When someone is arrested in India, one of the first legal questions that arises is: Will the person be kept in police remand or judicial custody? While both involve detention, the two are not the same, and the difference can significantly impact the rights of the accused.
In this article, we break down these two forms of custody under Indian criminal law, explain their legal provisions, duration limits, and discuss landmark judgments that every citizen should be aware of.
Arrested These Are the Legal Rules You Should Know First?
The Code of Criminal Procedure, 1973 (CrPC)/Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) lays out exactly what happens after arrest. Two key rules you must understand:
- Section 167 CrPC/Section 187 BNSS: If police can’t finish investigation in 24 hours, they must take the accused to a Magistrate and ask for custody, either with police or jail.
- Article 22(2) of Indian Constitution: No one may be held without first appearing before a magistrate within twenty-four hours.
Need A Legal Advice
The internet is not a lawyer and neither are you. Talk to a real lawyer about your legal issue
What Is Police Remand, and Why Does It Scare People?
Real Insight:
“When my cousin was arrested in a property fraud case, we didn’t know the police had 15 days to keep him for questioning. That’s when I learned what police remand really meant.” – A Delhi-based lawyer
Meaning:
Police remand is when the accused is kept in the police’s custody, for investigation and questioning.
Why Police Ask for Remand:
- To interrogate the accused
- Recover stolen property or documents
- Identify co-accused or weapons
- Reconstruct the crime scene
Time Limit:
Maximum 15 days from the first arrest (Section 167 CrPC/ Section 187 BNSS)
Who Approves It?
Only a Magistrate, not the police themselves.
What Are Your Rights?
- Right to a lawyer from day one
- Medical exam every 48 hours
- No torture, any such act is illegal
- Family must be informed of arrest
What Is Judicial Custody? It’s Not the Same as Police Lock-Up
From a Criminal Law Advocate:
“People confuse jail with punishment. But judicial custody doesn’t mean you’re guilty, it just means the court is ensuring the process is fair.”
Meaning:
Judicial custody is when the accused is sent to jail, not kept with police.
Why This Happens:
- To prevent the accused from tampering with evidence
- To stop any police abuse
- To ensure they appear in court
How Long Can It Last?
- 90 days for serious offences (like murder or rape)
- 60 days for other crimes
After this, you get default bail if charge sheet isn’t filed.
Who Controls This Custody?
You’re in jail, under court and state government supervision.
Differences Between Police and Judicial Custody
Held By
- Police Remand: Police
- Judicial Custody: Jail authority (under court orders)
Location
- Police Remand: Police station lock-up
- Judicial Custody: Sub-jail or district jail
Purpose
- Police Remand: For investigation and custodial interrogation
- Judicial Custody: To ensure a fair trial and prevent tampering of evidence
Maximum Period
- Police Remand: Up to 15 days from the first date of arrest
- Judicial Custody: Up to 60 days (for offences with less than 10 years’ punishment) or 90 days (for serious offences like those punishable with death or life imprisonment)
Who Approves
- Police Remand: Magistrate, based on written request and case diary submitted by police
- Judicial Custody: Magistrate, usually in place of or following police detention
Rights of the Accused
Police Remand:
- Right to consult a lawyer during interrogation
- Protection against torture
- Regular medical examination (every 48 hours)
Judicial Custody:
- Right to apply for bail
- Access to legal aid
- Safe custody under court supervision
Risk of Torture
- Police Remand: Higher (due to proximity and control by investigating officers)
- Judicial Custody: Lower (since the accused is being watched over by the courts and jail officials)
Real Case Laws That Changed the Game
Here are five cases every citizen and lawyer should know:
CBI v. Anupam J. Kulkarni (1992)
Police custody can’t go beyond 15 days, even if you’re presented again.
D.K. Basu v. State of West Bengal (1997)
- Guidelines issued to prevent custodial torture and death.
- Medical check-ups and lawyer access made compulsory.
Joginder Kumar v. State of UP (1994)
Police can’t just detain you for hours without showing legal cause.
Khatri v. State of Bihar (1981)
It is a violation of your rights to be denied legal aid.
Dharampal Case (1982)
Clarified judicial custody is for safety, not punishment.
The Magistrate Isn’t Just a Rubber Stamp
First-Hand Experience:
“I saw a Magistrate deny police remand because there was no real evidence shown. That moment protected my client from further harassment.” -A criminal defense lawyer from Lucknow
What the Magistrate Must Do:
- Review the police file
- Listen to the accused’s side (if raised)
- Check if remand is truly needed
- Record reasons for granting or denying custody
Courts Warn: Don’t Let Police Remand Become Routine
The Supreme Court and High Courts have cautioned against:
- Mechanical remand orders
- Granting custody without proper scrutiny
- Use of force or torture during police remand
If custody is granted, it must be necessary, proportionate, and legally justified.
Default Bail: The Accused’s Hidden Weapon
If charge sheet isn’t filed:
- In 90 days for serious crimes
- In 60 days for others, the accused can claim default bail.
Landmark Ruling:
Rakesh Kumar Paul v. State of Assam (2017): Default bail is a statutory right under Article 21, not a favour.
Why Understanding This Can Save Someone’s Life
Knowing whether someone is in police remand or judicial custody helps families and lawyers act quickly:
- File for bail or seek transfer to judicial custody
- Prevent illegal detention or torture
- Preserve the accused’s bodily and mental health
Final Thoughts: Rights Don’t Stop at the Police Station
Police remand is for investigation. Judicial custody is for safeguarding the process. But in both cases, your rights remain intact, you’re innocent until proven guilty.
If someone close to you is arrested:
- Speak to a lawyer immediately
- Insist on medical exams and legal access
- Don’t assume custody equals guilt
In a just society, knowing your rights is the first line of defense.
One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.
FAQs
1. What is the role of a lawyer during police remand hearings?
A lawyer can challenge the need for police remand, ensure the accused is not coerced, and request judicial custody instead. Legal counsel is crucial to prevent abuse and protect fundamental rights.
2. Is police remand allowed for bailable offences?
Technically yes, but it is rare. Courts usually avoid granting police remand in bailable offences unless investigation demands it. The necessity must be strongly justified.
3. Can the family meet the accused during police remand or judicial custody?
In judicial custody, yes, subject to jail rules. In police remand, it’s discretionary and limited. However, access to a lawyer is a fundamental right even during police remand.
Talk to a Lawyer