Published On: August 18, 2026
Authored By: Devesh Kumar
Amity Law School, Amity University
Introduction
The replacement of the Code of Criminal Procedure, 1973 (CrPC) with the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks one of the most significant procedural reforms in India’s criminal justice system since independence. While much public discussion surrounding the new criminal laws has focused on their symbolic departure from colonial legislation, the practical implications of several procedural changes deserve equal attention. Among these, the modification of police custody under Section 187 of the BNSS has emerged as one of the most debated legal developments in recent times. The amendment has generated extensive discussion within legal circles because it directly affects the delicate relationship between the investigative powers of the State and the constitutional rights of an accused person.
Criminal procedure has always been founded on two competing objectives. On one hand, the State must possess adequate powers to investigate offences effectively, identify offenders, collect evidence, and secure convictions where guilt is established. On the other hand, these investigative powers cannot be exercised in a manner that undermines the constitutional guarantee of personal liberty. The Indian Constitution does not merely protect innocent individuals from arbitrary action; it also ensures that every accused person is treated with dignity and fairness until proven guilty through a lawful judicial process. Consequently, every procedural reform in criminal law must be evaluated not only from the perspective of administrative efficiency but also through the lens of constitutional morality.
One of the most sensitive aspects of criminal investigation is police custody. Unlike judicial custody, where an accused remains under the supervision of prison authorities, police custody places the individual directly under the control of the investigating agency. This phase of investigation is intended to facilitate interrogation, recovery of evidence, confrontation with witnesses, and reconstruction of events. However, history has repeatedly demonstrated that police custody also carries the greatest risk of coercion, custodial violence, and involuntary confessions. Indian courts have therefore consistently recognised that police custody requires strict judicial supervision and must remain an exception rather than the rule.
For almost fifty years, Section 167 of the Code of Criminal Procedure provided a relatively settled legal framework regarding police custody. Judicial interpretation, particularly by the Supreme Court, clarified that police custody could ordinarily be granted only during the first fifteen days following an accused person’s initial production before a Magistrate. After this period, further detention could continue only in judicial custody. This interpretation attempted to maintain an equilibrium between investigative necessity and constitutional safeguards by ensuring that prolonged exposure to police interrogation remained legally impermissible.
The enactment of the Bharatiya Nagarik Suraksha Sanhita has substantially altered this long-standing procedural position. Section 187 now permits the authorised period of police custody to be granted in separate phases during the first forty or sixty days of detention, depending upon the gravity of the alleged offence. Although the aggregate period of police custody continues to remain fifteen days, its distribution across a significantly longer investigation period represents an important departure from the earlier legal regime. This legislative innovation has been welcomed by investigating agencies as a practical solution for dealing with increasingly sophisticated forms of criminal activity. Simultaneously, civil liberties advocates have expressed apprehension that the reform may inadvertently expand opportunities for custodial abuse if not accompanied by stringent judicial oversight.
The significance of this legal development becomes even more apparent when viewed against the changing nature of crime in contemporary India. Traditional criminal investigations generally involved physical evidence, eyewitness testimony, and geographically confined offences. Modern investigations, however, frequently concern cybercrime, digital fraud, cryptocurrency transactions, organised crime syndicates, cross-border financial offences, and encrypted electronic communication. Evidence is often dispersed across multiple jurisdictions and recovered only after detailed forensic examination. Investigating agencies have consistently argued that the rigid limitation imposed by the earlier interpretation of Section 167 CrPC often prevented effective interrogation when crucial evidence surfaced after the initial period of police custody had expired.
From the perspective of law enforcement, therefore, the BNSS attempts to address an operational challenge rather than merely expand police powers. The flexibility introduced by Section 187 is intended to ensure that investigators are not deprived of custodial interrogation solely because fresh evidence emerges at a later stage of investigation. Whether this objective justifies the corresponding impact upon individual liberty remains one of the central constitutional questions arising from the new legislation.
This article critically examines the expanded police custody framework introduced under the Bharatiya Nagarik Suraksha Sanhita, 2023. It analyses the legal position under the previous Code of Criminal Procedure, explains the nature of the legislative reform, evaluates its constitutional implications, examines relevant judicial precedents, and considers whether the amendment successfully balances effective criminal investigation with the protection of fundamental rights guaranteed under Article 21 of the Constitution of India.[1]
The Earlier Legal Position Under the Code of Criminal Procedure
Before analysing the reforms introduced by the BNSS, it is necessary to understand the legal framework that governed police custody for nearly five decades. Section 167 of the Code of Criminal Procedure, 1973 regulated the procedure to be followed when an investigation could not be completed within twenty-four hours of arrest. Under Article 22(2) of the Constitution and Section 57 CrPC, every arrested person had to be produced before the nearest Magistrate within twenty-four hours, excluding the time required for travel. If the investigation remained incomplete, the investigating officer was required to seek authorisation from the Magistrate for further detention.[2]
Section 167 recognised two distinct forms of custody: police custody and judicial custody. Police custody permitted investigators to interrogate the accused while retaining physical control over the individual. Judicial custody, in contrast, transferred the accused to prison authorities, thereby reducing direct interaction with the investigating agency. The distinction was not merely administrative but reflected an important constitutional safeguard designed to minimise the possibility of coercive interrogation.[3]
Although the statutory language of Section 167 generated interpretational disputes during the early years of its operation, the Supreme Court settled the issue in Central Bureau of Investigation v. Anupam J. Kulkarni.[4] The Court held that police custody was ordinarily permissible only during the first fifteen days following the accused’s initial remand before the Magistrate. Once this period expired, further detention could continue only in judicial custody, irrespective of whether new evidence subsequently emerged. This interpretation became one of the most influential procedural safeguards within Indian criminal jurisprudence and was consistently followed by subordinate courts across the country.
The reasoning adopted by the Supreme Court reflected broader constitutional values. The Court recognised that prolonged police custody substantially increased the possibility of custodial torture, involuntary confessions, intimidation, and abuse of authority. Restricting police custody to the earliest stage of investigation therefore represented a conscious attempt to preserve personal liberty while allowing investigators sufficient opportunity to collect immediate evidence. The judgment reinforced the principle that criminal investigation must remain subject to judicial supervision and that investigative convenience could not override constitutional protections.
Nevertheless, over the years investigating agencies increasingly argued that the legal framework developed under Anupam J. Kulkarni had become inadequate for addressing contemporary forms of criminal activity. Complex financial crimes, cyber frauds, terrorism-related investigations, and organised criminal conspiracies frequently involve electronic evidence that may not become available during the initial fifteen days following arrest. Digital forensic analysis, bank transaction records, mobile phone extraction reports, and international information requests often require several weeks before investigators can meaningfully interrogate an accused person regarding newly discovered evidence. This practical difficulty eventually became one of the principal reasons cited by the legislature for introducing procedural reforms through the Bharatiya Nagarik Suraksha Sanhita.
The Reform Introduced by Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023
The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 has fundamentally altered the procedural architecture governing police custody in India. Section 187 of the BNSS retains the overall ceiling of fifteen days of police custody but significantly modifies the manner in which those fifteen days may be utilised. Unlike the earlier position under Section 167 of the Code of Criminal Procedure, where police custody ordinarily had to be exhausted within the first fifteen days of remand, the new provision authorises a Magistrate to grant police custody in separate phases during the initial forty or sixty days of detention, depending upon the punishment prescribed for the offence.[5]
This distinction, although seemingly procedural, has considerable practical consequences. Under the previous regime, if investigators sought only five days of police custody at the beginning of an investigation, the remaining ten days effectively became unavailable after the expiry of the first fifteen-day period. Consequently, even if significant evidence emerged later, investigators could not ordinarily seek further police custody. Section 187 attempts to remove this limitation by permitting the unutilised portion of the fifteen-day police custody to be granted at a later stage within the prescribed statutory period.
The amendment does not increase the maximum duration of police custody. Rather, it changes the timing of its availability. For offences punishable with imprisonment of less than ten years, police custody may be authorised in parts during the first forty days from the date of detention. For offences punishable with imprisonment of ten years or more, including offences punishable with death or life imprisonment, the same fifteen days of police custody may be granted at different stages during the first sixty days.[6] This distinction reflects the legislature’s view that investigations involving serious offences often require a longer period for collection and analysis of evidence.
At first glance, the amendment appears modest because the aggregate period of police custody remains unchanged. However, from the standpoint of criminal procedure, timing is often as significant as duration. The possibility of returning an accused person to police custody after several weeks of judicial custody introduces an entirely new investigative mechanism that did not previously exist under the settled interpretation of Section 167 CrPC.
The legislative intent behind this reform appears closely connected with the changing character of criminal investigations. Traditional crimes such as theft, assault, or simple property disputes often involve immediately available evidence and identifiable witnesses. Modern criminal offences, however, rarely follow such straightforward patterns. Cybercrime investigations require forensic examination of electronic devices, encrypted communication, cloud storage systems, cryptocurrency transactions, and server logs. Economic offences frequently involve complex financial records, shell corporations, digital banking platforms, and cross-border money trails. Organised crime investigations often depend upon intelligence gathered over an extended period from multiple accused persons.
Investigating agencies have repeatedly argued that crucial evidence in such cases frequently becomes available only after forensic laboratories complete their analysis or after documentary evidence is collected from financial institutions and regulatory agencies. Under the earlier legal framework, investigators often found themselves unable to confront an accused person with this newly discovered material because the statutory window for police custody had already closed. The BNSS seeks to overcome this operational challenge by providing greater procedural flexibility without formally extending the maximum custodial period.
To appreciate the practical significance of the amendment, consider a hypothetical investigation involving an interstate cyber fraud syndicate. Assume that the police arrest the principal suspect and obtain seven days of police custody immediately after the arrest. During this period, investigators seize multiple electronic devices, but forensic analysis remains incomplete. The accused is thereafter remanded to judicial custody. Three weeks later, the forensic laboratory recovers encrypted communications revealing the involvement of additional conspirators and hidden cryptocurrency wallets. Under the earlier interpretation of Section 167 CrPC, investigators would ordinarily be unable to seek further police custody because the first fifteen days had already expired. Under Section 187 BNSS, however, the Magistrate may authorise the remaining eight days of police custody, provided the request falls within the applicable statutory period and is supported by sufficient justification.
From an investigative perspective, the amendment undoubtedly enhances procedural flexibility. It enables investigating agencies to interrogate the accused after obtaining new evidence instead of relying solely upon information available immediately after arrest. In technologically sophisticated investigations, this flexibility may substantially improve the quality of evidence collection and assist in uncovering larger criminal conspiracies.
Government’s Rationale Behind the Amendment
The Government has defended the expanded custody framework primarily on grounds of investigative efficiency. According to the legislative rationale, criminal investigations have undergone significant transformation over the past several decades. The increasing prevalence of cyber offences, terrorism financing, money laundering, organised crime, digital payment frauds, and transnational criminal networks has rendered many traditional investigative methods inadequate.[7]
Modern investigations often require cooperation between multiple agencies, including cyber forensic laboratories, financial intelligence units, telecommunications authorities, banking institutions, and international investigative bodies. Information from these sources is rarely available within the first two weeks following arrest. Investigating officers have therefore argued that the earlier procedural limitation unnecessarily restricted their ability to conduct effective interrogation once fresh evidence became available.
Another justification advanced in support of the reform concerns the protection of victims’ rights. Contemporary criminal jurisprudence increasingly recognises that the criminal justice system must balance not only the rights of the accused but also the interests of victims and society. Where serious organised criminal activities are involved, investigators contend that procedural rigidity should not prevent the discovery of truth or the identification of additional offenders merely because relevant evidence emerged after the expiry of the initial police custody period.
Supporters of the amendment also emphasise that the reform does not authorise indefinite police custody. The total duration remains capped at fifteen days, and every request for police custody continues to require judicial authorisation. The Magistrate retains discretion to refuse additional police custody where the investigating agency fails to establish genuine necessity. Consequently, it is argued that the amendment merely introduces procedural flexibility while preserving existing judicial safeguards.
Nevertheless, whether these safeguards will prove sufficient in practice remains an open constitutional question. Judicial scrutiny during remand proceedings has historically varied across jurisdictions, and concerns persist that repeated requests for staggered police custody may become routine rather than exceptional. The effectiveness of Section 187 will therefore depend less upon the statutory language itself and more upon the manner in which Magistrates exercise their supervisory jurisdiction.
Indeed, the true constitutional significance of the amendment lies not in its textual innovation but in its practical implementation. A legal provision designed to facilitate effective investigation can equally become a mechanism for excessive executive control if judicial oversight becomes mechanical. The challenge before Indian courts is therefore to ensure that the flexibility introduced by the BNSS does not dilute the constitutional commitment to fairness, proportionality, and personal liberty.
Constitutional Concerns: Does the Expanded Custody Framework Dilute Personal Liberty?
The most significant criticism directed against Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is that it has the potential to disturb the constitutional balance between effective criminal investigation and the protection of individual liberty. Although the amendment does not increase the overall duration of police custody beyond fifteen days, it allows those fifteen days to be distributed over a much longer period. This procedural change has revived an important constitutional debate: should investigative convenience justify a greater possibility of police control over an accused person after judicial custody has already commenced?
Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except according to a procedure established by law. Since the landmark decision in Maneka Gandhi v. Union of India, the Supreme Court has consistently interpreted the expression “procedure established by law” to mean a procedure that is fair, just, and reasonable rather than arbitrary or oppressive.[8] Consequently, every procedural provision under criminal law must satisfy the constitutional standard of fairness.
Police custody occupies a particularly sensitive position within this constitutional framework because it directly exposes an accused person to the authority of investigating officers. Unlike judicial custody, where prison officials supervise the detainee, police custody enables continuous interrogation and direct interaction with investigators. While such interrogation may be necessary for effective investigation, it simultaneously increases the possibility of coercion, intimidation, psychological pressure, or physical abuse. This concern is neither theoretical nor speculative. Indian courts have repeatedly acknowledged that custodial violence remains one of the most serious challenges confronting the criminal justice system.
Recognising these realities, the Supreme Court in D.K. Basu v. State of West Bengal laid down comprehensive guidelines intended to minimise custodial abuse and strengthen accountability within police investigations.[9] The Court observed that custodial torture strikes at the very foundation of Article 21 and cannot be justified under any circumstances. The guidelines requiring arrest memos, medical examination, information to relatives, maintenance of police diaries, and judicial oversight were designed to ensure transparency during detention. Although these safeguards continue to operate under the BNSS, the expanded availability of police custody makes their effective implementation even more crucial.
Critics argue that the staggered custody model introduced under Section 187 may indirectly increase pressure upon accused persons. Under the previous legal position, once an accused entered judicial custody after the initial fifteen-day period, there was certainty that further police interrogation through custodial remand would ordinarily not occur. The BNSS removes this certainty. An accused person may now face repeated applications for police custody at different stages of investigation whenever investigating agencies claim that new evidence has emerged. While judicial approval remains mandatory, repeated custodial transfers may create prolonged psychological uncertainty that was largely absent under the earlier procedural framework.
Another constitutional concern relates to proportionality. Modern constitutional jurisprudence increasingly requires State action that restricts personal liberty to satisfy the test of proportionality. This requires that the restriction must pursue a legitimate objective, adopt the least restrictive alternative, and maintain a reasonable balance between public interest and individual rights. Although improving criminal investigation undoubtedly constitutes a legitimate objective, questions remain regarding whether staggered police custody represents the least restrictive method of achieving that objective. Critics contend that many investigative requirements can be addressed through technological investigation, electronic evidence collection, witness examination, and custodial interrogation conducted while the accused remains in judicial custody under appropriate judicial supervision.
The Importance of Judicial Oversight
The constitutional validity of Section 187 will ultimately depend upon the quality of judicial supervision exercised by Magistrates. Under Indian criminal procedure, remand proceedings are not intended to be routine administrative formalities. They constitute one of the earliest judicial safeguards available to an arrested individual.
Whenever investigating agencies seek additional police custody under the BNSS, Magistrates must satisfy themselves that the request is supported by genuine investigative necessity rather than mere convenience. Fresh police custody should not become an automatic consequence of discovering additional evidence. Instead, investigating officers must demonstrate why custodial interrogation remains indispensable and why the desired information cannot be obtained through less intrusive investigative techniques.
The Supreme Court has repeatedly emphasised that judicial discretion cannot be exercised mechanically. Orders authorising detention must contain clear reasons demonstrating independent judicial application of mind. This principle assumes even greater significance under the BNSS because the possibility of repeated police custody creates greater scope for misuse if judicial scrutiny becomes superficial.
Defence counsel also bear an enhanced responsibility under the new framework. Lawyers representing accused persons must actively challenge unnecessary requests for police custody and ensure that constitutional safeguards remain meaningful rather than symbolic. Effective legal representation during remand hearings may become one of the most important protections against arbitrary custodial practices.
The Decision in Arnesh Kumar and the Principle of Minimal Intrusion
The Supreme Court’s decision in Arnesh Kumar v. State of Bihar represents another important constitutional milestone relevant to the present discussion.[10] Although the case primarily addressed unnecessary arrests under Section 498A of the Indian Penal Code, the Court articulated a broader principle applicable throughout criminal procedure. It held that arrest should not become a routine investigative practice and emphasised that deprivation of liberty must remain an exception justified by compelling reasons.
The philosophy underlying Arnesh Kumar is equally relevant while interpreting Section 187 BNSS. If arrest itself must satisfy strict constitutional scrutiny, the same reasoning logically extends to repeated police custody after judicial detention has commenced. Courts should therefore interpret Section 187 narrowly and permit additional police custody only where objectively necessary for the progress of investigation.
Comparative Perspective
Comparative criminal procedure demonstrates that many democratic jurisdictions permit extended investigative detention under carefully regulated conditions. In the United Kingdom, police detention beyond ordinary statutory limits requires progressively higher levels of judicial authorisation together with extensive procedural safeguards, including immediate access to legal counsel, independent medical examination, and detailed custody records. Similar safeguards exist within several Commonwealth jurisdictions where investigative detention remains subject to continuous judicial review.
India differs from many of these jurisdictions because concerns regarding custodial violence continue to occupy a prominent place within public discourse and judicial decisions. Consequently, procedural reforms expanding investigative authority cannot simply be transplanted from foreign legal systems without simultaneously strengthening domestic accountability mechanisms. The widespread installation of CCTV cameras in police stations, mandatory videography of interrogation where feasible, independent medical examinations, and strict compliance with D.K. Basu guidelines become increasingly important under the expanded custody framework.
Critical Evaluation
The reform introduced through Section 187 should neither be viewed as an unconditional expansion of police powers nor dismissed as inherently unconstitutional. Its practical consequences are likely to depend entirely upon its implementation.
From the perspective of investigation, the amendment addresses a genuine operational difficulty encountered in complex economic offences, cybercrime, organised crime, and transnational criminal investigations. Investigators may legitimately require further custodial interrogation after receiving forensic reports or newly discovered documentary evidence. Denying such opportunity merely because the initial fifteen-day period has expired may occasionally frustrate effective investigation.
However, constitutional safeguards cannot be sacrificed in pursuit of investigative efficiency. Personal liberty remains one of the foundational values of the Indian Constitution, and procedural safeguards exist precisely because criminal investigations involve substantial coercive power. The legitimacy of criminal justice depends not only upon securing convictions but also upon ensuring fairness throughout the investigative process.
Accordingly, Section 187 should be interpreted as an exceptional procedural mechanism rather than a routine investigative practice. Magistrates must insist upon detailed justification before granting additional police custody, defence lawyers must actively safeguard the rights of accused persons, and investigating agencies must exercise the provision responsibly. Only through such balanced implementation can the amendment achieve its intended objective without undermining constitutional freedoms.
Conclusion
The Bharatiya Nagarik Suraksha Sanhita, 2023 represents India’s most comprehensive procedural criminal law reform in decades. Among its numerous innovations, the expanded police custody framework under Section 187 has attracted particular attention because it directly affects the relationship between State power and individual liberty.
The amendment reflects the realities of modern criminal investigation, where sophisticated offences increasingly depend upon digital evidence, international cooperation, and complex forensic analysis. By permitting staggered police custody within a larger statutory window, the legislature seeks to equip investigating agencies with greater procedural flexibility. At the same time, this flexibility inevitably raises constitutional concerns regarding arbitrary detention, custodial abuse, and proportionality.
Whether Section 187 ultimately strengthens or weakens India’s criminal justice system will depend less upon its wording than upon its implementation. If Magistrates continue to exercise rigorous judicial oversight, investigating agencies respect constitutional limitations, and courts faithfully enforce the principles laid down in D.K. Basu, Arnesh Kumar, and other landmark decisions, the amendment may succeed in balancing investigative efficiency with civil liberties. Conversely, if judicial scrutiny becomes mechanical and additional police custody is granted routinely, the reform risks undermining the very constitutional values that criminal procedure seeks to protect.
In a constitutional democracy governed by the rule of law, effective investigation and protection of personal liberty are not competing objectives but complementary principles. The true success of Section 187 BNSS will therefore be measured not by the number of convictions it facilitates but by its ability to preserve justice without compromising the dignity and rights of those subjected to criminal investigation.
References
[1] INDIA CONST. art. 21.
[2] INDIA CONST. art. 22(2); Code of Criminal Procedure, No. 2 of 1974, § 57.
[3] Code of Criminal Procedure, No. 2 of 1974, § 167.
[4] Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141.
[5] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 187.
[6] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 187.
[7] Ministry of Home Affairs, The Bharatiya Nagarik Suraksha Sanhita, 2023: Statement of Objects and Reasons (India).
[8] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[9] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
[10] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
[11] State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 (discussing investigative powers and procedural safeguards).
[12] Law Commission of India, 268th Report: Amendments to Criminal Procedure (where relevant to criminal procedure reforms).
