Supreme Court clarifies scope of police custody under BNSS

The Supreme Court clarified that Section 187(2) of the BNSS widens the timing window for police custody. The full 15-day police-custody allowance need not be used immediately or continuously during the first 15 days of remand. It may be split into separate periods.

The timing depends on the total permissible detention period. For offences carrying the longer detention limit, police custody can be taken during the first 60 days. For other offences, it can be taken during the first 40 days. The aggregate police custody still cannot exceed 15 days.

This changes the position under the earlier CrPC rule, which confined police custody to the first 15 days. The Court said the BNSS change addresses investigations where fresh facts, discoveries, or leads emerge later. Police custody therefore remains limited, but its availability is more flexible.

Police custody means detention with the police while investigators question the accused and pursue the investigation. It can help investigators examine leads, recover evidence, and make discoveries connected with the alleged offence. It is granted only when a magistrate authorises it under Section 187.

Judicial custody is different. The accused is detained under the authority of the magistrate rather than kept with the investigating police. Section 187(3) allows judicial detention beyond the initial 15 days when adequate grounds exist, subject to the overall 60-day or 90-day limits described in the article.

The distinction matters because police custody gives investigators direct access to the accused, while judicial custody limits that access. The BNSS still caps police custody at 15 days in total, even though those days may be used in separate periods during the permitted window.

Section 187(2) allows a magistrate to authorise police custody for no more than 15 days in the whole. “In the whole” means the total cannot exceed 15 days, even when custody is granted through multiple orders or separate periods.

The available window depends on the maximum detention period for the investigation. Where the offence falls within the 90-day detention category, police custody may be taken during the initial 60 days. For offences in the 60-day category, it may be taken during the initial 40 days. The 15 days can be distributed within that relevant window.

This is the central change clarified by the Supreme Court. Police custody is no longer confined to the first 15 days of remand. However, the total police custody remains capped, and continued detention is subject to magistrate oversight and the statutory detention periods.

When police custody is available in separate periods, investigators do not have to complete every custodial step during the first 15 days. They can return to a magistrate when the investigation produces a genuine new need, while staying within the 15-day aggregate limit.

The article gives a custodial-death investigation as an example. The victim’s body remained untraced, original CCTV hard disks had not been found, and discoveries under the Bharatiya Sakshya Adhiniyam were imminent. The magistrate granted eight days of police custody, and the Supreme Court later permitted seven additional days.

This flexibility can help investigators pursue delayed leads, recover evidence, or act on new discoveries. It does not remove safeguards. A magistrate must authorise detention, the total police custody cannot exceed 15 days, and the overall 60-day or 90-day detention limits continue to apply.

The Supreme Court said a magistrate cannot impose an absolute, non-extendable outer limit on police custody. Such an order would prevent investigators from seeking custody later, even if the investigation reveals fresh facts, discoveries, or leads.

The case involved a custodial death, an untraced body, missing original CCTV hard disks, and imminent evidence discoveries. The lower order allowed eight days of custody and stated that the period could not be extended. The Supreme Court held that this condition improperly foreclosed the statutory scheme.

The Court therefore permitted seven additional days, keeping the total within 15 days. Its reasoning was that supervisory judicial power must operate alongside Section 187(2), not cancel it. The ruling does not create unlimited custody. It preserves the statutory cap while allowing later applications when the investigation justifies them.

Section 38 of the BNSS gives an arrested person the right to meet an advocate of choice during interrogation. This safeguard allows legal contact while the police question the person. It is described in the article as corresponding to Section 41-D of the CrPC.

The Supreme Court clarified the limit of that right. It does not require an advocate’s continuous, ongoing physical presence for the entire interrogation session. The provision also does not depend on whether the lawyer is kept within a particular visual or audible distance throughout questioning.

In the case, the magistrate allowed the accused to nominate two advocates, with one present at any given time. The Supreme Court held that the statutory wording does not support continuous attendance. The practical position is therefore a right to meet the chosen lawyer during interrogation, not a right to have the lawyer monitor every moment.

Under the earlier CrPC rule, police custody could not extend beyond the first 15 days in the whole, although custody could change between police and judicial forms during that period. The BNSS changes the timing. Section 187(2) permits up to 15 police-custody days in parts during the first 40 or 60 days.

The wider window responds to investigations in which new facts, discoveries, or leads appear later. Police custody remains capped at 15 days, while judicial custody may continue beyond that when a magistrate finds adequate grounds. The total detention period depends on the offence.

Section 187(3) sets 90 days for offences punishable with death, life imprisonment, or at least 10 years’ imprisonment, and 60 days for other offences. If investigation is not completed within the applicable period, the accused may be released on default bail.