The article 'Judicial custody and Police Custody: Recent Trends' will talk in detail about the meaning of custody and its implications in the context of police and judicial custody.

The article 'Judicial Custody and Police Custody- Recent Trends' by Snehil Sharma analyzes in detail the meaning of custody and its implications in the context of police and judicial custody. The article will delve into the relevant aspects related to both judicial as well as police custody in order to study laws available in India which are applicable to them.IntroductionThe Latin term "custodia," which means "keeping a watch or guard," is the root of the English word "custody," which...

The article 'Judicial Custody and Police Custody- Recent Trends' by Snehil Sharma analyzes in detail the meaning of custody and its implications in the context of police and judicial custody. The article will delve into the relevant aspects related to both judicial as well as police custody in order to study laws available in India which are applicable to them.


The Latin term "custodia," which means "keeping a watch or guard," is the root of the English word "custody," which refers to the act of apprehending someone for a cause, such as to restrain them from committing a crime or for their own protection. Sometimes, the terms "arrest" and "custody" are used interchangeably. However, there is a distinction between the two. A person is taken into custody if they are under guard or are being held in jail while they are being investigated for a crime. When someone is arrested, they are held in custody. So, we may claim that every arrest also involves custody but not the other way around. Judicial custody and police custody are the two types of custody.

Police Custody

When a report, complaint, or another piece of information is received by the police in order to stop the suspect from continuing the offensive conduct, the said police officer who has been informed of the crime makes the arrest and takes the suspect to the police station. In reality, the police are holding the suspect in their custody in jail within the police station. The police officer in charge of the case may question the suspect during this detention, which cannot last more than 24 hours. So it can be said that when someone is in the physical custody of the police, they are said to be the accused, whereas an accused is in the custody of the relevant Magistrate when they are in judicial custody. In the former, the accused is kept in a police station holding a cell; in the latter, a jail. When a person is taken into custody by the police, the Cr.P.C. takes effect, and they must be brought before a magistrate within 24 hours of the arrest.

In the case of State (Delhi Administration) v. Dharam Pal And Others, 1980 CriLJ 1394, it was decided that under Section 167 of the Criminal Procedure Code, 1973, a person must be placed in police custody within 15 days following his or her appearance before the magistrate. However, if the suspect is in judicial custody, he may be imprisoned for 15 days or even longer.

In the case of Mithabhai Pashabhai Patel v. State of Gujarat, Criminal Appeal No. 941 of 2009, it was decided that unless the accused's bail is revoked, he cannot be brought into police custody.

What is the meaning of Judicial Custody?

An accused person is in the custody of the relevant Magistrate when they are in judicial custody. After the public prosecutor convinces the court that keeping the defendant in custody is required for additional investigation, the defendant is kept in judicial custody. A person who is accused is said to be under judicial custody when a magistrate is involved. One has probably heard that the accused was given a 14-day legal guardianship by the court. Judicial Custody suggests that the person will be held in custody as determined by the Magistrate. The suspect becomes the court's responsibility while in custody. The magistrate thus has authority over the custody. The magistrate orders that the person has to be held in judicial custody until bail is granted.

What happens after Judicial Custody?

90 days is the maximum period of judicial custody. The court usually grants bail to the accused if the charge sheet is not submitted within that time frame. To prevent the trial from being impacted, the accused in terrible crimes like rapes and murders is kept in judicial custody even after the charge sheet is filed.

The Hon'ble Apex Court ruled in Suresh Kumar Bhikamchand Jain v. State of Maharashtra, Special Leave Petition (Crl.) No.147 OF 2013, that after a charge sheet is filed within the required time frame, the issue of providing bail does not come up because the filing of a charge sheet conforms to Section 167(2) CrPC in a suitable manner.

The accused would continue to be in the custody of the relevant Judicial Magistrate till Section 309(2) of the CrPC is invoked, it was further decided.

Similarly, in Delhi District Court ruled in Deepak v. State (Govt of NCT of Delhi), (CRL.M.A.15470/2022) that the inquiry is over after the charge sheet has been filed. If that, the accused can only be further remanded to detention after the claimed crime has been recognized.

What is the difference between Police Custody and Judicial Custody in the Criminal Procedure Code? How long can an accused be detained under police or Judicial Custody?

On the basis of the following factors, some of the differences between police custody and judicial custody are:

1. Authorised Official

The accused is physically in the custody of the relevant police or investigating agency while they are in police custody. The accused is under the control of the relevant Judicial Magistrate, in cases of judicial custody.

2. Detention Place

While the accused is in police custody, he or she is housed in the station's lock-up. The accused is housed in a state or central prison while under judicial custody.

3. Duration of Detention

The police can hold a person for a maximum of 15 days. Depending on the maximum sentence imposed for the offence, judicial detention may last up to a total of 60 or 90 days.

4. Interrogation

While in police custody, the accused may be questioned by the police or the investigative team. Without the court's approval, the accused cannot be questioned while being held in judicial custody.

Laws of Criminal Custody in India

It is important to understand that there are separate laws that govern the whole process of judicial and police custody. The law which governs custody thereby explains the whole procedure of taking an accused in custody and also how and when to release him. The same differs for police and judicial custody, as we have read above, due to the distinguishing features of both types of custody.

The Criminal Procedure Code's Sections 167 and 57 together provide a concise overview of the custody procedures. Clearly states the different sorts of custody as well as the maximum amount of time someone can be detained in custody. As per Section 57 of CrPC, no arrested person can be detained for a period exceeding 24 hours if he or she has been arrested without a warrant. However, this has to be read in consonance with Section 167 of CrPC.

Let us try to decode Section 167 of CrPC, which has an elaborate understanding. So as per Section 167 (1), if the police feel that the person who has been detained needs to be kept in custody for a period longer than 24 hours, then they can ask the judicial magistrate for an extension of this period of custody. Now, if the judicial magistrate has the power to deal with the type of case forwarded, then he or she can order an extension if they deem fit but the maximum time period for this is 15 days. If the magistrate does not have jurisdiction, then he or she will forward the same to the higher rank magistrate, who would have the relevant jurisdiction. This being the main essence of the section, there are also several powers provided to the magistrate under this section, and there are also limitations for the same.

However, it is important to note that there is also an exception to Section 167 of the CrPC. The exception to Section 167 of the CrPC is found in Section 43-D (2)(b) of the Unlawful Activities (Prevention) Act, 1967. If specific requirements are met, an accused person may be detained for 180 days in accordance with the UAPA (Unlawful Activities Prevention Act) of 1967.

Difference between Sections 167 & 309 of Cr.P.C.

The Code's Section 167 discusses a person's custody throughout the investigative phase, which can either be judicial custody or police custody. If a person is arrested at a later time while the investigation is ongoing, this Section does not apply to them. However, when the court takes cognizance of the situation, Section 309 applies to custody, and only judicial custody may be involved.

Police may only conduct investigations while a person is being held in custody with the judicial magistrate's approval. Only with the court's permission can someone who is being held in custody be questioned. Section 309(2) is applied if the court takes cognizance of the case; otherwise, Section 167 is applied during the investigative stage. In the case of State through CBI v. Dawood Ibrahim Kaskar and Others, Crl Appeal No. 157-159 of 1997, the same was reinstated by the court.

Whether Police Custody Remand after the First 15 days permissible?

In accordance with the proviso to Section 167, an accused person may be held in judicial custody for a further fifteen days if the magistrate determines that there are good grounds to do so. However, where the crime carries a death sentence, a life sentence, or a sentence of at least ten years in prison, the detention time is only 90 days, and it is only 60 days when the crime under investigation is another one. The proviso additionally stipulates that when the aforementioned period of 90 days or 60 days has passed, the accused has the ability to have their bail increased.

In Delhi High Court's case, Sanjeev Kumar Chawla v. State, (Crl. M.C. No. 1468/2020), the bench presided by Justice Indu Malhotra stated that:

"The accused may be held in such custody, such as judicial or police custody, from time to time with the approval of the judicial magistrate, but the total amount of time held cannot exceed fifteen days. More than one order can change the type of custody within this fifteen-day window, either from police to judiciary or vice versa. After the initial fifteen-day holding period, the defendant may only be kept in judicial custody for the remainder of the inquiry period. Even if he commits more offences, whether minor or major, in the same transaction, there cannot be any incarceration in police custody after the first fifteen days have passed."

In another case Kantibhai Devsibhai Patel v. State of Gujarat, [Special Criminal Application (Direction) No. 3898 of 2014], it was considered that:

The Apex Court has made it plain that the plea for police custody cannot be maintained after fifteen days have passed since the accused's arrest and initial remand. The Magistrate may remand the accused to judicial custody or grant police custody for a short period of time as provided by Section 167 of the Code, but once the initial fifteen-day period of remand has passed, in accordance with Apex Court decisions, the Magistrate is not authorized to pass an order granting police custody.


The distinction between judicial custody and police custody is, therefore, obvious. In police custody, the person is kept in a police station's cell for a maximum of 15 days. Then, if the magistrate thinks fit, he can extend the time period of custody and decide whether the person be remanded in judicial custody or police custody. In judicial custody, the person is kept in jail as per the orders of the magistrate, and the investigation is done with his prior permission.


[1] Judicial custody and Police custody- Recent Trends, Available Here

[2] Sanchit Meena, Difference between Judicial Custody and Police Custody, Available Here

[3] Riya Rathi, HC expounds there cannot be any Detention in Police Custody after expiry of first 15 days u/s.167(2) of CrPC, Available Here

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination

Updated On 8 Jan 2023 2:48 PM GMT
Snehil Sharma

Snehil Sharma

Snehil Sharma is an advocate with an LL.M specializing in Business Law. He is a legal research aficionado and is actively indulged in legal content creation. His forte is researching on contemporary legal issues.

Next Story