TL;DR: Police remand and judicial custody are two different kinds of detention that follow an arrest in India, governed by Article 22(2) of the Constitution and Section 187 of the BNSS. Police custody cannot exceed 15 days in total and must be sought within a defined window, while judicial custody continues until the investigation ends, subject to the 60 or 90 day outer limit for filing the police report. This article covers the procedure end to end and links out to a companion piece on default bail for what happens when that limit is crossed.

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Police remand and judicial custody: the basic distinction

The moment a person is arrested in India, a clock starts running. That clock decides where the person will spend the coming days, weeks, and possibly months.

Two kinds of custody follow an arrest. Police remand, also called police custody, means the accused stays in the physical control of the investigating officer, usually inside a police lock-up. Judicial custody means the accused is sent to jail, under the control of the court, while the police keep investigating from outside.

Both forms of detention require a Magistrate’s order. Neither the police station nor the investigating officer can decide on their own how long a person stays in custody beyond the first 24 hours.

This distinction matters because the two kinds of custody serve different purposes and carry different limits. Confusing the two, or assuming the police can simply keep extending their own custody, is one of the most common misunderstandings families have when someone is arrested.

This article is about procedure. It does not offer legal advice on any specific case, and every person facing arrest should engage a criminal lawyer immediately.

The 24 hour rule: Article 22(2) and Section 58 BNSS

India’s Constitution builds a hard stop into every arrest. Article 22(2) says that a person arrested and detained must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time needed to travel from the place of arrest to the Magistrate’s court.

Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) restates this rule in ordinary legislation. It says no police officer can detain an arrested person for more than 24 hours without a Magistrate’s authorisation, again excluding travel time.

BNSS is the code that replaced the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Readers who searched under the old numbering will recognise this as Section 57 CrPC, now renumbered as Section 58 BNSS.

The 24 hour window is not a courtesy. It exists to stop unchecked police detention and to put a judicial officer between the citizen and the state at the earliest possible stage.

Any detention beyond 24 hours without production before a Magistrate is illegal. It can be challenged through a habeas corpus petition in the jurisdictional High Court.

First production before a Magistrate

The first production is the accused’s first appearance before a judicial officer after arrest. It is a distinct and important event, separate from any later remand hearing.

At first production, the Magistrate examines whether the arrest itself was lawful. The police must show the grounds of arrest, the case diary, and the reasons the accused could not be released on their own recognisance.

If the offence is bailable, the accused has a right to bail at this stage, and the Magistrate cannot refuse it on discretion. If the offence is non-bailable, the Magistrate decides whether to remand the accused to police custody, send them to judicial custody, or grant bail depending on the facts.

Since 2024, BNSS Section 35 also requires the police, before making certain arrests, to record reasons and, for offences punishable with less than three years, to generally avoid arrest unless specific conditions are met. This shapes what the Magistrate reviews at first production.

First production is where a defence lawyer’s presence matters most. Objections about illegal detention, procedural lapses in the arrest memo, or the absence of grounds communicated to the accused are best raised right here.

What police custody is actually for

Police custody exists for one narrow purpose: to let the investigating officer question the accused directly, without the accused first being lodged in jail where access is more restricted. It is not meant as punishment and not meant to pressure a confession.

Typical justifications police cite include recovery of weapons, stolen property, or documents that only the accused can point to, tracing co-accused persons, or verifying an alibi. Courts expect the remand application to state these grounds with some specificity, not in vague or boilerplate language.

Custodial interrogation carries real constitutional limits. Article 20(3) protects the accused against self-incrimination, and any confession made to a police officer is inadmissible as evidence under Section 25 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the successor to Section 25 of the Indian Evidence Act.

Because police custody is more intrusive than judicial custody, courts are expected to treat it as the exception rather than the default. A Magistrate who mechanically grants the full custody period sought by the police, without recording independent reasons, risks that order being questioned on appeal.

Once police custody is granted, the accused is typically kept for interrogation during the day and produced back before the Magistrate at the end of each spell, or at the end of the sanctioned period, whichever the order specifies.

The 15 day limit and how BNSS Section 187 changed it

Under the old Section 167 CrPC, police custody could only be granted within the first 15 days after the accused’s first production, and the total could never exceed 15 days across the entire investigation. Once those first 15 days passed, no further police custody was possible even if fresh evidence surfaced later.

BNSS Section 187 keeps the 15 day ceiling but changes when those days can be taken. Under the new provision, the 15 days of police custody, in aggregate, can be authorised at any point within the first part of the total investigation period, not just in one unbroken window right after arrest.

Specifically, for offences where the total investigation period is 60 days, the 15 days of police custody may be spread across the first 40 days. For offences where the total investigation period is 90 days, the 15 days may be spread across the first 60 days.

This is a meaningful shift from the CrPC position. Investigators who did not exhaust the full 15 days immediately after arrest, perhaps because a suspect was unwell or evidence was still being gathered, can now seek further short spells of police custody later in the 40 or 60 day window, as long as the cumulative total across all spells does not cross 15 days.

The remaining days between the last spell of police custody and the filing of the police report are spent in judicial custody. The accused moves back and forth between judicial custody and police custody only through fresh Magistrate orders each time.

This change has drawn criticism from criminal defence lawyers, who argue it extends the period during which an accused can be pulled back into a police lock-up, even if the total number of custody days has not increased. The 15 day ceiling itself is unchanged, only the scheduling flexibility around it.

Judicial custody: where the accused is held

Judicial custody places the accused under the jurisdiction of the court, physically detained in a central jail, district jail, or sub-jail rather than a police lock-up. The investigating officer no longer has direct custodial access to interrogate the accused at will.

If the police need to question an accused who is already in judicial custody, they must apply afresh to the Magistrate, and any further custody is subject to the overall 15 day cap described above. Simply walking into the jail and questioning the accused without a fresh order is not permitted.

Judicial custody can continue for as long as the investigation and trial require, subject to the outer limits on the investigation stage discussed later in this article. There is no fixed cap on judicial custody itself in the way there is for police custody.

Conditions inside judicial custody are governed by prison manuals and the Model Prison Manual framework rather than by the BNSS. Under-trial prisoners are, in principle, meant to be housed separately from convicted prisoners.

Family visits, legal visits, and mulaqats (meetings) are permitted under jail rules, though the frequency and format vary by state. A lawyer’s visit to a client in judicial custody is a right, not a favour granted by jail authorities.

What the Magistrate must apply their mind to

Remand is a judicial act, not a rubber stamp. The Magistrate is required to record satisfaction, in writing, that further detention is necessary, and cannot simply reproduce the police’s request in the order.

Before granting any remand, whether police or judicial, the Magistrate should examine the case diary produced by the investigating officer. This diary should show the progress of investigation and the specific reason custody is being sought at that point.

The Magistrate must be satisfied that the arrest itself was necessary and lawful, particularly given BNSS Section 35’s tightened conditions on arrest for less serious offences. An arrest made without recording reasons, where reasons were mandatory, can itself vitiate the remand.

For police custody specifically, the Magistrate should require the investigating officer to justify why custodial interrogation, rather than questioning an accused who is out on bail or in judicial custody, is genuinely necessary at this stage. Generic language like “for further interrogation” without particulars is not enough.

The Magistrate is also expected to inform the accused of the grounds for detention and to hear the accused, or the accused’s lawyer, before passing a remand order. Ex parte remand, without any opportunity for the accused to respond, defeats the purpose of judicial scrutiny.

Each remand order must fix a specific date for the next production, and no remand order for police custody can run beyond 15 days in a single stretch, subject to the overall 15 day ceiling.

Rights of the accused during remand

Several rights attach to a person in remand, whether police or judicial. These exist precisely because custody, especially police custody, carries a real risk of coercion.

Medical examination. Section 53 BNSS (the successor to Section 54 CrPC) gives an arrested person the right to be medically examined, and Section 58 BNSS requires the police to get the accused examined by a medical officer at the time of first production if the accused alleges ill-treatment or the Magistrate considers it necessary. Every spell of police custody should be accompanied by a medical check both before and after, to record the accused’s condition.

Legal aid. Article 39A of the Constitution and the Legal Services Authorities Act, 1987 guarantee free legal aid to any accused who cannot afford a lawyer. A Magistrate is required to inform the accused of this right at first production, and courts have consistently treated the absence of legal representation at a critical stage as a serious procedural failure.

Informing a relative. BNSS Section 36 requires the police to inform a friend, relative, or other person nominated by the arrested person about the arrest and the place of detention, and to display this information prominently at the police station. This is often called the “right to have someone informed.”

Right against handcuffing without reason. Handcuffing is meant to be exceptional, reserved for specific security risks recorded in writing, not a routine practice during production or transit.

Right to consult a lawyer. An arrested person has the right to consult a lawyer of their choice, and this right extends through the period of interrogation, though not necessarily to have the lawyer present throughout every minute of questioning in the interrogation room itself.

Protection against repeated custody applications for the same purpose. Once a Magistrate has declined police custody, the police cannot simply re-file the same application on the same grounds before a different Magistrate hoping for a different outcome.

How to oppose a remand application

Opposing a remand application is a routine but important part of criminal defence work, and it happens on a tight clock, often within hours of the accused being produced.

The first line of opposition is procedural. Check whether the arrest memo exists, whether it records the time and grounds of arrest, and whether Section 36 BNSS compliance, informing a relative, actually happened.

The second line is substantive. Challenge whether the remand application actually specifies what police custody will achieve that judicial custody or further investigation without custody cannot. Vague phrases like “custodial interrogation is necessary for further investigation” without any concrete step listed should be pointed out to the Magistrate.

Where multiple accused persons are named, check whether the remand application distinguishes between them or seeks a blanket order. Custody grounds that apply to one accused do not automatically justify custody for a co-accused with a different role in the case.

Raise any allegation of custodial mistreatment immediately and ask the Magistrate to direct a medical examination on the spot. Delay in raising this weakens its evidentiary value later.

Where the accused has already spent a significant part of the 15 day cap in police custody, argue against further custody on the ground that the cumulative limit is close to being exhausted, and that any residual questioning can happen with the accused in judicial custody instead.

Finally, if bail is available in law, whether because the offence is bailable, or because the statutory period for filing the police report has lapsed, raise that claim clearly and in writing rather than relying on an oral mention. For a detailed walkthrough of building that written application, see this guide to drafting a bail application.

The 60 and 90 day limits for filing the police report

Custody during investigation cannot go on forever while the police take their time. BNSS Section 187, mirroring the structure of the old Section 167 CrPC, sets an outer limit on how long an accused can be kept in custody, police or judicial combined, before the police must file their report under Section 193 BNSS (the equivalent of the old chargesheet under Section 173 CrPC).

The limit is 90 days where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than 10 years. The limit is 60 days for every other offence.

If the police fail to file the report within the applicable period, the accused acquires a statutory right to be released on bail, provided the accused is prepared to furnish bail. This is what practitioners call default bail or statutory bail.

The 60 or 90 day period runs from the date of first remand, not from the date of arrest and not from the date the FIR was registered. This distinction matters because there can be a gap between arrest and first production, and between FIR registration and arrest.

For background on how the investigation itself starts and how an FIR gets registered in the first place, see this explanation of FIR registration under BNSS Section 173.

The arithmetic of counting the days

Getting the count right decides whether default bail is available or not, and courts have been strict about the method of calculation.

Step one: identify the starting date. The clock starts on the date the Magistrate first authorises detention, which is usually the date of first production, not the date of arrest.

Step two: identify the applicable limit. Check the punishment prescribed for the offence as charged in the FIR or as it stood when the remand was first granted. Death, life imprisonment, or 10 years and above triggers 90 days; anything less triggers 60 days.

Step three: count calendar days, not working days. Sundays, holidays, and court vacations all count towards the period. There is no pausing the clock for a court closure.

Step four: track any change in offence category during investigation. If additional sections are added later that increase the maximum punishment above the 10 year threshold, the applicable period can shift from 60 to 90 days, but this generally only helps the prosecution if it happens before the shorter period has already expired.

Step five: mark the deadline and file for default bail the moment it passes, if the report has not been filed. The right is available the day after the period expires and continues until the police report is actually filed and the Magistrate takes cognisance, or until the accused applies for bail, whichever happens first. Courts have described this as an indefeasible right that survives only until it is exercised or the situation changes.

An accused facing an offence under a different statute with its own custody timeline, such as the Prevention of Money Laundering Act, should check that statute’s specific provisions separately, since some special laws extend or modify the default period.

AspectPolice custodyJudicial custody
Who holds the accused✓ Investigating police, in a lock-up✓ Jail authorities, under court’s jurisdiction
Maximum duration✓ 15 days total, across the investigation✗ No separate cap, subject to 60/90 day outer limit
Purpose✓ Custodial interrogation✗ Not for interrogation; safe custody during investigation
Fresh order needed each time✓ Yes, from a Magistrate✓ Yes, from a Magistrate
Direct police access to accused✓ Yes✗ No, only through a fresh remand application
Governing provision✓ Section 187 BNSS✓ Section 187 BNSS

Everything covered above, the 24 hour rule, the 15 day police custody cap, the Magistrate’s duty to apply their mind, and the 60 or 90 day outer limit, exists to answer one underlying question. How long can the state hold a person without formally accusing them in a filed report?

When the police report is not filed within the applicable period, the answer shifts from procedure to entitlement. The accused does not need to prove innocence or argue the merits of the case to get released; the statutory clock alone does the work.

This right is distinct from regular bail under Section 480 or 483 BNSS, and distinct from anticipatory bail under Section 482 BNSS, both of which turn on the facts of the case and the discretion of the court. For that broader picture of when bail is a matter of right versus discretion, this guide to bailable and non-bailable offences is a useful companion read.

For a full, dedicated treatment of the statutory scheme, the exceptions, and how courts have approached applications filed at the edge of the deadline, this article covers default bail under BNSS Section 187 in complete detail and is the natural next read after this one.

How Niyam helps with remand and custody procedure

Tracking a custody timeline by hand, across first production, multiple remand extensions, and the 60 or 90 day outer limit, is easy to get wrong under time pressure. Niyam’s research tools help lawyers and litigants pull the relevant BNSS provisions, cross-reference the old CrPC numbering, and check a specific fact pattern against the applicable statutory period.

For families dealing with an arrest for the first time, having a clear, sourced explanation of what a remand order actually says, and what deadline it triggers, reduces the chance of missing a default bail window. Niyam does not replace a criminal lawyer, but it helps everyone involved understand the procedure fast enough to act on it.

Frequently asked questions

What is the difference between police remand and judicial custody?

Police remand means the accused is held by the investigating police, usually in a lock-up, for direct interrogation. Judicial custody means the accused is held in jail, under the court’s jurisdiction, and the police cannot access them without a fresh order.

How long can police custody last in total?

Police custody cannot exceed 15 days in total across the entire investigation, even if it is taken in separate short spells under BNSS Section 187.

Can police get custody after the first 15 days from arrest?

Under the old CrPC, no. Under BNSS Section 187, police custody spells can be spread across the first 40 days of a 60 day investigation, or the first 60 days of a 90 day investigation, as long as the total does not exceed 15 days.

What happens if the police do not produce the accused within 24 hours?

The detention becomes illegal, and it can be challenged through a habeas corpus petition before the jurisdictional High Court.

Does the 24 hour period include travel time to the court?

No. Article 22(2) and Section 58 BNSS both exclude the time necessary for the journey from the place of arrest to the Magistrate’s court.

Who decides whether a person goes to police custody or judicial custody?

Only a Magistrate can authorise either form of custody. The investigating officer can only request it through a formal remand application.

What must a remand application contain?

It should state the specific investigative steps that require the accused’s custody, such as recovery of evidence or tracing co-accused, rather than generic language about “further investigation.”

Can a Magistrate refuse a police custody request?

Yes. The Magistrate is required to independently assess necessity and can grant judicial custody instead, or release the accused on bail if the offence is bailable.

What is the 60 and 90 day rule?

The police must file their report, the equivalent of the old chargesheet, within 90 days for offences punishable with death, life imprisonment, or 10 years or more, and within 60 days for all other offences.

What happens if the police miss the 60 or 90 day deadline?

The accused becomes entitled to default bail, provided they apply for it and are willing to furnish bail, before the report is actually filed.

Does the 60 or 90 day clock start from the date of arrest?

No. It starts from the date of first remand by the Magistrate, not from the date of arrest and not from the date the FIR was registered.

Can the police extend the 60 or 90 day period?

Not by their own request in ordinary cases. Some special statutes allow courts to extend the period under specific conditions, but the general BNSS scheme does not.

Is a confession made during police custody admissible in court?

No. Section 25 of the Bharatiya Sakshya Adhiniyam makes confessions to a police officer inadmissible as evidence, regardless of whether the accused was in police custody at the time.

Can a family member visit someone in police custody?

Access during police custody is far more restricted than in judicial custody. The right that applies at the point of arrest is being informed of the arrest and the place of detention under BNSS Section 36, not an open visitation right during interrogation.

What rights does an accused have during remand?

These include medical examination, free legal aid if unable to afford a lawyer, having a relative or friend informed of the arrest, protection against unnecessary handcuffing, and the right to consult a lawyer.

Can a person be sent back to police custody after being sent to judicial custody?

Yes, but only through a fresh remand application to the Magistrate, and only if the 15 day cumulative cap on police custody has not already been exhausted.

How is judicial custody different from being in jail after conviction?

Judicial custody applies to an under-trial who has not been convicted. Prison rules generally require under-trials to be housed separately from convicted prisoners, though implementation varies across states.

What should a lawyer check before opposing a remand application?

Whether the arrest memo and Section 36 BNSS compliance exist, whether the remand application states specific investigative grounds, and how many days of the 15 day police custody cap have already been used.

Does BNSS apply to cases where the FIR was registered under the old CrPC?

Generally, procedural provisions like remand and custody timelines under BNSS apply to steps taken on or after 1 July 2024, even in cases that began under the CrPC regime, subject to the transitional provisions in BNSS itself.

Where can I read more about what happens when the 60 or 90 day limit is crossed?

The companion article on default bail under BNSS Section 187 covers the statutory right, exceptions, and the practical steps for filing an application at the right moment.

Key takeaways

  • Police remand and judicial custody are two distinct forms of detention, both requiring a fresh Magistrate order each time.
  • Article 22(2) and Section 58 BNSS require production before a Magistrate within 24 hours of arrest, excluding travel time.
  • Police custody cannot exceed 15 days in total across the investigation, even though BNSS Section 187 allows those days to be spread across a 40 or 60 day window instead of only the first 15 days.
  • Judicial custody has no separate cap but is bound by the overall 60 or 90 day limit for filing the police report.
  • The Magistrate must independently apply their mind to the necessity of custody and cannot mechanically accept the police’s request.
  • Rights during remand include medical examination, legal aid, and having a relative informed of the arrest under BNSS Section 36.
  • Opposing a remand application works best when it challenges specific, vague, or repeated grounds rather than the fact of remand itself.
  • Missing the 60 or 90 day filing deadline creates a statutory right to default bail, covered in full in the companion article on BNSS Section 187.
  • For related procedural questions, see how arrest itself is regulated under BNSS Section 35 and how offences are classified under the bailable versus non-bailable framework.
  • Some accused persons resolve matters faster through plea bargaining or, where the offence qualifies, treatment as a compoundable offence, both of which interact with the custody timeline discussed here.