In a significant ruling that clarifies the transition from the old criminal laws to the new regime, the Delhi High Court has held that only the period of "actual custody" should be counted when calculating the maximum time allowed for police remand under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court clarified that any time an accused person spends out of jail on interim bail does not "eat up" or reduce the time available to the police to seek their custody.
Justice Prateek Jalan, while hearing the case of Neeraj Kumar v. State, observed that the purpose of the law is to ensure that the investigation process is not unfairly cut short simply because an accused had to be released temporarily on medical or other grounds.
The matter reached the High Court after a Sessions Court cancelled the interim medical bail of a murder accused. The lower court was worried that if the accused remained out on bail for a long period, the "window" of time during which the police could ask for his remand would expire.
Under the old Section 167 of the Code of Criminal Procedure (CrPC), there was often confusion about whether police remand could only be taken in the first 15 days of arrest. However, Section 187 of the new BNSS has introduced more flexibility, allowing police custody to be sought in phases within the first 40 or 60 days (depending on the nature of the crime).
The Sessions Court feared that if the accused stayed on medical bail, those 40 or 60 days would lapse, leaving the Investigating Officer (IO) with no chance to interrogate the accused in custody. To prevent this "loss of time," the Sessions Court cancelled the bail. The accused then challenged this order in the Delhi High Court.
The core question before Justice Prateek Jalan was simple: If a person is arrested but then released on interim bail for two months, does that two-month period count toward the 60-day limit for police remand?
If the answer was "Yes," the police would lose their right to question the accused. If the answer was "No," the clock would effectively "pause" while the accused was out on bail and "resume" once they returned to custody.
The High Court disagreed with the Sessions Court’s logic. Justice Jalan noted that Section 187 of the BNSS should be interpreted in a way that is practical and fair to the investigation.
1. Reliance on the Kerala High Court The Delhi High Court referred to a very recent judgment by the Kerala High Court in the case of Fisal PJ v. State of Kerala (2025). In that case, it was held that for the purpose of "Default Bail" (Statutory Bail), only the actual days spent behind bars should be counted. The Delhi High Court agreed with this "respectful view," stating that the same logic applies to police remand.
2. The Concept of "Actual Custody" The Court explained that the word "custody" implies that the person is under the physical control of the state or the court. When a person is on interim bail, they are technically "free" to a certain extent. Therefore, that period cannot be called "detention" or "custody" for the purpose of calculating remand deadlines.
3. Preventing the Misuse of Law The Court noted that if interim bail were counted as part of the remand period, many accused persons might try to get medical bail specifically to "run out the clock" so that the police could never interrogate them. To prevent such a scenario, the law must ensure that the 40 or 60-day window refers to the time the person is actually available to the authorities.
The High Court also looked back at the Supreme Court’s famous judgment in Gautam Navlakha v. NIA (2022). Even under the old CrPC, the Supreme Court had discussed the idea of "piecing up" broken periods of custody.
Justice Jalan observed that under the new BNSS, this concept is even more relevant. The law now clearly allows the police to take remand in smaller chunks rather than all at once. If the accused is released on interim bail in the middle of these chunks, the countdown for the "total days" simply pauses until the accused is back in jail.
The Delhi High Court set aside the Sessions Court’s order that had cancelled the accused’s medical bail. The High Court restored the original order, granting the petitioner eight weeks of interim bail.
The Court concluded:
"There was no basis for suggesting that the period available to the prosecution to seek remand in police custody would lapse if the applicant remained on interim bail... Properly understood, the aforesaid period would be excluded altogether from the computation of the time available for police custody."
This judgment is a major relief for both accused persons and investigating agencies:
- For the Accused: It ensures that they can seek medical or emergency interim bail without the fear that the court will deny it just to "save" the police's remand time.
- For the Police: It ensures that their right to investigate and seek custody remains intact, even if the legal process is interrupted by a temporary release on bail.
This ruling sets a clear precedent for how Section 187 of the BNSS will be applied across India, emphasizing that the "spirit of the law" is to balance personal liberty with the needs of a fair and thorough investigation.