Short answer: At the remand hearing, the Magistrate decides whether to send an arrested person to police custody, judicial custody or release on bail. Police custody is not automatic. Your advocate can point to missing written grounds of arrest, the absence of any need to arrest, custody already given, nothing left to recover, or a medical condition.
What the law says
Under BNSS Section 187, the Magistrate may authorise detention only after seeing the case diary and being satisfied that it is needed. Police custody is limited to 15 days in total; the Supreme Court in 2026 held that it may be given in parts within the first 40 or 60 days, depending on the offence. Judicial custody means the person is held in jail under the court’s control, not with the investigating officer. The burden is on the police to show, from the case diary, why custodial questioning is needed now.
Several rules limit remand. The person must be told the grounds of arrest under BNSS Section 47. In Mihir Rajesh Shah v. State of Maharashtra (6 November 2025), the Supreme Court held that the grounds must be given in writing, in a language the person understands, for all offences, and at least two hours before production for remand; if not, the arrest and remand are illegal. For offences up to seven years, Section 35 requires the officer to show why arrest was necessary, and Arnesh Kumar v. State of Bihar (2014) requires the Magistrate to check the officer’s reasons against the checklist before authorising detention.
Grounds commonly raised against police custody
- No written grounds of arrest. If the grounds were only read out, or given late or in a language the person does not understand, this goes to the legality of the arrest itself.
- No necessity to arrest. For offences up to seven years, if a Section 35(3) notice could have been issued and the reasons for arrest are general or copied, the Magistrate can decline remand.
- The Arnesh Kumar checklist was not followed. The court looks for a filled checklist and real reasons, not a formality.
- Custody already given. If the person has already spent time in police custody, the police must show what remains to be done.
- Nothing left to recover. Where documents are already seized or the case rests on bank records, emails or contracts held by others, custodial questioning may add little.
- Medical condition or age. Illness, recent surgery or old age, supported by records or the medical examination under BNSS Section 53, can weigh in favour of judicial custody or bail. For persons above 60 or infirm, Section 35(7) needs DSP permission for arrest in offences under three years.
What an opposition looks like, in plain terms
A written reply to the remand application usually has a short statement of facts; a list of legal defects in the arrest, such as grounds of arrest, arrest memo and notice to family; reasons why police custody is not needed; the person’s cooperation so far; medical and personal circumstances; and a request for judicial custody or bail, with conditions the person is willing to accept. Copies of notices, replies and medical papers are attached. Our note on unlawful arrest, detention and custodial misconduct explains related remedies.
Common mistakes
- Arriving without documents. The remand hearing happens quickly; the family should bring the arrest memo, notices and any medical papers.
- Not raising the grounds-of-arrest point at the first hearing.
- Treating judicial custody as the end of the matter. A bail application can usually be filed promptly after.
- Complaints of ill-treatment not being told to the Magistrate. The person can tell the court directly and ask for a medical examination.
Common questions
Is judicial custody better than police custody?
For the person arrested, judicial custody generally means no further custodial questioning by the police, though they may seek permission to question in jail.
Can the Magistrate release the person at the remand stage?
Yes. If the arrest is illegal or the grounds are not made out, the Magistrate can refuse remand and release, or grant bail.
Can the family speak at the hearing?
The advocate presents the case. The person arrested can tell the Magistrate about any complaint about treatment in custody.
When to speak to an advocate
Before the first production if possible. The points that carry most weight are often decided by what happened in the first few hours after arrest.
Sources: Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code).
For a confidential discussion about a remand hearing in Noida, Greater Noida or Delhi NCR, see Criminal Lawyer, Surajpur Court, Greater Noida.
General legal information only; not legal advice or solicitation.
