Accused in Police Custody- What is the correct approach- Bail being non-maintainable or it deserves rejection

For an in-depth understanding of the concept of Police Remand, please refer to the earlier article by the author here.


Article 22 (2) of the Constitution of India[i] and Section 57 of CrPC[ii] give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law with regard to remand and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in either police or judicial custody.[iii]

Whenever we speak of Police Custody it means sending the accused to Police Lockup and during this time he remains under the direct control and supervision of Police. While in Judicial Custody the accused remains in Prison or Jail as notified by Central or State Government, under direct control and supervision of Judicial Magistrate.

Special Order for Remanding the Accused

When any investigation cannot be completed within 24 hours of the arrest of an accused as provided under S. 57 of the Code and there are reasonable grounds for believing that the accusation or information is well-founded and the station officer is further in a position to show satisfactory grounds for the application for a special order for the detention of the accused in police custody u/s. 167 CrPC[iv] the SHO of the police station or the investigation officer not below the rank of sub-inspector shall forward the accused to the nearest Judicial Magistrate (whether or not he has the jurisdiction to try the case), together with a copy of the entries in the case diary relating to the case and report the matter to the Superintendent, but in no case shall the accused remain in police custody for a longer time than is reasonable without the authority of a Magistrate.[v]

Police Custody-How Long

When the arrested accused is so transmitted to the Judicial Magistrate directly, he may authorise further detention (after the first 24 hrs) within the period of first fifteen days to such custody either police or judicial and in cases where first remand was given by Executive Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate from the first 15 days. After the expiry of the period of first fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.

Issue Involved

In legal arena I have often heard that Bail application is not maintainable while the accused is in Police Custody. But on asking what are the reasons behind it, nobody offered me a reasoned reply. So I decided to research on this point because it is important to understand that “Bail being not maintainable” and “Rejecting Bail Application” are two altogether different things having different consequences.

If an accused who has been remanded to Police Custody applies for bail and court makes an oral remark that accused being in Police Custody, his bail application is non maintainable then in such a situation accused can’t file an application under Section 439 CrPC[vi] to Sessions Court because he has not exhausted his remedy under Section 437 CrPC[vii]. In my humble opinion this is not the correct approach.

Accused in Police Custody- His Bail application is maintainable although court has discretion to reject it

I argue in this present article that allowing accused to file bail application while he is in police custody and then rejecting on the ground that investigation in the case is pending and the presence of accused with the investigation authorities is required for complete and effectual adjudication is the correct approach because it neither takes away the right of police to conduct investigation nor it curtails the right of the accused to challenge the order of rejection of bail by filing an application under Section 439 CrPC and simultaneously challenging his remand order by way of revision before the sessions court. Courts not allowing accused to file a bail application or not taking on record his bail application simply on the ground that he is currently remanded to police custody, takes away his valuable right of regaining his personal liberty. Moreover he also loses the opportunity to the challenge his custodial order.

When an arrested person is brought before a Magistrate, he has to decide whether he should remand the person to Police custody under Section 167(2) CrPC as requested by the Police and at the same time he has to decide whether the request of the person for bail should be granted. In order to decide the question of remand, he must be satisfied on a perusal of the entries in the Police Diary that there were grounds for believing that the accusation or information against the accused was well founded and that the Police have exercised their right of arresting without warrant legally and further that it was necessary for the purpose of investigation that the accused should be remanded to custody. Unless, the Magistrate is satisfied on all these points, he cannot remand the accused to Police custody.

So when an accused is produced before Magistrate within 24 hours of arrest by police and police requests for police custody and simultaneously accused also applies for bail then in such situation proper course for a Magistrate is to hear both on the Remand and Bail Application and then he can take following steps:

  • First decide whether accused can be remanded to Police Custody or not
  • And if Magistrate decided accused to be remanded to Police Custody then the bail application filed by the accused has to be rejected.

Why Bail is not given during Police Remand/Custody

The reason behind rejecting the bail application while accused is in Police custody is to avoid contradictory orders. It is very well known that the Remand and Bail Application is heard by the same Magisterial Court. If the court grants Police Remand, it means that it acknowledges the need of the accused with the investigation agencies for complete and effectual investigation in order to decode the crime. If the court grants bail it means court admits the fact that detention of accused is no longer required and releasing him will not jeopardize the investigation. So if the accused is already in Police custody then allowing bail application goes against the order of the court itself and creates a contradiction because at one hand court acknowledges the presence of accused with police authorities for investigation and on the other hand it is allowing bail application on the ground that his detention is no longer needed. So when the accused is in Police Custody granting bail firstly creates contradiction and secondly the Magistrate practically prohibits the investigating agency from making proper investigation to the case which, in fact, requires in-depth investigation and which could not be possible without the police custody. So the unsaid rule is that Bail can’t be granted if the Magistrate has Remanded Accused to Police Custody.



[iii] Administration v. Dharam Pal and others, 1982 Crl. L.J.1103; Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768, 1992 SCR (3) 158.


[v] Section 167(1), Cr.P.C.




Harshit Sharma

Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at

One response to “Accused in Police Custody- What is the correct approach- Bail being non-maintainable or it deserves rejection”

  1. Very well written and explained.


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