Rights of an Arrested Person: Police Custody vs. Judicial Custody

Indiaserv — Know Law, Apply Law, Protect Law

Getting arrested — or watching it happen to someone you love — is one of the most disorienting moments a person can face. Panic sets in, information is scarce, and the people around you are usually the ones with all the power. This guide exists to flip that balance back, even a little: to tell you exactly what the law guarantees you the moment handcuffs (or even just a firm hand on the shoulder) enter the picture.

1. The Core Conflict: Order vs. Liberty #

Police in India have a real, legitimate duty: to investigate crime, maintain order, and keep people safe. Nobody disputes that.

But the Constitution places a hard boundary around that duty. Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. That single sentence is the reason “rights of an arrested person” exist at all — they are the specific, enforceable checks that stop a legitimate power (arrest) from turning into an abuse of power (arbitrary detention).

Think of it like this: the police have the keys to the handcuffs, but the Constitution has the keys to when and how those handcuffs can be used. Neither side can act alone — that’s the entire design.

2. Mandatory Rights of an Arrested Person — Deep Dive #

Right to Know the Grounds of Arrest #

The moment you’re arrested, the officer must tell you — clearly, immediately, and in specific terms — why. Not a vague “you’re coming with us,” but the actual facts and legal basis for the arrest.

Real-life scenario: Police stop a delivery rider and put him in a van without saying why. He has every right to ask, on the spot, “What is the specific offence I am being arrested for?” A refusal to answer is itself a rights violation.

Right to Be Served Written Grounds — The Two-Hour Rule #

This is one of the most important recent developments in Indian criminal law, and every citizen should know it by heart.

In Mihir Rajesh Shah v. State of Maharashtra (2025), the Supreme Court held that a written copy of the grounds of arrest, in a language the arrestee understands, must be given to them — and if it genuinely couldn’t be handed over at the exact moment of arrest, it must reach them at least two hours before they are produced before a Magistrate for remand.

• If the police fail to do this, the arrest and any remand order that follows are treated as illegal — the person is entitled to be set free on that ground alone.
  
• This rule was extended by the Court to cover all offences, not just special laws — so it applies whether it’s a theft case or a serious economic offence.

Think of it like this: if you’re being sent to a disciplinary hearing at work, you’d expect to see the specific charges against you in writing before you walk in — not be told verbally on the spot and expected to defend yourself blind. The two-hour rule guarantees the same basic fairness before a Magistrate.

Right to Inform a Relative or Friend #

Under Section 48 of the BNSS (the successor to the old Section 50A CrPC), the police must, as soon as possible after arrest, inform a relative, friend, or any person nominated by the arrestee about the fact of arrest and the exact place of detention.

Real-life scenario: A college student is picked up during a protest. Under Section 48, the police are legally obligated to let her family or a friend know where she is being held — this is not a courtesy, it is a statutory duty, and its absence is itself grounds to question the legality of the detention.

Right to Counsel (Lawyer of Choice) #

Article 22(1) of the Constitution guarantees the right to consult and be defended by a legal practitioner of one’s choice. This right attaches from the moment of arrest, and includes the right to meet a lawyer during interrogation — not just before or after.

Everyday analogy: think of your lawyer as your translator between “police procedure” and “your actual rights.” You’re entitled to that translator being present from the very start, not brought in only once the picture is already complete.

Right to Free Legal Aid #

If a person cannot afford a lawyer, the State is constitutionally obligated to provide one, free of cost, under Article 39A (a Directive Principle promoting equal justice) read together with Article 21. This is operationalised through Legal Services Authorities at the district and state level, and courts have reinforced that this right must be available from the remand stage itself — not only once a trial begins.

The 24-Hour Production Rule #

Under Article 22(2) of the Constitution, and Section 58 of the BNSS, a person cannot be held in custody for more than 24 hours without a Magistrate’s explicit authorisation — excluding the time genuinely needed to travel from the place of arrest to the Magistrate’s court.

Important nuance: this 24-hour clock starts the moment a person’s freedom is actually restricted — not the moment police decide to log it. (For a full breakdown of how police sometimes try to bypass this using “informal questioning,” see Indiaserv’s dedicated guide on Illegal Detention & Habeas Corpus.)

Right to Medical Examination #

• The arrested person must be examined by a registered medical officer at the time of arrest, to record their physical condition and any pre-existing injuries — this protects both the person (as evidence of any later mistreatment) and, fairly, the police (as a record of the person’s condition before they entered custody).
  
• While in custody, the person is entitled to a fresh medical examination roughly every 48 hours.
  
• These requirements trace directly back to the Supreme Court’s guidelines in D.K. Basu v. State of West Bengal (1997) — the foundational judgment on custodial safeguards, discussed further below.

Right Against Self-Incrimination #

Article 20(3) of the Constitution protects every accused person from being compelled to be a witness against themselves.

In practice, this means:

• A person cannot be forced, threatened, or tricked into confessing.
  
• Under Section 23(1) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — the law that replaced the old Indian Evidence Act — a confession made to a police officer is not admissible as evidence in court.
  
• Section 23(2) of the BSA goes further: even a confession made while in police custody is inadmissible unless it is made in the immediate presence of a Magistrate.
  
• There is one narrow exception: if a confession leads directly to the discovery of a new fact (like the location of a weapon), that specific part may be used as evidence — but the confession itself still cannot be.

Everyday analogy: think of this like evidence obtained under obvious duress in any negotiation — courts don’t trust it, because a person under pressure will say almost anything to make the pressure stop. The law simply refuses to build a case on that foundation.

Right to Bail Notice #

If the offence is bailable, the police must proactively tell the arrested person — right away — that they have the right to be released on bail, and that they may arrange sureties to secure it. This is not something the person has to ask for or already know; it is the officer’s duty to inform them, under Section 47 of the BNSS.

Real-life scenario: A shopkeeper is arrested for a minor, bailable theft allegation but is never told he could be released the same day. He spends three unnecessary days in custody simply because nobody informed him of a right he already had.

Right to Humane Treatment #

• Restraint (including handcuffing) must be no more than strictly necessary to prevent escape — it is not a default, automatic practice.
  
• Custodial torture or “third-degree” methods are absolutely prohibited, with no exceptions. This is treated as a direct violation of Article 21’s guarantee of dignity, not merely a disciplinary lapse.

3. Police Custody vs. Judicial Custody — The Critical Difference #

These two terms get used interchangeably in everyday conversation, but they are legally very different situations with very different protections.

An important legal nuance the table doesn’t fully capture #

Under the older CrPC, the Supreme Court (in CBI v. Anupam J. Kulkarni, 1992) held that the 15-day police custody window had to be used continuously, right at the start of an investigation — once it lapsed, it was gone for good.

Under Section 187 of the BNSS, this has changed. Police custody can now be sought in shorter blocks, spread across a longer window — within the first 40 days of an investigation (for offences carrying under 10 years’ punishment) or the first 60 days (for offences carrying 10 years, life imprisonment, or the death penalty) — as long as the total police custody never exceeds 15 days.

What this means practically for a family: if your relative was sent to judicial custody after only 5 days of police custody, that does not mean police interrogation is over. Police may still apply for the remaining 10 days at a later point, provided the request stays within the 40/60-day window and total police custody doesn’t exceed 15 days overall. Families should not assume the matter is settled just because someone has been moved to jail.

The “default bail” safety net #

If the police fail to file a charge sheet within the 60 or 90-day window, the accused acquires an “indefeasible right” to default bail under Section 187(3) BNSS — a right the Magistrate cannot refuse, provided the accused is ready to furnish the required bail bonds. This exists precisely to stop investigations from dragging on indefinitely while someone sits in custody.

4. The Foundational Test: D.K. Basu v. State of West Bengal #

No discussion of custodial rights in India is complete without D.K. Basu v. State of West Bengal (1997) — the Supreme Court judgment that laid down the baseline safeguards every arrest must follow, and which continues to shape how BNSS provisions are read today. Its core requirements include:

• Police personnel carrying out an arrest must wear visible, accurate identification and name tags.
  
• An arrest memo must be prepared at the time of arrest, attested by at least one witness, and countersigned by the arrested person.
  
• The arrested person has the right to have a relative or friend informed of the arrest and location.
  
• The person must be given a medical examination at the time of arrest and at regular intervals thereafter.
  
• The person is entitled to meet their lawyer during interrogation, though not throughout its entirety.

If any of these is missing, that gap is treated by courts as meaningful evidence that a detention may be arbitrary — not a minor paperwork lapse.

5. Real-Life Action Plan & Remedies #

For the arrested person: checklist at the station #

• [ ] Ask clearly: “What are the specific grounds for my arrest?” — and insist on getting them in writing.
  
• [ ] Give police the name and contact details of one relative or friend to be informed under Section 48 BNSS — and confirm out loud that they intend to do this.
  
• [ ] Ask for a lawyer of your choice before answering any substantive questions.
  
• [ ] Do not sign any statement you haven’t fully read or don’t understand — remember, confessions to police are not admissible anyway.
  
• [ ] If the offence is bailable, ask directly: “Am I entitled to bail, and what sureties are needed?”

For the family: what to check and do #

• [ ] Get to the station and demand the paperwork. Ask to see the Arrest Memo, the grounds of arrest, and the Daily Diary entry.
  
• [ ] Track the medical record. Confirm a medical examination was done at the time of arrest, and that fresh checks are happening roughly every 48 hours. Any unexplained injury noted later — but not at intake — is significant evidence.
  
• [ ] Note every timestamp. When was the person first restricted in movement? When were you informed (if at all)? When is the 24-hour production deadline? These timestamps become critical if things go wrong.
  
• [ ] If rights are being denied — act, don’t just wait. Your lawyer can:
  
  • Move an urgent application before the Magistrate hearing the remand, specifically raising the failure to provide written grounds within the two-hour window, or failure to inform a relative under Section 48.
    
  • If the person is being held beyond legal limits, or the family cannot get any confirmation of where they are, file a Writ of Habeas Corpus in the High Court (Article 226) or Supreme Court (Article 32) — the fastest route to compel police to produce the person and justify the detention in open court.
    
  • If police attempt informal, unofficial custody outside these rules altogether, your lawyer can also move a local Magistrate application under Section 100 of the BNSS for an urgent search-and-produce order — often faster than a full writ petition. (See Indiaserv’s guide on illegal detention for a full walkthrough of this remedy.)

6. Quick Reference: The Legal Provisions in This Guide #

A Note Before You Act #

This guide is for legal literacy purposes only and is meant to help you understand your constitutional rights and the general legal process — it is not a substitute for formal legal counsel. Custodial rights cases are time-sensitive and depend heavily on the specific facts involved. For your particular situation, please consult a qualified advocate immediately, who can act on the exact facts at hand.

— Indiaserv: Know Law, Apply Law, Protect Law