Introduction

After a person is arrested in a criminal case, they may be kept either in Police Custody or Judicial Custody, depending on the stage of the investigation and the orders passed by the competent court.

Although both involve the detention of an accused person, they are legally different. The authority responsible for the custody, the purpose of detention, and the rights of the accused vary significantly.

This guide explains the difference between Police Custody and Judicial Custody under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 in simple language.

What is Police Custody?

Police Custody means that the accused remains in the custody and control of the police for the purpose of investigation.

During police custody, the investigating officer may question the accused, collect evidence, verify facts, recover property where legally permissible, and carry out other lawful investigative steps.

Police custody can only be granted by a competent Magistrate and only in accordance with the law.

What is Judicial Custody?

Judicial Custody means that the accused is kept in a jail or prison under the authority of the court and not under the direct control of the police.

During judicial custody, the accused remains in prison while the investigation, inquiry, or trial continues. The police cannot freely interrogate the accused without obtaining permission from the court where required.

Police Custody vs Judicial Custody

Basis Police Custody Judicial Custody
Control Police Court (through the jail authorities)
Place of Detention Police Lock-up Jail/Prison
Purpose Investigation and interrogation Safe custody during investigation, inquiry, or trial
Authority Granted by the Magistrate Ordered by the Magistrate or competent court
Interrogation Police may interrogate according to law Police generally require court permission where applicable

When is Police Custody Granted?

Police custody may be granted when:

  • The investigation requires custodial interrogation.

  • Recovery of evidence is necessary.

  • Facts need verification.

  • The investigating agency satisfies the court that police custody is legally justified.

The Magistrate decides whether police custody should be granted.

When is Judicial Custody Granted?

Judicial custody may be ordered when:

  • Police custody is no longer required.

  • The accused is remanded to jail during the investigation.

  • The investigation or trial is continuing.

  • The court considers judicial custody appropriate.

Rights of a Person in Custody

An accused person has important legal rights, including:

  • The right to consult a lawyer.

  • The right to be produced before the Magistrate within the time prescribed by law after arrest.

  • Protection against unlawful detention.

  • The right to medical examination where applicable.

  • Protection against torture or cruel treatment.

  • The right to apply for bail where legally permissible.

These rights are subject to the applicable legal provisions.

Can a Person Be Shifted from Police Custody to Judicial Custody?

Yes.

It is common for an accused to be:

  1. Arrested by the police.

  2. Produced before the Magistrate.

  3. Placed in police custody if legally justified.

  4. Subsequently remanded to judicial custody.

The exact procedure depends on the facts of each case and the court's orders.

Can the Police Interrogate a Person in Judicial Custody?

Generally, if further custodial interrogation is required while the accused is in judicial custody, the investigating agency must follow the applicable legal procedure and obtain the necessary permission from the competent court where required.

RightToLaw Team
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RightToLaw Team

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Frequently Asked Questions

Police Custody means the accused remains under the control of the police for investigation and lawful interrogation, as permitted by the court.

Judicial Custody means the accused is kept in jail or prison under the authority of the court while the investigation, inquiry, or trial continues.

The accused remains under the supervision and control of the police, subject to the law and the orders of the Magistrate.

The accused remains in jail under the authority of the court and the supervision of the prison authorities.

Generally, the police must follow the applicable legal procedure and obtain the necessary permission from the competent court where required.

No. Police Custody is for investigation, while Judicial Custody places the accused in jail under the authority of the court.

Yes. After police custody ends or if further police custody is not required, the court may remand the accused to judicial custody.

Yes. Subject to the applicable law and the nature of the offence, an accused may apply for bail while in judicial custody.

An accused has rights such as legal representation, protection against unlawful detention, medical examination where applicable, and the right to seek bail in appropriate cases.

No. Judicial Custody does not imply guilt. It is only a form of lawful detention during the investigation, inquiry, or trial until the competent court decides the case.