Freedom of movement is not just a legal concept, it is central to personal liberty. In Maneka Gandhi v. Union of India 1 , the Supreme Court described it as a cherished right essential to human development. Yet, like all rights, it is not absolute. The law permits restrictions through due process, most commonly in the form of arrest and remand.
But an important question arises: are these powers being exercised with the caution the law demands?
In India’s criminal justice system, police custody represents one of the most serious intrusions into personal liberty. While legally sanctioned, it is meant to be used sparingly and only when absolutely necessary for investigation. However, recent judicial observations suggest that this principle is not always followed in practice.
The Supreme Court’s ruling in Satender Kumar Antil v. CBI2 serves as a timely reminder that the power to arrest and by extension, to seek police custody must not be exercised mechanically. Particularly in cases involving offences punishable with up to seven years’ imprisonment, the Court emphasised that authorities must justify their actions with clear and cogent reasons.
This reasoning applies equally to police custody. It cannot become a routine or ritualistic step in investigation. Instead, law enforcement agencies are required to demonstrate why custody is essential, what evidence has already been gathered, and what further leads they expect to uncover. The duration of custody, too, must be proportionate to the needs of the investigation not an arbitrary or negotiated figure.
The legal framework reinforces this caution. Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) allows police custody only for a limited period, subject to judicial oversight. More importantly, Rule 20(1) of the Criminal Rules of Practice, 1982, lays down strict conditions for granting such custody.
Rule 20. Remand to Police Custody
(1) Magistrates shall not grant remands to police custody unless they are satisfied that there is good ground for doing so and shall not accept a general statement made by the investigating or other police officer to the effect that the accused may be able to give further information. A request for remand to police custody shall be accompanied by an affidavit setting out briefly the prior history of the investigation and the likelihood of further clues which the police expect to derive by having the accused in custody, sworn to by the investigating or other police officer, not below the rank of a SubInspector of Police. Magistrates shall personally see and satisfy themselves about the accused being sound in mind and body before entrusting him to police custody, and also at the end of the period of custody by questioning him whether he had in any way been interfered with during the period of custody. Where the object of a remand is verification of the statement of an accused, he shall, whenever possible, be remanded to the charge of a Magistrate, and the period of remand shall be as short as possible.
Rule 20(1) makes it clear that judicial custody is the norm, and police custody is the exception. Magistrates are explicitly directed not to grant custody based on vague or general statements by the police. Any request must be supported by a detailed affidavit outlining the progress of the investigation and the specific reasons why custody is necessary.
The rule also places a direct responsibility on Magistrates. They must personally assess the accused’s condition, ensure there is no coercion, and verify that custody is genuinely required. This is not a mere procedural formality, it is a critical safeguard against misuse of power.
The Supreme Court, in Arnesh Kumar v. State of Bihar3 , described Magistrates as the “first line of defence” against arbitrary arrest and detention. This role becomes even more crucial when dealing with police custody applications. If courts begin to approve such requests mechanically based solely on the seriousness of the allegations, they risk undermining the very safeguards the law seeks to uphold.
There is also a deeper concern. Unlike many other legal wrongs, the harm caused by unjustified police custody is often irreversible. An accused person typically has little time to challenge a custody order before it is executed. Even if the order is later set aside, the damage, whether in the form of coercion, intimidation, or psychological stress, cannot truly be undone.
This reality stands in tension with the legal maxim “ubi jus ibi remedium,” which holds that where there is a right, there is a remedy. In the context of wrongful police custody, the remedy often comes too late to be meaningful.
Despite the existence of clear safeguards, their effectiveness ultimately depends on how rigorously they are enforced. While the Kerala High Court in Jose Poothrikkayil v. Union of India4 examined aspects of Rule 20(1), it stopped short of providing definitive guidance. This leaves Magistrates with the responsibility of ensuring that the rule is applied in both letter and spirit.
The message is clear: police custody cannot be treated as a default step in criminal investigations. It must remain a carefully regulated exception, justified by necessity and scrutinised by the courts.
In a system governed by the rule of law, procedural safeguards are not obstacles, they are essential protections. When these safeguards are diluted, the cost is borne not just by the accused, but by the credibility of the justice system itself.
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