Decoded: All you need to know about custody, bail, remand and peace bonds

From police and judicial custody to bail and peace bonds, here's what happens after an arrest, who can keep someone in detention and what rights the Constitution guarantees

Can the police arrest someone without a warrant? How long can a person be kept in custody without being found guilty? And what happens if someone is asked to sign a peace bond? These questions have come into focus following recent legal proceedings of Cockroach Janta Party (CJP) leaders in Delhi.

 

The extension of judicial custody of CJP leaders Saurav Das and Ashutosh Ranka has also raised questions about the legal process and the powers of the authorities. Terms such as arrest, custody, remand, bail and peace bonds are often used interchangeably, but they mean different things under the law.

 

Here is a guide to what each means, who has the authority to detain someone and what rights a person has.

 

Does being taken into custody mean someone has been found guilty?

No. Being arrested does not mean a person is guilty of a crime. An arrest allows the police to take a person into custody for investigation or other legally permitted reasons. Only a court can determine guilt through the legal process.

 

Article 21 of the Constitution protects personal liberty, while Article 22 sets out the rights of a person who has been arrested. These provisions protect people against unlawful arrest and detention.

 

Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, specifies the circumstances in which the police can arrest someone without a warrant.

 

However, the police cannot arrest someone without a valid legal reason. Every arrest must follow the procedure laid down by law.

What is the difference between police custody and judicial custody?

The main difference is whether the accused is kept under police control or sent to jail under a court's authority.

 

In police custody, the accused remains with the police, usually for questioning or other investigative purposes.

 

In judicial custody, the accused is generally sent to jail under a magistrate's order. The jail authorities, rather than the investigating police, are responsible for the person's custody. This is generally considered safer for an accused person awaiting trial or the completion of an investigation.

 

The police cannot keep someone in their custody indefinitely or extend the period simply because they need more time to investigate.

 

The BNSS allows police custody to be granted in separate periods during the applicable initial 40 or 60 days of detention. However, the total period of police custody cannot exceed 15 days.

Who decides how long someone stays in custody?

The police cannot decide on their own to keep someone detained beyond the period allowed by law.

 

Under Article 22(2) of the Constitution, an arrested person must be brought before a magistrate within 24 hours of arrest, excluding travel time. If the police want to keep the person in custody beyond that period, they must obtain permission from the magistrate.

 

Under Section 187 of the BNSS, a magistrate can allow further detention if the legal requirements are met. This is called remand.

 

In simple terms, remand is a court's permission to keep an accused person in custody while the investigation continues. It does not mean the person has been found guilty or is being punished.

What is bail, and does getting it mean the case is over?

Bail allows an accused person to be released from custody, usually subject to certain conditions, while the investigation or trial continues.

 

Getting bail does not mean the accused has been declared innocent. It also does not mean the case has been closed.

 

The rules for granting bail depend on the type of offence.

 

In bailable offences, an accused person generally has the right to bail after meeting the legal requirements. In non-bailable offences, bail is not automatic, and the court decides whether the accused can be released.

 

Sections 478 and 480 of the BNSS cover bail in these two categories. Section 482 deals with anticipatory bail.

 

Anticipatory bail allows someone who fears arrest to approach a court in advance and seek protection. If the court grants anticipatory bail, the person can be released on bail in the event of arrest, subject to the conditions imposed.

What is a peace bond? Does signing one mean paying money?

A peace bond is a legal promise to maintain peace and avoid actions that could disturb public order for a specified period.

 

Under Section 126 of the BNSS, an Executive Magistrate can begin proceedings if there are sufficient grounds to believe that someone may disturb public peace.

 

Sections 130, 135 and 136 explain how these proceedings work, from issuing a notice and conducting an inquiry to ordering a person to provide security for maintaining peace.

 

However, receiving a notice does not automatically mean a person must sign a bond. The legal process must first be followed.

 

Signing a peace bond also does not necessarily mean paying the amount mentioned in it upfront.

 

A personal bond is a promise made by the person concerned. A surety is another person who agrees to take responsibility under the bond's conditions. Whether a surety is required depends on the magistrate's order.

Can the police detain someone before an offence has been committed?

Yes. The law allows the police to take preventive action in certain circumstances to stop a crime before it happens.

 

Under Section 170 of the BNSS, the police can arrest someone if they know the person is planning to commit a cognisable offence and believe the crime cannot be prevented without making an arrest.

 

However, a person arrested under this provision generally cannot be detained for more than 24 hours unless further detention is legally authorised.

 

Section 126 allows an Executive Magistrate to begin separate proceedings to prevent a possible breach of peace.

 

The purpose of these powers is to prevent an offence or disturbance, not to punish someone for something they have not been proved to have done.

 

These rules are particularly important during protests. Article 19(1)(b) of the Constitution protects the right to assemble peacefully, although the government can impose lawful restrictions to maintain public order.

 

The authorities must therefore have valid legal grounds for preventive action.

 

There is also an important distinction between the officials involved. A Special Executive Magistrate dealing with preventive proceedings is not the same as a judicial magistrate who authorises custody during a criminal investigation.

 

To determine whether detention is lawful, it is necessary to examine which legal provision was used, why the action was taken and which authority ordered it.

What happens if someone cannot provide a bond or is accused of breaking it?

The consequences depend on whether a person has failed to furnish a bond or has broken the conditions of a bond already signed.

 

For example, a person may be ordered to provide a bond or surety but may be unable to do so. This is different from a person signing a bond and later being accused of violating its conditions.

 

The law deals with these situations separately.

 

Section 141 of the BNSS covers detention in certain cases where a person fails to provide the security required by a valid order. Section 491 deals with the procedure for forfeiting a bond when its conditions are breached.

 

However, failing to provide a bond does not mean the person is guilty of the original allegation. Similarly, being accused of breaking a bond does not automatically mean a separate criminal offence has been committed.

 

If a surety is rejected or a person disputes the amount of security demanded, the reasons for the decision and the procedure followed can be examined under the law.

What rights does someone in custody have, and how can they challenge their detention?

Being arrested does not mean a person loses their constitutional rights.

 

Articles 21 and 22 of the Constitution protect personal liberty and provide safeguards against unlawful arrest and detention.

 

An arrested person has the right to know why they have been arrested and to consult a lawyer. Those who are eligible but cannot afford legal representation can also seek free legal aid from the state.

 

A person can apply for bail or approach a court if they believe their detention is unlawful.

 

Article 32 allows a person to approach the Supreme Court, while Article 226 allows them to approach a High Court for constitutional remedies. One such remedy is habeas corpus, through which a court can examine whether a person is being detained unlawfully.

 

The distinction matters: a bail application seeks release under the applicable law, while a challenge to unlawful detention questions whether the authorities had the legal power to detain the person or followed appropriate legal procedure.