Police custody to judicial custody and back: Jail is the rule?

In the shadowed corridors of Tihar or Arthur Road jails, a new rhythm echoes: police custody (PC) - judicial custody (JC) - PC again - JC once more. Rinse and repeat.

India’s new criminal procedural law, the Bharatiya Nagarik Suraksha Sanhita (BNSS), was introduced in the name of “decolonisation” and “nyaya” or justice. In terms of fair investigations and swift trials, however, it lacks any novel element of nyaya compared to its predecessor, the Code of Criminal Procedure (CrPC).

One of the examples of the injustice is Section 187(2) of BNSS, which allows “intermittent police custody” up to 15 days in total, spread over the first 40 or 60 days of detention, within the 60/90-day period for filing a chargesheet. Earlier, Section 167 CrPC allowed one stretch of 15 days from arrest. The Supreme Court's judgment in CBI v. Anupam J Kulkarni (1992) held such position of law to be valid and fair.

Imagine someone arrested in a case. The custody trap works in the following manner:

a) After arrest, the accused is produced before the magistrate, where on a request of the prosecuting agency, the court grants a few days of PC for interrogation, recovery, etc.

b) After completion of PC, the accused is then sent to JC (in jail under the custody of court), since no recovery or interrogation is required by the agency.

c) Since no further recovery/interrogation is required, the accused files for regular bail.

d) The moment bail is filed, the agency unnecessarily applies for more PC, pleading that interrogation/recovery is required.

The court often agrees, saying that the investigation is ongoing. But in substance, the PC application is usually filed by the agency to scuttle bail.

Although the BNSS was enacted with the intent to decolonise India's criminal procedure, it ironically imposes a more oppressive framework than the UK's current system under the Police and Criminal Evidence Act (PACE) 1984 and the Magistrates' Courts Act (MCA) 1980. In the UK, pre-charge detention is limited to a maximum of 96 hours from arrest u/S 41-44 PACE, with extensions beyond the initial 24-36 hours requiring magistrate court approval based on rigorous tests: necessity for evidence preservation or questioning, expeditious investigation, supported by detailed evidence on the offence, etc. Post-charge police remand is capped at three days u/S 128(7)-(8) MCA, subject to permission of the court. This contrasts with BNSS's extended intermittent custody periods, highlighting how India's "decolonised" law enables prolonged pre-trial detention without equivalent safeguards.

In these cases, the situation is worse. Agencies like the Enforcement Directorate (ED) often arrest someone close to the due date of filing a chargesheet in the predicate offence, starting a fresh PC-JC cycle. As seen in many cases, accused persons are implicated in multiple scams/cases, which means that just when the complaint/chargesheet of the ED comes to the 60-day conclusion period, the accused is arrested in another case by the police/Central Bureau of Investigation (CBI). And when the police/CBI is about to file a chargesheet, the ED would again arrest to evergreen the custody of the accused. This ping-pong continues, and the cycle of PC-JC never ends.

In practice, even after filing of chargesheet, there is no sight of bail. Courts are hardly granting bail based on classic "triple test" of flight risk, likelihood of tampering with evidence and influencing witnesses. Rather they are denying bail based on the gravity of the offence, which can only be tested during trial. The courts, especially the trial courts, have become reluctant to grant bail. As seen in many cases, trial court judges who granted bail in high-profile/sensational matters faced punitive enquiries or had their incentives withheld.

Since securing regular bail has become a Herculean task, new ways have emerged to seek release from custody such as default bail, challenge to arrest, writ of quashing of the case, etc.

Section 187(3) of BNSS/ Section 167(2) of CrPC allows default bail if no chargesheet is filed within 60 or 90 days. However, agencies file incomplete chargesheets just a few days prior to such deadline, to block this right. The judgment in CBI v. Kapil Wadhawan (2024) made it worse, holding that the plea of incomplete chargesheet to secure default bail cannot be raised when the trial court has taken cognizance of the chargesheet. In practice, the trial court does not look into the documents so produced to assess the incompleteness of investigation. This even shuts the door on default bail.

Recently, there has been a ray of hope with the Supreme Court rejecting the review of the judgment in Ritu Chabbaria v. CBI (2023), which holds that right of default bail cannot be defeated by filing incomplete or piecemeal chargesheets. It remains unclear how courts will interpret the review’s dismissal, given that the Ritu Chhabria judgment was earlier stayed by a coordinate two-judge Bench led by then Chief Justice of India DY Chandrachud in ED v. Manpreet Singh Talwar, later ratified by a three-judge Bench where the CJI was sitting in the combination of three judges. This also raises a core constitutional concern - how can a coordinate bench stay a judgment of equal strength, even if headed by the CJI? The Constitution accords no superior authority to the CJI over his peers. The issue now stands before a newly constituted three-judge Bench (order dated 12.08.2025).

Two recent landmark rulings - one in Prabir Purkayastha v. State (NCT of Delhi) (2024) and another in Pankaj Bansal v. Union of India (2024) - quashed arrests for procedural lapses. In Arvind Kejriwal v. Enforcement Directorate (2024), the Supreme Court stressed that “reasons to believe” and “necessity to arrest” must both be shown, though the issue was oddly referred to a larger bench citing Vijay Madanlal Chaudhary v. UOI (2022), which reference was indeed, unnecessary. The two-judge Bench headed by Justice Sanjiv Khanna could very well have decided the issue and held that the necessity of arrest is an intrinsic facet under Section 19 of the PMLA. The decision in Vijay Madanlal does not lay down anything to the contrary.

In financial offences, arrests often rely on co-accused making confessional statements that are coerced, which is weak evidence under Sections 25 & 30 of the Evidence Act. Such evidence ought not be considered without independent corroborative material. Yet, courts refer them to deny bail. Pertinently, efforts to challenge the arrest often go in vain as the agencies plead that the only remedy available is bail and not the challenge to arrest.

Amid such resistance, a few progressive judgments have emerged. In Anilkumar Khanderao Pawar v. Directorate of Enforcement (2025), the Bombay High Court declared the arrest of the former Vasai-Virar Municipal Commissioner illegal, finding no “tangible material” to formulate “reasons to believe” under Section 19 of the Prevention of Money Laundering Act (PMLA), and noting that the ED’s case relied solely on uncorroborated statements.

Conversely, the concurring judgment (though dissenting in substance) of Justice Bela Trivedi in Radhika Agarwal v. Union of India (2025) held that arrest is to be quashed in “rare and exceptional circumstances”. This renders such challenge to arrest even more challenging, leaving no recourse to the arrested person.

A grave concern is the alarming pendency of bail applications across various courts. Bail pleas remain unheard for months, even years, across trial courts and High Courts. As per a Right to Information (RTI) response, over 2,900 bail applications were pending before the Supreme Court itself as of July 2025, of which 1,580 were pending for more than three months.

What if, after all these years of custody, the accused is acquitted of all charges? Who will compensate for the harassment and misery, or is it even compensable?

Individuals remain incarcerated despite no foreseeable commencement or conclusion of trial. Take the example of the AgustaWestland VVIP Chopper scam. Registered by the ED in 2014, the case has seen over 60 accused added through around 12 chargesheets/complaints, each introducing 5–10 new names. Many individuals were incarcerated for years. Yet, the trial has not even commenced. What else can this be called but a complete breakdown of judicial due process?

The BNSS’ intermittent custody rule, meant to aid investigations, has become a tool to curtail liberty. Moreover, the courts have become reluctant to grant bails.

To address this, magistrates must ensure that police custody is granted only for genuine investigative needs. Courts should prima facie verify tangible material against the accused before remand, apply the classic triple tests while deciding bail and grant default bail where investigations remain incomplete. We must appoint more judges and build proper infrastructure to handle complex cases.

Trials must start and end on time. If the State is unable to give a fair and speedy trial, it has no right to keep someone under detention, indefinitely.

Arpit Goel is an advocate who handles matters pertaining to economic offences and white-collar crimes.