how long can someone be detained in Police and Judicial custody in India?

Question

According to NCRB, about 77% of prisoners in India are undertrials. and CrPc 167

https://indiankanoon.org/doc/1687975/

states that the maximum someone can be kept in Judicial custody is 90 days, or 60 days, depending on the gravity.

However, it appears from the report that many prisoners are detained beyond this period. According to another forum focused in Indian law , this is due to "charge sheet pending and prosecution requests of accused confronting prosecution witnesses."

https://tripakshalitigation.com/difference-between-police-custody-and-judicial-custody/

This says that if a police report is filed then the person can be detained up to a maximum of half the maximum period of imprisonment for the offence. What ? there was a recent post where someone was in pre trial detention for 1.5 years. is this legal ?

Edit;; speaking of the legality of this CrPc 438 allows anticipatory bail for someone who has apprehension that they might be arrested on an accusation of a non bailable offence is this possible to apply after a chargeheet or police report has been filed ?

edit;; thank you

Answer 1

As per Section 167 of the Code of Criminal Procedure, 1973, the maximum period for an accused to be detained in police custody is 15 days and judicial custody is specified as 90 days subject to the proviso under Explanation I therein, where payment of bail is the condition required to be fulfilled. In addition to this, conditions may be prescribed by the detaining court while providing bail, which may enlarge the period of undertrial detention if left unmet.

Undertrial detention

Although the prescribed period of detention is a maximum of half of the period of sentence under the law for which he has been accused, the percolation of this to prisoner releases seems to be an implementation issue, which Indian courts have tried resolving by prioritising cases pending for more than 5 years and providing personal bonds; and forming an Under Trial Review Committee. Notably, in Bhim Singh v. Union of India, the court acknowledged the implementational hurdle.

direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of 436A of the Code of Criminal Procedure.

To answer your doubt regarding anticipatory bail,

It is a provision enabling a right to future release to a person even before the person is arrested, regardless of whether "cognizance has been taken or a chargesheet has been filed".