Police Custody and Judicial Custody

Police custody means that an arrested person remains in the investigating agency's direct physical control, principally for lawful interrogation and investigation. Judicial custody means detention under a magistrate's authority, ordinarily in prison, where the police do not have direct control over the accused. Both are forms of pre-trial detention, not punishment or proof of guilt.

Constitutional and statutory basis

Under Article 22(2), an arrested person must be produced before the nearest magistrate within 24 hours, excluding journey time, and cannot be detained longer without judicial authority. Remand during investigation is governed by Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

• Under Article 22(1), the arrested person must be informed of the grounds of arrest and allowed to consult and be defended by a legal practitioner.

How the two forms of custody differ

• In police custody, the accused may be kept under police control for investigation, but only pursuant to a magistrate's remand order after the initial 24-hour period.
• Police custody cannot exceed 15 days in total, whether granted continuously or in parts.
• Under the BNSS, these 15 days may be authorised within the initial 40 days or 60 days of the overall 60-day or 90-day detention period, respectively.
• In judicial custody, the accused is ordinarily lodged in prison under the magistrate's authority; police interrogation or access requires lawful permission rather than direct police control.
• The magistrate must apply judicial discretion while selecting the form and duration of custody; police custody is not available merely because the investigating agency requests it.

Duration, bail and safeguards

Judicial custody may continue through successive remand orders, subject to the statutory investigation period. If the charge-sheet is not filed within 90 days for offences punishable with death, life imprisonment or imprisonment of ten years or more, or within 60 days for other offences, the accused becomes entitled to default bail if prepared to furnish bail.

• Regular bail may be sought during either police or judicial custody.
• The protection against compelled self-incrimination under Article 20(3) continues during custody.