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The short answer
In police custody vs judicial custody, the difference is who holds the accused: police custody means the police lock-up, where the accused can be questioned; judicial custody means jail under the court's control. Under Section 187 BNSS (old Section 167 CrPC), police custody is limited to 15 days in total, which can be taken in parts within the first 40 or 60 days. Total detention before a charge sheet is capped at 60 or 90 days, after which default bail can be claimed.
Police custody vs judicial custody: the basic difference
Police custody vs judicial custody is a question of who holds the accused and where. In police custody, the accused is kept by the police, usually in the police station lock-up, and can be questioned by the investigating officer. In judicial custody, the accused is held in jail under the court's control; the police cannot question them there without the court's permission. In both, the detention after the first 24 hours is lawful only under a Magistrate's written order, called a remand order.
| Point | Police custody | Judicial custody |
|---|---|---|
| Where held | Police station lock-up or a place declared by the government | District jail, special jail or sub-jail |
| Who is responsible | Investigating police officer | Jail authorities, under the court |
| Questioning by police | Allowed, within legal safeguards | Only with the court's permission |
| Maximum length | 15 days in total for the whole investigation (Section 187(2) BNSS) | Within the overall 60 or 90 day limit before charge sheet; then as the court orders |
| Production before the Magistrate | In person, each time | In person or through audio-video electronic means for extensions |
The first 24 hours
After an arrest without warrant, the police may keep the person for no more than 24 hours, excluding travel time to the court (Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Article 22(2) of the Constitution). The rights that apply at this stage, such as written grounds of arrest and informing the family, are explained in rights of an arrested person.
Remand under Section 187 BNSS (old Section 167 CrPC)
If the investigation cannot be completed within 24 hours, the police officer sends a copy of the case diary entries to the nearest Judicial Magistrate and forwards the accused (Section 187(1)). The Magistrate then decides whether to authorise further detention, and in what custody. The Magistrate is expected to look at the case diary and the reasons given, and not to authorise detention as a formality.
- The accused must be produced in person the first time, and every time while in police custody (Section 187(4)).
- Further judicial custody may be extended with production in person or through audio-video electronic means.
- A Magistrate of the second class cannot authorise police custody unless specially empowered by the High Court (Section 187(5)).
- If no Judicial Magistrate is available, an Executive Magistrate may authorise detention for up to seven days in total, after which the papers must go to the nearest Judicial Magistrate (Section 187(6)).
How many days of police custody under the BNSS?
The total police custody for an accused is 15 days, in the whole or in parts (Section 187(2)). What changed in the BNSS is when those days can be used. Under the old CrPC, the Supreme Court in CBI v. Anupam J. Kulkarni (1992) read the law to allow police custody only within the first 15 days after remand. Under Section 187(2), the 15 days can be taken in parts at any time during the first 40 days (for offences where the total detention limit is 60 days) or the first 60 days (where the limit is 90 days). An accused moved to judicial custody can therefore be sent back to police custody within that window if the court is satisfied it is needed.
The police must justify each request for police custody, for example a need to recover property, identify co-accused or confront the accused with evidence. The defence can oppose the request and point to the time already spent in custody.
Judicial custody and the total time limit before charge sheet
Under Section 187(3), detention before the charge sheet cannot exceed:
- 90 days, where the investigation relates to an offence punishable with death, life imprisonment or imprisonment of not less than ten years; and
- 60 days, for any other offence.
If the charge sheet is not filed within that period, the accused is entitled to be released if they are prepared to furnish bail. This is default bail, and the application must be made before the charge sheet is filed. Some special laws allow longer periods, such as the NDPS Act, 1985 and the Unlawful Activities (Prevention) Act, 1967. More on bail is in bail in Odisha.
Remand after the charge sheet
Once the charge sheet is filed and the court takes cognizance, custody continues under the court's orders during inquiry or trial. Under Section 346 BNSS, when a hearing is adjourned and the accused is in custody, the court may remand them by warrant for not more than 15 days at a time. The accused can apply for bail at any stage. How the trial then moves is described in the criminal case process in Odisha.
Judicial custody meaning in practice: life in jail as an undertrial
- An undertrial in judicial custody can meet their advocate and, subject to the jail rules, family members. Ask the jail office about visiting days and identity documents needed.
- Police questioning in jail needs the court's permission.
- Medical care is the jail's responsibility; a medical complaint can be raised before the court on the next remand date.
- Time spent in custody as an undertrial is set off against any sentence of imprisonment later imposed.
- An undertrial who has spent half the maximum sentence in custody (one-third for a first-time offender) can be released on bail under Section 479, except for offences punishable with death or life imprisonment.
What can be said at a remand hearing
- Legality of arrest: whether the written grounds of arrest were given, and given in time before production, and whether the 24-hour limit was kept.
- Need for police custody: whether the police have shown a real reason, or whether the accused has already cooperated.
- Bail: a bail application can be moved at the first production itself.
- Medical issues: any injury or illness, and a request for medical examination.
- Legal aid: an accused without an advocate can ask for one. Legal aid counsel are available through the District Legal Services Authority at each district court in Odisha; see free legal aid in Odisha.
Remand orders can be checked on eCourts with the case number; see checking case status online. Court details are under courts, and information on criminal matters handled is on the criminal practice area page.
Frequently asked questions
How many days of police custody are allowed under the BNSS?
Fifteen days in total, in the whole or in parts, under Section 187(2). The days can be used at any time during the first 40 days (60-day cases) or the first 60 days (90-day cases) of the detention period.
What does judicial custody mean?
The accused is held in jail under the court's control, not in the police lock-up. The police cannot question the accused in judicial custody without the court's permission.
Can police take an accused back into police custody from judicial custody?
Under the BNSS, yes, if the court allows it and the 15 days of police custody have not been used up, within the first 40 or 60 days of the detention period.
What is remand in a criminal case?
Remand is the Magistrate's order authorising detention of an arrested person beyond 24 hours, either in police custody or judicial custody, while the investigation or trial continues.
What happens if the charge sheet is not filed within 60 or 90 days?
The accused becomes entitled to default bail under Section 187(3) BNSS if they apply before the charge sheet is filed and are ready to furnish bail. Special laws such as the NDPS Act allow longer periods.
Does time spent in judicial custody count towards the sentence?
Yes. The period spent in custody as an undertrial is set off against any sentence of imprisonment imposed later in the same case.
Official sources
- Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code)
- Press Information Bureau: new criminal laws, key provisions (May 2024)
- Kerala Prisons Department: BNSS and CrPC comparison summary
- eCourts services: case status and orders
- Odisha State Legal Services Authority
General information, not legal advice. Every matter turns on its own facts and documents, and the law and official procedures change. Check the current position with the concerned office, or take advice on your own facts, before acting.