Magisterial Authorisation of Detention

A magistrate acts as an independent judicial check when the police seek to keep an arrested person in custody beyond twenty-four hours. Under Article 22(2), continued detention beyond that period, excluding the time necessary for the journey to the magistrate’s court, requires a magistrate’s authority.

The constitutional requirement

The Constitution places a time limit on detention solely under police authority and requires judicial intervention for its continuation.

• Under Article 22(2), every person arrested and detained in custody must be produced before the nearest magistrate within twenty-four hours of arrest.
• The time necessary for the journey from the place of arrest to the magistrate’s court is excluded when calculating this period.
• Detention beyond the permitted period requires the authority of a magistrate; an investigating officer cannot independently extend custody.
• The twenty-four-hour limit is an outer constitutional limit for production, not an automatic entitlement to keep every arrested person in custody for that entire period.

Judicial scrutiny before authorising detention

The magistrate’s function is judicial, not merely administrative. An order authorising continued custody, commonly called remand, must reflect application of judicial mind, rather than routine acceptance of a police request.

• The magistrate must examine whether the arrest and the proposed continued detention comply with the Constitution and the applicable law.
• The magistrate must consider the grounds and material offered to justify further custody; production before the court alone does not establish that detention is justified.
• The safeguards under Article 22(1), including communication of the grounds of arrest and the right to consult and be defended by a legal practitioner of choice, remain relevant to this scrutiny.
• Where further detention is not legally justified, the magistrate must decline to authorise it.

Protection of liberty and scope

This requirement gives practical effect to Article 21, which permits deprivation of personal liberty only according to procedure established by law. Judicial authorisation is a safeguard against arbitrary custody, not a finding that the arrested person is guilty.

• Under Article 22(3), the protections in Article 22(1) and Article 22(2) do not apply to enemy aliens or persons arrested or detained under preventive-detention laws.
• Preventive detention is governed by a separate constitutional framework and should not be confused with remand following an ordinary criminal arrest.