Police Custody Under BNSS Section 187: The 40-Day Rule And Your Rights In Uttar Pradesh

For decades, police remand was governed by Section 167 CrPC. Since 1 July 2024, that section stands replaced by Section 187 BNSS, and the change is not just cosmetic. The new provision keeps the 15-day ceiling on police custody but allows investigators to spread it across a much longer window.

Three structural shifts every accused in UP should know:

• Staggered police custody. The 15 days no longer have to be taken in one block at the start of the case. The Investigating Officer may seek custody in parts during the early phase of investigation.
• Two outer limits restored. Total detention before chargesheet is still 60 days (offences punishable up to 10 years) or 90 days (offences punishable with death, life imprisonment or 10+ years).
• Default bail preserved. If the chargesheet is not filed within those 60/90 days, the accused is entitled to bail as a matter of right under Section 187(3) BNSS.

Practitioners at the Allahabad High Court Lucknow Bench have already begun citing Section 187 in remand objections, and magistrates in UP are gradually adjusting their orders to match the new wording.

Police custody (PC) is the stage where the accused is physically held at a police station for interrogation. Judicial custody (JC), by contrast, means lodging in jail under court orders. Section 187(2) BNSS caps police custody at 15 days in total per investigation, regardless of how serious the offence is.

What changed in practice:

• Under old CrPC 167, those 15 days had to be sought within the first 15 days of arrest. After that window, only judicial custody was possible.
• Under BNSS 187, the same 15 days can now be spread out — typically inside the first 40 or 60 days of detention, depending on the offence.

This shift matters because it lets investigators recall an accused for fresh interrogation if, say, a co-accused is later arrested or new evidence surfaces. For families, it also means the relief of "the PC period is over" no longer arrives on day 15 — the police may come back later seeking the balance of their quota.

The Supreme Court has clarified that the total period in police custody can never exceed 15 days, and any further investigation requires the accused to remain in judicial custody, not police lock-up.

This is where most clients get confused. The 15-day police custody is the inner limit; the 40-day or 60-day window is the outer limit within which that custody must be sought.

The Supreme Court has held that under Section 187 BNSS:

• For offences punishable with imprisonment up to 10 years, police custody must be sought within the first 40 days of detention.
• For offences punishable with death, life imprisonment, or imprisonment of 10 years and above, that window extends to the first 60 days.

The table below summarises the architecture every accused in UP should remember:

Once the relevant 40 or 60-day window closes, no fresh police remand can be granted — the accused can only stay in judicial custody while the investigation continues. Many criminal defence advocates in Lucknow now structure their remand strategy around these two clocks.

If the police do not complete investigation and file a chargesheet within the outer limit, the accused becomes entitled to default bail — also called statutory bail or compulsive bail. This right flows from Section 187(3) BNSS and cannot be defeated by the seriousness of the offence.

Key features of default bail in UP practice:

• 60-day default bail kicks in for offences punishable up to 10 years if no chargesheet is filed.
• 90-day default bail applies to offences punishable with death, life or 10+ years.
• The accused must apply for default bail and furnish bail before the chargesheet is filed; once filed even one minute earlier, the right is lost.
• Conditions imposed must be reasonable; the right itself is absolute once the time limit is breached.

Recently the Delhi High Court clarified that time spent on interim bail does not count as actual custody for computing the 60/90-day period — a ruling Lucknow magistrates are increasingly mindful of. If you suspect the police have missed the chargesheet deadline, contact an experienced advocate immediately: a delay of even a few hours can mean losing this remedy. Our bail lawyers in Lucknow regularly secure release on this exact ground.

The early phase of BNSS has produced a cluster of important rulings that every accused, investigator and lawyer in UP must absorb. Three are particularly load-bearing:

• Notice before arrest: The Supreme Court has held that for offences punishable up to 7 years, a notice under Section 35(3) BNSS is the rule and arrest is the exception. Police cannot mechanically pick up an accused just because a cognizable offence is alleged.
• 40-day outer limit for police custody: The Supreme Court has affirmed High Court reasoning that police custody for offences up to 10 years must fall within the first 40 days of detention — beyond that, only judicial custody is permissible.
• Interim bail period excluded: The Delhi High Court has ruled that days spent on interim or medical bail do not get added to the "custody" clock under Section 187(2) BNSS. Only days of actual detention count.

These rulings give defence counsel concrete handles to challenge over-broad remand orders. If you are facing an FIR you believe is malicious, the same window also gives time to consider parallel relief before the High Court.

BNSS preserves and in some areas strengthens the constitutional rights of an arrested person. In UP, where custodial complaints continue to occupy the Allahabad High Court's docket, knowing these rights is the first protection.

• Right to be informed of grounds of arrest in writing — Section 47 BNSS.
• Right to inform a relative or friend immediately on arrest — Section 48 BNSS, supplemented by SC guidelines in D.K. Basu.
• Right to consult a lawyer of choice during interrogation — flowing from Article 22(1) of the Constitution.
• Right to medical examination by a registered doctor at the time of arrest and at intervals during custody.
• Right to be produced before a magistrate within 24 hours, excluding travel time — Section 58 BNSS.
• Right against custodial torture — any violation is independently actionable, both criminally and through writ jurisdiction at the Allahabad High Court's Lucknow Bench.

In our experience advising families across UP, the single most common mistake is staying silent on day one. A simple call to a lawyer at the time of first production can change the entire trajectory of the case — the difference between 15 days of avoidable police remand and a structured, lawful detention with proper safeguards.

The police custody stage is short, fast-moving, and decides the architecture of the whole prosecution. A few moments where an experienced advocate can change outcomes:

1. At the first production: Oppose unnecessary police remand by pointing to insufficient grounds in the case diary.
2. During the 40 or 60-day window: Track whether the IO is seeking PC piecemeal and whether each fresh application discloses new material.
3. On the eve of the 60th or 90th day: File a default bail application the moment the deadline crosses, before the chargesheet lands.
4. If torture is alleged: Move a habeas corpus or Article 226 petition before the High Court.

For complex matters involving multiple FIRs, transferred investigations, or co-accused in different states, the choice of lawyer matters even more. For tailored advice on a specific arrest or remand situation, consult Advocate Onkar Pandey — early intervention almost always produces better outcomes than a late, defensive scramble.

Advocate Onkar Pandey is a practising lawyer at the Allahabad High Court Lucknow Bench with extensive experience in criminal law, bail and remand practice, family law and civil litigation. With deep familiarity with magistrate courts across Uttar Pradesh and a steady High Court practice, Advocate Pandey provides practical legal guidance to clients facing arrest, police custody and FIR-related matters. For legal consultation regarding police custody under BNSS Section 187, default bail or remand strategy in UP, contact Advocate Onkar Pandey for advice tailored to your specific situation.