Police Illegal Custody and Remedies

Jan2,2021 #Illegal Custody #Police

Adv Surya Shahi

The Plain and simple meaning of the word ‘custody’ is apprehending someone for protective care. When a person is kept in surveillance or his movement is restricted then that person is in custody. ‘Custody’ is not synonymous with ‘arrest’.

The “Arrest” of a person means that an act of cognizance of a person by the legal authority so as to take him into custody by causing deprivation of liberty.[1] Therefore, it means that every arrest is custody but every custody is not an arrest.[2]

Custody under criminal law is the second stage of the arrest. Many times it has happened that when a person has been arrested for doing any illegal act or for the suspicion of doing something wrong and the police were not able to complete their examination within the 24 hours’ time and present the individual before the officer.

At this point, it becomes very critical to prevent that arrested individual from the general public, for the security of both the general public and the individual himself. It also necessary for further investigation, that the individual is available and does not evade the law. In such cases, the individual is kept under either the police custody or judicial custody.

The authority to remand the person into police custody or judicial custody is with the magistrate. The authority which is detaining the person may change during the course of detention, provided that the person is not detained more than the total time period of 15 days.


When a police officer while following to the receipt of an information or complaint or report about a crime, arrest the suspect that is involved in the reported crime, in order to prevent him from committing any further offensive acts, when such police officer brings that suspected person to the police station then it is called Police Custody.

In simple terms it means that police having the physical custody of the accused and the accused is lodged in police station lockup. Section 167 of the Criminal Procedure Code, governs the holding a person in custody for further investigation and inquiry. [3]

The police officer who is in charge has to produce the suspect before the appropriate judge within 24 hours, these 24 hours do not include the time of the journey from the police station to the court[4]. The section 167 also provides that an individual is kept under police custody to the extent of 15 days at the order of the magistrate and the executive magistrate grants policy custody only up to 7 seven days and when the custody is required even beyond these 7 or 15 days then it has to be judicial custody.[5]


It means that the accused is in the custody of the magistrate concerned. In Judicial Custody the accused is lodged in jail. Period of judicial custody can extend up to 90 days if the person is arrested for a crime that is punishable by an imprisonment of 10 years or more, life imprisonment, or capital sentence.

Other than this case the judicial custody extends up to only 60 days. Once this period of 60 or 90 days gets over then such person is entitled to bail, till the time charge sheet is not filed by the police and once the police file the charge sheet then the person cannot claim bail as the matter of right.

When the person is transferred from police custody to judicial custody the number of days which has been served by the person in the police custody is deducted from the total time remanded to judicial custody.


In order for custody to be legal, a person cannot be held in custody for more than 15 days’ time. In order to extend the custody for the maximum of 60 to 90 days, the magistrate must be convinced that there are exceptional circumstances present to extend this custody and this extend custody also depends on the nature of the crime that is being investigated.

When section 167(1) of Code of Criminal Procedure is read carefully then it makes it clear that the officer who is in charge of the police station or the officer who is investigating, can ask for remand only when there are sufficient grounds to believe that the accusation or the information is well-founded and it is impossible to complete an investigation within the 24 hours’ time span as mentioned under Section 57 of the code.

This means that the power of the magistrate to grant remand is not mechanical and if the magistrate wants to exercise its power of granting remand then it must on adequate and sufficient grounds.[6] In the case of Raj Pal Singh v State of U.P, the court said the same things that it is not necessary that the remand sheet looks like a judgement which is delivered after full trial but it should look like the application of main which must be evident.[7]

When the arrest is made and the person is kept under custody, without complying with the procedures or provisions which are specified in the Code of Criminal Procedure, then it amounts to an unlawful restraint of a person’s persona liberty or restrain on his freedom and therefore, can be called illegal arrest or custody.

This violates the fundamental rights guaranteed to every person by the Constitution of India. A person must be kept in custody, keeping in mind that the administration of law is secured and the human rights of the person are protected and uphold.


When the competent magistrate is unable to pass custody within the framework of law or where the arrest or custody is invalid on the account of breach of procedure or any other right, then the person so detained have both constitutional remedy as well as a civil remedy.

  • Constitutional remedy: Constitution of India guarantees the right of personal liberty and freedom under Article 19, 20, and 21. Article 21, clearly states that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” Constitution of India also provides a golden remedy in the form of the writ of habeas corpus under the Article 32 or 226. If the police have arrested or detained any person in custody without having the proper authority of law or are violating the procedure which is established by law for such arrest or detention, then such arrest and keeping the person in custody is invalid and unconstitutional. Therefore, the Supreme Court or High Court may issue “Habeas Corpus” writ against the authority which has arrested the person and has kept that person under the custody and direct them to release the person from such detention.

However, an important point to note here is that a writ of habeas corpus does not lie against legal custody, it will not matter what rights are violated when in lawful custody. In the case of Kami Sanyal v. Dist. Magistrate, Darjeeling[8], the Supreme Court stated that “while a person is committed to custody in jail by an order of a competent court, which prima facie doesn’t appear to be without jurisdiction or wholly legal, a habeas corpus writ in respect of that person cannot be granted”.

  • Civil Remedy: tort is also called a civil wrong which includes the restraining of a person wrongfully, by another person who was not authorized under the law to do such act, which leads to restriction of freedom of movement of the person who has been so restrained. When this happens then an action can be taken for the damages which resulted from the illegal arrest or custody, such as injury to the reputation of the person which further resulted in pecuniary loss to that person. As we know that the bad intention and malice are not the elements of tort but still if they are proved then the person can be awarded the punitive damages also in addition to the nominal damages.

In the famous case of Boya Nallabothula Venkateswarlu and Ors.[9], the High Court Bench of A.P. directed the State as well as the police authority, who was responsible for wrongful detention, to pay compensation for purposely and deliberately implicating grave charges of murder and detaining the person wrongfully for the same.


If we will take a look at current provisions which provides for the remedies against the illegal custody then we can notice the loopholes present in the system. Like the provision of Section 167(b) of Code of Criminal Procedure provides that the person is allowed to take bail if the cause to hold him in the custody isn’t enough, but at same time the section also states that if the person is unable to furnish the bail then he continues to stay in custody.

This makes it very difficult to protect the right of the person who is underprivileged. Law is also silent on the situation where police is unable to hold a person in custody because of some medical or other reason.

The current law which provides safeguard against the illegal custody, clearly needs an amendment in order to remove all doubts and inconsistencies and it must also be extended in order provide more rights and remedies even when the custody is legal.

  1. iPleaders. 2020. Remedies Against Illegal Police Action In India. [online] Available at: <https://blog.ipleaders.in/remedies-illegal-police-action> (Accessed 6 August 2020).

  2. Districts.ecourts.gov.in. 2020. [online] Available at: <https://districts.ecourts.gov.in/sites/default/files/fct.pdf> (Accessed 6 August 2020).

  3. Priyasepaha.com. 2020. [online] Available at: <https://www.priyasepaha.com/post/2018/07/18/difference-between-detention-arrest-and-custody> (Accessed 7 August 2020).

  4. The Code of Criminal Procedure, 1973, § 57.

  5. The Code of Criminal Procedure, 1973, § 167.

  6. Procedure, L., 2020. Laws Of Custody In India: An Analysis Of Section 167 Of The Code Of Criminal Procedure – Academike. [online] Academike. Available at: <https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-section-167-of-the-code-of-criminal-procedure/> (Accessed 7 August 2020).

  7. 1983 CriLJ 1009

  8. 1990 CriLJ 2685

  9. Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur PS and Ors, 2010 (3) U.P.L.J 19 (HC)

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