Police Custody vs Judicial Custody under BNSS erstwhile CRPC is a crucial distinction for anyone facing criminal proceedings in India. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024, has introduced an important change in the law governing police remand.
While both police custody and judicial custody involve detention after arrest, they serve different purposes, operate under different safeguards, and give the investigating agency and the court different powers.
What Is Police Custody and Judicial Custody?
In police custody, an accused remains under the control of the investigating police. The primary purpose is custodial interrogation, recovery of evidence, identification of other persons involved, confrontation with evidence and other investigative requirements.
In judicial custody, the accused is ordinarily lodged in jail under the court’s authority. The investigating officer cannot interrogate the accused or take them away without appropriate judicial permission.
The Delhi High Court has explained this distinction in Anandita Bhargava v. Registrar General, Delhi High Court, observing that police custody involves exclusive custody of the police, whereas judicial custody ordinarily means jail custody and remains under the court’s authority.
Difference Between Police Custody and Judicial Custody: The Legal Framework
Section 187 of the BNSS is the principal provision, replacing Section 167 of the CrPC.
Under the old CrPC regime, the Supreme Court in CBI v. Anupam J. Kulkarni held that police custody could generally be authorised only during the first 15 days of remand. Once that period expired, subsequent detention could ordinarily only be judicial custody.
The BNSS has changed this position by permitting police custody, in parts, during a larger statutory window. The aggregate police custody remains limited to 15 days, but those 15 days need not necessarily be exhausted during the first 15 days of remand.
Police Custody Under BNSS: What Has Changed?
Section 187(2) and (3) BNSS provide greater flexibility on when police custody may be sought.
For cases carrying the applicable 60-day investigation period, police custody can be sought in parts during the initial 40 days.
For cases carrying the 90-day investigation period, police custody can be sought in parts during the initial 60 days.
However, the Supreme Court has clarified that aggregate police custody under this provision cannot exceed 15 days. This is an important distinction: BNSS has expanded the window in which police custody can be sought, rather than increasing the aggregate police custody to 40 or 60 days.
Police Custody vs Judicial Custody: Key Differences
| Police Custody | Judicial Custody |
| Accused remains under police control | Accused is ordinarily lodged in jail |
| Primarily facilitates investigation and custodial interrogation | Primarily ensures lawful detention pending investigation/trial |
| Police can interrogate the accused subject to law and judicial safeguards | Police generally require court permission to interrogate the accused |
| Ordered by a Magistrate | Ordered by a Magistrate/Court |
| Aggregate police custody under Section 187 is up to 15 days | May continue within the statutory 60/90-day framework and thereafter subject to applicable law |
| Greater investigative access | Greater separation from investigating officers |
Powers of the Magistrate
The Magistrate plays a critical role in deciding whether detention should be in police custody or judicial custody.
Police custody is not automatic merely because the investigating officer requests it. The court must apply its judicial mind to the circumstances and determine whether custodial interrogation is justified.
The court can impose appropriate safeguards while granting police remand. At the same time, conditions imposed by a court should not make legitimate investigation practically impossible.
A significant recent Supreme Court judgment is State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (2026). The Court recognised the flexibility introduced by Section 187 BNSS and held that police custody may be sought in parts within the statutory window. It also considered the practical limits of conditions imposed on custodial investigation.
Read the Supreme Court judgment – State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju
Flexibility Under the BNSS
The most important Difference Between Police Custody and Judicial Custody framework is flexibility.
Suppose an accused initially remains in judicial custody, and investigators subsequently discover information requiring custodial interrogation. Under the BNSS, the investigating agency may seek police custody within the statutory window, provided it does not exceed the aggregate permissible police custody, and the Magistrate is satisfied that the legal requirements are met.
This approach recognises that investigations do not always develop in a predictable sequence. New evidence, recoveries or investigative leads may emerge after the initial remand.
The Supreme Court’s 2026 ruling confirms that the BNSS deliberately provides a wider window for seeking police custody in parts.
What Safeguards Apply During Police Custody?
Flexibility does not mean unrestricted police power.
An arrested person continues to enjoy constitutional protections, particularly under Article 21 of the Constitution. The BNSS also provides statutory safeguards concerning arrested persons and access to legal assistance during interrogation.
The Supreme Court has emphasised that investigative powers must operate within legal and constitutional limits. In Suda Suresh Veera Venkata Naga Raju, the Court balanced effective investigation with safeguards protecting the accused against custodial abuse.
Read the Delhi High Court judgment – Anandita Bhargava v. Registrar General, Delhi High Court
Can Police Custody Be Converted into Judicial Custody?
Yes. A Magistrate may order an accused to be transferred from police custody to judicial custody when police custody is no longer justified or the permissible period has been exhausted.
Similarly, under the BNSS framework, judicial custody does not necessarily create an absolute bar against a subsequent request for police custody within the statutory window. The investigating agency must, however, satisfy the Magistrate that such custody is legally permissible and necessary.
Difference Between Police Custody and Judicial Custody: Key Takeaway
The Important Difference Between Police Custody and Judicial Custody distinction can be understood simply:
- Police custody primarily facilitates custodial investigation.
- Judicial custody ordinarily means detention in jail under court authority.
- Section 187 BNSS replaces Section 167 CrPC.
- The aggregate police custody remains 15 days.
- BNSS permits those 15 days to be sought in parts within the prescribed 40/60-day window.
- Police custody requires judicial authorisation.
- The Magistrate must balance investigative requirements against the accused’s constitutional and statutory safeguards.
- Judicial custody does not necessarily prevent a later request for police custody within the statutory BNSS window.
- The court retains supervisory authority over the legality and conditions of detention.
The BNSS therefore introduces greater flexibility in the timing of police remand, while retaining judicial oversight and constitutional safeguards. For an accused person, understanding the difference between police custody and judicial custody can be critical when opposing remand, seeking bail, or challenging an unlawful detention order.
Disclaimer: This article is intended for general legal information and does not constitute legal advice. The applicability of Section 187 BNSS depends upon the facts, nature of the offence, stage of investigation and the orders passed by the competent court.
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