Concept of judicial Custody and its necessity: emphasising attitude of the court

Nov 19, 2020


It is often the case when the police arrest a person in suspicion of a crime they are unable to complete the investigation in 24 hours. At this juncture when they require the accused or suspect to be kept away from society at large for the protection of society, of the accused or to ensure his availability for investigation, they may produce him before a magistrate, who may allow for the suspect to be held in the custody of the police or the judiciary.

The provisions for holding a person in custody to further investigation, in India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows that a person may be held in the custody of the police for 15 days on the orders of a magistrate. A judicial magistrate may remand a person to any form of custody extending up to 15 days, and an executive magistrate may order for a period of custody extending up to 7 days. A person may be held in the custody of the police or judicial custody. Police custody may extend only up to 15 days from the date custody begins. Still, judicial custody may extend to a period of 90 days for a crime which entails a punishment of death, life imprisonment or period of imprisonment exceeding ten years and 60 days for all other crimes if the Magistrate is convinced that sufficient reasons exist, following which the accused or suspect must be released on bail.

The Magistrate has the authority to remand the person into judicial or police custody. The detaining authority may be changed during the pendency of the detention, provided that the total period does not extend 15 days. If a person is transferred from police to judicial custody, the number of days served in police custody is deducted from the total time remanded to judicial custody.



The rights of the accused begin from the time of his arrest. The Constitution of India under Article 22 provides for the protection of the arrested person to the extent that he has a right to be informed of the reason for arrest and he must be produced before the nearest Magistrate within 24 hours. Article 22 (1) also provides that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5) of the Constitution of India, enacts, that the persons arrested should be informed of the ground of arrest, and of the right to bail.

After the legal arrest of a person, his rights are protected through the period for which he may be held in custody. For the custody to be legal, a person may not be held in custody for more than 15 days. A magistrate must be convinced that there are exceptional circumstances present to extend this custody for a maximum of 60-90 days depending on the nature of the crime being investigated.

A careful reading of S.167 (1) of the Code of the criminal procedure makes it clear that the officer in charge of the police station or the investigating officer (if he is not below the rank of sub-inspector) can ask for remand only when there are grounds to believe that the accusation or information is well-founded. It appears that the investigation cannot be completed within twenty-four hours as specified under Section 57. Hence, Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his power of remand.

The words “such custody” and “for a term not exceeding fifteen days in the whole” are very significant. On a combined reading of S.167(2) and (2A), it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody} or judicial custody under S.167(2) for the rest of the first fifteen days after deducting the period of detention order by the Executive Magistrate. The detention after that could only be in judicial custody.

There are also specific rights during arrest and custody, governing the right of medically unfit prisoners. These are that women accused of any offence if arrested so soon after childbirth that they cannot at once be taken before the Magistrate without personal suffering and risk to health should not ordinarily be removed until they are in a proper condition to travel.

The other right that is accorded to the accused is a derivative of the principles of natural justice which would dictate that the police proceed as swiftly as possible with the investigation to cause minimum suffering to all parties concerned. In the case of Elumalai v. State of Tamil Nadu the court has held that “For a speedy trial, the prosecution agencies also must take a prompt step in completing their investigations and filing their final reports as contemplated under the Code as expeditiously as possible.


If the arrest is invalid on account of breach of procedure or violation of any other right or if the custody is not passed within the framework of the law by a competent magistrate who has jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article 32 or 226 of the Constitution of India. However, it must be noted that a writ does not lie against legal custody, no matter what rights may have been violated before the lawful custody.

In Kami Sanyal v Dist. Magistrate, Darjeeling the Supreme Court observed that “while a person is committed to jail custody by a competent Court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”.

It has been held that the important date when the legality of the remand is to be looked into is the date when the petition comes up for hearing, in Kana v. State of Rajasthan the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench decision of the Patna High Court, in Babunandan Mallah v. State held that “if the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered.”


Like in the case of all law enforcement in India, the right of the underprivileged always becomes harder to protect. The provisions of Section 167(b) CrPC extend to allowing the person bail if there isn’t sufficient cause to hold him in custody. The section, however, also explicitly states that if the accused is unable to furnish bail, then he continues to remain in custody. It was observed in Laxmi Narain Gupta v. State that “Along with the present petition at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts concerned, for admitting them to bail. They are in judicial custody because they have not been able to arrange a surety while the orders for their judicial remands are being passed routinely.” This drawback also persists when the accused is unaware of his rights.

It becomes clear that while the law provides for safeguards against abuse, it needs to be amended to remove all obscurities and contradictions. The magistrates must also see to the background of the victims before passing orders. Section 167 must also be expanded so that remedies must be available for past illegal detentions or arrest even if in the present case custody is legal. Lastly, the executive must also play a role by ensuring that more and more people are aware of their right.