Police custody vs judicial custody

Police custody and judicial custody are the two forms of pre-trial detention a Magistrate can order after an arrest, and they differ in who holds the accused, for how long, and why. In police custody the accused stays with the investigating police for questioning and can be held for a maximum of 15 days; in judicial custody the accused is lodged in jail under the court, for up to a total of 60 or 90 days depending on the offence. Both now run under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced Section 167 of the Code of Criminal Procedure, 1973 on 1 July 2024. The single biggest change is that the 15 days of police custody can now be taken in parts across the first 40 or 60 days of detention, rather than only in one continuous block at the start.

This article sets out how police custody and judicial custody differ, who can order each, the maximum periods, what Section 187 BNSS changed from the old law, and the rights of a person held in custody.

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Both are forms of remand, the pre-trial detention a Magistrate authorises once the police cannot finish their investigation within the first 24 hours of an arrest. Neither is automatic. At the first production, the Magistrate decides whether the accused goes back with the police, is sent to jail, or is released on bail.

The two labels are not interchangeable, and the difference decides real things: whether the police can question the accused at a station, how long the detention can run before the charge sheet is due, and when the right to default bail switches on. The move from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) kept the two-custody structure but redrew the timing rules, which is where most of the current confusion sits.

How do police custody and judicial custody differ?

Police custody and judicial custody differ in one core respect: who physically holds the accused, and for what purpose. In police custody the accused is in the hands of the investigating police, who need the person available for questioning and for steps like recovery of evidence. In judicial custody the accused is with the court, lodged in jail, and the police have no direct access without the Magistrate’s permission.

The purpose behind each follows from that. Police custody exists to help an active investigation, which is why it is short and tightly controlled. Judicial custody exists to secure the accused during the rest of the pre-trial period, once the phase of direct police questioning is over or was never needed. A person can move from police custody to judicial custody, and, within the limits explained below, back again.

Who orders the two is the same in both cases: a Magistrate. What changes is the destination, the purpose, and the outer time limit. The comparison below sets the two side by side on the points that matter in practice, before the later sections work through the duration and the current statutory position in detail.

Where is the accused kept in each type of custody?

In police custody the accused is kept in a police station lock-up, close to the investigating officers. The person remains under the control of the police for the period the Magistrate has allowed, and is produced before the Magistrate again each time an extension is sought. This proximity to the investigators is the whole point of the custody, and also the reason the law caps it strictly.

In judicial custody the accused is kept in a district jail or prison, under the authority of the court and the jail administration. The investigating officers cannot walk in and interrogate the person at will. If they need to question an accused who is already in judicial custody, they must apply to the Magistrate and show why further custodial questioning is justified.

Who can question the accused in each?

In police custody the police can question the accused directly, which is the main reason the custody is sought. Interrogation, confrontation with evidence, and recording of disclosure statements happen during this window. Even here the protection under Article 20(3) of the Constitution, that no person accused of an offence shall be compelled to be a witness against himself, continues to apply.

In judicial custody the police cannot question the accused without the court’s leave. The accused is under judicial oversight, and any custodial interrogation needs a fresh order. This difference in access, not the fact of detention alone, is what usually drives an investigating agency to press for police custody in the first place.

Who orders custody, and how soon after arrest?

A Magistrate orders custody, and the accused must be produced before that Magistrate within 24 hours of arrest. This is the rule in Article 22(2) of the Constitution, and it is carried into the BNSS. The 24-hour clock excludes the time reasonably needed to travel from the place of arrest to the court, but nothing else.

At that first production the Magistrate, and not the police, decides what happens next. Under Section 187(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the investigating officer forwards the accused to the nearest Judicial Magistrate, along with a copy of the case-diary entries, when the investigation cannot be finished within 24 hours. The Magistrate then chooses between police custody, judicial custody, and bail. Neither form of custody follows automatically from the arrest.

Only a Judicial Magistrate can authorise police custody in the ordinary course. Under Section 187(5) BNSS a Magistrate of the second class cannot order police custody unless the High Court has specially empowered that Magistrate. Where no Judicial Magistrate is available, Section 187(6) BNSS allows an Executive Magistrate to authorise detention for up to seven days in the aggregate, after which the record goes to the nearest Judicial Magistrate.

What must a Magistrate record before allowing police custody?

Before sending an accused to police custody, the Magistrate must record written reasons for doing so. Police custody is treated as the exception, not the default, and the Magistrate has to be satisfied that handing the accused back to the police is genuinely needed for the investigation. A remand order that authorises police custody without any reasons is open to challenge.

This recording duty carried over from the old law. Under Section 167 of the Code of Criminal Procedure, 1973 a Magistrate authorising police custody had to record reasons, and the BNSS keeps the same discipline. The point is to force a conscious judicial decision each time the police ask for physical custody, rather than a routine signature.

What is the maximum period of police custody and judicial custody?

Police custody cannot exceed 15 days in total, while judicial custody can run up to a total of 60 or 90 days before the accused becomes entitled to default bail. The 15-day police-custody cap is an outer limit on the physical custody of the police, however the days are arranged. The 60 or 90 day figure is the outer limit on the whole pre-charge-sheet detention, police and judicial time counted together.

Which of the two outer limits applies depends on how serious the offence is. Under Section 187(3) BNSS the limit is 90 days where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment of ten years or more, and 60 days for any other offence. When that period ends without a charge sheet, the accused must be released on bail if ready to furnish it. This right is worked out in detail in the companion guide on default bail under Section 187(3) BNSS, and LawSikho’s note on the 60 versus 90 day clock works through how the offence decides which limit applies.

Judicial custody itself does not end at 60 or 90 days. What ends is the State’s window to keep the accused without a charge sheet. If the charge sheet is filed in time, the accused can still be in judicial custody afterwards, but the route to release then shifts to regular bail rather than default bail.

Does police-custody time count towards the 60 or 90 days?

Yes. The days spent in police custody fall within the overall 60 or 90 day window, not on top of it. Police custody is a slice of the total detention period, not a separate quota added to it.

The Supreme Court fixed how this is counted in Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141. The Court held that the 60 or 90 day period runs from the date the Magistrate first remands the accused to custody, not from the date of arrest, and that the first 15 days available for police custody are counted the same way. So a spell of police custody uses up part of the same clock that runs towards default bail.

Section 167 CrPC to Section 187 BNSS: what changed for remand

Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 167 of the Code of Criminal Procedure, 1973 on 1 July 2024, and carried the remand structure across with the timing of police custody as the main change. The overall architecture, first production, a short police-custody window, a longer judicial-custody ceiling, and default bail, is the same. The section numbers and one important rule are what moved.

The main provisions map across as follows:

• Section 167(1) CrPC, forwarding the accused and the case diary to the nearest Judicial Magistrate, becomes Section 187(1) BNSS.
• Section 167(2) CrPC, authorising up to 15 days of custody and then judicial custody up to 60 or 90 days, is split across Section 187(2) and Section 187(3) BNSS.
• The proviso to Section 167(2) CrPC, the 60 or 90 day default-bail limit, becomes Section 187(3) BNSS.
• The bar on a second-class Magistrate ordering police custody, and the Executive Magistrate’s seven-day power under Section 167(2A) CrPC, become Section 187(5) and Section 187(6) BNSS.

The gravity of the offence, which decides whether the outer limit is 60 or 90 days, is now set by the Bharatiya Nyaya Sanhita, 2023 (BNS), the penal code that replaced the Indian Penal Code, 1860 on the same date. An offence punishable with death or life imprisonment, such as murder under Section 103 of the BNS, falls in the 90-day track; most ordinary offences fall in the 60-day track. In practical terms, the charge in any first information report is now a BNS section rather than an IPC section, a shift covered in the guide on the difference between the IPC and the BNS.

Can police custody go beyond the first 15 days under Section 187 BNSS?

Police custody still cannot exceed 15 days in total, but under Section 187(2) BNSS those 15 days can now be taken in parts across the first 40 or 60 days of detention, instead of only in one block at the start. The total is unchanged. What changed is when the police can ask for it. For an offence in the 60-day track the police custody must be sought within the first 40 days, and for an offence in the 90-day track within the first 60 days.

Under the old law the position was stricter. In the Kulkarni ruling the Supreme Court read Section 167 CrPC to mean that police custody had to be taken within the first 15 days of remand, as a single early window, and that after those 15 days any further detention could only be judicial. For decades that was the settled rule.

The rule then came under question. In V. Senthil Balaji v. State, (2023) SCC OnLine SC 934, decided on 7 August 2023, the Supreme Court doubted the strict reading in Kulkarni and suggested that the 15 days need not run as one continuous stretch from the start. Because that view unsettled a long-standing precedent, the Court referred the question to a larger bench rather than deciding it outright, so under the CrPC the point remained open.

Section 187(2) BNSS then settled the question for the new regime by expressly allowing the 15 days to be taken in parts across the first 40 or 60 days. The Supreme Court read that provision in State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 LiveLaw (SC) 722, decided on 27 July 2026, holding that Section 187(2) and (3), unlike the old Section 167 CrPC, enlarge the window so that police custody is no longer confined to the initial 15 days and may be sought in parts within the statutory period. The Karnataka High Court had reached a similar conclusion, holding that for offences punishable with up to ten years the 15 days of police custody must be sought within the first 40 days, and the Supreme Court declined to interfere with that view in January 2025.

The change has drawn criticism from the liberty side. The Parliamentary Standing Committee on Home Affairs, in its November 2023 report on the Bill, recommended that fragmented police custody be treated as exceptional rather than routine, a suggestion that was not written into the final text. Civil-liberties commentators have warned that spreading the 15 days across weeks can expose an accused to repeated custodial questioning and can weigh against the grant of bail in the meantime. Whether that risk is contained will depend on how strictly Magistrates apply the recording-of-reasons duty each time police custody is sought.

Rights of a person in police or judicial custody

A person in either custody keeps a set of constitutional and statutory rights that do not switch off at the lock-up door. The most immediate is the right under Article 22 of the Constitution to be told the grounds of arrest, to consult a lawyer of choice, and to be produced before a Magistrate within 24 hours. Alongside it, Article 21 protects personal liberty, and Article 20(3) protects the accused against being compelled to give self-incriminating evidence.

The Supreme Court built a detailed set of safeguards around these rights in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. The Court required, among other things, a memo of arrest attested by a witness, the right of the arrested person to have a relative or friend informed of the arrest and the place of detention, and a medical examination of the person during custody. These directions apply to both police and judicial custody and were later given statutory shape.

The right to apply for bail runs through both forms of custody. It does not depend on where the accused is held, but on whether the offence is bailable or non-bailable and the stage of the case. The mechanics of applying, and the grounds a court weighs, are set out in the guide on filing a regular bail application under Section 480 BNSS. A person in custody is also entitled to free legal aid under Article 39A where they cannot afford a lawyer, so that the right to counsel is real and not only formal.

Frequently asked questions

Can an accused be sent back to police custody after being in judicial custody under BNSS?
Yes, within limits. Section 187(2) BNSS lets the police seek the 15 days of custody in parts, so an accused already in judicial custody can be taken back to police custody, provided the total police custody stays within 15 days and the request falls within the first 40 or 60 days of detention. Under the older CrPC rule in the Kulkarni ruling this was generally not allowed once the first 15 days had passed.

Is bail available while a person is in police custody?
Yes. The right to apply for bail does not depend on the type of custody. Whether bail is granted turns on whether the offence is bailable or non-bailable and the stage of the investigation, not on whether the accused is in police or judicial custody.

What is the difference between police remand and judicial remand?
Police remand and police custody mean the same thing: the accused is held with the investigating police. Judicial remand, or judicial custody, means the accused is held in jail under the court. Remand is simply the Magistrate’s order committing the accused to one custody or the other.

Does the 24-hour production rule include travelling time?
No. The 24 hours within which an arrested person must be produced before a Magistrate excludes the time reasonably needed for the journey from the place of arrest to the court. The rule comes from Article 22(2) of the Constitution and is carried into the BNSS.

What happens if the charge sheet is not filed within 60 or 90 days?
The accused becomes entitled to default bail, also called statutory bail, under Section 187(3) BNSS. Once the 60 or 90 day limit passes without a charge sheet, the accused must be released on bail if prepared to furnish it, whatever the merits of the case.

Which Magistrate can order police custody?
A Judicial Magistrate. A Magistrate of the second class cannot authorise police custody unless specially empowered by the High Court, and where no Judicial Magistrate is available an Executive Magistrate can order detention for up to seven days in the aggregate.

References

Case law

1. Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141 (AIR 1992 SC 1768)
2. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
3. State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 LiveLaw (SC) 722, decided 27 July 2026
4. V. Senthil Balaji v. State, (2023) SCC OnLine SC 934, decided 7 August 2023

Statutes

1. Constitution of India, 1950: Articles 20(3), 21, 22, 39A
2. Code of Criminal Procedure, 1973: Section 167
3. Bharatiya Nagarik Suraksha Sanhita, 2023: Section 187
4. Bharatiya Nyaya Sanhita, 2023: Section 103

Secondary sources

1. LiveLaw report: Supreme Court explains Section 187(2) BNSS

Disclaimer

This article is for informational and educational purposes only and does not constitute legal advice. Custody and remand decisions turn on the specific facts, the offence charged, and the stage of the investigation. Anyone facing arrest or detention should consult a qualified criminal lawyer.