Interim Bail Period Excluded from “Custody” Computation under Section 187(2) BNSS: Only Actual Detention Counts

1. Introduction

In NEERAJ KUMAR v. STATE NCT OF DELHI (Delhi High Court, 11-02-2026; Bail Appln. 190/2026), the petitioner (accused) sought interim bail under Section 480, Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) in an FIR alleging murder under Section 103(1), Bharatiya Nyaya Sanhita, 2023 (“BNS”) and offences under the Arms Act, 1959.

The Sessions Court had granted the petitioner eight weeks’ interim bail on medical grounds (gunshot injury and pulmonary tuberculosis), but later—on the Investigating Officer’s application styled as “cancellation” but treated as “modification”—curtailed that period, reasoning inter alia that (i) the accused had improved medically and was ambulatory, and (ii) the interim bail would “eat up” the time available to seek police custody remand.

The core legal issue before the High Court was of wider statutory importance under the new BNSS regime: when computing the custody-based timelines under Section 187(2) BNSS for police remand, does the period spent on interim/temporary bail count?

2. Summary of the Judgment

  • The Delhi High Court held that only the period of “actual custody/detention” counts for the timelines under Section 187(2) BNSS; time spent on interim/temporary bail is excluded.
  • Consequently, the Sessions Court’s concern that the interim bail period would diminish the prosecution’s remand window was misconceived.
  • The High Court further held that the Sessions Court erred in curtailing already-granted medical interim bail merely because there was some improvement and the accused was ambulatory, absent misuse of liberty or misrepresentation.
  • The petition was allowed and the petitioner was directed to remain on interim bail for the originally granted eight weeks, subject to the earlier conditions; merits were left open.

3. Analysis

3.1 Precedents Cited

(a) Vijay Aggarwal v. Directorate of Enforcement

The Sessions Court had relied on Vijay Aggarwal v. Directorate of Enforcement to trace interim bail for medical treatment to Article 21 (right to life and personal liberty). While the Delhi High Court’s decisive reasoning turned on statutory interpretation of Section 187 BNSS, the judgment implicitly preserves the Article 21 underpinning: once interim bail is granted to enable recovery/treatment, it should not be lightly withdrawn on incremental improvement, unless other legally relevant factors emerge (misuse, violation, misrepresentation).

(b) Fisal PJ v. State of Kerala

This decision was central. The Kerala High Court held that for statutory/default bail computations under the BNSS, only “actual detention” counts, and time spent on temporary/interim bail is not counted. The Delhi High Court expressly agreed, holding the interpretation consistent with the text and scheme of Section 187 BNSS.

Notably, the extract from Fisal PJ refers to Amir Hassan Mir v. UT of J & K and others, supporting the proposition that when an accused is on temporary bail, they are not in “detention” for custody-based computations.

(c) Gautam Navlakha (S) v. National Investigation Agency (S). Agency

The Supreme Court’s discussion in Gautam Navlakha—though arising under Section 167 CrPC—was treated as analytically relevant because it explains how courts should understand “custody” for default-bail timelines: broken periods of custody can be “pieced up”, and it is the actual custody undergone (even if under an order later found defective) that counts.

The Delhi High Court used this to reinforce the BNSS conclusion: if “piecing up” is about aggregating custody spells, then a period where the accused is not in custody (because he is on interim bail) cannot logically be treated as custody for the remand/default-bail clock.

(d) CBI v. Anupam J. Kulkarni and V. Senthil Balaji v. State

CBI v. Anupam J. Kulkarni laid down the well-known rule under Section 167 CrPC that police custody is confined to the “first 15 days of total remand”. The Delhi High Court noted that this view has been referred to a larger Bench in V. Senthil Balaji v. State. However, the Court considered detailed engagement unnecessary because BNSS materially changes the statutory design: Section 187 BNSS permits up to 15 days’ police custody “in the whole, or in parts” within specified initial windows (40/60 days).

(e) Pratap Singh Arya v. State

This was cited as supporting the approach that custody-based statutory computations exclude periods when the accused was not in actual custody. The Delhi High Court noted that the case “lends support” to the view that non-custodial periods should be excluded when applying custody timelines.

(f) State of U.P. v. Abdul Samad

This case was referred to within the Supreme Court’s reasoning in Gautam Navlakha for the broader principle that custody periods—continuous or broken— can be counted towards the default-bail threshold. The Delhi High Court’s adoption of the “actual custody” concept sits comfortably with this lineage.

3.2 Legal Reasoning

(i) Statutory scheme and textual emphasis in Section 187 BNSS

The Court contrasted Section 187 BNSS with Section 167 CrPC and identified a key BNSS feature: police custody may be authorised for up to 15 days “in the whole, or in parts” but only within the initial 40/60 days (depending on whether the overall detention limit is 60/90 days). This architecture is expressed in terms of detention/custody, not calendar time from FIR registration or from the date of the first remand regardless of later release.

(ii) The “actual custody” rule: interim bail pauses custody-based clocks

The Court framed the interpretive question directly: whether Section 187(2) timelines are based on actual custody or include interim bail periods. Aligning with Fisal PJ and drawing support from Gautam Navlakha, it held that the computation must be based on actual custody undergone. Therefore, interim/temporary bail periods are excluded from:

  • the “first 40/60 days” window relevant for authorising police custody “in parts”, and
  • the overall custody totals relevant to statutory/default bail eligibility.

(iii) Application to the case: the Sessions Court’s remand concern was incorrect

On the facts, the accused had spent about 28 days in custody before being released on interim bail. For a serious offence punishable with life imprisonment/death, police custody (up to 15 days in whole or parts) can be sought in the first 60 days of custody. Even if the accused remained out on interim bail for eight weeks, that period would be excluded, leaving the investigating agency with the balance of custody-window time after surrender.

(iv) Limits on curtailing medical interim bail once granted

The Court also addressed the Sessions Court’s second reason—medical improvement and ambulatory status. It held that: the purpose of medical interim bail is to facilitate recovery/treatment. Some improvement cannot, by itself, justify shortening the already-granted bail period, particularly where there is:

  • no allegation of misuse of liberty, and
  • no suggestion that interim bail was obtained by misrepresentation.

3.3 Impact

  • Clarifies BNSS “custody clock” nationally: The judgment strengthens an emerging BNSS interpretation (also seen in Fisal PJ) that custody-based timelines run on actual detention, not on calendar time that includes interim bail.
  • Prevents strategic distortion: Investigating agencies cannot argue that interim bail “consumes” the remand window; conversely, accused persons cannot claim that time spent on interim bail counts toward custody thresholds for default bail.
  • Stabilises medical-bail practice: Once granted on medical grounds, interim bail should not be routinely revisited merely because treatment has begun to work—unless legally relevant supervening circumstances exist.
  • Operational guidance: Magistrates and Sessions Courts dealing with Section 187 BNSS will likely have to compute: (a) total actual custody to date; (b) remaining custody-window for police remand; and (c) default-bail eligibility based on custody actually undergone.

4. Complex Concepts Simplified

Interim/temporary bail (medical)
Short-term bail granted for a limited purpose (here, medical treatment and recovery). It does not decide the final bail application on merits.
Police custody vs. judicial custody
Police custody places the accused with the police for interrogation; judicial custody places the accused in jail under court oversight. BNSS (like CrPC) restricts police custody tightly and channels extended detention into judicial custody.
Remand under Section 187 BNSS
Court-authorised detention when investigation cannot be completed within 24 hours. Section 187 sets both the power and limits for custody, including when and how police custody may be authorised.
Default/statutory bail
A right to bail that arises if the investigating agency fails to complete investigation/file the final report within the statutory custody period (commonly 60/90 days depending on the offence). The key is that the statutory threshold is tied to legally-authorised custody/detention.
“Piecing up” broken custody periods
If an accused is in custody, released, and later taken back into custody in the same case, courts can add the actual custody periods together for custody-based statutory computations. Periods of liberty (bail) are not “custody spells”.

5. Conclusion

The Delhi High Court in NEERAJ KUMAR v. STATE NCT OF DELHI establishes a clear BNSS-era rule: for Section 187(2) BNSS, only actual custody/detention counts; time spent on interim/temporary bail is excluded from the computation. The decision corrects a practical misconception that medical interim bail reduces the prosecution’s statutory remand window, and it reinforces that medical interim bail—once granted—should not be curtailed on marginal improvement alone absent misuse or misrepresentation.