Section 187 of BNSS, 2023 — Procedure When Investigation Cannot Be Completed in Twenty-Four Hours

Introduction

Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed when a person is arrested and the investigation cannot be completed within twenty-four hours.

The provision regulates remand and custody during investigation. It requires the arrested person to be produced before a Magistrate and establishes the circumstances in which the Magistrate may authorise police custody or judicial custody.

Section 187 is one of the most important provisions concerning investigation, remand, police custody, judicial custody and default bail.

It broadly corresponds to Section 167 of the Code of Criminal Procedure, 1973, but BNSS introduces an important change concerning the period during which police custody may be authorised.

Meaning of Section 187

Section 187 applies when:

• a person has been arrested and detained in custody;
• the investigation cannot be completed within twenty-four hours; and
• there are grounds for believing that the accusation or information is well founded.

In such a situation, the police cannot simply keep the arrested person in custody indefinitely.

The arrested person must be forwarded to the nearest Magistrate, together with the relevant entries from the case diary.

The Magistrate then decides whether further detention should be authorised and, if so, whether it should be police custody or judicial custody.

Statutory Basis

The principal provision is Section 187 of the BNSS, 2023.

Connected provisions include:

• Section 57: Person arrested to be taken before Magistrate or officer in charge of police station.
• Section 58: Person arrested not to be detained more than twenty-four hours.
• Section 187: Procedure when investigation cannot be completed in twenty-four hours.
• Section 193: Police report on completion of investigation.
• Provisions concerning bail and default bail under BNSS.

Object and Purpose

Section 187 serves several important purposes:

• to prevent prolonged detention without judicial supervision;
• to ensure that continued custody is authorised by a Magistrate;
• to distinguish police custody from judicial custody;
• to provide a legal framework for continued investigation;
• to protect the arrested person’s personal liberty;
• to establish maximum periods of detention during investigation; and
• to protect the right to default bail when the investigation is not completed within the statutory period.

The provision therefore attempts to balance the investigative needs of the police with the liberty of the arrested person.

Nature and Scope

Section 187 is primarily a procedural provision governing remand and custody during investigation.

It becomes relevant after the initial twenty-four-hour period of arrest is insufficient for completing the investigation.

The section does not itself authorise indefinite detention. Continued detention requires judicial authorisation and remains subject to the statutory limits.

Essential Elements

1. Arrest and Detention

The person must have been arrested and detained in connection with an investigation.

The ordinary twenty-four-hour limitation applies to police detention without Magistrate’s authority.

2. Investigation Cannot Be Completed Within Twenty-Four Hours

The police must have reason to believe that the investigation cannot be completed within twenty-four hours.

Section 187 therefore comes into operation when additional time is genuinely required for investigation.

3. Production Before Magistrate

The arrested person must be forwarded to the nearest Magistrate along with the relevant entries from the case diary.

The Magistrate then considers whether further detention should be authorised.

4. Judicial Authorisation of Custody

Continued custody after the initial twenty-four-hour period requires the authority of a Magistrate.

The Magistrate may authorise:

• police custody, or
• judicial custody,

subject to the statutory restrictions.

Procedure

The general procedure is:

1. A person is arrested during investigation.
2. The police cannot complete the investigation within twenty-four hours.
3. The arrested person is forwarded to the nearest Magistrate.
4. Relevant case-diary entries are sent to the Magistrate.
5. The Magistrate considers the material and the need for further detention.
6. The Magistrate may authorise police custody or judicial custody, subject to Section 187.
7. Further investigation continues.
8. The accused remains entitled to seek bail in accordance with law.
9. If the investigation is not completed and the police report is not filed within the statutory period, the right to default bail may arise when the accused is prepared to furnish bail.

Twenty-Four-Hour Rule

The basic rule is that an arrested person cannot ordinarily be detained by the police for more than twenty-four hours, excluding the time necessary for travelling from the place of arrest to the Magistrate’s Court.

This protection is connected with the constitutional guarantee under Article 22(2).

Where investigation cannot be completed within that period, the police must invoke the remand procedure under Section 187 rather than continuing detention without judicial authorisation.

Police Custody and Judicial Custody

Section 187 is particularly important because it distinguishes two forms of custody.

Police Custody

In police custody, the accused remains under the control of the investigating police authorities.

Police custody may be necessary for purposes such as:

• interrogation;
• recovery of material;
• confronting the accused with evidence;
• identifying other participants; and
• pursuing investigative leads.

However, police custody is subject to the specific statutory limits under Section 187.

Judicial Custody

In judicial custody, the accused is placed in the custody of the judicial system, ordinarily in a prison or other authorised detention facility.

The accused is no longer in the direct custody of the investigating police officer.

Important BNSS Change: Police Custody

One of the most significant changes introduced by BNSS concerns the manner in which the fifteen-day police-custody period may be utilised.

Under Section 187, the Magistrate may authorise detention in police custody for a period not exceeding fifteen days in whole or in parts.

The important change is that these fifteen days may be authorised during the initial forty days or sixty days of the overall detention period, depending upon whether the case falls within the sixty-day or ninety-day investigation period.

Therefore, the fifteen days of police custody are not necessarily confined to the first fifteen days immediately following arrest.

This is a significant departure from the traditional understanding of the corresponding CrPC provision.

Sixty-Day and Ninety-Day Periods

Section 187 establishes two principal investigation periods.

Sixty-Day Period

Where the offence is not one for which the longer period applies, the maximum statutory detention period for purposes of default bail is generally sixty days.

If the investigation is not completed and the required police report is not filed within that period, the accused becomes entitled to default bail upon satisfying the statutory requirements, including readiness to furnish bail.

Ninety-Day Period

The longer period of ninety days applies where the investigation relates to an offence punishable with:

• death;
• imprisonment for life; or
• imprisonment for a term of ten years or more.

If the investigation remains incomplete after ninety days and the statutory conditions are satisfied, the accused acquires the right to default bail.

Distribution of Police Custody

The BNSS provision is notable because police custody can be authorised in parts.

For a case falling within the sixty-day category, the fifteen days of police custody may be authorised during the initial forty days.

For a case falling within the ninety-day category, the fifteen days of police custody may be authorised during the initial sixty days.

The overall fifteen-day limit on police custody remains.

The significance is that the police may seek police custody at different points during the specified initial period rather than necessarily having to use all fifteen days consecutively at the beginning.

Judicial Scrutiny

The Magistrate does not merely perform a formal administrative function.

Before authorising further detention, the Magistrate must consider the circumstances of the case and the statutory requirements.

The Magistrate determines whether continued detention is justified and what form of custody is permissible.

Judicial supervision is particularly important because detention directly affects the personal liberty of the accused.

Production of the Accused

The first production of the accused before the Magistrate is ordinarily required to be in person.

For subsequent production during police or judicial custody, Section 187 permits production through audio-video conferencing in accordance with the statutory framework.

However, an accused must be produced in person when required for the purposes specified by law, including the initial remand proceeding.

Role of the Magistrate

The Magistrate’s role under Section 187 includes:

• considering the case diary and investigation material;
• deciding whether further detention is justified;
• determining the appropriate form of custody;
• ensuring compliance with the statutory limits;
• supervising the legality of continued detention; and
• recognising the accused’s entitlement to statutory bail when the conditions for default bail are satisfied.

The Magistrate therefore acts as an important judicial check on investigative detention.

Executive Magistrate

Where a Judicial Magistrate is not available, an Executive Magistrate who has been specially empowered in this regard may authorise detention for a limited period.

Such detention cannot exceed seven days in the aggregate.

After the expiry of this period, further detention requires the appropriate Judicial Magistrate.

This ensures that the extended detention powers under Section 187 remain principally under judicial supervision.

Default Bail

One of the most important consequences of Section 187 concerns default bail.

Default bail is not ordinary discretionary bail based simply on the merits of the accusation.

It arises because the investigating agency has failed to complete the investigation and file the required police report within the statutory period.

Sixty Days

For offences falling within the sixty-day category, the relevant period is sixty days.

Ninety Days

For offences punishable with death, life imprisonment or imprisonment for ten years or more, the relevant period is ninety days.

Once the applicable period expires without completion of the investigation and filing of the police report, the accused is entitled to bail if the statutory conditions are fulfilled, particularly if the accused is prepared to furnish bail.

Default Bail Is a Statutory Right

Default bail is often described as an indefeasible right once the statutory conditions have accrued.

The right arises from the investigating agency’s failure to complete the investigation within the prescribed period.

It is therefore different from ordinary bail, where the court evaluates factors such as:

• seriousness of the offence;
• possibility of tampering with evidence;
• possibility of absconding;
• criminal antecedents; and
• other relevant circumstances.

For default bail, the central issue is compliance with the statutory investigation period and the accused’s readiness to furnish bail.

Filing of Charge-Sheet and Default Bail

The timing of the accused’s application for default bail is legally important.

The Supreme Court has repeatedly emphasised that the right to default bail is connected with the accused’s exercise of the right once it has accrued.

Accordingly, the investigating agency’s subsequent filing of the charge-sheet does not automatically erase a right to default bail that has already been properly invoked before the relevant subsequent event.

The precise application of this principle depends upon the procedural facts of each case.

Case Law

Uday Mohanlal Acharya v. State of Maharashtra

The Supreme Court explained the nature of the statutory right to default bail under the corresponding CrPC provision.

The decision remains important for understanding the principle that default bail is linked to the investigating agency’s failure to complete the investigation within the statutory period.

Rakesh Paul v. State of Assam

The Supreme Court considered the statutory right to default bail and emphasised that the right flows from the expiry of the prescribed investigation period.

The case is particularly relevant to understanding the distinction between ordinary bail and statutory default bail.

Bikramjit Singh v. State of Punjab

The Supreme Court reaffirmed the importance of the statutory right to default bail and the protection of personal liberty associated with it.

These cases were decided under the CrPC framework. They remain relevant to the corresponding principles under BNSS to the extent that the statutory language and legal framework remain substantially similar.

Exceptions and Limitations

Police Custody

General rule: Police custody is limited to a maximum of fifteen days in whole.

BNSS position: Those fifteen days may be authorised in parts during the initial forty days or sixty days of the applicable sixty-day or ninety-day detention period.

Sixty-Day Period

General rule: The investigation must ordinarily be completed within sixty days for offences falling within the shorter category if the accused is to avoid the statutory default-bail consequence.

Ninety-Day Period

Exception: The longer ninety-day period applies where the offence is punishable with death, life imprisonment or imprisonment for ten years or more.

Executive Magistrate

General rule: Continued detention is ordinarily authorised by a Judicial Magistrate.

Exception: A specially empowered Executive Magistrate may authorise detention for a period not exceeding seven days in the aggregate when a Judicial Magistrate is unavailable.

Important Distinctions

Police Custody and Judicial Custody

Police custody means custody under the control of the police for investigation.

Judicial custody means custody authorised by the court and ordinarily served in prison or another legally authorised detention facility.

Both are forms of custody, but their legal purpose and controlling authority are different.

Remand and Arrest

Arrest is the initial deprivation of liberty by lawful authority.

Remand is the judicial authorisation of continued custody after the initial period of detention.

An arrest does not automatically give the police unlimited authority to continue detention.

Default Bail and Regular Bail

Default bail arises from failure to complete the investigation and file the police report within the statutory period.

Regular bail is granted on the merits and circumstances of the case under the ordinary bail provisions.

Default bail is therefore fundamentally connected with the statutory time limit.

Investigation and Remand

Investigation is the process through which the police collect evidence and investigate the alleged offence.

Remand concerns whether the accused may lawfully remain in custody while that investigation continues.

The two processes are connected but are not the same.

BNSS and CrPC

Section 187 BNSS broadly corresponds to Section 167 CrPC.

The basic framework continues:

• twenty-four-hour limit on police detention without Magistrate’s authority;
• production before a Magistrate when investigation cannot be completed;
• judicial authorisation of further custody;
• police-custody limitation;
• sixty-day and ninety-day investigation periods;
• default bail upon expiry of the applicable statutory period; and
• judicial supervision of continued detention.

Important BNSS Change

The major structural change is the manner in which the fifteen days of police custody may be used.

Under BNSS, the fifteen-day police-custody period may be authorised in parts during the initial forty days of a sixty-day detention period or the initial sixty days of a ninety-day detention period.

This is an important departure from the conventional CrPC position, under which the fifteen days of police custody were generally understood to be available within the initial fifteen days of remand.

BNSS therefore gives the investigating agency a wider temporal window in which the permitted fifteen days of police custody may be sought, while retaining the overall fifteen-day ceiling.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) defines the offence for which the person is being investigated.

The BNSS governs the procedural question of arrest, remand, custody and investigation.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the evidentiary treatment of material collected during the investigation.

Section 187 is therefore primarily concerned with custody and investigative procedure, not with determining whether the accused is ultimately guilty.

Constitutional Connection

Section 187 has a direct connection with Article 21 and Article 22 of the Constitution.

Article 21 protects personal liberty and requires deprivation of liberty to follow a fair, just and lawful procedure.

Article 22(2) requires an arrested person to be produced before the nearest Magistrate within twenty-four hours of arrest, excluding the necessary journey time.

Section 187 provides the statutory mechanism for what happens when investigation cannot be completed within that initial period.

Judicial supervision of continued detention is therefore a central constitutional safeguard.

Common Confusions

Can police keep an accused in custody for more than twenty-four hours?

Not without Magistrate’s authorisation.

If investigation cannot be completed within twenty-four hours, the accused must be produced before a Magistrate and further custody must be authorised according to Section 187.

Is police custody limited to fifteen days?

Yes, as an overall statutory maximum under Section 187.

However, BNSS permits the fifteen days to be authorised in parts during the initial forty or sixty days of the applicable detention period.

Can all fifteen days of police custody be taken consecutively?

Yes, subject to the Magistrate’s authorisation and the statutory requirements.

The fifteen days may also be authorised in parts.

Does ninety days apply to every serious offence?

No.

The ninety-day period applies where the offence is punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.

What happens after sixty or ninety days if investigation is incomplete?

Subject to the statutory conditions, the accused acquires the right to default bail if the accused is prepared to furnish bail.

Is default bail the same as ordinary bail?

No.

Default bail arises from failure to complete the investigation within the prescribed statutory period, whereas ordinary bail is generally considered on the merits and circumstances of the case.

Can an Executive Magistrate authorise custody?

In the limited situation contemplated by Section 187, a specially empowered Executive Magistrate may authorise detention for up to seven days in the aggregate when a Judicial Magistrate is unavailable.

Example

Suppose A is arrested for an offence punishable with imprisonment of ten years or more.

The police cannot complete the investigation within twenty-four hours. A is produced before the Magistrate, who may authorise further detention in accordance with Section 187.

Because the offence falls within the category attracting the ninety-day period, the investigation may continue subject to the statutory detention limits.

The fifteen days of permissible police custody may, under BNSS, be authorised in whole or in parts during the initial sixty days of the ninety-day period.

If the investigation remains incomplete and the police report is not filed by the expiry of ninety days, A may claim default bail upon satisfying the statutory requirements, including readiness to furnish bail.

Important BNSS Provisions

• Section 57: Person arrested to be taken before Magistrate or officer in charge of police station.
• Section 58: Person arrested not to be detained more than twenty-four hours.
• Section 187: Procedure when investigation cannot be completed in twenty-four hours.
• Section 193: Police report on completion of investigation.
• Bail provisions: Govern release of an accused, including the statutory consequences of failure to complete investigation within the prescribed period.

Topic at a Glance

• Topic: Procedure When Investigation Cannot Be Completed in Twenty-Four Hours
• BNSS Section: Section 187
• Primary purpose: Regulation of continued custody during investigation
• Initial period: Twenty-four hours, subject to constitutional and statutory requirements
• After twenty-four hours: Production before Magistrate is required
• Custody authorised by: Magistrate
• Types of custody: Police custody and judicial custody
• Police custody: Maximum fifteen days in whole
• BNSS change: Fifteen days may be authorised in parts during the initial forty or sixty days
• Shorter investigation period: Sixty days
• Longer investigation period: Ninety days for specified serious offences
• Default bail: Arises upon expiry of the applicable statutory period when the statutory conditions are fulfilled
• Executive Magistrate: Limited power of detention authorisation up to seven days in aggregate in the specified circumstance
• CrPC counterpart: Section 167 CrPC

Quick Revision

1. Section 187 BNSS governs remand when investigation cannot be completed within twenty-four hours.
2. An arrested person cannot remain in police custody beyond the initial twenty-four-hour period without Magistrate’s authority.
3. The arrested person must be produced before the Magistrate along with the relevant case-diary material.
4. The Magistrate may authorise police custody or judicial custody according to law.
5. Police custody cannot exceed fifteen days in whole.
6. Under BNSS, the fifteen days may be authorised in parts.
7. For a sixty-day case, the fifteen days of police custody may be used during the initial forty days.
8. For a ninety-day case, the fifteen days of police custody may be used during the initial sixty days.
9. The ninety-day period applies to offences punishable with death, life imprisonment or imprisonment for ten years or more.
10. The sixty-day period applies to other cases falling outside the ninety-day category.
11. Failure to complete the investigation within the applicable sixty- or ninety-day period can give rise to default bail.
12. The accused must be prepared to furnish bail to exercise the statutory right.
13. Default bail is different from regular bail.
14. First production before the Magistrate is ordinarily in person; subsequent production may be through audio-video means as permitted by Section 187.
15. A specially empowered Executive Magistrate may authorise detention for up to seven days in aggregate when a Judicial Magistrate is unavailable.
16. Section 187 broadly corresponds to Section 167 CrPC.
17. The most significant BNSS change is the wider period during which the fifteen days of police custody may be authorised.
18. Section 187 is closely connected with the constitutional protections under Articles 21 and 22.

ALSO READ: Section 186 – When officer in charge of police station may require another to issue search-warrant

Conclusion

Section 187 of the BNSS provides the statutory framework for continued detention when the police cannot complete an investigation within twenty-four hours. It places continued custody under judicial supervision and distinguishes between police custody and judicial custody. Its most significant change from the CrPC framework is that the fifteen days of permissible police custody may be authorised in parts during the initial forty or sixty days of the applicable sixty- or ninety-day detention period. At the same time, the provision preserves the important protection of default bail when the investigation is not completed within the prescribed statutory period.