How Long Can They Keep Him in Jail Before Charge Sheet?

Q: From which date does the 60 or 90 days start counting?

From the date of the first remand by the Magistrate, not the date of arrest and not the date of FIR. The Supreme Court in Chaganti Satyanarayan v. State of A.P. held that the Proviso talks about detention 'authorised by the Magistrate' — so the pre-production period under Section 57 is excluded. If the accused is produced and remanded on the same day he was arrested, that day is Day 1; otherwise, the count begins from the day the Magistrate signs the first remand order.

Q: Is the family told when the Magistrate is about to grant default bail?

Yes — under Hussainara Khatoon v. State of Bihar the Magistrate herself has a duty to inform the accused that he is entitled to bail once the 60 or 90 day window expires, and to arrange free legal aid under Article 39A read with Article 21. In practice, this duty is patchily enforced; many undertrials cross the deadline without anyone telling them. Hence the importance of having a lawyer who is tracking the dates.

Q: Does temporary bail or interim release pause the 60/90 day clock?

Yes. The Madhya Pradesh High Court in Devendu v. State (1992 CrLJ 1730) held that any period of temporary bail granted to the accused during the 60/90 day window is excluded from the count. So if the accused was released for two weeks for a medical emergency and then re-taken into custody, those two weeks are added to the deadline.

The Magistrate has sent your son, brother, husband or father to judicial custody. The first thing the family asks the lawyer outside the courtroom is the same in every case: "Sir, kab tak rakhenge?" — how long can they keep him? You want a number, a deadline, something to mark on the calendar. The good news is that the law gives you exactly that. The investigation cannot run forever; the CrPC sets a hard outer limit, after which your relative becomes entitled to bail as a matter of right.

This article walks through that timeline in plain English: the 60-day rule, the 90-day rule, when each one applies, when the clock starts, what happens at every remand date during this window, and what you must do before day 60 or 90 to keep your strongest legal card alive.

The Two Numbers Every Family Should Memorise

The whole timeline is built on one provision — Proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973. It says no Magistrate shall authorise the detention of an accused person for a total period exceeding:

90 days — where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than 10 years.
60 days — in every other case.

If the police miss this deadline, the Proviso itself releases your relative. The exact words are: "on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail." This is an automatic, near-unconditional right — the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (AIR 1994 SC 2623) called it an "indefeasible right" of the accused.

So when you ask "how long can they keep him?" the simplest honest answer is: 60 days for an ordinary case, 90 days for a serious case — and not a day more, unless the police finish the investigation and file the charge sheet within that period.

How Do You Know If Your Case Is a 60-Day or 90-Day Case?

The split depends on the maximum sentence the law allows for the offence in the FIR.

90-day cases are those where the law lets the court impose death, life imprisonment, or imprisonment for "a term of not less than ten years." Murder, rape, dacoity, dowry death, kidnapping for ransom, large narcotics quantities, terror offences — these typically fall here.

60-day cases are everything else — theft, simple hurt, criminal breach of trust, basic cheating, cheque bounce, simple housebreaking, and the long tail of mid-level offences.

The trickier question is what "ten years" means — minimum or maximum? The Supreme Court in Bhupinder Singh v. Jarnail Singh (AIR 2006 SC 2622) settled this once and for all. The case concerned dowry death under Section 304-B IPC, where the minimum sentence is seven years and the maximum is life. The Court held that what matters is the maximum sentence the court can impose. Because a Section 304-B IPC case can result in life imprisonment, the police get the full 90 days. This decision overruled an earlier view in Rajeev Chaudhury v. State of NCT of Delhi (AIR 2001 SC 2369) which had pegged the answer to the minimum sentence.

The practical takeaway: do not assume "60 days" just because the offence sounds ordinary. Ask your lawyer to look up the maximum sentence under each section in the FIR. If even one section carries life or 10+ years as the maximum, the case is a 90-day case for this purpose.

When Exactly Does the Clock Start?

This question has caused decades of litigation, and the answer is now firmly settled. The 60 or 90 days run from the date of the first remand by the Magistrate — not the date the FIR was filed, and not (in most cases) the date of arrest.

The Supreme Court in Chaganti Satyanarayan v. State of Andhra Pradesh (AIR 1986 SC 2130) reasoned that the Proviso speaks of "detention authorised by the Magistrate." The earlier period when the accused is in police custody under Section 57 (the 24-hour pre-production rule) is not detention "authorised by the Magistrate." So that pre-production period is excluded; the count starts from the remand order.

Two practical wrinkles:

If the accused is produced and remanded on the very same day he was arrested, the date of arrest and the date of first remand are the same — the clock starts that day. The Chhattisgarh High Court in Sunil Singh v. State (2007 CrLJ 516) released an accused on default bail on the 91st day where the first remand was on the day of arrest.
"Notional surrender" or "deemed custody" in another case does not start the clock. In State of West Bengal v. Dinesh Dalmia (AIR 2007 SC 1801) the Supreme Court held that where the accused was already in custody for one case in one city and the police later wanted him for a different case in another city, the 90 days started only when he was actually remanded in the second case.

For the family's calendar: write down the date the Magistrate first signed the remand order. That is Day 1. Day 60 and Day 90 follow on the calendar from that single anchor.

What Happens at Each Remand During This Window?

Between the first remand and Day 60/90, the case does not sit still. Custody must be re-authorised by the Magistrate periodically. Within the first 15 days, remands are usually granted in 2-7 day slots while the police complete their investigation steps. After day 15, the law switches to judicial custody only, and the Magistrate extends detention every 14 days.

At every one of these remand dates:

The accused must be produced. For police custody, in person every time. For judicial custody, video link is permitted in most courts — but he is still produced.
The police explain why custody is still needed. Through the case-diary (the day-to-day record of investigation), they must show the Magistrate that the investigation is alive and progressing. The Supreme Court in State of Maharashtra v. Ramesh (AIR 1998 SC 696) made clear that remand applications are filed not to satisfy the police but to satisfy the Court.
The Magistrate is not a rubber stamp. She can refuse a fresh remand if the police have stopped working on the case, or if the case-diary entries are stale. K. Palaniappa v. State of A.P. (1999 CrLJ 3616) struck down a "mechanical" extension where the accused had not been produced and the records were not before the Magistrate.
Bail can be argued at any of these dates. The 60/90 day default-bail window is one route; regular bail under Section 437 (with Magistrate) or Section 439 (with Sessions Court) is always open in parallel.
The Magistrate must inform the accused of his bail right. Once he crosses Day 60 or Day 90, the Supreme Court in Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1377) imposed a duty on the Magistrate herself to point out to the accused that he is entitled to be released on bail — even without a formal application — and to provide free legal aid under Article 39A read with Article 21.

Treat each remand date as a real opportunity, not a routine. A lawyer who turns up at every hearing creates pressure on the police to actually finish the investigation rather than ride out the clock.

Special Laws That Quietly Extend the Clock

The 60/90 day rule is the default under the CrPC. But certain special statutes give the police a longer leash. Families of accused under these laws should know about them, because the deadline you are counting may not be 90 days at all.

NDPS Act — up to 180 days (and beyond, on extension). Under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, where the offence is punishable with imprisonment of 10 years or more, the Special Court may extend the investigation period to 180 days — and even beyond, up to one year, on a report from the Public Prosecutor explaining the progress and reasons. The Karnataka High Court in Rasheed v. State of Karnataka (2007 CrLJ 2316) held that Section 36A NDPS overrides Section 167(2) CrPC because it is a special statute. The 90-day default-bail card simply does not work in serious NDPS cases the way it works in IPC cases.

POTA, UAPA and other terror laws — 90 + 90. The Supreme Court in Ateef Nasir Mulla v. State of Maharashtra (AIR 2005 SC 3293) explained that under the Prevention of Terrorism Act, the Special Judge could extend the 90-day remand by another 90 days — on the Public Prosecutor's report — bringing the total to 180 days before default bail accrues. Similar provisions exist under the Unlawful Activities (Prevention) Act.

If the FIR your relative is named in invokes any of these special statutes alongside IPC sections, do not count by the regular 60/90 calendar. Ask your criminal lawyer specifically whether the deadline has been pushed out.

The Day After — What Happens Once 60 or 90 Days Pass

One of two things has happened by Day 60 or Day 90:

Scenario 1: The police filed the charge sheet within the window. If the report under Section 173(2) is in court before the deadline, Section 167(2) stops governing the case. Custody is now governed by Section 309(2) (post-cognizance remand) and only judicial custody is possible. Your relative remains in jail, but the path out is now regular bail under Section 437 or Section 439, argued on the merits of the case — not the automatic 60/90 day card.

Scenario 2: The deadline expires and no charge sheet is filed. This is the moment families wait for. The accused is now entitled, as a matter of statutory right, to be released on bail under the Proviso to Section 167(2) — if he applies and is willing to furnish bail. As Hitendra Vishnu Thakur put it, the right is "indefeasible." Even if the police rush to file the charge sheet during the pendency of the bail application, the right is not lost — the 3-Judge Bench in Syed Mohd. Ahmad Kazmi v. State (GNCTD) (AIR 2013 SC 152) made that clear. The Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra (AIR 2001 SC 1910) added that once the application is made, even a higher forum's later order cannot defeat the right.

But here is the catch families must hear loud and clear: the right has to be claimed. If the deadline passes and no application is filed before the police register their charge sheet, the right is extinguished — Aslam v. State ((1992) 4 SCC 272) and State v. Mohammed Asrafi Bhat ((1996) 1 SCC 432). After that, you are arguing regular bail like anyone else.

What Should I Actually Do Now?

A family-side checklist for the 60/90 day window:

Get the FIR copy and read every section number. Look up the maximum sentence for each. If even one section permits life or 10+ years, treat the case as a 90-day case until your lawyer says otherwise.
Mark the calendar. Day 0 = first remand by the Magistrate. Day 60 (ordinary cases) and Day 90 (serious cases) follow from that. Write it down. Repeat it to your lawyer.
Engage a criminal lawyer immediately. The default-bail window opens for one day — if your lawyer is not ready with the application on Day 60 or Day 90, the chance can slip.
Ask your lawyer to attend every remand date. Each hearing is a chance to push the police, raise arrest-procedure violations, and start building the bail file.
Track investigation progress through the case-diary. Your lawyer can request to see (selected portions of) the case-diary at remand hearings. If the police have stopped working on the case, that itself becomes a bail argument.
Check whether any special statute applies. NDPS, UAPA, MCOCA, PMLA — each has its own clock. Do not assume the 90-day card if these are in play.
File the bail application before the chargesheet, not after. The default-bail right is most powerful when the chargesheet is not yet filed. Ideally, instruct your lawyer to lodge the application on the morning of Day 61 or Day 91.
Have bail and surety arrangements pre-prepared. The right releases you "on furnishing bail." If the bail bond and surety paperwork are not ready, you may sit in jail an extra week even after the right has accrued.
Do not believe shortcuts. No constable or middleman has the power to release a person remanded by a Magistrate. Anyone asking for money is committing a crime.
Use legal aid if you cannot afford a private lawyer. Under Article 39A read with Article 21, the State must provide a lawyer at its own cost, especially when the 60/90 day deadline approaches — a duty Hussainara Khatoon reinforced four decades ago.

If your relative is approaching Day 60 or Day 90 in custody and you are unsure whether your case is a 60-day or 90-day case, or whether a special statute has shifted the deadline, our team at Pinaka Legal works on exactly this kind of count-the-days bail file. The first conversation is free, and we will tell you honestly where you stand.

Once the Charge Sheet Is Filed — A Different Set of Rules

The 60/90 day clock under Section 167(2) is a pre-charge-sheet rule. Once the police file the report and the Magistrate takes cognizance, the case enters a new phase. From this point onward:

Custody is governed by Section 309(2), not Section 167. The Magistrate (or the Sessions Court, depending on which court is now hearing the case) can extend judicial custody as required by the trial calendar.
Police custody after cognizance is generally not allowed — the Supreme Court in Gauri Shankar v. State of Bihar (AIR 1972 SC 711) made this the basic rule. The narrow exception in State v. Dawood Ibrahim Kaskar (AIR 1997 SC 2494) only kicks in when "further investigation" under Section 173(8) is going on with the Court's permission.
The route out is regular bail — under Section 437 (Magistrate's bail in non-bailable offences) or Section 439 (Sessions / High Court bail). The merits of the case, the gravity of the offence, the risk of absconding, the risk of tampering with witnesses — all of these now matter.
A separate ceiling, Section 436A CrPC, kicks in for undertrials who have already spent half the maximum sentence in jail before trial — but that is a different conversation, for a different stage of the same long road.

Knowing which side of the chargesheet you are on changes the entire bail strategy. The 60/90 day rule is the family's strongest card — but it is also the most time-sensitive. Mark the date; instruct your lawyer; do not let it pass unclaimed.

Written by the Pinaka Legal Editorial Team. For queries, call +91 8595704798 or email info@pinakalegal.com.

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For Cases Filed On or After 1 July 2024 — BNSS Cross-Reference

The Code of Criminal Procedure, 1973 (CrPC) was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for all FIRs registered on or after 1 July 2024. This article uses CrPC numbering throughout, because (a) older cases continue to run under the CrPC and (b) the substantive rules have largely been carried over. The table below shows the BNSS equivalent of every CrPC section discussed in this article and flags any substantive change you should know about.

CrPC (1973)	Subject	BNSS (2023)	What Changed
Sec 57	Person arrested not to be detained more than twenty-four hours	Sec 58	No substantive change.
Sec 167	Procedure when investigation cannot be completed in twenty-four hours	Sec 187	A new insertion into Subsection (2) of Section 187 of BNSS provides that the Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration the status of the accused person as to whether he is not released on bail or his bail has not been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3).
Sec 173	Report of police officer on completion of investigation	Sec 193	Section 193(2) extends this requirement to complete the investigation within two months, offences under the Provisions of Protection of Children from Sexual Offences Act also [Sections 4, 6, 8, 10, and 12 of POCSO Act, 2012] in addition to offences of rape and gang rape. Section 193(3)(i) of the BNSS provides that reports to Magistrate can also be forwarded through electronic communication. The newly inserted clause (i) of sub-section 193(3)(i) of BNSS provides that the report shall also contain 'the sequence of custody in the case of electronic devices'. Clause 193(3)(ii) of BNSS provides that the police officer shall, within 90 days, inform the progress of investigation by any means including electronic communication to informant or the victim. Subsection (8) is newly inserted, which mandates the police officer investigating the case to submit such number of copies of police report for supply to the accused. Proviso to the same authorises electronic communication for this purpose. The new proviso to subsection (6) provides for further investigation during the trial with the permission of the Court.
Sec 309	Power to postpone or adjourn proceedings	Sec 346	The BNS sections replace the corresponding IPC sections. The word "Magistrate" is replaced by "Court". A new clause (b) is added to the last proviso of subsection (2), which states, "Where the circumstances are beyond the control of a party, not more than two adjournments may be granted by the Court after hearing the objections of the other party and for the reasons to be recorded in writing". The word "pleader" is replaced by "advocate".
Sec 436A	Maximum period for which an undertrial prisoner can be detained	Sec 479	"or life imprisonment is added." One new proviso is added to subsection (1), which states about the bail of first-time offenders. Two new subsections (2) and (3) are added, which are about bail for individuals having multiple pending investigations, inquiries or trials for more than one offence, and applications by the superintendent of jail where the accused person is detained, respectively. "bail" is added in place of "his personal bond with or without sureties," "also" is used in place of "further".
Sec 437	When bail may be taken in case of non-bailable offence	Sec 480	In first proviso "is under the age of 16 years" is replaced by "child". In third proviso, "or for police custody beyond the first fifteen days" added. The words "without sureties" are excluded.

Source: BNSS-CrPC Correspondence Table compiled by Anil Kishore Yadav, IPS, Director, CAPT Bhopal — covering BNSS 2023 and CrPC 1973 section-by-section.

Frequently Asked Questions

How long can a magistrate keep someone in jail without filing the case?

Sixty days for ordinary offences, ninety days for serious ones — that is the hard outer limit under Proviso (a) to Section 167(2) of the CrPC. If the police do not file the charge sheet within this period, the accused becomes entitled to be released on bail as a matter of right. The Supreme Court in Hitendra Vishnu Thakur called this right 'indefeasible.' But the right has to be claimed by filing a bail application before the police rush to file the report; if no application is made, the right is lost.

Which cases get 60 days and which get 90 days?

If the offence is punishable with death, life imprisonment, or imprisonment for at least 10 years, the police get 90 days. Everything else is a 60-day case. The trick is to check the maximum sentence under each section in the FIR — not the minimum. The Supreme Court settled this in Bhupinder Singh v. Jarnail Singh, where Section 304-B IPC (dowry death, max sentence life) was held to attract the 90-day window even though its minimum is 7 years.

From which date does the 60 or 90 days start counting?

From the date of the first remand by the Magistrate, not the date of arrest and not the date of FIR. The Supreme Court in Chaganti Satyanarayan v. State of A.P. held that the Proviso talks about detention 'authorised by the Magistrate' — so the pre-production period under Section 57 is excluded. If the accused is produced and remanded on the same day he was arrested, that day is Day 1; otherwise, the count begins from the day the Magistrate signs the first remand order.

Can the Magistrate extend the 90 days if the police are still investigating?

Under the plain CrPC, no. Once 90 days expire (or 60, in ordinary cases), the Magistrate has no power to extend custody under Section 167(2) — the accused is entitled to default bail on application. However, special statutes can override this: under Section 36A NDPS Act the period can stretch to 180 days and beyond, and under POTA/UAPA the Court can extend by another 90 days on a Public Prosecutor's report. So always check whether the FIR includes any of these special laws.

My relative crossed 90 days yesterday. Can the police now file the charge sheet to defeat his bail right?

Not if your lawyer files the bail application before the charge sheet reaches the court. The Supreme Court in Syed Mohd. Ahmad Kazmi v. State (GNCTD) (AIR 2013 SC 152), a 3-Judge Bench, held that filing the charge sheet during the pendency of the default-bail application does not defeat the right. Uday Mohanlal Acharya v. State of Maharashtra went further — once the accused has applied, his right cannot be extinguished by a subsequent order or filing. Speed matters: file the application immediately on Day 61 or Day 91.

What if the police file the charge sheet on Day 89 or Day 59?

Then the default-bail window closes. Section 167(2) stops governing the case once the report is filed; custody is now under Section 309(2). Your lawyer must shift to regular bail under Section 437 (Magistrate) or Section 439 (Sessions / High Court). The merits of the case — gravity of offence, risk of absconding, possibility of tampering — now decide bail, not the calendar.

Can the accused be kept in jail beyond 90 days if he refuses to furnish bail?

Yes. Even after the right to default bail accrues, Explanation 1 to Section 167(2) says detention continues so long as bail is not actually furnished. The Supreme Court in State of U.P. v. Lakshmi (AIR 1983 SC 439) confirmed this. So the right is 'right to be released on furnishing bail' — not 'automatic walk out.' Make sure the surety paperwork and bail bond are ready in advance, otherwise valuable days are lost.

What happens at each remand hearing during the 60/90 day window?

The accused is produced before the Magistrate, who reviews the case-diary and decides whether to extend custody. Within the first 15 days, the Magistrate can order police custody or judicial custody for up to 15 days in total. After day 15, only judicial custody is possible, extended every 14 days. At every hearing, your lawyer can argue regular bail, raise procedural violations, and check the progress of investigation. State of Maharashtra v. Ramesh stressed that remand orders are not rubber stamps.

Is the family told when the Magistrate is about to grant default bail?

Yes — under Hussainara Khatoon v. State of Bihar the Magistrate herself has a duty to inform the accused that he is entitled to bail once the 60 or 90 day window expires, and to arrange free legal aid under Article 39A read with Article 21. In practice, this duty is patchily enforced; many undertrials cross the deadline without anyone telling them. Hence the importance of having a lawyer who is tracking the dates.

Does temporary bail or interim release pause the 60/90 day clock?

Yes. The Madhya Pradesh High Court in Devendu v. State (1992 CrLJ 1730) held that any period of temporary bail granted to the accused during the 60/90 day window is excluded from the count. So if the accused was released for two weeks for a medical emergency and then re-taken into custody, those two weeks are added to the deadline.

If the same FIR is registered at two different police stations, when does the clock start?

From the date of the first remand in the FIR you are claiming default bail under. The Supreme Court in Sukhjinder Singh v. State NCT of Delhi ((2001) 8 SCC 630) considered a case where the same set of facts led to FIRs in Karnal and Delhi. Statutory bail granted on Day 91 in Karnal could not save the accused once a charge sheet was filed in the Delhi FIR; he had to seek regular bail in the Delhi case. Each FIR runs its own clock.

Can the accused who got default bail be re-arrested when the chargesheet is finally filed?

Not automatically. Once granted under Proviso (a) to Section 167(2), the bail does not vapourise just because the chargesheet arrives later. The Supreme Court in Aslam v. State ((1992) 4 SCC 272) held that bail granted under Section 167(2)(a) cannot be cancelled merely on the filing of the report. To send him back to custody, the prosecution must apply for cancellation under Section 437(5) or Section 439(2) and show real grounds — like tampering with evidence, threatening witnesses, or jumping bail.

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