This judgement of the Supreme Court of India delves into the legal concepts of detention and custody within the context of criminal proceedings. It compares provisions in the Code of Criminal Procedure (CrPC) of 1898 and 1973 to shed light on the distinctions and implications of these terms. Additionally, it examines the significance of custody shifts and their impact on the calculation of detention periods.

The terms “detention” and “custody” often find use in legal discourse, but their definitions can vary. Detention generally refers to the temporary restraint of an individual’s freedom, often by an investigating agency, while custody involves being held in a specific place under the care and control of an authority.

Section 167(1) of the CrPC addresses situations where investigation cannot be completed within 24 hours. It mandates the transmission of relevant case details to a Judicial Magistrate and the forwarding of the accused to the Magistrate. Subsequently, Section 167(2) allows the Magistrate to authorize custody for up to 15 days, a period that can extend based on specific circumstances.

When an accused is produced before a Magistrate, the custody effectively shifts from the investigating agency to the court. This shift triggers the commencement of any custody period. However, if custody is later transferred back to the investigating agency, the original custody period remains unaffected.

Section 167(2) grants Magistrates broad authority to decide custody matters, whether judicial or police custody. The term “from time to time” emphasizes the flexibility and continuity of this power, enabling Magistrates to make custody decisions based on evolving investigation needs.

The 15-day custody period can be extended by Magistrates for certain cases under the proviso to Section 167(2). This extension should be considered in conjunction with the overall investigation period specified in the proviso to ensure that no undue delays occur.

Understanding the nuanced differences between detention and custody is essential in criminal proceedings. The legal provisions in the CrPC provide for checks and balances to ensure the protection of an accused person’s rights while allowing for effective investigation. Magistrates play a crucial role in granting and managing custody, guided by the principles of justice and fairness.

. decided by the Supreme Court of India on August 7, 2023.


Sanjiv Narang Adv. is an Advocate on Record in the Supreme Court of India. His qualifications include an LLB from University of Delhi and a Masters degree in Personnel Management from Panjab University,Chandigarh.In his more than 3 decades of experience, he has practiced law at the District, High Court and Supreme Court levels.He also has more than a decade of experience in the field of Management. He is the author of two books namely Laws for Women in India and Innovation, Why What and How.