Remand:

Police custody v. judicial custody (Sections 167 CrPC/187 of BNSS, 2023)

Production before magistrate (Section 167 of CrPC/Section 187 of BNSS), remand hearings,
legal objections.

Definition:
To remand something means to send it back, or to return. The usual contexts in which this
word are encountered are in the reversal of a lower court, or regarding the custody of a
prisoner.
 A prisoner is said to be remanded when they are sent back into custody to await trial.
 When an appellate court reverses the decision of a lower court, the written decision
often contains an instruction to remand the case to the lower court to be reconsidered
in light of the appellate court’s ruling.
 Cases can be remanded to federal agencies for reconsideration in disputes over
regulations or administrative decisions.
 Police custody under CrPC & BNSS: A paradigm shift in balancing liberty and
investigationThe Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), India's new
Criminal Procedure Code, must not enable unchecked state power or custodial torture.
Introduction:
In criminal law, remand plays a critical role, balancing the investigation of crimes with the
individual’s freedom. In India, this balance is captured in Article 21 of the Constitution which
states, “No person shall be deprived of his life or personal liberty except according to
procedure established by law.”1 Through Section 187, The Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS) shifts this balance directly impacting Article 21 by increasing the
duration of police custody and placing harsh restrictions on detention. his change in
legislation effective in 2023 requires scrutiny, not as a procedural change but as a drastic
redefinition of the contours of freedom, vis-à-vis India’s worrying custodial landscape. Still
BNSS exacerbates this tension by changing the parameters of police custody. Under Section
167 of the Code of Criminal Procedure of 1973 (CrPC), police custody was capped at a
maximum of 15 days, to be strictly within the first remand period of 15 days. However,
Section 187(2) of the Bharat Nagarik Suraksha Sanhita, 2023 (BNSS) still keeps a maximum
of 15 days of police custody, but now permits these 15 days to be taken at any time during the
extended period of remand 40 days or 60 days, if the total remand period is 60 or 90 days
respectively. This shift, which is claimed to facilitate investigation, raises serious
constitutional issues concerning custodial constitutional rights as it enhances the possibility
Article 21 of the Constitution of India.
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187 (India)
Code Crim. Proc., 1973, § 167 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2) (India).
Ministry of Home Affairs: 669 Cases of Deaths in Police Custody Registered in Last Five Years, Rising
Kashmir (Feb. 9, 2023),
[Link]
Latestly (Feb. 9, 2023) 6 Ministry of Home Affairs, Statement on Custodial Deaths in Lok Sabha, at 2
(July 26, 2022), 6, 2022),
[Link]
of prolonged police custodial abuse over an extended period. The concern is particularly
grave given India’s troubling record of custodial violence—between April 1, 2017, and
March 31, 2022, a total of 669 custodial deaths were recorded, with 175 such deaths
occurring in 2021–22 alone. In response, the National Human Rights Commission (NHRC)
recommended monetary relief in 201 cases, amounting to ₹5,80,74,998, highlighting
systemic failures in ensuring detainee safety. Furthermore, 4,484 custodial deaths were
recorded over the fiscal years 2020-2022, which includes deaths both in police and judicial
custody.
This shift also disrupts an emerging humane jurisprudence on house arrest as a form of
custody under the law of remand. In Gautam Navlakha v. National Investigation Agency, the
Supreme Court recognized house arrest as remand under Section 167 CrPC, stating, “The
concept of house arrest has its roots in the criminal justice system and is a humane alternative
to institutional custody.” The Calcutta High Court reaffirmed this, but the BNSS’s proviso to
Section 187(5)— “Provided further that no person shall be detained otherwise than in a police
station under police custody or in prison under judicial custody or a place declared as prison
by the Central Government or the State Government”—halts this progress, mandating
institutional detention.
BNSS's reforms challenge India’s obligations under the International Covenant on Civil and
Political Rights (ICCPR) Article 9—“No one shall be subjected to arbitrary arrest or
detention”. CrPC’s brevity and judicial oversight provided more arbitary detention protection.
India is diverging from global trends with BNSS extended police custody and institutional
focus, counterparted by the UK’s Police and Criminal Evidence Act, 1984 (PACE) which
permits conditional release after initial detention, or the US’s Miranda protections
guaranteeing counsel access.

The UN Human Rights Committee has reported India’s pre-trial detention as excessive and
unjust, a problem BNSS is likely to worsen, with 4,484 custodial deaths reported from 2020-
2021. The BNSS’s rejection of Gautam Navlakha’s humane alternative contrasts with
practices in jurisdictions like Canada, where house arrest is routine for non-violent offenders,
potentially isolating India from progressive norms and inviting international scrutiny.

Legal Framework of Remand in India:

Police custody v. judicial custody (Sections 167 CrPC/187 of BNSS, 2023)

&

Gautam Navlakha v. Nat'l Investigation Agency, (2021) 5 SCC 1, 28 (India)

CBI v. Firhad Hakim, (2021) SCC OnLine Cal 1642 (India).
(International Covenant on Civil and Political Rights, art. 9, Dec. 16, 1966, 999 U.N.T.S. 171)
Miranda v. Arizona, 384 U.S. 436 (1966) 11 Ministry of Home Affairs, Statement on Custodial Deaths
in Lok Sabha, at 2 (July 26, 2022),
[Link]
(R v. Proulx, [2000] 1 SCR 61, Supreme Court of Canada) 13 The Constitution of India, Art. 22(2)
Production before magistrate (Section 167 of CrPC/Section 187 of BNSS), remand hearings,
legal objections.

Remand authorizes temporary detention to facilitate investigation or trial preparation, its

legitimacy tethered to constitutional safeguards. Article 21, read with Article 22, mandates
due process and judicial oversight within 24 hours13. The Supreme Court in Maneka Gandhi
v. Union of India expanded this, holding, “The procedure must be right, just, and fair… it
must not be arbitrary, fanciful, or oppressive” Magistrates ensure proportionality, a role
critical amid India’s custodial crisis.
The CrPC, enacted in 1973, codified post-independence rights, evolving from the colonial
Code of 1898. The Law Commission’s 41st Report noted, “Detention powers must be
circumscribed to prevent abuse”. Section 167 CrPC reflects this restraint, limiting police
custody to 15 days and embedding default bail. The BNSS inherits this legacy but pivots
toward modern exigencies— terrorism, cybercrime—expanding police powers under Section
187. Both retain magisterial oversight, but the BNSS’s elongation tests Maneka Gandhi’s
fairness doctrine.

Section 167 CrPC governs remand, distinguishing police and judicial custody. It states,
“Whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-four hours fixed by section
57… the officer in charge of the police station shall forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary”. The proviso specifies that the Magistrate may
authorise the detention of the accused person, otherwise than in the custody of the police,
beyond the period of fifteen days. Police custody (up to 15 days) facilitates interrogation,
requiring magisterial approval within 24 hours. Judicial custody extends detention under
court supervision. The Supreme Court in CBI v. Anupam J. Kulkarni held, “The 15-day
period is absolute… no further police custody is

Article 21 of the Constitution of India.

Bharatiya Nagarik Suraksha Sanhita, 2023, § 187 (India)
Code Crim. Proc., 1973, § 167 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2) (India).
Ministry of Home Affairs: 669 Cases of Deaths in Police Custody Registered in Last Five Years, Rising
Kashmir (Feb. 9, 2023),
[Link]
Latestly (Feb. 9, 2023) 6 Ministry of Home Affairs, Statement on Custodial Deaths in Lok Sabha, at 2
(July 26, 2022), 6, 2022),
[Link]
permissible” ,reflecting restraint rooted in colonial abuses. Notably, this 15-day police
custody was possible only in the first fifteen days of remand, after which only judicial
custody could be availed.

However, this 15-day custody restriction was overruled by a Supreme Court judgment in V.
Senthil Balaji v. The State Represented by Deputy Director and Ors.18, decided on August 7,
2023. The court ruled that the 15-day police custody could span the entire investigation
period (60 or 90 days), rather than being confined to the first 15 days post-arrest. This ruling
paved the way for the enactment of Section 187 of the BNSS, which explicitly allows the 15
days of police custody to be taken at any point during an extended remand period of 40 or 60
days. This development alters the judicial landscape significantly, as it places the accused at
greater risk of prolonged police coercion over extended periods.

Initial Procedure: Continuity with Minor Adjustments:

.Section 187(1) BNSS:

“Whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-four hours fixed by section 58,
and there are grounds for believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy
of the entries in the diary hereinafter specified relating to the case, and shall at the same time
forward the accused to such Magistrate.

Section 187(2) BNSS:

“The Magistrate to whom an accused person is forwarded under thissection may, irrespective
of whether he has or has no jurisdiction to try the case, after taking into consideration
whether such person has not been released on bail or his bail has been cancelled, authorise,
from time to time, the detention of the accused in such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial
forty days or sixty days out of detention period of sixty days or ninety days, as the case may
be, as provided in sub-section (3)…”

Gautam Navlakha v. Nat'l Investigation Agency, (2021) 5 SCC 1, 28 (India)

CBI v. Firhad Hakim, (2021) SCC OnLine Cal 1642 (India).
(International Covenant on Civil and Political Rights, art. 9, Dec. 16, 1966, 999 U.N.T.S. 171)
Miranda v. Arizona, 384 U.S. 436 (1966) 11 Ministry of Home Affairs, Statement on Custodial Deaths
in Lok Sabha, at 2 (July 26, 2022),
[Link]
(R v. Proulx, [2000] 1 SCR 61, Supreme Court of Canada) 13 The Constitution of India, Art. 22(2)
Section 187(3) BNSS: “…no Magistrate shall authorize the detention of the accused person
in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of ten years or more;
(ii) sixty days, where the investigation relates to any other offence, and,

on the expiry of the said period… the accused person shall be released on bail…”

CrPC uses the term "not less than ten years," which applies clearly and unambiguously to
offenses punishable by 10 years or more. This provision has been well-established without
any ambiguity. However, BNSS uses the phrase "ten years or more," which could have led to
some ambiguity, as it was unclear whether offenses with exactly 10 years would fall under
the 90-day detention limit. This ambiguity in BNSS was clarified by the Supreme Court in
the Hyder Ali v. State of Karnataka case. The Court confirmed that BNSS's phrase "ten years
or more" should be interpreted in the same manner as CrPC's use of "not less than ten years."
In other words, the 90-day detention applies to offenses punishable by 10 years or more, and
not just those with a sentence exceeding 10 years. Thus, the Hyder Ali ruling resolved any
confusion surrounding BNSS and affirmed that its phrasing aligns with the CrPC, ensuring
that offenses punishable with exactly 10 years and those punishable with longer sentences
are both covered under the same 90-day detention limit.

Section 187(4) BNSS:

“No Magistrate shall authorize detention of the accused in custody of the police under this
section unless the accused is produced before him in person for the first time and
subsequently every time till the accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial custody on production of the accused
either in person or through the audio-video electronic means”

Section 187(5) BNSS:

Article 21 of the Constitution of India.

Bharatiya Nagarik Suraksha Sanhita, 2023, § 187 (India)
Code Crim. Proc., 1973, § 167 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2) (India).
Ministry of Home Affairs: 669 Cases of Deaths in Police Custody Registered in Last Five Years, Rising
Kashmir (Feb. 9, 2023),
[Link]
Latestly (Feb. 9, 2023) 6 Ministry of Home Affairs, Statement on Custodial Deaths in Lok Sabha, at 2
(July 26, 2022), 6, 2022),
[Link]
“No Magistrate of the second class, not specially empowered in this behalf by the High
Court, shall authorize detention in the custody of the police…

Provided that in case of a woman under eighteen years of age, the detention shall be
authorized to be in the custody of a remand home or recognized social institution: Provided
further that no person shall be detained otherwise than in police station under police custody
or in prison under judicial custody or a place declared as prison…”

The Magistrate is not a passive actor in this process. Rather, he is a sentinel on the qui vive,
obligated to test the very foundation of police action. This entails a twofold responsibility:
first, to examine whether the police have complied with statutory safeguards such as notice of
appearance in lieu of arrest; and second, to satisfy himself that a prima facie case exists
against the accused before authorizing deprivation of liberty. Far from being a mere
procedural formality, this judicial scrutiny is the lifeblood of Article 21’s guarantee of
personal liberty.

Arnesh Kumar's Case Relevance :

The Arnesh Kumar vs. State of Bihar case, decided in 2014, is a landmark judgment that
addressed the issue of arbitrary arrests in India. The case involved Arnesh Kumar, a software
engineer, who was accused by his wife of dowry harassment and cruelty under Section 498A
of the Indian Penal Code (IPC). The allegations included demands for a Maruti car, air
conditioner, television set, and Rs. 8 lakhs in cash. Arnesh Kumar denied these allegations
and applied for anticipatory bail, which was rejected by both the Sessions Judge and the
Patna High Court. This case highlighted the growing concern of misuse of Section 498A IPC,
which had become a significant issue in India at the time. Many individuals, particularly men
and their families, were being arrested and detained without proper investigation or grounds
for arrest, leading to a pressing need for the judiciary to intervene. Against this backdrop, the
Hon’ble Supreme Court's judgment in Arnesh Kumar's case marked a crucial step towards
safeguarding individual rights and preventing arbitrary arrests. The Hon’ble Supreme Court's
ruling laid down specific guidelines for police officers and Magistrates to follow before
making an arrest, emphasizing the importance of personal liberty and the need for arrests to
be made only when necessary. The judgment has had a significant impact on India's criminal

Gautam Navlakha v. Nat'l Investigation Agency, (2021) 5 SCC 1, 28 (India)

CBI v. Firhad Hakim, (2021) SCC OnLine Cal 1642 (India).
(International Covenant on Civil and Political Rights, art. 9, Dec. 16, 1966, 999 U.N.T.S. 171)
Miranda v. Arizona, 384 U.S. 436 (1966) 11 Ministry of Home Affairs, Statement on Custodial Deaths
in Lok Sabha, at 2 (July 26, 2022),
[Link]
(R v. Proulx, [2000] 1 SCR 61, Supreme Court of Canada) 13 The Constitution of India, Art. 22(2)
justice 4 system, shaping the way law enforcement agencies and courts handle arrests and
detention. In this article, we will explore the key aspects of the judgment and its implications
for the protection of individual rights in India. The Hon’ble Supreme Court specifically
addressed Section 41(1)(b) CrPC (now Section 35(1)(ii) BNSS), clarifying that arrest is not
mandatory in all cases falling under this section, even if legally permissible. The Court
emphasized that the police officer must have a "reason to believe" that the arrest is necessary
for specific reasons, including preventing further offenses, ensuring proper investigation,
preventing evidence tampering, preventing inducement or threat to witnesses, or ensuring the
appearance of the Accused in court. Police must record these reasons for arrest in writing.
This judgment elevated Section 41A as a critical procedural safeguard. It emphasized that this
notice must be served, and the arrested person must be informed of their rights under this
section. This judgment, applicable to all offenses punishable with imprisonment up to seven
years, underscored the need for a judicial check on police power during the arrest and remand
process.

Duties and Powers of Judicial Magistrates:

Judicial Magistrates of the First Class derive their powers primarily from Chapter VI of the
CrPC and its equivalent provisions under Chapter XIII the BNSS. These include the authority
to issue summons and warrants, conduct inquiries, take cognizance of offences, and crucially,
to decide on questions of bail and remand. At the remand stage, the Magistrate’s
responsibility is heightened. Sections 167 and 41A CrPC (now reflected in Section 187 and
Section 35 BNSS, respectively) place upon the Magistrate a non-delegable duty to scrutinize
whether the arrest was necessary and lawful. The honorable Supreme Court in Joginder
Kumar v. State of U.P. (1994) emphasized that arrest should not be a tool of routine, but an
instrument of necessity. The Magistrate, therefore, is empowered to reject custody outright if
the statutory preconditions are not met. This transforms the 5 Magistrate into a constitutional
buffer, ensuring that liberty is not sacrificed at the altar of convenience.

Judicial Duties of Magistrates at Remand Stage :

Article 21 of the Constitution of India.
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187 (India)
Code Crim. Proc., 1973, § 167 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2) (India).
Ministry of Home Affairs: 669 Cases of Deaths in Police Custody Registered in Last Five Years, Rising
Kashmir (Feb. 9, 2023),
[Link]
Latestly (Feb. 9, 2023) 6 Ministry of Home Affairs, Statement on Custodial Deaths in Lok Sabha, at 2
(July 26, 2022), 6, 2022),
[Link]
At the time of remand, Judicial Magistrates have a crucial and multi-faceted role, as
reinforced by Arnesh Kumar and subsequent pronouncements:

1. Examine Prima Facie Case:

The Magistrate's primary duty is to meticulously examine the materials presented by the
police officer to satisfy themselves that a prima facie case exists against the accused and that
arrest is justified.

2. Verify Compliance with Section 41A CrPC / Section 35(3) to 35(6) BNSS:

Magistrates must verify that police have complied with these procedural safeguards. This
includes ensuring a valid notice was issued before arrest in cases where arrest is not required
under Section 41(1) CrPC. They must also confirm that the arrested person was informed of
their rights and that the police officer recorded reasons in writing justifying the arrest, even a
notice was complied with. Non-compliance with this provision renders the arrest illegal, and
the Magistrate has a duty to address this illegality.

3. Demand Written Justification from Police:

Magistrates may ask the Investigating Officer to produce the checklist of Section 41(1)(b)
conditions and the reasons for arrest. The absence of justification necessitates declining
remand.

4. Record Judicial Satisfaction:

Magistrates are obligated to record detailed reasons in writing for authorizing detention,
specifying the grounds and period of remand. This ensures that detention is not prolonged
arbitrarily, as highlighted in the case of Abdul Basheer Vs. State of Kerala (2009), which
stressed that remand orders should not exceed what is reasonably necessary for investigation.
Failure to record reasons makes the order vulnerable to being quashed in revision or
constitutional challenge and can lead to departmental action against the Judicial Magistrate
by the appropriate High Court.

5. Protect Fundamental Rights:

Gautam Navlakha v. Nat'l Investigation Agency, (2021) 5 SCC 1, 28 (India)

CBI v. Firhad Hakim, (2021) SCC OnLine Cal 1642 (India).
(International Covenant on Civil and Political Rights, art. 9, Dec. 16, 1966, 999 U.N.T.S. 171)
Miranda v. Arizona, 384 U.S. 436 (1966) 11 Ministry of Home Affairs, Statement on Custodial Deaths
in Lok Sabha, at 2 (July 26, 2022),
[Link]
(R v. Proulx, [2000] 1 SCR 61, Supreme Court of Canada) 13 The Constitution of India, Art. 22(2)
 Magistrates are constitutionally bound to uphold personal liberty under Article 21 and the
rights of arrested persons under Article 22. They must ensure detention is strictly warranted
and due process is followed. In cases involving Section 498A IPC, Magistrates must be
particularly vigilant, scrutinizing police reports and evidence to ensure a prima facie case of
cruelty is made out and Section 41A compliance is met before authorizing detention.

Conclusion :

Transit remand is not a mere technical formality; it is a constitutional checkpoint. The

Judicial Magistrate of First Class, though exercising limited jurisdiction, plays a critical role
in ensuring that arrests do not become instruments of oppression, especially under stringent
special statutes. By insisting upon procedural compliance, verifying the legality of arrest, and
respecting constitutional safeguards, Magistrates act as the guardians of liberty in the most
fragile moments of criminal process. A vigilant approach to transit remands will ensure that
investigation proceeds effectively without compromising the constitutional promise of
personal freedom.

Article 21 of the Constitution of India.

Bharatiya Nagarik Suraksha Sanhita, 2023, § 187 (India)
Code Crim. Proc., 1973, § 167 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2) (India).
Ministry of Home Affairs: 669 Cases of Deaths in Police Custody Registered in Last Five Years, Rising
Kashmir (Feb. 9, 2023),
[Link]
Latestly (Feb. 9, 2023) 6 Ministry of Home Affairs, Statement on Custodial Deaths in Lok Sabha, at 2
(July 26, 2022), 6, 2022),
[Link]