Custody and Bail Laws in India: Police Custody, Judicial Custody, Default Bail, and Rights of Accused

Every year, thousands of college students in India read about someone being “arrested” and then “sent to custody” in the news, and most assume the two words mean the same thing. They don’t. Understanding the difference between arrest and custody, along with how bail actually works, is not just useful trivia. It is a life skill that helps you understand your rights the moment you or someone you know interacts with the criminal justice system.

Arrest and custody are not interchangeable 🔗

An arrest is the formal act of restricting a person’s freedom of movement because the police reasonably suspect involvement in a crime. This directly touches the fundamental right to personal liberty guaranteed under Article 21 of the Constitution, which is why any arrest that skips legal procedure amounts to a violation of a fundamental right, not just a procedural lapse.

Custody, on the other hand, is broader. It refers to the state of being under legal control, whether by the police or the court, and it can exist even without a formal arrest in cases like preventive detention. In simple terms, an arrest almost always results in custody, but a person can be in custody without technically being “arrested” in the criminal sense. Detention, in fact, is typically short-term and based on suspicion, while an arrest is a longer, more serious step usually taken once there is more definite evidence connecting a person to an offence.

What happens right after an arrest: police custody 🔗

When the police take a suspect into custody following an arrest, this initial phase is called police custody. During this time, investigators can question the accused, collect evidence, and conduct further inquiry. But this power is not unlimited. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the older Code of Criminal Procedure from 1 July 2024, requires that an arrested person be produced before the nearest magistrate within 24 hours of arrest, excluding the time needed for travel from the place of arrest to the magistrate’s court.

This 24-hour rule is not a bureaucratic formality. It exists precisely to prevent the police from holding someone indefinitely without judicial oversight. Once the person is produced, the magistrate examines the case and decides the next step: release the accused, extend detention in police custody for further investigation, or send the accused to judicial custody.

Judicial custody: when the court takes over 🔗

Once a magistrate sends an accused to judicial custody, the person becomes the responsibility of the court rather than the police. Practically, this means the accused is lodged in jail, and the police cannot interrogate them further without specific permission from the magistrate. This shift matters because it introduces a layer of judicial supervision over what would otherwise be unchecked police power.

The BNSS reorganised how custody periods are structured. Under the earlier CrPC framework, police custody was largely limited to the first 15 days after the accused was produced before a magistrate. The BNSS retains the overall 15-day cap on police custody but allows it to be granted in parts spread across the initial 40 or 60 days of the total permissible detention period, depending on how serious the offence is. This change means police can, in certain cases, ask for custody again later in the investigation, even after the accused has already spent time in judicial custody, provided the total police custody does not exceed 15 days and the magistrate is convinced it is necessary.

Default bail: what happens when the police take too long 🔗

Investigations cannot go on forever without accountability. This is where default bail, also called statutory bail, comes in. Under the provision that succeeded Section 167 of the CrPC, the police must file a chargesheet within 60 days of arrest for offences punishable with less than 10 years of imprisonment, and within 90 days for offences punishable with 10 years or more, life imprisonment, or death. If the chargesheet is not filed within this window, the accused becomes entitled to be released on bail as a matter of right, regardless of how serious the allegations are.

Courts have repeatedly treated this timeline as mandatory rather than a mere guideline. In one recent ruling, a High Court held that the failure to comply with these statutory deadlines directly affects the constitutional right to personal liberty under Article 21, and even a magistrate’s casual endorsement on the case file, without a proper reasoned order, is not enough to deny this right. There is an important catch, though: default bail is not automatic. The accused must actively apply for it before the chargesheet is actually filed. If the police manage to file the chargesheet even a day before the application is made, the right is lost, which is why timing matters enormously in these cases.

Bail based on time already spent behind bars 🔗

Beyond default bail, Indian law also recognises that people should not be kept in custody indefinitely simply because their trial is slow. Two distinct situations illustrate this.

Undertrials nearing the maximum possible sentence 🔗

The provision that replaced Section 436A of the CrPC now allows an undertrial prisoner, someone who has been arrested but not yet convicted, to be released on bail once they have spent half of the maximum sentence prescribed for the alleged offence in custody. For first-time offenders with no prior conviction, this threshold is even lower, at one-third of the maximum sentence. This safeguard, discussed in detail in recent legal commentary on the provision, does not apply to offences punishable with death or life imprisonment, and it does not apply if the person is facing trial in more than one case at the same time. The idea is straightforward: no one should serve, as an undertrial, more time than they would have served if actually convicted.

Convicts appealing their conviction 🔗

A different, though related, situation arises once a person has already been convicted and has filed an appeal against that conviction. Appellate courts have the power to suspend the sentence and release the convict on bail while the appeal is pending. For years, many courts treated having served roughly half the sentence as an informal benchmark before granting this relief, especially in cases where appeals were unlikely to be heard for a long time. However, the Supreme Court clarified in 2025 that this cannot be treated as a rigid, mechanical rule. In a case involving a conviction under the Narcotic Drugs and Psychotropic Substances Act, the Court held that insisting on half the sentence being served before granting bail pending appeal, in every single case, could effectively force convicts to serve their entire sentence before their appeal is even heard, which would violate their right to a meaningful appeal and their liberty under Article 21. As the ruling clarified, courts must look at the overall merits of each case rather than applying a fixed mathematical threshold.

Rights every accused person actually has 🔗

Whether someone ends up in police custody or judicial custody, certain rights remain constant and cannot be taken away by the police:

Right to know the grounds of arrest: The person must be informed, clearly and promptly, of the reasons for their arrest. This is a constitutional guarantee, not a courtesy.

Right to legal representation: An arrested person can consult a lawyer of their choice, and this access cannot be denied by the investigating officer.

Right to inform a relative or friend: As part of the safeguards laid down by the Supreme Court to prevent custodial abuse, the police must inform a relative or friend of the arrested person about the arrest and the place of detention, and this information must also be recorded in the police diary, following the landmark guidelines on arrest procedure that apply across the country.

Right to a medical examination: If the accused alleges mistreatment, they can request an examination by a registered medical practitioner, which acts as a check against custodial violence.

These reforms, along with the broader restructuring of custody and bail timelines, are part of a larger legislative shift explained well by independent policy analysis of the BNSS, which replaced decades-old colonial-era procedure with updated timelines and safeguards, while keeping the core constitutional protections intact.

Why this matters beyond the courtroom 🔗

Most people will, hopefully, never personally experience an arrest. But understanding these distinctions changes how you read the news, how you evaluate claims about someone being “denied bail” or “released on default bail,” and how you recognise when someone’s rights are being ignored. Legal literacy here is not about becoming a lawyer. It is about knowing enough to ask the right questions when it matters.

What do you think? If the 60 or 90-day chargesheet deadline exists to prevent indefinite detention, should it apply uniformly to every offence, or should genuinely complex investigations get more time even at the cost of the accused’s liberty? And should courts eventually settle on a single, predictable rule for bail pending appeal, rather than leaving it to case-by-case judgment?

References

1. https://www.indiacode.nic.in/handle/123456789/21419
2. https://www.scconline.com/blog/post/2025/10/20/bom-hc-grants-default-bail-magistrate-seen-remark-not-enough/
3. https://www.barandbench.com/columns/analysing-the-remedy-of-bail-under-section-479-of-bnss
4. https://www.livelaw.in/supreme-court/no-rigid-rule-that-convict-should-undergo-half-of-sentence-for-bail-at-appellate-stage-supreme-court-283664
5. https://barnala.punjabpolice.gov.in/d-k-basu-case-guidelines
6. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023