Section 167 CrPC vs Section 187 BNSS: Police Custody, Remand and Default Bail

In India, Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 167 of the Code of Criminal Procedure, 1973 (CrPC) on remand from 1 July 2024. The fifteen days of custody may now be authorised "in the whole, or in parts" within the first 40 or 60 days; default bail after 60 or 90 days is unchanged.

At a glance

	Old law	New law
Section	Section 167, CrPC 1973	Section 187, BNSS 2023 (in force from 1 July 2024, S.O. 848(E))
What it does	Forwarding of an arrested person to a Magistrate when investigation cannot finish in 24 hours; remand; default bail	Same
Total cap / default bail	90 days (death, life, "not less than ten years"); 60 days (others)	90 days (death, life, "ten years or more"); 60 days (others)
Punishment	None: procedural section	None: procedural section
Cognizable / bailable / triable by	Not applicable (procedural)	Not applicable (procedural)
Change type	—	Modified

What changed

Sub-section (1), forwarding — Minor edit. "section 57" becomes "section 58", "nearest Judicial Magistrate" becomes "nearest Magistrate", and "prescribed" becomes "specified". In sub-section (2), "whether he has or has not jurisdiction" becomes "irrespective of whether he has or has no jurisdiction".
Sub-section (2), bail-status consideration — New. The Magistrate authorises detention "after taking into consideration whether such person has not been released on bail or his bail has been cancelled".
Sub-section (2), the fifteen days — Expanded. "for a term not exceeding fifteen days in the whole" is extended by "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)".
Proviso (a), now sub-section (3), detention beyond fifteen days — Modified. "the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days" loses the words "otherwise than in custody of the police".
Ninety-day category — Minor edit. "imprisonment for a term of not less than ten years" becomes "imprisonment for a term of ten years or more".
Default bail — Identical in substance. "shall be released on bail if he is prepared to and does furnish bail" is unchanged. The deeming reference moves from Chapter XXXIII CrPC to Chapter XXXV BNSS.
Proviso (b), now sub-section (4), production — Minor edit. Production for extending judicial custody may be "through the audio-video electronic means" (was "the medium of electronic video linkage"). The in-person rule for police custody is identical.
Proviso (c), now sub-section (5), second-class Magistrate — Identical.
Explanations I and II and the proviso on a woman under eighteen — Minor edit. Cross-references are renumbered and "audio-video electronic means" replaces "electronic video linkage".
Place of detention — New. A second proviso after Explanation II: "no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government".
Sub-section (2A), now (6), Executive Magistrate — Modified. "where a Judicial Magistrate is not available" becomes "where a Magistrate is not available". "on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred" becomes "the powers of a Magistrate". The seven-day aggregate is identical.
Sub-sections (3) to (6), now (7) to (10) — Identical (reasons, copy to the Chief Judicial Magistrate, six-month stop in summons-cases).

Statutory text (relevant extract)

Section 167(2) CrPC and proviso (a) — extract:

(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; …

Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in 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, …

Section 187(2)–(3) BNSS — 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), …

(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, … 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, …

How it works — the steps

Arrest and the 24-hour limit (s.58, s.187(1)). If investigation cannot be completed within 24 hours and the accusation appears well-founded, the officer in charge, or an investigating officer of at least sub-inspector rank, sends the diary entries to the nearest Magistrate and produces the accused. If no Magistrate is available, an Executive Magistrate with a Magistrate's powers may authorise up to seven days in aggregate, and that period counts towards the cap (s.187(6)).
First remand (s.187(2)). The Magistrate considers whether the person "has not been released on bail or his bail has been cancelled". He then authorises custody, police or judicial, of up to fifteen days in total, in one block or in parts, within the first 40 days (60-day category) or 60 days (90-day category).
Police-custody safeguards (s.187(4), (5), (7), (8)). Police custody requires production in person the first time and each time. A second-class Magistrate not specially empowered cannot order it. Reasons must be recorded, and a Magistrate other than the Chief Judicial Magistrate sends him a copy of the order.
Further detention (s.187(3)). Beyond fifteen days, detention needs "adequate grounds" and cannot exceed 90 days in total (death, life or ten years or more) or 60 days (others).
Default bail (s.187(3), Explanation I). On expiry of the period, the accused "shall be released on bail if he is prepared to and does furnish bail". Until he furnishes bail he stays in custody.
Where held (proviso after Explanation II). Only a police station (police custody), a prison (judicial custody) or a declared prison. A woman under eighteen is held in a remand home or recognised social institution.
Summons-cases (s.187(9)–(10)). Investigation not concluded within six months of arrest is stopped unless special reasons are shown; the Sessions Judge may vacate the stop.

Worked example (a reading of the text, not a decided case). A person is arrested for an offence punishable with up to seven years, so the 60-day category applies. The Magistrate grants five days of police custody, then remands to judicial custody. On a reading of s.187(2), a further ten days of police custody can be sought at any time up to day 40, since fifteen days in total are allowed "in parts". If no report is filed by day 60, the accused may apply for default bail. Anupam Kulkarni held that these periods run "from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police".

What this means in practice

For the accused and defence advocate: Count days from the first remand order and apply for default bail as soon as the period expires. M. Ravindran (paras 18.1–18.3) held that the application itself avails the right, while delay lets a later chargesheet extinguish it. Oppose police-custody requests made after day 40 or 60, or that would take the total above fifteen days. Check production in person for every police-custody order (s.187(4)), and the category: an offence with a seven-year maximum is in the 60-day band.
For the investigating officer and prosecutor: On a reading of s.187(2), police custody can be planned across the first 40 or 60 days, but the fifteen-day total is fixed. Each police-custody application needs production of the accused, and the Magistrate must record reasons (s.187(7)). File the report under s.193 before the 60 or 90 days expire.
For the Magistrate: Record the s.187(2) consideration of whether the person has not been released on bail or has had bail cancelled. Keep a running total of police-custody days, and tell the accused when the default-bail right accrues (M. Ravindran, para 12.7).

Judgments that still matter

Central Bureau of Investigation v. Anupam J. Kulkarni, [1992] 3 S.C.R. 158 (1992 INSC 154), 8 May 1992. In a judgment by K. Jayachandra Reddy J. (with A.M. Ahmadi J.), the Court construed s.167(2) and its proviso. It held that within the first fifteen days the Magistrate may order police or judicial custody, and may switch between them. However, "After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody", even if more offences from the same transaction come to light. A different case arising from a different transaction may start a fresh period. The 60- and 90-day periods run from the date of detention ordered by the Magistrate. The CBI's appeals were dismissed. Why it matters now: this was the settled position under s.167. Section 187(2) adds "or in parts, at any time during the initial forty days or sixty days" and drops "otherwise than in custody of the police". On a reading of the text, that alters the premise of the first-fifteen-days rule for BNSS investigations; no judgment construing s.187 was read.

Central Bureau of Investigation v. Vikas Mishra, [2023] 3 S.C.R. 321 (2023 INSC 345), 10 April 2023. In a judgment by M.R. Shah J. (with C.T. Ravikumar J.), the accused had been granted seven days of CBI custody but was hospitalised and then released on interim bail. The Court noted that "once on bail/interim bail, during that period there cannot be any police custody" (para 6). It observed that "the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration" (para 7.1). It allowed four more days of police custody because the accused had frustrated the original order (paras 8, 10). Why it matters now: on a reading of the text, s.187(2)'s new requirement to consider "whether such person has not been released on bail or his bail has been cancelled" bears on the same situation; no judgment construing it was read.

V. Senthil Balaji v. State represented by Deputy Director, [2023] 12 S.C.R. 853 (2023 INSC 677), 7 August 2023. In a judgment by M.M. Sundresh J. (with A.S. Bopanna J.), the Court said: "we are unable to concur with the views expressed in Anupam J. Kulkarni (supra) to the effect that a police custody shall only be within the first 15 days of remand" (para 76). It directed the Registry to place the matter before the Chief Justice of India "for appropriate orders to decide the larger issue" (para 91), having said it was "inclined to refer the larger issue" (para 79). That issue is "whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation - 60 or 90 days" (para 91). Why it matters now: on a reading of the text, s.187(2) addresses that question for BNSS investigations by allowing the fifteen days in parts only within "the initial forty days or sixty days"; no judgment construing s.187 was read. The outcome of the reference is not recorded in the judgments read for this page.

M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, [2020] 12 S.C.R. 915 (2020 INSC 608), 26 October 2020. A Bench of three Judges (U.U. Lalit, Mohan M. Shantanagoudar and Vineet Saran JJ.; judgment by Shantanagoudar J.) held that s.167(2) "is integrally linked to the constitutional commitment under Article 21" (para 11.6). Once the accused applies for default bail after the period expires, the right is "availed of" and survives a later chargesheet or report seeking extension of time (paras 18.1–18.2); on the facts, it survived an additional complaint filed after the application (para 17). If the accused does not apply and a chargesheet is filed first, the right is extinguished (para 18.3). Actual release still depends on furnishing bail, under Explanation I (para 18.4). Why it matters now: s.187(3) repeats "shall be released on bail if he is prepared to and does furnish bail", so on a reading of the text the same analysis applies to default bail under the BNSS.

Which law applies to your case

Section 531(2)(a) BNSS provides that an investigation pending immediately before 1 July 2024 is continued "in accordance with the provisions of the Code of Criminal Procedure, 1973 … as if this Sanhita had not come into force". On a reading of that clause, remand in such an investigation stays under s.167 CrPC, with the case law above on the first fifteen days. Investigations begun on or after 1 July 2024 use s.187 BNSS, including custody "in parts". The CrPC text read for this page also prints a Gujarat amendment substituting one hundred and twenty days for ninety in s.167. Whether any State has amended s.187 was not checked. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Can police custody be granted after the first fifteen days of remand under the BNSS? Section 187(2) BNSS lets the Magistrate authorise custody "for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days" of a sixty- or ninety-day detention period, and Section 187(3) no longer contains the CrPC words "otherwise than in custody of the police". On a reading of the text, the fifteen days of police custody can therefore be split across the first 40 or 60 days. Under Section 167 CrPC, CBI v. Anupam J. Kulkarni ([1992] 3 S.C.R. 158) held that police custody was confined to the first fifteen days.

What is the maximum period of police custody under Section 187 BNSS? Fifteen days in total. Section 187(2) caps custody authorised under it at "fifteen days in the whole", which may be taken in parts within the initial forty or sixty days. Detention beyond fifteen days is authorised under Section 187(3) only if the Magistrate is satisfied that adequate grounds exist, subject to the overall sixty- or ninety-day cap.

When does the right to default bail arise under the BNSS? Under Section 187(3) BNSS, on expiry of ninety days where the investigation relates to an offence punishable with death, life imprisonment or imprisonment for ten years or more, or sixty days for any other offence, the accused "shall be released on bail if he is prepared to and does furnish bail". Explanation I keeps him in custody until he furnishes bail. The words are the same as the proviso to Section 167(2) CrPC.

Does filing a chargesheet after I apply for default bail defeat the right? Not under the CrPC as construed in M. Ravindran v. DRI ([2020] 12 S.C.R. 915, paras 17, 18.1-18.3). The Supreme Court held that once the accused applies for default bail after the period expires, the right is availed of and survives a later chargesheet, additional complaint or extension report; if the accused does not apply in time and a chargesheet is filed, the right is extinguished. Section 187(3) BNSS repeats the operative words, so on a reading of the text the same analysis applies.

Which offences get the ninety-day period? Section 187(3)(i) BNSS applies 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. Section 167(2)(a)(i) CrPC said "not less than ten years", which on a reading means the same. Every other offence gets sixty days under Section 187(3)(ii).

Can a Magistrate order police custody without the accused being produced? No. Section 187(4) BNSS bars a Magistrate from authorising police custody unless the accused is produced in person the first time and every time while in police custody. Judicial custody may be extended on production in person or through audio-video electronic means. Section 167(2)(b) CrPC was the same, but referred to electronic video linkage.

Sources

Acts and sections read: BNSS 2023 ss.58, 187, 193, 479, 531 (Gazette CG-DL-E-25122023-250884); CrPC 1973 s.167 with its footnotes and State amendments (original India Code text); Constitution of India, Art. 21.
Judgments read (Veritect judgment corpus, full text): CBI v. Anupam J. Kulkarni (1992_3_158_179_EN.md); CBI v. Vikas Mishra (2023_3_321_331_EN.md); V. Senthil Balaji v. State (2023_12_853_931_EN.md); M. Ravindran v. Intelligence Officer, DRI (2020_12_915_955_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 167 CrPC vs Section 187 BNSS — Remand and Default Bail