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Explained: the difference between Police Custody and Judicial Custody

“Terror suspects arrested and sent to Police Custody.”

“XYZ sub-inspector, who was caught taking bribe sent to judicial custody.”

You must have read this kind of headline. Now, some of you must be wondering that what is the difference between Police and Judicial Custody? Firstly, let’s understand the meaning of the term “Custody”.

In simple words, Custody is apprehending someone for protective care. Like, a mother keeps her child in the room to not to cause discomfort to people outside! In the same way, in a legal manner, “Custody” refers to a person who is being held in captivity after being charged with a crime or convicted of an offence.

Now, we usually found the word “arrest” and “custody” as a synonym. In reality, they aren’t. In every arrest, there is custody but in every custody, there should not necessarily be an arrest.

Police Custody:

When an information/complaint is received by the police, an officer of police arrests the suspect involved in the crime, to prevent him from committing the crime further. When he (Police Officer) brings that suspect to the police station, it is called police custody. During this detention, the police officer in charge of a case, interrogate the suspect. Law says that this detention should not exceed 24 hours.

Judicial Custody:

It means an accused is in the custody of the concerned magistrate. We may say that this is an extension of Police Custody, i.e. when the Police take a person into custody, the role of Cr. P.C. starts and they have to produce the person before the magistrate within 24 hours of the arrest.

As stated in the judgment of Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768, 1992 SCR (3) 15 -In view of the fact that the Police could not take him into police custody all these days the investigating officer again applied to the court of Chief Metropolitan Magistrate for police custody of Shri Kulkarni. The learned Additional Solicitor General, appearing for the C.B.I., contended that a combined reading of Section 167 and the proviso therein would make it clear that if for any reason the police custody cannot be obtained during the period of first fifteen days yet a remand to the police custody even later is not precluded and what all that is required is that such police custody in the whole should not exceed fifteen days. The Division Bench held that the words ~from time to time" occurring in the Section show that several orders can be passed under Section 167 and that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in Section 167 of the Code and that after fifteen days the accused could only be kept in judicial custody or any other custody as ordered by the magistrate but not in the custody of the police. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different cause other than the specific one in respect of which the accused is already in custody. But such custody cannot further have held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused.

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Major differences between Police Custody and Judicial Custody:

1. Police custody refers to the accused being held in the custody of a police station or an investigating body that is looking into the situation, whereas judicial custody refers to the accused being held in jail and under the supervision of a Magistrate.

2. A person held in police custody must appear before the judicial Magistrate within 24 hours, whereas a person held in judicial custody is kept in prison until the Court issues a bail order.

3. Police custody begins when a police officer arrests a suspect after receiving a complaint or filing an FIR, whereas judicial custody begins when the public prosecutor persuades the court that the accused's custody is necessary for the investigation.

4. The maximum time period for detention in police custody is 24 hours, which can be extended to a total of 15 days by the appropriate Magistrate, whereas in judicial custody, the maximum time period for detention is 90 days in cases where the investigation is related to offences punishable with life imprisonment, death, or imprisonment for a term of not less than ten years, and detention is 60 days for crimes

5. The police provide security in police custody, whereas the judge/magistrate provides security in judicial detention.

This might help you to understand the differences:

Law related to Custody in India:

  • Section 167 of the Code of Criminal Procedure, 1973 governs the provisions for holding a person in custody for the purpose of proceeding further with the investigation.

  • Section 167 of CrPC allows a person to be held in police custody on the orders of a Magistrate for a period of 15 days, A Judicial Magistrate may remand a person for a period of 15 days to any form of custody.

  • A person may be held in police custody or judicial custody.

  • The Magistrate has the authority to remand the person into police custody or judicial custody.

  • The detaining authority may be changed during the pendency of detention, provided that a total time period of custody does not exceed 15 days.

  • If a person is transferred from police custody to judicial custody, then the number of days the person has served in police custody are deducted from the total time that is remanded to judicial custody.

State v. Dharampal, 2001

In the case, it was held that the accused can be sent to police custody only within the first 15 days since the day of his presentation before the Magistrate after the arrest. Section 167(1) of CrPC makes it clear that the office in charge of the police station or the investigating officer can ask for remand only if there are grounds to believe that the information or accusation is well-founded. In Raj Pal Singh v. the State of U.P., it was held that the remand order need not look like a judgement that is delivered after a full trial, but the application of the main ground must be evident.

Landmark Judgements

  • State v. Laxmi Narain Gupta, 1986

“Along with the present petition, at least another 20 cases have been named, where the accused are in court custody solely because they are poor,” it was noted in this case. The courts in each of those cases have issued orders allowing them to be admitted to bail. They are in judicial custody because they have been unable to secure a surety while their judicial remand orders are being processed on a regular basis.” When the accused is unaware of his rights, this flaw exists.

  • Sundeep Kumar Bafna v. State of Maharashtra and Others,2014

In this case, it was held that anticipatory bail cannot be denied if an investigating agency establishes a legitimate reason for an offender's remand to police custody under Section 167(2) of the CrPC.

  • Mantoo Majumdar and Baldev Singh v. State of Bihar, 1980

In this case, it was held that the Magistrate should not authorize mechanically the detention of the accused. If the law officers are charged with the obligation to protect the liberty of people if they are only mindless of the constitutional mandate and the dictates of the Code, then how can freedom survive for an ordinary citizen.


The police or judicial custody must be reasonable, applicable, and legally viable, according to Article 21 of the Indian constitution. It should be noted that arrest and detention are not the same things. Custody is undeniably a remand issued while the arrest is forcible confinement. The arrest is followed by detention.

Section 167 of the Code of Criminal Procedure addresses police and judicial custody provisions. Procedure. In both states, judicial and police custody limit a person's liberty and range of movement. The accused is detained and held in police and judicial custody in accordance with the rules outlined in the 1973 Code of Criminal Procedure (CrPC).


Contributed by Mr Shaleen Dhaker

  • Section 57, of CrPC.

  • Section 167 of CrPC.

  • Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768

  • Sundeep Kumar Bafna vs State Of Maharashtra & Anr

  • State vs dhrampal

  • State vs Laxmi

  • Mantoo vs basdev singh

  • Article 21 of the Indian Constitution

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