Police Custody

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Introduction
Police custody is the immediate physical custody of an accused by the police for the purposes of investigation and interrogation. In the Indian criminal process it is the most sensitive phase: it is where coercive investigative tools meet the fundamental rights of the citizen. For practitioners, mastery of the law on police custody is indispensable — it determines whether an accused is exposed to custodial interrogation, the admissibility of evidence that follows, the availability of remedies for illegal detention or custodial violence, and the prospects of bail at an early stage.

Core Legal Framework
– Constitution of India
– Article 20(3): Right against self‑incrimination — no person shall be compelled to be a witness against himself.
– Article 21: Right to life and personal liberty — read to include protection against illegal/inhuman detention.
– Article 22(1): “No person who is arrested shall be detained in custody without being produced before the nearest magistrate within a period of twenty‑four hours of his arrest, excluding the time necessary for the journey…” — a hard constitutional limit on detention without judicial oversight.

  • Code of Criminal Procedure, 1973 (CrPC)
  • Section 41: Circumstances in which police may arrest without warrant (power to arrest).
  • Section 41A: Notice of appearance instead of arrest (where applicable).
  • Section 46: Use of force in effecting arrest (proportionate force only).
  • Section 50: Arrested person to be informed of grounds of arrest and right to bail and to be defended by a legal practitioner of his choice.
  • Section 57 (and related provisions): Person arrested to be taken immediately before magistrate without unnecessary delay (operationalises Article 22(1)).
  • Section 167: Procedure when investigation cannot be completed in 24 hours — application by police to magistrate for remand; outlines police custody vs judicial custody and places limits on detention during investigation.
  • Section 161: Examination of witnesses by police (statements recorded during investigation).

  • Section 164: Recording of confessions and statements before a magistrate.

  • Indian Evidence Act, 1872

  • Section 25: Confession made to police is irrelevant.

  • Section 27: Discovery of facts leading to discovery admissible even if made to police (narrow exception).

  • Safeguard judgments and guidelines (binding and/or declaratory)

  • D.K. Basu v. State of West Bengal (1997): Judicially laid down procedural safeguards (the “D.K. Basu guidelines”) that must accompany arrest/detention (identity of arresting officers, memo of arrest, right to nominate a lawyer, right to inform relative, medical examination, etc.).
  • Joginder Kumar v. State of U.P. (1994): Principles governing reasonableness of arrests and the magistrate’s responsibility when asked to authorise custody.
  • A.K. Gopalan / Bhajan Lal jurisprudence: guidelines on arrests in cognizable cases and checks on arbitrary use.

Practical Application and Nuances
How police custody is actually created and controlled
1. Arrest → Production before Magistrate
– Arrest may be effected under Section 41 (or otherwise); constitutionally and statutorily the arrested person must be produced before a magistrate within 24 hours (Art. 22(1)). The first practical contest often arises if the police delay production: immediate writ/habeas corpus may be necessary.

  1. Need for remand under Section 167
  2. If investigation cannot be completed within 24 hours, the police must apply to the magistrate for remand under Section 167. The magistrate may remand the accused to:
    • Police custody (for interrogation), or
    • Judicial custody (jail).

  3. Police custody is ordinarily sought when the police assert the necessity of “interrogation” to elicit facts or recover material. Judicial custody is sought to retain physical custody without further police interrogation.

  4. Duration and aggregate limits

  5. While procedural complexities of Section 167 are often litigated, the practical rule is that police custody cannot be unlimited. Judicial practice limits police custody for interrogation to a short aggregate period (customarily up to 15 days in total across remands), with further custodial detention generally taking the form of judicial custody. Magistrates should scrutinise requests for police custody and decline mechanically rubber‑stamping them.

  6. What the magistrate must record

  7. Every order of remand to police custody should show the magistrate’s satisfaction that police custody is necessary — the order must record specific reasons (what further interrogation is necessary; what material can be recovered only in police custody). Mere formulaic recitals are vulnerable to challenge.

  8. Practical items police should show to secure remand

  9. Specific investigative leads requiring accused’s presence (uncollected documentary evidence, need to recover physical material, identity/parade, involvement of co‑accused).
  10. Why such evidence cannot be obtained without custodial interrogation.

  11. Time‑bound plan: what interrogation will be done and what specific evidence is expected.

  12. Practical items defence should press when opposing remand

  13. Show that investigation is essentially document‑based and does not require custody (bank records, mobile analysis, CCTV, GPS, eyewitness statements).
  14. Point out completed investigative acts (e.g., FSL results already available) rendering custody unnecessary.
  15. Challenge vagueness: demand disclosure of the “nexus” between interrogation and recoverable evidence.
  16. Invoke non‑compliance with D.K. Basu safeguards (no memo, no informing relative, no medical exam, no signature on arrest memo).

  17. Seek immediate medical examination and digital recording of interrogation; move for access to counsel; apply for bail if custody is illegal.

  18. Custodial interrogation and admissibility risks

  19. Confessions to police are inadmissible (Section 25 Evidence Act). Any confession must be recorded before a magistrate (Section 164) to be admissible as a confession.
  20. Statements to police under Section 161 are not substantive evidence at trial (but may be used to contradict the witness). Coerced/involuntary statements gear into Article 20(3) and can render subsequent evidence suspect.
  21. Section 27 can make admissible a “discovery” which leads to recoverable evidence even if the discovery came during police interrogation — but this exception is narrow and often litigated.

Concrete examples practitioners face daily
– Example 1 — Remand hearing: Police seek 7 days police custody claiming accused knows location of weapon hidden at home. Defence shows police have conducted house search already and recovered nothing; FSL and CCTV are pending. Magistrate should demand particulars: whose statement generates the lead, why accused’s custodial interrogation is necessary, and a time chart of work to be done in custody. If police fail to show nexus, remand should be judicial or denied.

  • Example 2 — Arrest and 24‑hour production: Accused arrested at 2 a.m., produced before magistrate after 30 hours. Defence files habeas corpus and succeeds because Article 22(1) breach is per se illegal detention; remedy includes immediate production, possible compensation, and exclusion of statements obtained during the illegal detention.

  • Example 3 — Custodial violence: Arrested person complains of torture to secure confession. Defence insists on D.K. Basu compliance: medical examination within 48 hours, preservation of clothes, independent report. Failure to comply supports a writ petition and criminal proceedings against police officers.

Landmark Judgments
– Joginder Kumar v. State of U.P., (1994) 4 SCC 260
– The Supreme Court insisted on reasonableness of arrest and on the magistrate’s duty to scrutinise remand applications — the arresting officer and the magistrate must justify custody; arbitrary arrest cannot be authorised. The Court set out that mere satisfaction of the police is not enough.

  • D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

  • The Court issued binding procedural safeguards (the “11‑point” or so directions) to prevent custodial abuse: identity of arresting officers, arrest memo attested by witnesses, right to inform relative, production before magistrate within 24 hours, medical examination within 48 hours, empowering the magistrate to monitor jail conditions and custodial interrogation, and provision of access to counsel under specified norms. These remain the go‑to compliance checklist in custody matters.

  • Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

  • The Court recognised State liability and awarded compensation for custodial death — the judgment emphasises state responsibility to prevent custodial abuse and provides a practical remedy of compensation for victims.

Strategic Considerations for Practitioners
For defence counsel
– Immediate actions on arrest:
– Ensure production before magistrate within 24 hours; if delayed, file writ/habeas corpus without delay.
– Demand compliance with D.K. Basu safeguards; insist on preservation of arrest memo, medical exam, and access to counsel.
– Oppose remand vigorously: seek particulars, question necessity; highlight documentary nature of investigation; press for judicial custody if any custody is unavoidable.
– Use Section 25 and Article 20(3) strategically: seek exclusion of statements made under coercion or without proper caution; secure recording and certification of any statement made.
– If custodial violence suspected: photograph injuries, obtain medico‑legal report immediately, inform magistrate, lodge complaint, and consider CRPC/IPC remedies against officers plus writs for supervision and compensation.

  • Bail strategy:
  • An illegal or unnecessary police custody strengthens arguments for bail — show lack of necessity for custodial interrogation and demonstrate alternatives (police question at station by notice, supervised interim measures).

For prosecution/police
– When seeking police custody:
– File a detailed remand application — give specific lines of inquiry that require custodial interrogation and identify tangible recoverable material.
– Avoid repetitive short remands without a plan (magistrates dislike routine applications).
– Ensure D.K. Basu compliance to minimise later suppression arguments; maintain arrest memo, obtain medical report, and record place/time of arrest.

For magistrates
– Scrutinise remand applications: record the reasons for satisfaction for sending accused to police custody, quantify the need, and refuse mechanical remand orders.
– Monitor compliance with D.K. Basu and insist on written plans for interrogation.

Common pitfalls to avoid
– For police: seeking custody by generic assertions (“to ascertain facts”) without specifics; failing to follow D.K. Basu safeguards; delay in producing arrested persons before magistrate; relying on confessions to police as substantive proof.
– For defence: failing to press for immediate medical and forensic documentation of injuries; delaying habeas corpus or writ remedies; not objecting to magistrate’s failure to record specific reasons for remand.
– For magistrates: rubber‑stamping remand requests without recording necessity or ignoring the constitutional 24‑hour mandate.

Practical checklist for remand hearings (defence and prosecution)
– Defence:
– Demand production within 24 hours; if delayed, move immediately.
– Ask police to specify what interrogation will achieve and why it cannot be done outside custody.
– Seek Basu compliance (arrest memo, medical exam, right to inform relative).
– If detention granted, secure conditions: limited custody period, supervised interrogation, right to consult lawyer (subject to law).
– Prosecution:
– Provide a time‑bound interrogation plan and concrete leads.
– Produce witness statements or records that show the necessity for custodial questioning.
– Maintain full documentation of arrest and compliance with Basu directions.

Conclusion
Police custody is both an essential investigative tool and a recurring flashpoint for human‑rights litigation. The law constrains police custody tightly: constitutional limits (Article 22), statutory machinery (Sections 41/41A, 50, 167 CrPC), evidence law (Sections 25 and 27 Evidence Act) and supervisory jurisprudence (D.K. Basu; Joginder Kumar). For practitioners the practical art lies in three things: (a) immediate, robust action on arrest (produce, medical exam, Basu compliance), (b) forensic, fact‑driven argument in remand hearings (demand specifics and contest vagueness), and (c) tactical use of remedies (habeas corpus, writs, compensation claims) when custody is illegal or abusive. Mastery of these practical levers protects clients’ liberty and ensures that custodial interrogation, when truly necessary, is narrowly confined and lawfully supervised.