Understanding Remand Procedure under BNSS: Legal Framework, Rights of the Accused, and Judicial Oversight

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 Understanding Remand Procedure under BNSS: Legal Framework, Rights of the Accused, and Judicial Oversight

The introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has led to a series of important changes in India’s criminal justice procedure. One of the most critical stages in criminal prosecution is the remand process, where an arrested person is either sent to police custody or judicial custody. Under BNSS, this process is now governed by Section 187, replacing the earlier Section 167 of the Code of Criminal Procedure (CrPC).

This blog post provides an in-depth explanation of the remand procedure under Section 187 of BNSS, explores the safeguards for the accused, and outlines how courts exercise their discretion during this process.

🔍 1. What is Remand?

"Remand" refers to the act of sending an arrested person into custody, either police or judicial, for a specific period, pending investigation or trial.

There are two main types of custody:

  • Police Custody: The accused is in the custody of the investigating police officer.

  • Judicial Custody: The accused is in jail under the supervision of a magistrate (i.e., jail custody).

📜 2. Section 187 of BNSS: Key Provisions

Under Section 187 of BNSS:

  • When a person is arrested and investigation cannot be completed within 24 hours, the police must produce the accused before a Magistrate.

  • The Magistrate can authorize police custody or judicial custody for a period not exceeding:

    • 15 days in total (for police custody).

    • Up to 60 days or 90 days for judicial custody, depending on the offence.

📝 90 days: If the offence is punishable with death, life imprisonment, or imprisonment of at least 10 years.
📝 60 days: For all other offences.

If no charge sheet is filed within this period, the accused becomes entitled to default bail.

🧠 3. Objectives of Remand

The purpose of remand is:

  • To allow police sufficient time for investigation.

  • To prevent the accused from tampering with evidence or threatening witnesses.

  • To protect public safety, especially in serious cases.

However, the remand process must be used judiciously, not as a form of punishment or harassment.

⚖️ 4. Legal Safeguards for the Accused

Section 187 of BNSS introduces several safeguards for individuals in remand:

  • Accused must be produced before the Magistrate within 24 hours.

  • The Magistrate must apply judicial mind before granting remand.

  • Physical production of the accused is mandatory, except in rare cases (video conferencing may be allowed under special circumstances).

  • Police custody is allowed only in the first 15 days after arrest.

  • No further police custody can be granted after 15 days, even if the total judicial custody continues for 60/90 days.

🧾 5. Documents Required for Seeking Remand

When police seek remand under Section 187 BNSS, they must submit:

  • A remand application stating reasons for custody.

  • A copy of the FIR.

  • Case diary or investigation report under progress.

  • Statement of how the remand will assist in further investigation.

The Magistrate should reject remand if the police fail to justify its necessity.

👩‍⚖️ 6. Magistrate's Role and Discretion

The Magistrate plays a central role in protecting the rights of the accused:

  • They must record reasons for granting remand.

  • Ensure that remand is not mechanical or routine.

  • Check for signs of torture, coercion, or illegal detention.

  • Verify whether the remand is truly necessary to aid investigation.

In recent years, courts have emphasized the non-negotiable nature of personal liberty, and that remand must be the exception, not the rule.

💡 7. Police Custody vs Judicial Custody: Key Differences

Feature Police Custody Judicial Custody
Custody Location Under investigating officer In jail, under magistrate's order
Max Duration 15 days from date of first remand 60 or 90 days based on offence
Purpose For interrogation and investigation For securing presence during trial
Level of Supervision Police authority Judicial authority

⚠️ 8. Default Bail under Section 187

If the charge sheet is not filed within the permissible period (60 or 90 days), the accused has the right to be released on bail, provided they apply before the court.

This is called statutory or default bail, a fundamental protection to prevent indefinite incarceration without trial.

📚 9. Case Law: Supporting the Spirit of Section 187

The Supreme Court has repeatedly laid down principles to safeguard liberty:

  • Arnesh Kumar v. State of Bihar (2014):

    Arrest and remand should not be mechanical. Custody must be granted only when investigation truly demands it.

  • C.B.I. v. Anupam J. Kulkarni (1992):

    Police custody can only be allowed in the first 15 days post-arrest. Judicial custody can be extended, but not police custody.

These principles are now embedded in Section 187 BNSS, ensuring legal continuity with stronger enforcement.

👮 10. Practical Challenges in Remand

Despite legal safeguards, the remand process often faces hurdles:

  • Police may seek custody without proper documentation.

  • Magistrates sometimes approve remand mechanically without scrutiny.

  • Accused are often unaware of their right to default bail.

  • In rural areas, physical production within 24 hours is logistically difficult.

These gaps need to be addressed through better training, legal awareness, and digitization of judicial processes.

📖 11. Important Do’s and Don’ts for Advocates

Do’s:

  • Insist that remand applications be backed by valid investigation grounds.

  • Demand production of case diary and FIR before remand.

  • Move for bail or default bail at the earliest eligible stage.

  • Ask the court to record injuries or ill-treatment, if any, on the accused.

Don’ts:

  • Don’t allow mechanical remand without scrutiny.

  • Don’t ignore the 15-day limit for police custody.

  • Don’t assume that police can retain custody throughout 60/90 days.

🔍 12. What Should the Accused or Family Do?

If your relative or friend is arrested:

  • Ensure they are produced before the Magistrate within 24 hours.

  • Check if police custody is being sought—ask for legal grounds.

  • Ask the lawyer to apply for bail immediately, especially if the charge sheet is delayed.

  • Ensure the accused is not tortured or harassed in custody.

🧾 13. Format of a Remand Application (Illustration)

Here’s a simplified version of what a remand application looks like:

In the Court of Ld. Magistrate, XYZ District
Police Station: ABC PS
FIR No.: 123/2024
Section: 420, 467, 468 BNS

The accused has been arrested on 01/06/2025 and is required to be in custody for further investigation, recovery of documents, and to confront co-accused.

Prayer: Kindly grant police custody remand for 5 days.

Date: ………………….
Investigating Officer: ……………

🏁 Conclusion: Section 187 BNSS is a Balance of Law and Liberty

The remand process is where the criminal justice system first meets the individual. Misuse at this stage can lead to irreversible damage to personal freedom. That’s why Section 187 of BNSS stands as a safeguard—structured, limited, and legally monitored.

It’s the duty of police, courts, and lawyers to uphold this process with integrity, and it’s equally important for citizens to be aware of their rights under the law.

Need Legal Support on Bail or Custody-Related Matters?
📞 Advocate Anurag Gupta
📱 Mobile: 8240642015
💬 WhatsApp: 8931942803
📧 Email: gripshawlaw2005@gmail.com


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