# Police Remand Under BNSS 2023: Key Changes Every Advocate Must Know
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1 July 2024 — has introduced several consequential changes to criminal procedure in India. Among the most debated and practically significant is the overhaul of police remand provisions under Section 187 of the BNSS, which replaces the erstwhile Section 167 of the CrPC.
For criminal lawyers, public prosecutors, and judicial officers, understanding these changes is not optional — it directly affects how you argue remand applications, oppose custody extensions, and safeguard the liberty of the accused. This article provides a detailed, section-by-section analysis of every major change, its practical implications, and how advocates can adapt their practice accordingly.
Why Police Remand Matters: A Quick Primer
Before diving into the changes, let's establish why police remand is one of the most contested areas in criminal law.
Police remand (also called police custody) is the period during which an arrested person is placed in the physical custody of the investigating officer for the purposes of interrogation. Unlike judicial custody — where the accused is held in jail under the court's supervision — police custody places the accused directly under the control of the investigating agency.
The constitutional safeguards under Articles 21 and 22 of the Constitution, combined with the procedural framework of the CrPC (now BNSS), are designed to prevent indefinite or arbitrary detention. Every additional day in police custody must be justified before a Magistrate, and the accused has a fundamental right to be produced before a judicial authority within 24 hours of arrest.
Given these stakes, any change to the remand framework demands close scrutiny.
The Old Regime: Section 167 CrPC — How It Worked
Under the CrPC regime, police remand was governed by Section 167, which operated as follows:
The 15-Day Rule
The Magistrate could authorise detention of the accused in police custody for a maximum of 15 days in the whole — and crucially, this 15-day window was available only during the first 15 days from the date of the first remand. After the initial 15-day period expired, the accused could only be remanded to judicial custody, regardless of whether police custody had been utilised for the full 15 days or not.
This interpretation was firmly established by the Supreme Court in CBI v. Anupam J. Kulkarni (1992), which held that police remand could not be granted after the initial period of 15 days, even if actual police custody during that period totalled fewer than 15 days.
Total Remand Period
The total period of remand (police + judicial custody combined) was capped at:
- 90 days — for offences punishable with death, life imprisonment, or imprisonment of 10 years or more
- 60 days — for all other offences
Default Bail (Section 167(2) Proviso)
If the investigation was not completed within the applicable period (60 or 90 days), the accused became entitled to default bail (also called statutory bail) — a critical safeguard against indefinite pre-trial detention.
The New Regime: Section 187 BNSS — What Has Changed
Section 187 of the BNSS retains the broad structure of Section 167 CrPC but introduces several significant modifications. Here is a systematic breakdown of every key change.
1. Police Custody Can Now Be Granted Beyond the First 15 Days
This is the single most consequential change.
Under the CrPC, as interpreted by *Anupam J. Kulkarni*, police custody of 15 days was a contiguous block available only during the first 15 days. The investigating agency had to use it or lose it.
Section 187(3) of the BNSS explicitly provides that the Magistrate may authorise detention of the accused in police custody for a total period not exceeding fifteen days in the whole, and this custody may be permitted in parts at any time during the initial forty days or sixty days, as applicable.
What this means in practice:
- The police can now request 5 days of custody initially, return the accused to judicial custody, and then apply for additional police custody days weeks later — as long as the total does not exceed 15 days and falls within the initial 40/60 day window.
- The rigid *Anupam J. Kulkarni* restriction — that police custody must be sought and consumed within the first 15 days — has been legislatively overruled.
For defence advocates, this is a critical change that significantly expands the investigation agency's power. Clients can no longer assume that surviving the first 15 days means police custody is permanently behind them.
2. Extended Overall Remand Periods: 40 and 60 Days Become the New Anchors
The BNSS modifies the total remand period structure:
| Parameter | CrPC (Section 167) | BNSS (Section 187) |
|---|---|---|
| Police custody cap | 15 days (first 15 days only) | 15 days (any time within initial 40/60 days) |
| Total remand — serious offences (death, life, 10+ years) | 90 days | 90 days |
| Total remand — other offences | 60 days | 60 days |
| Police custody window | First 15 days only | Initial 40 days (other offences) / 60 days (serious offences) |
| Fragmented police custody | Not permitted (Anupam J. Kulkarni) | Expressly permitted in parts |
The 40/60 day window within which police custody can be sought is a new concept that has no direct equivalent under the CrPC. It creates a prolonged period of vulnerability for the accused, during which the threat of being pulled back into police custody hangs over them even while they are in judicial custody.
3. Mandatory Forwarding of Case Diary and Communication
Section 187 strengthens the procedural requirements around case diary forwarding:
- The officer in charge of the police station must forward a copy of the entries in the case diary to the Magistrate when seeking remand extension.
- This ensures the Magistrate has access to the progress of investigation before authorising continued detention.
While this provision existed in a weaker form under the CrPC, the BNSS makes it more explicit, creating a clearer basis for defence advocates to challenge remand extensions where case diary entries show no meaningful investigative progress.
4. Audio-Visual Production Before Magistrate
Section 187(2) of the BNSS permits the accused to be produced before the Magistrate through electronic means (audio-video) when authorising detention beyond the initial period. This is a formalisation of the practice that gained traction during the COVID-19 pandemic.
Practical implications:
- Speeds up remand proceedings by eliminating transit delays - However, defence advocates must be vigilant — virtual production can sometimes make it harder for the accused to communicate privately with counsel or raise complaints of custodial mistreatment effectively - Courts must ensure that the accused's right to be heard is not diluted by the virtual format
5. Detention of Women — Special Provision Retained
The BNSS retains and reinforces the protection that no woman shall be required to attend a police station at night for interrogation, and that police custody of women must comply with special safeguards. Section 187 continues to mandate that female accused persons shall be kept in a separate facility and their custody shall be supervised by female police officers.
6. Default Bail Provision Continues (with the Same Tension)
The proviso to Section 187(2) preserves the right to default bail (statutory bail) if the investigation is not completed within 60 or 90 days, as applicable. The accused can be released on bail — with or without sureties — if the chargesheet is not filed within the prescribed period.
However, a practical tension remains: since police custody can now be sought in fragments throughout the 40/60 day window, investigation agencies may use this extended access to accelerate investigation just enough to file a chargesheet within the default bail period, potentially weakening the accused's default bail claim.
Impact on Defence Practice: What Advocates Must Do Differently
The BNSS changes demand a recalibration of defence strategy at the remand stage. Here are the key adjustments:
Oppose Every Remand Extension on Merits
Under the CrPC, defence advocates could sometimes rely on the passage of the first 15 days as a de facto shield. That shield is gone. Now, every remand hearing — whether at day 5, day 25, or day 38 — is a potential battleground for police custody.
Advocates must:
- Demand and scrutinise the case diary entries at each hearing to challenge investigative necessity
- Argue specificity — the police must justify why they need the accused in custody *at this particular stage* and what specific aspect of investigation requires physical custody
- Invoke Article 21 — the expanded remand window increases the burden on the prosecution to demonstrate that continued custody is not arbitrary
Track the 15-Day and 40/60-Day Limits Meticulously
With fragmented custody now permitted, maintaining an accurate custody log becomes critical. Defence advocates must track:
- Total days of police custody consumed (out of the 15-day cap) - Whether the current date falls within the 40/60 day window - Remaining judicial custody days before default bail triggers
A miscalculation can mean the difference between opposing a lawful remand application and successfully arguing that the police have exhausted their quota.
Leverage Technology for Remand Tracking
Managing fragmented remand schedules across multiple clients is complex. Tools like JuniorLawyer can help advocates track custody timelines, set automatic reminders for default bail dates, and draft remand opposition applications with AI assistance — ensuring no deadline is missed and no right is forfeited by oversight. Explore the AI-powered case management features designed for criminal law practitioners.
Challenge Virtual Production Where Prejudicial
While audio-video production is convenient, defence advocates should object where: - The accused wishes to make complaints of custodial violence that require physical examination - Private communication between counsel and accused is not adequately facilitated - Technical glitches compromise the accused's ability to be heard effectively
Impact on Prosecution and Investigation
The changes are not merely procedural — they fundamentally alter the investigation dynamic:
Strategic Advantage for Police
The ability to seek police custody in fragments gives investigating officers tactical flexibility. They can:
- Conduct initial interrogation, analyse the results, pursue external leads, and then bring the accused back for further questioning based on newly discovered evidence - Avoid the previous pressure to extract maximum information during a single, continuous 15-day window - Time their custody requests around the discovery of specific evidence or the arrest of co-accused
Accountability Through Case Diary Scrutiny
The enhanced case diary forwarding requirement, however, provides a counterbalance. Magistrates are better positioned to assess whether further custody is genuinely needed or whether the police are merely warehousing the accused.
Key Supreme Court Jurisprudence That Remains Relevant
While *Anupam J. Kulkarni* has been legislatively superseded on the question of fragmented custody, several other judicial principles continue to apply under the BNSS:
- Arnesh Kumar v. State of Bihar (2014) — Guidelines on arrest to prevent unnecessary custodial detention, especially for offences punishable with less than 7 years imprisonment. These remain binding.
- Siddharth v. State of UP (2021) — Reinforced that police custody is the exception, not the rule, and must be justified by specific investigative necessity.
- Hussainara Khatoon v. State of Bihar (1979) — The foundational right against prolonged pre-trial detention under Article 21 remains the overarching constitutional check.
Defence advocates should continue to cite these authorities when opposing remand applications, even under the new BNSS framework.
State-Wise Implementation: Practical Realities
Since the BNSS came into effect on 1 July 2024, implementation has varied across states:
- Metropolitan Magistrate courts in major cities have largely adapted to the new framework, with regular case diary scrutiny becoming more common.
- District courts in smaller towns are still developing consistent practices around fragmented custody requests.
- High Courts have begun to issue practice directions clarifying how Section 187 applications should be heard, particularly regarding the evidentiary threshold for granting police custody beyond the initial 15 days.
Advocates practising across jurisdictions should stay updated on their respective High Court's guidelines.
Frequently Overlooked: The 24-Hour Production Rule
One provision that remains unchanged — and is frequently violated in practice — is the requirement under Section 58 of the BNSS (replacing Section 57 CrPC) that every arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding travel time.
This constitutional mandate (Article 22(2)) is the first line of defence against unlawful detention, and it continues to apply with full force under the BNSS. Advocates must continue to raise this at the earliest opportunity whenever a client's production is delayed.
Conclusion: A Balanced but Watchful Approach
The BNSS changes to police remand represent a deliberate expansion of investigative authority balanced by enhanced procedural safeguards. The fragmented custody model gives the police legitimate operational flexibility, but it also creates a longer window of vulnerability for the accused.
For defence advocates, the message is clear: eternal vigilance is the price of liberty. The old comfort of the first-15-days ceiling is gone. Every remand hearing is now a potential custody hearing, and meticulous tracking of custody days, rigorous case diary scrutiny, and robust constitutional arguments are more important than ever.
For prosecutors, the new framework demands responsible use — courts will not look kindly on fragmented custody requests that lack specific justification, and the enhanced case diary requirements ensure greater judicial oversight.
The evolution from Section 167 CrPC to Section 187 BNSS is neither a victory for the prosecution nor a defeat for the defence. It is a procedural reset that demands higher competence from all stakeholders — investigating officers, prosecutors, defence advocates, and Magistrates alike.
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