Section 167 of the Code of Criminal Procedure, 1973 (CrPC), which governed remand procedure and the right to default bail, has been replaced by Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The most significant change is that the 15-day police custody period can now be utilised in parts across the first 40 or 60 days of the overall detention window, rather than being restricted to the first 15 consecutive days as under CrPC. The 60/90 day default bail framework is retained with minor terminological adjustments.
What changed
| Feature | Section 167 CrPC (Old) | Section 187 BNSS (New) |
|---|---|---|
| Police custody limit | 15 days maximum, must be first 15 days only | 15 days maximum, but can be split across first 40 days (for 60-day offences) or 60 days (for 90-day offences) |
| Default bail period — serious offences | 90 days for offences punishable with death, life imprisonment, or "not less than 10 years" | 90 days for offences punishable with death, life imprisonment, or "10 years or more" |
| Default bail period — other offences | 60 days for all other offences | 60 days — same |
| Bail status consideration | Not specified | Magistrate must consider "whether such person has been released on bail or his bail has been cancelled" before authorising detention |
| Custody computation | Total period of remand | Only actual custody counts; period on interim bail excluded |
| Terminology | "Imprisonment for a term not less than ten years" | "Imprisonment for a term of ten years or more" |
| Overall framework | Two-tier: 60 days or 90 days | Same two-tier framework retained |
Full statutory text
Section 167 CrPC (Old Law) — Relevant Extract:
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, 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 hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Proviso (a): The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph 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, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail.
Section 187 BNSS (New Law) — Relevant Extract:
(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate 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 detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section 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 ten years or more; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.
Key differences
Split police custody — the most significant change: Under CrPC Section 167(2), police custody of up to 15 days was available only during the first 15 consecutive days of remand. Once this window lapsed, only judicial custody was available. Under Section 187 BNSS, the 15-day police custody limit is retained but can now be used in instalments across the first 40 days (for 60-day offences) or the first 60 days (for 90-day offences). This gives investigating agencies significantly more flexibility to seek police custody at different stages of investigation.
Bail status consideration: Section 187(2) BNSS introduces a new mandatory consideration — the Magistrate must take into account "whether such person has not been released on bail or his bail has been cancelled" before authorising detention. This factor was not present in Section 167(2) CrPC.
Terminological clarification: The phrase "imprisonment for a term of not less than ten years" in CrPC Section 167(2)(a)(i) has been replaced with "imprisonment for a term of ten years or more" in Section 187. While courts have held this does not change the substantive law, it removes an ambiguity in the earlier phrasing.
Custody computation: The Delhi High Court has clarified that under Section 187(2) BNSS, only actual custody counts towards the remand period. Periods spent on interim bail are excluded from the computation of police remand duration.
Default bail right preserved: The right to default bail on expiry of 60/90 days remains an indefeasible right under Section 187(3) BNSS, consistent with established Supreme Court jurisprudence.
What this means for practitioners
For defence counsel: The split police custody provision is the most critical change to understand. Earlier, defence lawyers could argue that the 15-day police custody window had lapsed once the initial 15 days expired. Under BNSS, the prosecution can seek police custody at any point within the first 40/60 days. Defence counsel must be vigilant against repeated police custody applications spread across the extended window.
For prosecution and investigating agencies: The split custody provision provides valuable flexibility. If new evidence surfaces after the initial remand period, agencies can now seek police custody up to the 40th or 60th day (as applicable) without losing this right. This addresses a practical difficulty under the old law where critical evidence emerged after the 15-day window had closed.
For default bail applications: The 60/90 day computation must account only for actual custody. If the accused was on interim bail for any period, that period is excluded. Practitioners must carefully calculate the actual days of custody to determine when the default bail right accrues.
For pending cases: Under Section 531(2)(a) BNSS, remand proceedings pending before 1 July 2024 continue under Section 167 CrPC. For arrests and remand orders made on or after 1 July 2024, Section 187 BNSS applies, including the split police custody provision.
Does old case law still apply?
Sanjay Dutt v. State through CBI (1994) 5 SCC 410: The Constitution Bench ruling that the right to default bail is an "indefeasible right" that accrues the moment the statutory period expires remains fully applicable to Section 187(3) BNSS. The accused must be prepared to furnish bail for this right to crystallise.
Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453: The principle that the right to default bail is enforceable even if a chargesheet is subsequently filed, provided the accused had already applied for bail before the chargesheet, continues to apply.
M. Ravindran v. Directorate of Revenue Intelligence (2021) 2 SCC 485: The Supreme Court ruling that default bail is a fundamental right flowing from Article 21 applies with full force to Section 187 BNSS.
Ritu Chhabaria v. Union of India (2023): Case law on computation of the 60/90 day period remains relevant, subject to the BNSS clarification that only actual custody (not interim bail periods) counts.
Case law on police custody being limited to the first 15 consecutive days is no longer applicable under BNSS, as the new provision expressly permits split custody across the extended window.
Frequently asked questions
Can police custody be sought after 15 days under BNSS? Yes. Under Section 187 BNSS, the 15-day police custody limit remains, but it can be utilised in parts across the first 40 days (for offences with 60-day investigation window) or the first 60 days (for offences with 90-day investigation window). The total police custody cannot exceed 15 days.
When does the right to default bail arise under BNSS? After 60 days for offences punishable with less than 10 years imprisonment, and after 90 days for offences punishable with death, life imprisonment, or 10 years or more. The accused must apply for bail and be ready to furnish bail for this right to crystallise.
Is the right to default bail still an indefeasible right under BNSS? Yes. The Supreme Court's characterisation of default bail as an indefeasible right under Article 21 applies equally to Section 187(3) BNSS. The language "shall be released on bail" is mandatory.
Does time spent on interim bail count towards the 60/90 day period? No. Courts have clarified that only actual custody counts towards the remand period under Section 187(2) BNSS. Periods of interim bail are excluded from the computation.