15-Day Loophole: How Intermittent Police Custody Under BNSS 2023 Is Reshaping Bail Law in India
Introduction: The New Custody Dilemma in Indian Bail Law
This new “custody ping-pong” — moving an accused from Police Custody (PC) to Judicial Custody (JC) and then back to PC — risks making jail the rule, not the exception.
The General Rule: Judicial Custody Is the Norm
The foundational legal principle has always been clear — detention should ideally be under judicial supervision to protect the accused’s rights and prevent coercion.
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Police Custody (PC):Limited to a total of 15 days from the date of first production before a magistrate. Granted mainly for investigation, interrogation, or recovery purposes.
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Judicial Custody (JC):Begins when no further interrogation is needed or once 15 days of police custody are over.It can extend up to 60 or 90 days (depending on the offence), after which the accused may seek default bail if no chargesheet is filed.
The Principle: “Bail Is the Rule, Jail Is the Exception”
This cornerstone principle, rooted in Article 21 of the Indian Constitution, was upheld in State of Rajasthan v. Balchand.
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Bail safeguards personal liberty.
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Jail or detention must remain a last resort, justified only in cases involving risk to society, tampering with evidence, or absconding.
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Police custody is a restricted tool—meant for limited, justified use in the interest of investigation.
The Shift: From Police Custody to Judicial Custody and Back
This protected the accused from coercion and ensured judicial oversight.
The “Back to Police Custody” Change (PC → JC → PC)
BNSS Section 187: Intermittent Police Custody
Now, the total 15 days of police custody can be granted “in whole or in part” — spread over the first 40 or 60 days of detention (depending on the offence).
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Sent to police custody for a few days,
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Then to judicial custody,
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And later back to police custody for the remaining period — even weeks after the first remand.
The Concern: Is Jail Becoming the Rule?
This new flexibility has triggered constitutional alarms.
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When an accused applies for bail, the police may request additional police custody, arguing the need for further interrogation or recovery.
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This creates a cycle of custody that keeps the accused confined — undermining the spirit of “bail as the rule.”
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Courts often hesitate to grant bail while the investigation is said to be “ongoing.”
Thus, intermittent custody risks turning pre-trial detention into a prolonged period of confinement.
The Supreme Court & BNSS 2023: Legal Turning Point
While this enhances investigative powers, it has intensified the liberty vs. investigation conflict.
Implications: The “Jail Is the Rule” Reality
Critics argue this provision could be weaponized to:
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Delay Bail: Continuous requests for police custody discourage courts from granting release.
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Prolong Detention: The accused remains under judicial control longer, effectively eroding the right to liberty.
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Affect Default Bail: By stretching custody periods close to the 60/90-day mark, the accused may lose access to default bail.
Conclusion: Liberty vs. Investigation — The Continuing Tussle
This change reopens the constitutional question:
Can the law truly uphold “bail is the rule” when intermittent police custody makes “jail the norm”?
Until jurisprudence evolves to balance liberty with investigation, India’s criminal process will continue to wrestle with this fundamental tension.
About the Author
Adv. Mamta Singh Shukla is an Advocate at the Supreme Court of India and Founder of Vijay Foundations — an initiative dedicated to social justice, education, and empowerment. Through her writings, she advocates for human dignity, equality, and systemic change.
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