This differs from the earlier CrPC framework, under which police custody was generally confined to the first 15 days of remand.

Police custody is not automatically granted for 15 days. Each authorization requires judicial consideration of the statutory grounds, and the accused must be produced as required by law.

Judicial custody and the 60-day or 90-day limit

Section 187(3) BNSS sets the ordinary maximum period of investigative detention before default bail becomes available. These periods are not an absolute maximum duration for all custody: lawful detention may continue after a timely charge sheet or under other valid judicial orders.

Investigated offenceOrdinary default-bail period
Punishable with death, imprisonment for life, or imprisonment for a term of ten years or more90 days
Other offences60 days

Different remand and filing deadlines may apply under special statutes, such as the NDPS Act or UAPA, where their specific provisions lawfully govern the investigation.

When is default bail granted?

Under the proviso to Section 187(3) BNSS (formerly Section 167(2) CrPC), an accused acquires the right to seek statutory or default bail when the applicable 60-day or 90-day period expires without the requisite investigation report being filed, provided the accused applies for bail and is prepared to furnish the required bail terms. It is not an unconditional automatic release merely because the calendar period has passed.

The calculation of the deadline and whether a filing satisfies the law can be contested. An application made after the statutory period expires but before a valid charge sheet is filed is especially important for asserting the right. Courts consider the statutory text and binding case law, including Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, and M. Ravindran v. Intelligence Officer, (2021) 2 SCC 485.

Regular bail, anticipatory bail and default bail

  • Regular bail: Release sought by a person already arrested or detained, subject to the applicable bail provisions and judicial discretion.
  • Anticipatory bail: A pre-arrest direction under Section 482 BNSS, where available and subject to statutory exceptions.
  • Default bail: A statutory safeguard tied to failure to complete the investigation and file the requisite report within the applicable time under Section 187 BNSS.

Remedies against unlawful arrest or detention

An arrested person may challenge an unlawful arrest, improper remand or excessive detention through appropriate proceedings before the competent court. A petition for habeas corpus may be sought under Article 32 before the Supreme Court or Article 226 before a High Court where legally maintainable. The existence of a judicial remand order affects the availability of habeas corpus, but does not make every detention immune from challenge.

In Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, the Supreme Court discussed the judicial examination of the legality of detention. The legal effect of a subsequent remand order must be assessed in the circumstances of the individual case.

Practical steps for an accused or family member

  1. Record the exact date and time of arrest and the first production before the magistrate.
  2. Obtain copies of available remand orders and confirm whether the person is in police or judicial custody.
  3. Identify the alleged offences and whether a special statute changes the ordinary deadline.
  4. Ask a qualified criminal lawyer to calculate the statutory period and, if appropriate, promptly move a default-bail application.
  5. Comply with bail bond and surety conditions ordered by the court.

Official legal sources

This article is general legal information, not individualized legal advice. Procedural provisions, transition rules, special statutes and the latest binding judgments should be checked for each case.

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