Judicial Custody and Police Custody under the Bharatiya Nagarik Suraksha Sanhita, 2023

A Comparative Study Under the Bharatiya Nagarik Suraksha Sanhita, 2023

Keywords

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); Judicial Custody; Police Custody; Section 187 BNSS; Remand Jurisprudence; Personal Liberty; Article 21; Article 22; Constitutional Safeguards; Criminal Procedure; Magistrate’s Powers; Custodial Rights; Investigative Detention; Remand Proceedings; CBI v. Anupam J. Kulkarni; D.K. Basu Guidelines; Criminal Justice Administration; Custodial Violence; Due Process; Judicial Oversight.

• Abstract / Introduction:

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)1 has replaced the Code of Criminal Procedure, 1973 and introduced significant changes to criminal procedure in India. Among the most debated changes is the remand framework under Section 187 BNSS2. This article critically analyses the distinction between police custody and judicial custody under the new regime. It explores the constitutional foundations of custodial safeguards, statutory provisions, judicial precedents, practical implications, and emerging concerns relating to personal liberty. The article argues that while investigative flexibility may be necessary in modern crimes, such flexibility must be balanced with robust judicial oversight. This article examines the legal distinction between judicial custody and police custody under the BNSS. It analyses their statutory basis, practical operation, constitutional implications, and judicial interpretation. The article further evaluates whether the new remand structure strikes an appropriate balance between investigative efficiency and the protection of individual liberty guaranteed under Article 21 of the Constitution of India3. Finally, it proposes reforms aimed at preventing abuse while preserving the effectiveness of criminal investigations.

BACKGROUND / LEGAL FRAMEWORK

Statutory Architecture: BNSS, 2023 and the Constitutional Mandate

A. Constitutional Foundations

The constitutional validity of custodial detention is premised on Articles 21 and 22 of the Constitution of India. Article 21 prohibits deprivation of personal liberty except according to procedure established by law, while Article 22 mandates that a person arrested must be produced before a magistrate within 24 hours of arrest, the right to consult a lawyer of one’s choice, and the right not to be detained beyond 24 hours without a magistrate’s order. These constitutional guarantees are operationalized through the provisions of BNSS, 2023. The legislative intent behind the BNSS, as articulated in the Statement of Objects and Reasons, is to ensure speedy justice, reduce the scope for custodial abuse, and modernise the criminal procedure framework.

B. Relevant Statutory Provisions under BNSS, 2023

The following provisions of the BNSS directly govern custodial detention: Section 35 BNSS — Powers of arrest without warrant. This provision corresponds to Section 41 CrPC and regulates the circumstances under which a police officer may arrest a person without a warrant. Section 187 BNSS — Production before magistrate and remand. This is the central provision governing both police custody and judicial custody remand. Sub-section (1) mandates production within 24 hours. Sub-section (2) empowers the magistrate to authorise police custody for a maximum of 15 days in aggregate; judicial custody may be authorised for 15 days at a time. Section 188 BNSS — Detention beyond the period of investigation. This provision governs the outer limits of detention prior to filing of a charge sheet — 90 days for offences punishable with death, life imprisonment, or imprisonment exceeding 10 years; and 60 days for all other offences. Failure to file a charge sheet entitles the accused to default bail under the provison. Section 43 BNSS — Rights of arrested persons. This provision explicitly codifies, for the first time in Indian criminal procedure law, the right of an arrested person to inform a nominated person of the arrest, thus formalising a safeguard previously recognised only through judicial decisions such as D.K. Basu v. State of West Bengal,4.

MAIN ANALYSIS & CASE STUDIES

The Core Legal Distinction:Police Custody versus Judicial Custody

A. Definitional Clarity

Police custody refers to the detention of the accused in the physical custody of the police — typically at a police station lock-up. It commences immediately upon arrest and, absent magistrate intervention, cannot exceed 24 hours under Section 57 CrPC (now corresponding to Section 35 read with Section 187 BNSS). Its primary purpose is to enable the investigating officer to interrogate the accused, recover evidence, and complete preliminary investigation steps. Judicial custody, by contrast, is the form of detention wherein the accused is committed to the custody of the court — ordinarily to a jail or sub-jail under the control of the prison authorities. It is ordered by a magistrate when police custody remand is not warranted or has expired, and reflects the principle that the interests of justice and the protection of the accused’s fundamental rights require institutional oversight beyond the police establishment.

B. The Comparative Framework

Police custody involves the physical holding of an accused by the arresting police agency at a police station or lock-up under the authority of the Officer-in-Charge. Its primary purpose is for investigation, evidence gathering, and direct interrogation. Governed by Section 35 read with Section 187 of the BNSS, 2023, this custody has a standard maximum duration of 24 hours unless a Magistrate extends it. During this time, a medical examination is mandatory upon arrest, and while the accused has the right to counsel, the lawyer’s presence is not required during interrogations. Additionally, for bailable offenses, bail may be granted directly at the station level.

Conversely, Judicial Custody places the accused under the authority of a judicial magistrate or court, with detention taking place in a jail, sub-jail, or remand home. The main purpose here is to ensure judicial oversight and protect the accused from potential police harassment. Legally based on Sections 187(2) and 188 of the BNSS, 2023, judicial custody allows for detention periods of 15 days at a time, capping at 60 or 90 days total. The police must seek explicit permission to interrogate an individual in judicial custody. Furthermore, the accused enjoys the right to meet with their lawyer freely at any time, can request medical aid, and must direct any bail applications to the Magistrate, who—alongside the Sessions Court—serves as the remand authority.

C. Judicial Precedents:

Tying Statute to Practice The Supreme Court in State v. Dharmapal5, held that once the accused has been remanded to judicial custody and 15 days of police custody have been exhausted, the investigating officer cannot seek a fresh grant of police custody for the same offence. The BNSS appears to depart from the restrictive interpretation adopted under Section 167 CrPC. While decisions such as Anupam J. Kulkarni and Dharmapal limited police custody to the initial phase of remand and discouraged staggered authorisation, Section 187 BNSS permits the aggregate fifteen days of police custody to be authorised in parts during the prescribed remand period. The extent to which earlier precedents survive this legislative modification awaits authoritative judicial clarification..In Central Bureau of Investigation v. Anupam J. Kulkarni6, the Supreme Court examined the cumulative operation of the remand provisions under the then-CrPC and held that the outer limit of 15 days for police custody must be counted from the date of first production before the magistrate, not from the date of arrest. This ratio is directly applicable to Section 187 BNSS. The Supreme Court in D.K. Basu v. State of West Bengal, laid down a series of binding guidelines for arrest and detention, including the requirement of a memo of arrest, medical examination, and intimation to a family member. These guidelines, though formulated under the constitutional framework, are now substantially codified in Sections 43 and 53 BNSS, giving them express statutory recognition. In Budh Singh v. State of U.P., 7, the Court emphasised that remand to judicial custody is not a mechanical act and requires a judicial mind to be applied to the necessity of such detention. A magistrate cannot passively endorse police requests without independent application of mind — a standard that Section 187(2) BNSS expressly preserves.

CRITICAL ANALYSIS & EVALUATION

Regulatory Gaps, Conflicts, and the Need for Reform

A. The 15-Day Police Custody Conundrum

One of the most contentious aspects of the remand framework — now carried forward into the BNSS — is the provision allowing up to 15 days of aggregate police custody. Critics argue that 15 days in police custody, even with judicial supervision, remains an unconscionably long period given the documented history of custodial torture in India. The National Human Rights Commission’s Annual Reports have consistently flagged custodial deaths as a major rights concern. The BNSS has notably failed to substantially reduce this 15-day window. While Section 187(3) requires that the magistrate record reasons while authorising police custody remand, there is no independent mechanism to ensure that such reasons are meaningful rather than formulaic. This represents a significant regulatory loophole.

B. Absence of a Video-Recording Mandate

Unlike progressive jurisdictions, the BNSS does not mandate video-recording of custodial interrogations. Sections pertaining to police custody remain silent on this vital procedural safeguard. In contrast, Section 105 BNSS mandates video-recording of search and seizure, creating an inexplicable asymmetry. This gap must be urgently remedied through legislative amendment or a binding Supreme Court direction. In the United Kingdom, the Police and Criminal Evidence Act, 1984 8and its subsidiary Codes of Practice (Codes E and F) require audio and, in prescribed circumstances, video recording of custodial interviews — a standard developed through delegated legislation rather than the Act itself. In the United States, video recording requirements for custodial interrogations are governed at the state level through legislative and judicial mandates; Miranda v. Arizona established the right against self-incrimination and the requirement of warnings, but does not itself mandate video recording. These jurisdictions collectively demonstrate the feasibility of such safeguards; the mechanism India adopts should be calibrated to its own institutional capacity.

C. Default Bail:

A Critical Safeguard Section 188 BNSS preserves the mechanism of default bail (also called ‘compulsive bail’ or bail under the proviso), which entitles an accused to bail as a matter of right if a charge sheet is not filed within the prescribed period. The Supreme Court in Rakesh Kumar Paul v. State of Assam9, emphatically held that default bail is not a concession but a constitutional right flowing from Article 21. Any judicial order or prosecutorial tactic that defeats this right must be treated as unconstitutional.

D. Suggestion for Reform

The author submits the following reforms for consideration by Parliament and the Law Commission of India: First, the outer limit for police custody remand should be reduced from 15 days to 7 days, with strict proof of investigative necessity required for each extension. Second, all custodial interrogations should be video-recorded and the recordings preserved as court records. Third, independent judicial verification — through visits by judicial officers to lock-ups and jails — should be institutionalised under a new Chapter in the BNSS. Fourth, a comprehensive Custodial Violence Prevention Act should be enacted, as recommended by the Law Commission in its 273rd Report.

CONCLUSION

Forward-Looking Perspective: Towards a Rights-Respecting Custodial Framework The distinction between police custody and judicial custody under the BNSS, 2023 is not merely a technical procedural dichotomy — it reflects a fundamental constitutional tension between the investigative prerogatives of the State and the inalienable liberties of the individual. As this article has demonstrated, the BNSS largely replicates the CrPC framework, with limited incremental improvements such as the codification of arrest rights in Section 43 and the express mandate to produce undertrial prisoners via video-conferencing where physical production is impractical. The path forward requires a paradigm shift: from a custody-centric investigative model to an evidence-centric one. Reforms in forensic science capacity, digital evidence infrastructure, and judicial oversight mechanisms are the systemic prerequisites for rendering long-duration police custody unnecessary. The judiciary, in the interim, must continue to scrutinise remand orders with constitutional vigilance, treating liberty as the rule and detention as the exception — as the Supreme Court has repeatedly directed. In the long arc of Indian legal history, the BNSS represents a step forward. But the measure of genuine reform will be the lived experience of the accused in the police lock-up and the judicial remand home — a test that courts, legislators, and the legal community must collectively ensure is met.

FOOTER — REFERENCES & CITATIONS

References & Legal Citations

1. Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 35, 43, 53, 187, 188. Government of India.

2. Constitution of India, Articles 21 and 22.

3. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

4. Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141.

5. State v. Dharmapal, (2004) 9 SCC 371.

6. Budh Singh v. State of U.P., (2006) 9 SCC 497.

7. Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67.

8. Law Commission of India, 273rd Report on Custodial Violence Prevention (2023).

9. National Human Rights Commission, Annual Report on Custodial Deaths (2022–23).

10. Code of Criminal Procedure, 1973 (CrPC) [repealed], Sections 41, 57, 167, 309.

11. Police and Criminal Evidence Act, 1984 (UK), Sections 56–58 (Comparative Reference).

12. Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40