This article was written by Roma Shakya, Prestige Institute of Management and Research, Gwalior.
Abstract
Under the BNSS 2023, a clear distinction continues to exist between police and judicial custody, although the framework governing police custody has undergone significant changes under the BNSS, while judicial custody continues to operate largely on the same principles as under the CrPC. Section 187(2) BNSS permits police custody for a maximum period of fifteen days, which may be granted in whole or in parts during the first forty or sixty days of the authorised detention period, depending on the punishment prescribed for the offence, subject to the overall limit of sixty or ninety days for investigation, rather than confining it to the first fifteen days after arrest, as provided for in the old CrPC. Although this may make investigations much easier, it presents significant human rights challenges for the accused. It has been noted in the literature that police custody is highly vulnerable to coercive interrogation. In contrast, judicial custody, in turn, carries the risk of over-detention and the related problems inherent to prison overcrowding. Thus, there is no guarantee of an accused’s safety in either custody regime.
Recently, several cases have shown how courts have defined this difference. For example, in Bablu alias Arvind Dubey v. State of Madhya Pradesh, decided in July 2026, the Madhya Pradesh High Court ruled that the right to avail default bail under Section 187(3) BNSS expires once the chargesheet is filed, including where such chargesheet was filed against an absconding accused. Additionally, in Zeba Khan v. State of U.P., decided in February 2026, the Supreme Court specified the exact formula for calculating statutory detention periods in relation to bail.
Keywords: Bharatiya Nagarik Suraksha Sanhita; Default Bail; Police Custody; Judicial Custody; Doctrinal Distinction.
Introduction
The Indian criminal justice system has seen significant development after the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the outdated Code of Criminal Procedure, 1973 (CrPC). An essential part of the criminal procedure is the issue of custody and the distinction between police and judicial custody. Balancing the interests of effective criminal investigation and protection of the fundamental rights of the accused is one of the primary objectives of the custody provisions under the BNSS. Notably, custody determines not only the location of keeping the accused but also the body responsible for this and the reason for the detention of the person. Therefore, it is crucial to understand the differences between these two types of custody.
The provisions relating to custody under the BNSS must also be read in light of Articles 20, 21 and 22 of the Constitution of India, which protect the accused against arbitrary arrest, unlawful detention and compelled self-incrimination.
Overview of BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023)
The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024, replacing the Code of Criminal Procedure, 1973. It modernises criminal procedure by incorporating electronic processes, digital records and revised provisions relating to investigation, arrest, remand and trial. The purpose of the BNSS has been described as bringing modernisation to criminal procedure, taking into account technological developments like electronic evidence and documents, as well as ensuring faster delivery of justice while keeping the basic structure of the procedural process consisting of arrest, remand, investigation, and trial that has evolved under the CrPC over the years.
Despite the fact that the BNSS largely reproduces the structure of the CrPC, there are certain specific changes made therein, among which the modification of the time periods for police custody in accordance with Section 187(2) should be mentioned as one of the most significant changes.
The law still distinguishes between two main types of custody: police custody and judicial custody, but the approach and periods of police custody have been modified.
Concept of Custody in Criminal Law
The concept of custody, in a general sense, as applicable in criminal law, implies the condition of legal restraint where a person’s freedom of movement is restricted by an authority legally authorised to do so. Custody is not necessarily synonymous with the restriction of freedom in terms of the physical confinement of a person within four walls; instead, it implies the placing of such a person under the jurisdiction of another, whether the police or the court, thereby making him/her powerless to act as per his/her own wish. Custody commences immediately after the arrest of the accused and continues, in some form or other, until the accused is released on bail or acquitted or convicted after trial.
It is pertinent to point out that custody is not an abstract concept in its entirety, as it has many variations that depend on the custodian and the object of custody. This necessitates the distinction between police and judicial custody, as they are two different types of custody in criminal law.
Police Custody Under BNSS
Meaning and Nature of Police Custody
Police custody under the Bharatiya Nagarik Suraksha Sanhita, 2023, is the period wherein the accused is kept in the custody of the investigating police officer, who conducts his investigation by interrogating him, recovering evidence, verifying facts, and completing the investigation. This stage is important because it means that the accused is directly under investigating power and thus becomes one of the most crucial stages in criminal procedure.
Legal Provision: Section 187 BNSS
According to Section 187 of the BNSS, the period of police custody is under judicial control, and thus such custody is not automatic but is granted only on the order of the magistrate. An accused person must be brought before the magistrate within twenty-four hours of his arrest, excluding the period of journey, and only a magistrate may order police custody.
Duration and Time Limit of Police Custody
The maximum duration of the period of police custody cannot be more than fifteen days. However, as per the provision under BNSS, the period of police custody can be taken in different segments and need not necessarily be for one continuous period. This is an important departure from the concept of police custody under the CrPC.
Purpose of Police Custody
Police custody is meant to assist the process of investigation. It enables the police to question the accused or recover material things or other evidence that could not have been recovered by usual questioning.
Rights of the Accused in Police Custody
At the same time, the accused still has the following rights:
- Right to legal counsel
- Right against self-incrimination
- Protection against custodial violence
- Right to be medically examined under the BNSS.
- Right to be produced before the Magistrate within twenty-four hours of arrest.
- Protection under Articles 20(3), 21 and 22 of the Constitution.
Judicial Custody Under BNSS
Meaning and Nature of Judicial Custody
Judicial custody may begin immediately after the accused is produced before the Magistrate if police custody is not considered necessary, or after the permissible period of police custody has expired. In contrast to police custody, the accused is no longer under the control of the investigating agency but is instead under judicial supervision and the administration of the prison facility.
Commencement of Judicial Custody
Judicial custody typically begins when police custody is no longer required or has been exhausted. It includes the period of detention allowed by law after police custody has been used up. In that respect, judicial custody may be said to operate as the normal mode of detention once the stage of police custody has ended.
Purpose of Judicial Custody
The primary objective of judicial custody is to secure the appearance of the accused before the court, prevent absconding, and preserve the integrity of the investigation or trial process. Since the accused is out of the direct control of the police, judicial custody is generally viewed as less coercive than police custody.
Problem Areas
However, judicial custody can give rise to the following problems:
- Prolonged periods of undertrial detention
- Overcrowding of prisons
- Delay in trial proceedings due to unsatisfactory conclusion of cases within the time period allowed
Role of Magistrate
The magistrate occupies a crucial place in judicial custody. The court must regularly determine whether further detention is lawful and necessary.
Rights of the Accused in Judicial Custody
The rights of the accused in judicial custody continue to include:
- Access to a lawyer
- Right to bail
- Minimum prison protections
- Right to communicate with family members.
- Right to medical treatment.
- Protection against illegal detention.
Difference Between Police Custody and Judicial Custody
| Basis | Police Custody | Judicial Custody |
| Meaning | Accused is kept under the control of police for investigation | Accused is kept in jail under the supervision of a magistrate |
| Authority | Investigating Police Officer | Magistrate / Court |
| Purpose | Interrogation, evidence collection, investigation | Safe detention, ensuring presence during trial |
| Duration | Maximum fifteen days (can be availed in parts under BNSS) | Can extend for a longer period as per law |
| Control | Direct police control | No direct police control |
| Risk Level | Higher risk of coercion or custodial violence | Comparatively safer environment |
| Place of detention | Police Station or authorised police lock-up | Prison/Jail |
Recent Case Laws on Police Custody and Judicial Custody Under BNSS
Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141
The Supreme Court held that police custody beyond the first fifteen days of remand under the CrPC was ordinarily impermissible. This judgment governed criminal investigations for more than three decades and forms the background against which Section 187 BNSS introduced a modified framework permitting police custody in parts during the authorised detention period.
Zeba Khan v. State of U.P. & Others (Supreme Court, February 2026)
The Supreme Court emphasised that courts must consider all relevant facts while deciding bail applications, including the accused’s criminal antecedents, previous bail applications, period of custody undergone, stage of investigation or trial, and any coercive processes issued against the accused. The Court also issued recommendatory guidelines to ensure complete and truthful disclosure in bail proceedings, thereby promoting transparency and consistency in bail adjudication.
These judgments demonstrate that while the distinction between police custody and judicial custody remains well established under the BNSS, courts are increasingly addressing practical issues relating to default bail, remand, and procedural safeguards during custody. They also highlight the judiciary’s continued emphasis on balancing effective criminal investigation with the protection of the accused’s constitutional rights.
Conclusion
The BNSS maintains the well-established dichotomy between police custody and judicial custody; however, the addition of Section 187(2) modifies the functioning of this dichotomy by allowing the fifteen days of police custody to be utilised in segments within the larger sixty- or ninety-day detention period. Neither form of custody ensures complete security for the accused, as the former exposes him to a greater chance of compulsion, whereas the latter is associated with prolonged undertrial detention. Bail continues to be the best protection available in both. Decisions such as Bablu alias Arvind Dubey v. State of Madhya Pradesh and Zeba Khan v. State of U.P. clearly establish that the courts are actively addressing the grey areas of the legislation.
Frequently Asked Questions
1. What is police custody under the BNSS?
Police custody refers to the detention of an accused under the control of the police for investigation, interrogation, or evidence collection, subject to judicial authorization.
2. What is judicial custody under the BNSS?
Judicial custody means the accused is detained in a prison or judicial lock-up under the supervision of a Magistrate rather than the police.
3. What is the key difference between police custody and judicial custody?
In police custody, the accused remains under police control for investigation. In judicial custody, the accused is held in jail under judicial supervision, limiting police access without court permission.
4. How does the BNSS regulate police custody?
The BNSS prescribes the circumstances, duration, and judicial oversight for granting police custody, ensuring it is subject to statutory safeguards and constitutional protections.
5. Why is the distinction between police and judicial custody important?
The distinction protects the rights of the accused, ensures fair investigation, prevents abuse of power, and maintains judicial oversight throughout criminal proceedings.
