This article traces the evolution of remand procedures in India’s criminal justice system, examining the transition from Section 167(2) of the CrPC, 1973 to Section 187 of the BNSS, 2023. The remand process, which commences when arrested individuals are produced before magistrates within 24 hours under Article 22(1), has undergone significant reforms to address concerns about prolonged detention without final chargesheet. The historical development shows a progression from the restrictive 15-day maximum under the 1898 CrPC to the current framework establishing statutory timeframes: 60 days for lesser offenses and 90 days for serious crimes punishable by death, life imprisonment, or imprisonment exceeding ten years. The evolution reflects judicial interpretations, particularly in landmark cases like CBI v. Anupam J. Kulkarni, Budh Singh v. State of Punjab, and V. Senthil Balaji v. State, which clarified that police custody is limited to 15 days total but need not be consecutive. The BNSS, 2023 introduces staggered remand provisions allowing intermittent police custody within the statutory period while maintaining the 15-day aggregate limit. However, the omission of protective language raises concerns about potential custodial abuse and necessitates urgent legislative or judicial clarification to prevent misuse.
I. Introduction
The State’s primary responsibility is to maintain law and order, ensuring that people have peace, security, and protection of life, liberty, and property.[1] This task is carried out through both preventive and punitive methods, which also help to discourage private vengeance, which is an important part of maintaining societal harmony.[2] All over the world, criminal justice systems are divided into two procedural models: adversarial and inquisitorial systems. Each system assigns different tasks to the magistrate, especially during the pre-trial phases of arrest, investigation and remand. The inquisitorial system, which is common in civil law jurisdictions such as France, Germany, and Italy, assigns an active investigative duty to the magistrate, often known as the “investigating judge” or “juge d’instruction”.[3] In this model, the magistrate is directly engaged in gathering and examining evidence, interrogating witnesses, and questioning the accused.[4] In contrast, India adheres to the adversarial system, inherited from the British colonial legal framework. In this model, the pursuit of truth emerges from the contest between the prosecution and the defence, both of whom present their respective versions of facts before an impartial judge. The magistrate, rather than investigating the facts independently, serves as a neutral adjudicator ensuring that the proceedings comply with constitutional and statutory protections. Within this framework, the magistrate’s role is pivotal during the pre-trial stage, particularly in exercising judicial oversight over arrests and the remand process. The remand process commences from the stage of first production of the accused, which flows from Article 22(1), which mandates that any person arrested and detained must be produced before the nearest magistrate within 24 hours Previously, the provision for remand was governed by Section 167(2) of the CrPC, 1973, and has now been codified under Section 187 of the BNSS, 2023. This article aims to examine the evolution and scope of the remand procedure under Section 167(2) CrPC, as well as the corresponding remand provisions under Section 187(2) of the new criminal procedure law, the BNSS.
II. Development Of Remand Procedure As Enshrined In Section 167(2) CrPC Development of Legal Provision
The development of Section 167(2) CrPC, 1973 and the safeguard of default bail contained in its proviso is inextricably linked to Article 21 and is nothing more than a legislative interpretation of the constitutional safeguard that no person shall be detained except in accordance with rule of law.[5] Section 167 CrPC, 1898 (hereinafter referred to as the 1898 Code), which was in effect before the introduction of the CrPC, 1973, stated that an accused could be remanded to custody, either police or judicial, for a maximum of 15 days. However, because it was sometimes impossible to complete complex investigations within 15 days, a practice evolved in which investigating officers filed preliminary chargesheets after the remand period had expired. The State would then request that the magistrate postpone the trial and grant further remand of the accused person under Section 344 of the 1898 Code until the investigation was complete and the final chargesheet was filed.
In its 14th Report,[6] the LCI noted that in many cases, the accused had been detained in custody for a long time without a final report being filed with the courts. It was also noted that the judicial opinion varied on whether the magistrate was required to release the accused if the police report was not filed within 15 days. As a result, the LCI in its “14th Report on Reforms of the Judicial Administration” suggested[7] the requirement for a suitable provision specifically providing for continued remand after 15 days, in a way that fulfills the needs of a full and proper investigation in cases of serious crime while still protecting the individual’s liberty. Furthermore, the legislation should establish a maximum time limit beyond which no accused may be kept without filing a police report with the magistrate. It was pointed out that in England, even someone accused of a serious crime like treason could not be held indefinitely in prison before the trial began.[8]
The LCI restated the 14th Report’s recommendation in the 41st Report.[9] The LCI stressed the importance of safeguarding against the misuse of Section 344 of the “1898 Code” by filing preliminary reports for remanding the accused beyond the statutory period specified by Section 167. It was pointed out that this could lead to significant abuse, since “the arrested person can in this manner be kept in custody indefinitely while the investigation can go on leisurely manner.” As a result, the LCI suggested imposing a maximum remand period of 60 days. The LCI took into consideration the earlier reservation addressed in 37th Report[10] that such an extension could result in the 60 day period becoming a matter of routine. However, there was hope that adequate monitoring by the superior courts would help to avoid the situation.
The Central Government took note of the recommendations mentioned in the 41st Report and implemented them into the “Code of Criminal Procedure Bill in 1970”. Finally, the “1898 Code” was replaced by the ‘CrPC, 1973’. The “Statement of Objects and Reasons of the Code of Criminal Procedure” states that that the Government considered the following significant factors while reviewing the Law Commission’s recommendations:
a) “an accused person should get a fair trial in accordance with the accepted principles of natural justice;
b) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and
c) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer Sections of the community.”
In this context, Section 167(2) of the CrPC, 1973 came into force, which provides for limitations on the accused’s period of remand that are proportionate to the gravity of the offence committed, failing which the accused gets the indefeasible right to bail. The legislature’s objective, as demonstrated by the LCI recommendations,[11] was to strike the balance between the need for adequate time limitations for completing the investigation and the need to protect the accused’s personal liberties. Section 167(2) stated explicitly that the investigation agency must gather the necessary evidence within the time frame specified, otherwise the accused may no longer be detained. This guarantees that the investigating agencies are obligated to work quickly and efficiently while without abusing the possibility of a subsequent remand. This also assures that the Court takes cognizance of the case without unnecessary delay from the date of receiving information about the offence, preventing society as a whole from losing faith and developing skepticism toward the criminal justice system.[12] As previously stated, Section 167(2) is inextricably tied to Article 21’s fundamental duty to safeguard life and personal liberty from unlawful and arbitrary detention, and ought to be interpreted accordingly.[13]
Scope of Remand Procedure u/s 167 CrPC
Section 167 defined the scope and limitations of a magistrate’s authority to detain an arrested person pending investigation. It provides that “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 authorize the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding 15 days in the whole”.[14] It further states that “if the magistrate 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”.[15] There is a statutory time frame then prescribed for remand of the accused for the purposes of investigation, however, the same cannot extend beyond 90 days in cases where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years,[16] and 60 days where the investigation relates to any other offence.[17] This Section further provides that on expiry of the period of 90 days or 60 days, as the case may be, the accused has a right to be released on default bail in case he is prepared to and furnishes bail.
Reading Sections 57 and 167 together it is safe to conclude that Section 167 applies only when:[18]
(1) “the accused is arrested without warrant and is detained by a police officer,
(2) it appears that more than twenty-four hours will be needed for investigation,
(3) there are grounds for believing that the accusation or information against him is well founded, and
(4) the officer in charge of the police station or the investigating officer not below the rank of a Sub-Inspector forwards the accused before the ”
When this situation arises, the Magistrate can refuse to detain him or direct his detention either in police custody or judicial custody. When once he directs judicial custody, there is no question of police remand for the simple reason that the conditions aforesaid are no more there.[19] Granting or not granting remand to the police custody always depends on the facts and circumstances of the case and requirement of the collection of evidence by the investigating agency. The investigating agency has to establish that no further investigation is possible without further custodial interrogation. A remand to police custody should not be given unless the officer making the application is able to show definite and satisfactory grounds and the remand order should not be passed mechanically without proper application of mind.[20]
Generally, detention in police custody is disfavoured under the law and is permitted only under exceptional circumstances. Such custody must be authorized by a magistrate through a remand order, which must be based on judicially scrutinised reasons and strictly limited to the necessities of the investigation. The statutory scheme, previously encapsulated in Section 167 of the CrPC,[21] is designed to act as a safeguard against potential abuse of power by overzealous or unscrupulous police officers. Its primary objective is to protect the rights and dignity of the accused during the pre-trial phase of the criminal process.[22]
Judicial Interpretation Shaping Remand Procedure under Section 167(2) CrPC
The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by significant judicial pronouncements. In Anupam J. Kulkarni case,[23] the Supreme Court interpreted the proviso to Section 167(2) to mean that police custody was strictly limited to the first 15 days following the arrest. The Supreme Court ruled:
“After the expiry of the first period of 15 days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of the first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction…..The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in sub-section 2 of Section 167 has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.”
The position established in CBI v. Anupam J. Kulkarni was subsequently followed in Budh Singh
State of Punjab,[24] where a 3-judges bench, solidifying the understanding that the 15 days of police custody had to be availed within the first 15 days of remand, held that the mandate of Section 167 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. However, the Supreme Court in CBI v. Vikas Mishra[25] reconsidered the interpretation of Section 167(2), acknowledging the practical challenges faced by investigating agencies, particularly in complex financial crimes. The court observed that:
“The view taken by this Court in the case of Anupam J. Kulkarni requires re-consideration. When we put a very pertinent question….that in a given case it may happen that the learned trial/Special Court refuses to grant the police custody erroneously which as such was prayed within 15 days and/or immediately on the date of arrest and thereafter the order passed by the trial/Special Court is challenged by the investigating agency before the higher Court, namely, Sessions Court or the High Court and the higher Court reverses the decision of the learned Magistrate refusing to grant the police custody and by that time the period of 15 days is over, what would be position?”
Subsequently, on August 7, 2023, a two-judges bench comprising Justice A.S. Bopanna and Justice M.M. Sundresh examined whether Section 167(2) limits police custody exclusively to the first 15 days of remand in V. Senthil Balaji v. The State.[26] Justice M.M. Sundresh expressed disagreement with the Anupam J. Kulkarni decision in the following words:
“76. We are unable to concur with the views expressed in Anupam J. Kulkarni to the effect that a police custody shall only be within the first 15 days of remand. Nowhere under sub-section 2 of Section 167 such a stipulation is found either directly or indirectly. The words such as time to time, such custody, and in the whole mentioned under sub-section 2 of Section 167 have not been properly taken note of and interpreted. What is required is a simple and natural interpretation when there is no semblance of ambiguity.
77.The intention behind the proviso has also not been construed. As stated, sub-section 2 of Section 167 does a fine balancing act between the liberty of an individual and a proper investigation. Perhaps, this Court was keeping in mind the earlier Code of Criminal Procedure, 1898 which restricts the period of investigation to 15 days alone. Once the period is given as 60 days or 90 days as the case may be, to an investigating agency, in tune with the proviso, sub-section 2 of Section 167 of the CrPC, 1973 by even normal interpretation facilitates a police custody spanning over the said period, but whole being for 15 days. It appears to us that a clear provision has not been construed correctly, while adding certain words.”
The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous period and can be sought in shorter durations throughout the investigation, as long as the total does not exceed 15 days.
III. Remand Procedure u/s 187 BNSS
The V. Senthil Balaji judgement was delivered on August 7, 2023, and soon after, on 11th August 2023, the Home Minister, Amit Shah introduced the BNS, BNSS and BSA bills to replace the IPC, 1860, CrPC, 1973 and IEA, 1872 respectively in the Parliament.[27] The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards police custody. Section 187 of BNSS retains the 15-day limit on police custody. However, it introduces a crucial change in its wording, allowing investigating agencies to seek this period “in the whole or in part over 60 or 40 days”.[28] This phrasing does not explicitly restrict police custody to the initial 15 days, unlike the proviso in Section 167(2) of CrPC. This change under Section 187 of the BNSS aligns with the two-judge bench’s reasoning in the V. Senthil Balaji case.
The new law has modified the police custody provisions so that remand is no longer restricted to the first 15 days alone. Under the revised framework, when a chargesheet must be filed within 60 days, staggered police custody can be sought during the initial 40 days, while maintaining the overall limit of 15 days in toto. Similarly, when the chargesheet filing period extends to 90 days, staggered police custody may be requested throughout the first 60 days.
The researcher considers this provision excessive, as it exposes the accused to potential harassment through repeated police custody applications until the complete 15-day period is exhausted across 40 or 60 days. This approach creates significant consequences by interfering with the accused person’s capacity to maintain normal daily activities while on bail, as police may repeatedly seek remand under the pretext of fresh investigation. The researcher notes that when the CrPC was established in 1973, technological resources for investigation were considerably less sophisticated than current capabilities. Despite these limited investigative tools available at that time, the custody period was still restricted to 15 days during the initial investigation phase, as established in the Anupam Kulkarni judgment. With contemporary technological developments including CCTV surveillance, facial recognition systems, and sophisticated forensic techniques, permitting police to utilize the same 15-day custody period in segments provides them with disproportionately enhanced powers.
The Parliamentary Standing Committee on Home Affairs conducted a review of the BNSS Bill and recommended introducing appropriate amendments to ensure clearer interpretation of Section 187.[29] This recommendation emerged from stakeholder inputs suggesting that custody should generally be sought within the first 15 days of remand as the standard practice. The extended timeframe should only serve as an exception in specific circumstances, such as when the accused attempts to evade police custody or due to external factors beyond the investigating officer’s control. The committee aimed to achieve a balance between protecting individual rights while providing investigating agencies with adequate time for their investigations. Despite these recommendations, the suggested changes were not incorporated when the bills were reintroduced.
The complexity in the new provisions stems from the wording of Section 187, specifically sub-section (3), despite the extension of the period to the first 40 or 60 days for police custody as per the case may be. Under the previous framework in Section 167(2), the critical language in proviso (a) stated that:
“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.”
This provision ensured that an accused person’s custody was not within the custody of police beyond 15 days, for a maximum duration of 90 or 60 days.
The deletion of the essential phrase “otherwise than in custody of the police” from sub-section (3) of Section 187 creates an interpretation that police custody might potentially extend up to 90 or 60 days depending upon the gravity of the offence. This interpretation directly conflicts with the provisions stated in sub-section (2) of Section 187. The researcher notes that there has been a clarification from the Home Minister on the floor of parliament on the very first day of parliament where he said that the police cannot obtain extended custody beyond 15 days and that those 15 days would be in terms of sub-section (2) of Section 187. However, the ambiguous wording of sub-section (3) requires correction if Parliament intends to restrict police custody to a total of 15 days within the first 40 or 60 days of remand. Clear legal provisions are necessary through either legislative amendment or Supreme Court directive.
* Advocate, High Court of Delhi. Can be contacted at gauravvmaan@gmail.com
[1] Aparna Chandra and Mrinal Satish, “Criminal Law and The Constitution” in Sujit Choudhry, Madha V. Khosla, et. al. (eds.) The Oxford Handbook Of The Indian Constitution (Oxford University Press, United Kingdom, 2016).
[2] Government of India, “Committee on Reforms of Criminal Justice System” (Ministry of Home Affairs, March 2003).
[3] Ibid.
[4] Ibid.
[5] M. Ravindran v. The Intelligence Officer, DRI, MANU/SC/0788/2020.
[6] Law Commission Of India, II “Fourteenth Report on Reforms of the Judicial Administration” (1948).
[7] Ibid.
[8] Supra note 5.
[9] Law Commission Of India, I “Forty First Report on The Code of Criminal Procedure, 1898” 76-77 (September, 1969).
[10] Law Commission Of India, “Thirty-Seventh Report on The Code of Criminal Procedure, 1898” (December, 1967).
[11] Supra note 9.
[12] Supra note 5.
[13] Ibid.
[14] The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 167(2).
[15] Ibid.
[16] Id., s. 167(2)(a)(i).
[17] Id., s. 167(2)(a)(ii).
[18] Trilochan Singh v. The State (Delhi Administration), 20 (1981) DLT 20B, para 7.
[19] Ibid.
[20] State of Uttar Pradesh v. Ram Sagar Yadav, MANU/SC/0118/1985.
[21] Now, it is reflected in Section 187 of the BNSS.
[22] Raghubir Singh v. State of Bihar, MANU/SC/0199/1986.
[23] CBI v. Anupam J. Kulkarni, MANU/SC/0335/1992.
[24] MANU/SC/2598/2000.
[25] MANU/SC/0342/2023.
[26] V. Senthil Balaji v. State represented by Deputy Director, MANU/SC/0839/2023.
[27] PIB Delhi, available at: https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941 (last visited on June 6, 2025).
[28] This position was also endorsed by the Supreme Court in Hyder Ali v. State of Karnataka, SLP(Crl.) No. 018063/2024 which affirmed the Karnataka High Court judgment.
[29] The report was adopted on November 6, 2023.