Police Custody and Investigation Rights in Nepal: Complete Guide to Detention, Interrogation, and Constitutional Protections

Introduction: The Critical Importance of Police Custody and Investigation Rights

Police custody represents one of the most critical junctures in any criminal proceeding, where individual liberty intersects with state investigative authority. During police custody, individuals are physically deprived of liberty while police conduct investigation into alleged criminal conduct. This period—often brief, but sometimes extending through multiple remand orders—fundamentally affects the entire criminal process that follows. For criminal defense lawyers, comprehensive understanding of police custody law, investigation procedures, and the rights that protect detained individuals is absolutely essential.

The custody period presents unique dangers and opportunities. Dangers include: the detained person's vulnerability to coercion, the potential for torture or abuse, the risk of coerced confessions that may be false, the difficulty of mounting effective defense without counsel access, and the tendency toward rushed proceedings without adequate judicial oversight. Opportunities exist for vigorous assertion of constitutional rights, challenging illegal detention, preventing abuse, obtaining bail release, and laying foundation for exclusion of improperly obtained evidence.

The National Criminal Procedure Code 2074 BS (2017 AD) and the Constitution of Nepal 2072 BS (2015 AD) establish a comprehensive framework governing police custody and investigation. This framework reflects contemporary international human rights standards regarding detention, interrogation, and access to counsel. However, the gap between law on paper and law in practice remains substantial. Police custody practices in Nepal sometimes fall short of statutory and constitutional requirements, with reports of torture, prolonged detention beyond statutory limits, denial of legal counsel access, and coerced confessions.

For criminal defense lawyers, understanding both the law as written and the practical realities of police custody in Nepal is essential. Effective representation requires knowing when custody violates legal limits, what rights the detained person possesses, how to assert those rights, what remedies are available when rights are violated, and how to challenge illegally obtained evidence and statements.

This comprehensive guide addresses all dimensions of police custody and investigation rights in Nepal: the statutory framework establishing the 24-hour custody limit, the constitutional protections applied during custody, the right to counsel and its enforcement, protection against torture and cruel treatment, interrogation procedures and restrictions, the legal status of confessions and statements, bail and remand procedures, habeas corpus remedies, evidence exclusion principles, and practical guidance for defense lawyers protecting client rights during police custody.

Section 1: The Statutory Framework for Police Custody

1.1 The National Criminal Procedure Code 2074 BS - Primary Authority

The National Criminal Procedure Code 2074 BS (2017 AD) establishes the comprehensive framework governing police custody and investigation in Nepal. This modern code, enacted in 2074 BS (2017 AD) and implemented in 2075 BS (2018 AD), represents significant reform from older procedural law, incorporating modern criminal procedure principles and human rights protections.

Section 13 - Authority to Hold in Detention: Section 13 of the Criminal Procedure Code establishes the foundational authority for police to hold persons in detention. The section specifies that a person arrested in accordance with law shall be held in detention only upon serving on that person a warrant for detention. The detention warrant must specify the place where the person was arrested and the reasons for holding in detention.

This provision establishes several critical principles. First, detention is permissible only when authorized by law and by proper warrant. Second, the detained person must be informed through a warrant of the reasons for detention. Third, detention is not automatic upon arrest; it requires specific justification set forth in the warrant.

The requirement that detention be pursuant to warrant reflects fundamental due process principles. A person cannot be detained arbitrarily; the detention must be documented and justified. This documentation creates accountability and enables judicial review.

Section 14 - The 24-Hour Custody Limit - The Most Critical Provision: Section 14 of the Criminal Procedure Code establishes the foundational time limit for police custody. Section 14(1) specifies: "After a person has been arrested under this Chapter for investigation into any offence, the person shall be produced before the adjudicating authority as soon as possible within twenty-four hours."

This 24-hour limit is perhaps the single most important procedural protection in Nepal's detention law. The limit establishes that police custody without judicial intervention is limited to 24 hours. After 24 hours, the detained person must be brought before an adjudicating authority (typically a District Court judge or magistrate). The adjudicating authority then determines whether detention should continue, typically through a remand proceeding.

The 24-hour limit serves multiple critical purposes. First, it limits police authority to hold individuals without judicial review. Police cannot indefinitely hold persons; judicial oversight is mandated within 24 hours. Second, it prevents incommunicado detention; access to counsel must be considered before or at the 24-hour deadline. Third, it prevents psychological breakdown through prolonged isolation, which is associated with false confessions. Fourth, it creates an opportunity for judicial determination whether continued detention serves legitimate investigative purposes.

Calculation of the 24-Hour Period: Importantly, Section 14(1) includes an explanation specifying: "For the purposes of this Section, the period required for the journey from the place of arrest to the police office or from the police office to the adjudicating authority shall not be calculated as part of the said twenty-four hours."

This explanation reflects practical reality: if arrest occurs in a remote location, travel time to the police office cannot be counted against the 24-hour limit. However, courts have sometimes interpreted this generously, expanding the "journey" exception beyond what traveling time reasonably requires. Defense counsel must scrutinize whether journey time justifies exceeding the 24-hour limit.

Section 14(2) - Prohibition on Violations: Section 14(2) establishes: "No person shall be held in detention in contravention of sub-section (1)."

This provision creates an absolute prohibition on exceeding the 24-hour limit without judicial authorization. Detention in violation of this provision constitutes unlawful detention. Persons held beyond 24 hours without proper remand authorization may petition for habeas corpus relief, potentially requiring immediate release.

Section 14(3) - Remand Procedure: Section 14(3) addresses what occurs when police believe detention should continue beyond 24 hours. It specifies: "If it is necessary to hold any person in detention for a period exceeding that set forth in sub-section (1), the investigating authority shall make an application for remand, accompanied by the reasons and grounds for such detention, to the adjudicating authority through the government attorney office."

This provision establishes the remand procedure. If police want to continue holding a detained person beyond 24 hours, the investigating authority (police) must apply to the adjudicating authority through the Government Attorney's office. The application must include "reasons and grounds" for continued detention.

The remand procedure creates an important checkpoint. At the remand stage, the adjudicating authority must determine whether continuing detention is justified. The detained person's rights are engaged; the person should have opportunity to present counter-arguments regarding why detention should not be extended.

1.2 The Constitution 2072 BS - Constitutional Protections During Custody

Beyond statutory framework, the Constitution of Nepal 2072 BS (2015 AD) establishes constitutional protections that apply specifically to custody situations.

Article 20 - Right to Justice and Fair Trial: Article 20 of the Constitution guarantees the right to justice, establishing that every person has the right to justice, which includes the right to legal counsel, right to fair trial, right to presumption of innocence, and right to avoid torture or cruel, inhuman, or degrading treatment.

Article 20's application to custody is direct. A person in police custody retains full constitutional protection. Police cannot strip away constitutional rights merely because the person is detained. The detained person retains the right to counsel, the presumption of innocence applies, and torture is absolutely prohibited.

Article 29 - Right to Personal Liberty: Article 29 of the Constitution guarantees the right to personal liberty, establishing that no person shall be deprived of liberty except in accordance with law and through procedure established by law. This article further provides that any person arrested or detained shall be informed promptly of the grounds for arrest and detention, shall be produced before a competent authority within 24 hours, and shall not be subjected to torture.

Article 29's provisions directly address custody. The article specifies that arrest or detention must be "in accordance with law," not arbitrary. The person must be informed of grounds—not merely arrested without being told why. Most importantly, Article 29 mandates production before a competent authority "within 24 hours," establishing the constitutional basis for the 24-hour limit in the Criminal Procedure Code.

Additionally, Article 29 absolutely prohibits torture, stating explicitly: "No person shall be subjected to torture or to cruel, inhuman or degrading treatment." This constitutional guarantee applies throughout custody and forms the basis for prohibiting police abuse.

Article 21 - Right to Privacy: Article 21 of the Constitution protects the right to privacy and prohibits arbitrary interference with private life. This article has application to custody, as detention necessarily involves substantial interference with privacy. Detention must be justified and cannot be arbitrary.

Section 2: The Right to Counsel During Police Custody

2.1 Constitutional and Statutory Basis for Right to Counsel

The right to legal counsel during police custody is perhaps the single most important protection available to detained persons. Counsel serves as a safeguard against coercion, ensures informed decision-making, facilitates communication with the outside world, and provides advocacy for the detained person's rights.

Constitutional Guarantee: Article 20 of the Constitution explicitly guarantees the right to legal counsel. The article specifies that the right to justice includes "the right to legal counsel," establishing counsel as a fundamental constitutional right. This guarantee applies throughout the criminal process, including police custody.

Statutory Provision: Section 13(6) of the Criminal Procedure Code implements the constitutional guarantee, specifying: "If a person arrested pursuant to this Section intends to consult a law practitioner, the investigating authority shall allow him or her to consult such law practitioner."

This provision creates an explicit statutory obligation. Police must allow the detained person to consult a law practitioner if the person requests. Refusal to allow counsel consultation violates both constitutional and statutory rights.

2.2 The Right to Counsel - Detailed Elements

Modern jurisprudence recognizes that the right to counsel encompasses multiple distinct but interconnected elements, all of which must be satisfied for the right to be meaningful.

First Element - Right to Be Informed of the Right: Before the right to counsel can be exercised, the detained person must be informed that the right exists. This information duty requires that police must affirmatively inform the detained person: (a) that they have the right to consult with a lawyer; (b) that legal aid may be available if they cannot afford counsel; (c) how to contact counsel or access legal aid; and (d) that the detained person has this right before answering police questions.

The information must be clear and understandable. Information provided in language the detained person does not understand does not satisfy this element. Information buried in complex legal language that the person cannot comprehend does not satisfy the requirement. The police must ensure the person understands the right to counsel exists.

Second Element - Promptness and Timing: The right to counsel must be exercised at an appropriate time to be meaningful. If counsel can only be consulted after extensive police questioning, or after the investigating officer has completed interrogation, counsel's value is diminished. Modern standards require that counsel access be prompt—ordinarily meaning within hours of custody beginning, not near the end of the 24-hour custody period.

Section 13(6) itself contains no explicit timing requirement regarding when counsel must be allowed to consult with the detained person. However, constitutional principles and international standards establish that counsel access must be prompt to prevent incommunicado detention and to enable counsel to monitor interrogation procedures.

Third Element - Confidential Communication: The right to counsel includes the right to communicate with counsel in confidence and privacy, without police monitoring or interference. If police listen to conversations between lawyer and client, or if the detained person believes communications are monitored, the right to counsel is undermined.

Confidential communication between lawyer and client is protected by attorney-client privilege, which is recognized in Nepal law. Police cannot compel disclosure of what was discussed between lawyer and client. The detained person must be able to speak freely with counsel without fear that statements will be relayed to police.

Fourth Element - Reasonable Time and Facilities: The detained person must have reasonable time and facilities to consult with counsel. This may include access to telephone to contact counsel, a private space for meeting with counsel (if counsel can physically visit), and adequate time for meaningful consultation (not merely a brief conversation).

Fifth Element - Legal Aid for Indigent Persons: For persons who cannot afford private counsel, legal aid must be available. A person who desires counsel but cannot afford it should not be deprived of counsel solely due to poverty. Public defender or legal aid counsel should be available.

2.3 Practical Implementation of the Right to Counsel

While the statutory and constitutional rights are clear, practical implementation varies significantly.

Information About the Right: Detained persons should be informed of the right to counsel, ideally in writing. The information should be provided immediately upon arrest or detention, in the detained person's language. The detained person should be asked to acknowledge receipt of this information.

In practice, information quality varies. Some police stations provide clear written information explaining the right to counsel and how to exercise it. Other police stations provide minimal or no information. Some police delay providing information about counsel rights until after initial questioning has occurred.

Accessing Counsel: The detained person must be able to contact counsel. This requires access to telephone, or alternatively, police must facilitate contact with counsel. If the detained person requests counsel, police should permit the detained person to make a telephone call to a lawyer.

In practice, phone access varies. Some police stations have reasonable phone access policies. Others severely restrict phone access or delay it. Some detainees report being denied phone access entirely.

Counsel's Presence at Interrogation: A critical question is whether counsel can be present during police interrogation. The statutory language ("consult a law practitioner") could be interpreted as permitting only private consultation with counsel, or as permitting counsel presence at interrogation.

Modern criminal procedure in many jurisdictions permits counsel presence at interrogation, recognizing that counsel's presence prevents coercion and ensures that interrogation procedures are proper. However, Nepal's Criminal Procedure Code does not explicitly require counsel presence during interrogation, and in practice, police generally do not permit counsel presence during interrogation. The detained person may meet with counsel before or after interrogation, but counsel's presence during interrogation is not standard practice.

This represents a significant gap. International standards increasingly recognize that counsel presence during interrogation is important to prevent coercion and improper practices. Defense lawyers should advocate for counsel presence at interrogation, though statutory authority may be limited.

Legal Aid Availability: Nepal has established legal aid structures through the National Bar Council and other organizations. Legal aid is ordinarily available to persons who cannot afford counsel. However, accessing legal aid can involve bureaucratic delays. A detained person may request legal aid, but processing the request takes time. Defense counsel should facilitate legal aid connections for detained clients who cannot afford private counsel.

2.4 Rights When Counsel is Denied

If a detained person's right to counsel is violated—for example, if the person requests counsel but police refuse, or if phone access is completely denied—what remedies exist?

Habeas Corpus: The most direct remedy for unlawful detention or denial of fundamental rights during custody is habeas corpus petition. The detained person (or counsel, family, or concerned citizens) can file a habeas corpus petition with the High Court or Supreme Court, challenging the detention and seeking release or remedy for rights violations.

Confessions and Statements Exclusion: If police obtained statements or confessions in violation of the right to counsel, these statements may be excluded from evidence. Statements obtained after denial of counsel access are considered tainted and unreliable, and exclusion serves to deter police violations of counsel rights.

Disciplinary Action Against Police: Police officers who violate the right to counsel may face disciplinary action through the Nepal Police's internal mechanisms, or through complaints to the National Human Rights Commission.

Criminal Charges Against Police: In egregious cases where police deliberately deny counsel access or abuse detained persons, criminal charges may be filed against police officers involved.

Section 3: Protection Against Torture and Cruel Treatment

3.1 Absolute Prohibition on Torture

The prohibition on torture and cruel, inhuman, or degrading treatment is one of the most fundamental human rights protections, and it applies absolutely to police custody situations.

Constitutional Prohibition: Article 20 of the Constitution explicitly prohibits torture, stating: "No person shall be subjected to torture or to cruel, inhuman or degrading punishment." This prohibition applies without exception. There are no circumstances under which torture becomes permissible, no security exceptions, no exceptions for serious crimes.

Article 29 also addresses torture specifically, stating: "No person shall be subjected to torture. Every person arrested or detained shall not be subjected to torture and shall be produced before a competent authority as soon as possible, within twenty-four hours."

Criminal Prohibition: Beyond constitutional protection, the National Criminal Code 2074 BS establishes torture as a criminal offense. Section 238 of the Criminal Code specifically prohibits torture, defining torture as intentional infliction of severe pain or suffering by a person acting in official capacity for specific purposes (obtaining information, punishment, intimidation, or discrimination).

Torture is a crime, not merely a violation of rights. Police officers who torture detained persons commit a criminal offense and may face criminal prosecution. This criminal prohibition provides additional deterrent beyond constitutional prohibition.

International Treaty Obligations: Nepal is a signatory to the United Nations Convention Against Torture (UNCAT) and other international treaties prohibiting torture. These treaty obligations create international law obligations enforceable through international mechanisms.

3.2 What Constitutes Torture and Cruel Treatment

Understanding what conduct constitutes torture or cruel treatment is essential for defense counsel to recognize and challenge abusive police practices.

Torture Defined: Torture, as defined in international law and incorporated into Nepal's Criminal Code, involves intentional infliction of severe pain or suffering by state actors (or persons acting in official capacity) for specific purposes: obtaining information or confession, punishment, intimidation, or discrimination.

"Severe pain or suffering" is the key element. Minor discomfort or minor pain does not constitute torture. However, pain sufficient to break the person's resistance, to cause lasting physical or psychological injury, or to create extreme suffering qualifies as torture.

Physical Torture Methods: Physical torture methods that have been documented include: beating with batons or other objects; electric shocks; burning; suspension from limbs; application of stress positions; deprivation of food or water; sleep deprivation; exposure to extreme temperatures; and various other methods designed to inflict pain.

Psychological Torture: Beyond physical torture, psychological torture is recognized. Psychological torture includes: prolonged isolation; threats against the detained person or family members; mock executions; exposure to torture of others; and other methods designed to create psychological distress and break mental resistance.

Degrading Treatment: Degrading treatment, while distinct from torture in severity, is also prohibited. Degrading treatment includes: humiliation; denial of sanitation or hygiene; sexual abuse or threats; denial of medical care for injury or illness; and other treatment that violates human dignity.

Conditions of Detention: While not necessarily "torture," conditions of custody that are severe may constitute cruel or degrading treatment. Overcrowding, lack of sanitation, contaminated water, denial of medical care, inadequate food, and similar conditions may violate the prohibition on cruel treatment.

3.3 Signs of Torture and Defense Counsel Response

Defense counsel must be alert to signs that a detained client has been subjected to torture or abuse.

Physical Signs: Physical signs of torture include: visible injuries (bruises, burns, cuts); swelling; fractures; unusual injuries patterned consistent with specific torture methods; and injuries the police explanation does not adequately explain.

Upon meeting a detained client, defense counsel should carefully examine the client for injuries. If injuries are present, counsel should photograph them (if the client consents), document them in detail, and request medical examination. Medical examination can determine injury type, likely cause, approximate timing, and consistency with torture allegations.

Psychological Signs: Psychological signs of torture or trauma include: fear or anxiety affecting client's ability to communicate; trembling or shaking; difficulty concentrating; indications of sleep deprivation; signs of psychological breakdown; and reluctance to discuss detention experiences.

Statements Regarding Torture: The most direct evidence is the client's own statement regarding torture. If the detained person reports being beaten, shocked, threatened, or subjected to other abuse, this must be documented carefully.

Medical Evidence: Medical examination can provide objective evidence of torture. Physicians can examine injuries, assess consistency with torture, determine whether injuries could have resulted from the stated cause (if police claim the detainee injured themselves, or that injuries resulted from resisting arrest), and provide professional testimony regarding evidence of torture.

3.4 Response to Torture Allegations

If a detained client reports torture, defense counsel should take specific steps to protect the client and address the torture allegations.

Document the Allegation: Counsel should carefully document the client's account of torture. This documentation should be as specific as possible: what was done, when, by whom if identifiable, what was said, and what the purpose appeared to be.

Request Medical Examination: Counsel should request that the client be examined by a physician. This can be done through requesting a doctor be brought to the detention facility, or through requesting the adjudicating authority order medical examination.

Petition Against Torture: Counsel should file a petition with an appropriate court (High Court or Supreme Court) alleging torture and requesting investigation, protection, and remedy. Such petitions can include requests for: immediate cessation of torture, protection from further abuse, medical treatment, investigation of allegations, and compensation.

Complaint to Human Rights Bodies: Counsel should file complaints regarding torture with: the National Human Rights Commission, the Office of the Attorney General, Nepal Police human rights mechanisms, and civil society organizations monitoring torture.

Exclusion of Tainted Statements: If torture occurred during custody, any statements or confessions obtained during or after torture should be challenged and excluded from evidence. Statements obtained through torture are inherently unreliable and their admission violates fundamental fairness.

Criminal Prosecution: In cases of severe torture, criminal charges may be filed against police officers responsible. Counsel should discuss with the client whether pursuing criminal charges against police torturers is desired.

Section 4: Interrogation Procedures and Statement Taking

4.1 Statutory Procedures for Interrogation

The Criminal Procedure Code establishes specific procedures that police must follow during interrogation of detained persons.

Recording of Statements: When police take statements from a detained person, the statements must be recorded. The Criminal Procedure Code requires that statements be recorded in writing and read back to the person to confirm accuracy. The person should have opportunity to make corrections or additions.

In practice, statement recording quality varies. Some police officers carefully record statements and read them back. Others record only summaries, or record statements in ways that distort what the person actually said.

Government Attorney Involvement: Statements taken from detained persons should involve the Government Attorney's office, or at least the procedures should be coordinated with the Government Attorney. This creates another layer of oversight and prevents statements from being taken in complete isolation from prosecutorial awareness.

However, in practice, the degree of Government Attorney involvement during police custody varies substantially.

Voluntary Statement Requirement: Statements must be voluntary. Police cannot coerce confessions or statements through force, threats, or improper inducements. A confession obtained through torture, or a confession made in response to police threat to harm the person's family, or a confession made in exchange for a false promise of no punishment, is coerced and inadmissible.

4.2 The Legal Status of Confessions

Confessions—statements by an accused person admitting to conduct constituting the alleged offense—have special significance in criminal law. A confession is powerful evidence, sometimes considered enough to support conviction without corroborating evidence.

However, confessions present particular dangers. False confessions occur, particularly when the confessing person is subjected to coercion, has mental illness or intellectual disability, or is psychologically vulnerable. Studies demonstrate that interrogation techniques can elicit false confessions from innocent people.

Admissibility Requirements: For a confession to be admissible in evidence, it must be voluntary. Specifically: (a) the confession must not have been obtained through torture or cruel treatment; (b) the confession must not have been obtained through threats or coercion; (c) the confession must not have been obtained through inducements (promises of leniency, payment, etc.); (d) the confession must be the person's own statement, not put in the person's mouth by police; and (e) the person must have been informed of the right to remain silent and the right to counsel.

Burden of Proof: When a confession's voluntariness is questioned, the prosecution bears the burden of proving voluntariness. The accused need not prove the confession was involuntary; the prosecution must prove it was voluntary. If the prosecution cannot establish voluntariness, the confession is excluded.

Challenges to Confession Admissibility: Defense counsel should carefully scrutinize all confessions, particularly if: the detained person had limited access to counsel; the detained person was subjected to extended interrogation; torture or abuse is alleged; the detained person has mental illness or intellectual disability; or other circumstances suggesting coercion.

Section 5: Remand Procedures and Judicial Custody

5.1 The Remand System - Judicial Review of Continued Custody

The remand system provides the mechanism through which detention beyond 24 hours is reviewed and authorized by a judge. This system creates the critical judicial checkpoint on police authority.

What is Remand: Remand refers to the court-ordered continuing detention of an accused person. When police believe a detained person should remain in custody beyond 24 hours, police apply to the court (through the Government Attorney) requesting that the court "remand" the person into custody. The court, after hearing arguments from the prosecution and defense, may grant the remand (continuing detention) or refuse (resulting in bail or release).

Duration of Remand: Each remand ordinarily covers a specific period, typically 7 to 14 days. At the end of each remand period, if police believe continued detention is necessary, police must apply for a new remand. The system thus creates recurring checkpoints on detention rather than permitting indefinite detention on a single authorization.

Maximum Remand Duration: While the Criminal Procedure Code does not establish an absolute maximum remand duration, principles limiting pretrial detention require that remand cannot continue indefinitely. If the investigation is completed, charge is filed, or trial is ready to begin, continued detention becomes difficult to justify.

Remand Application: To obtain remand, the Government Attorney (on behalf of police) files an application with the adjudicating authority. The application must state: the grounds for detention (why continued detention is necessary); the investigation status; what investigation remains to be conducted; and why release would interfere with investigation.

Remand Hearing: The adjudicating authority conducts a hearing at which the Government Attorney presents arguments for continued detention and the defense presents arguments for release. The court considers evidence and arguments regarding: (a) the gravity of the offense charged; (b) the strength of evidence against the accused; (c) whether the accused presents flight risk; (d) whether continued detention is necessary for investigation completion; (e) whether the accused poses danger to public safety or would interfere with investigation; and (f) other relevant factors.

Defense Arguments Against Remand: At remand hearings, defense counsel should present arguments against continued detention: investigation can be completed without detention; the accused has strong community ties and presents no flight risk; evidence against the accused is weak; continued detention would prevent adequate defense preparation; the accused requires medical attention or family care; and other arguments supporting release.

5.2 Standard for Detention at Remand Stage

Courts apply certain standards when deciding whether to remand (continue detention) or to release (on bail or recognizance).

Reasonableness of Detention: The detention must be reasonable—not arbitrary or punitive. The court must find specific reasons justifying detention, not merely assume detention is appropriate.

Necessity for Investigation: Continued detention must be necessary for investigation completion. If investigation can proceed with the accused released on bail, detention is not justified.

Presumption Favoring Release: Underlying remand law should be a presumption that release is preferable to detention. Detention should be exceptional, granted only when compelling reasons exist. This reflects the constitutional presumption of innocence and the principle that liberty is the norm.

However, in practice, remand is often granted easily, and courts sometimes impose bail amounts exceeding accused persons' capacity to pay, effectively denying bail and extending detention.

Section 6: Bail Application During Custody

6.1 Right to Apply for Bail During Police Custody

Even during police custody, before formal charges are filed, detained persons can apply for bail. This early bail opportunity provides an important mechanism for early release.

Authority to Grant Bail: During police custody, bail can be granted by: (a) the investigating officer (in bailable offense cases); (b) the adjudicating authority at the first court appearance (at the 24-hour mark); (c) the Government Attorney (in some circumstances); or (d) the court on habeas corpus petition.

Bailable vs. Non-Bailable Offenses: For bailable offenses (those carrying maximum imprisonment under 7 years), the law presumes bail is available. For non-bailable offenses (serious crimes), bail is discretionary, but should still be available unless specific reasons for detention exist.

Bail at 24-Hour Appearance: When the detained person is produced before the adjudicating authority at the 24-hour mark (as required by law), the person can immediately apply for bail. The adjudicating authority must consider the bail application.

6.2 Factors in Bail Determination During Custody

Courts consider specific factors when determining bail at the custody stage.

Investigation Status: Whether investigation is complete or ongoing. If investigation is substantially complete, detention may be unnecessary.

Flight Risk: Whether the accused presents risk of flight. Strong community ties, lack of passport, family responsibilities, and employment suggest lower flight risk.

Evidence Strength: The strength of evidence against the accused. Weak evidence may support release; strong evidence may support detention pending trial.

Safety and Evidence Integrity: Whether detention is necessary to protect public safety or prevent evidence destruction or witness tampering.

Gravity of Offense: More serious offenses may justify detention more readily than minor offenses.

Bail Amount and Conditions: The court should set reasonable bail amounts and conditions enabling bail posting. Bail so high as to be impossible to post defeats the bail purpose.

Section 7: Habeas Corpus - Emergency Remedy for Illegal Detention

7.1 Nature and Purpose of Habeas Corpus

Habeas corpus (literally "you shall have the body") is an ancient and important legal remedy enabling persons to challenge unlawful detention. In Nepal, habeas corpus petitions provide a direct avenue for challenging illegal custody, denial of rights, and detention exceeding statutory limits.

Constitutional Basis: The Constitution of Nepal 2072 BS recognizes habeas corpus as a remedy for unlawful detention. Article 29 and Article 20 provide constitutional foundation for habeas corpus claims.

Statutory Basis: While the Criminal Procedure Code does not explicitly address habeas corpus, habeas corpus is recognized as an equitable remedy available through the courts' inherent powers.

7.2 Grounds for Habeas Corpus Petitions

Habeas corpus petitions can be filed on multiple grounds relevant to custody.

Detention Exceeding 24 Hours Without Remand: If a detained person is held beyond 24 hours without being brought before an adjudicating authority, or without proper remand authority, habeas corpus can be sought to challenge the unlawful detention.

Denial of Right to Counsel: If the detained person's right to counsel is completely denied, making meaningful consultation impossible, habeas corpus can challenge this violation.

Torture or Abuse: Torture or severe abuse during custody can ground habeas corpus, particularly if the abuse is ongoing and poses danger to the detained person's life or health.

Unconstitutional Conditions of Custody: If detention conditions are so severe as to violate constitutional protections (for example, if the detained person is being held in a manner creating immediate danger to health or life), habeas corpus can challenge these conditions.

Violation of Statutory Procedures: Other violations of statutory custody procedures that render the detention unlawful can ground habeas corpus.

7.3 Filing and Processing Habeas Corpus Petitions

Filing Authority: Habeas corpus petitions are filed with the High Court or Supreme Court (depending on the jurisdiction and nature of the case). The petition can be filed by the detained person (through counsel or on their own behalf), by family members, by counsel, or by any concerned citizen.

Contents of Petition: The habeas corpus petition should specify: the detained person's identity and current location; the authority holding the person in detention; the facts showing the detention is unlawful (exceeding time limits, denying rights, etc.); the relief sought (release, investigation of abuse, etc.); and supporting evidence.

Urgency and Emergency Relief: Habeas corpus is understood as an urgent remedy. Courts should expedite habeas corpus petitions, often hearing them within days or even hours. Emergency interim relief (ordering that torture cease, for example) can be granted immediately.

Hearing and Decision: At the habeas corpus hearing, the detaining authority (police) must justify the detention. If the court finds the detention is unlawful, the court can order immediate release or other relief.

Section 8: Exclusion of Evidence Obtained in Violation of Rights

8.1 The Exclusion Principle

A fundamental criminal law principle holds that evidence obtained in violation of constitutional or statutory rights should be excluded from trial. This exclusion principle serves multiple purposes: it deters police from violating rights, it ensures that tainted evidence does not result in convictions based on rights violations, and it maintains the integrity of the judicial process.

Constitutional Basis: The Constitution of Nepal 2072 BS implicitly supports evidence exclusion as necessary to protect constitutional rights. If police can violate rights with impunity by introducing the resulting evidence at trial, constitutional protections become meaningless.

Statutory Basis: The Criminal Procedure Code establishes that statements obtained in violation of procedures are questionable and can be challenged.

8.2 Evidence Exclusion Categories

Multiple categories of evidence may be excludable if obtained through rights violations.

Confessions Obtained in Violation of Right to Counsel: If a confession was obtained after police refused the detained person's request for counsel, the confession should be excluded as obtained in violation of constitutional rights.

Statements and Confessions Obtained Through Torture: If torture occurred to obtain a confession or statement, the confession/statement should be excluded. Torture renders any resulting statement unreliable and inadmissible.

Evidence Obtained Through Illegal Search: If police conducted a search without warrant or without proper legal authority, and seized evidence through the illegal search, the evidence should be excluded as "fruit of the poisonous tree."

Statements Made During Illegal Detention: If a statement was made during detention that violated statutory time limits or other procedural requirements, the statement's admissibility becomes questionable, particularly if the violation prevented counsel access or other rights.

8.3 Challenging Evidence Admissibility

Defense counsel challenging evidence admissibility should:

File Motions to Suppress: Before trial, file motions seeking to suppress evidence, arguing that the evidence was obtained in violation of rights.

Develop Factual Record: Through discovery, cross-examination at hearings, and witness testimony, establish the facts showing the rights violation.

Present Legal Arguments: Argue that the law requires exclusion of evidence obtained through these violations.

Preserve Record for Appeal: If evidence is admitted despite rights violations, preserve the issue for appeal by making clear record of the objections and arguments.

Section 9: Investigation Procedures and Prosecutors' Role

9.1 The Government Attorney's Role in Investigation

While police conduct the investigation, the Government Attorney's office plays a supervisory role, particularly regarding important decisions affecting detained persons' rights.

Supervision of Detention: The Government Attorney must be involved in remand procedures. Applications for remand beyond 24 hours must go through the Government Attorney's office to the adjudicating authority.

Oversight of Investigation: The Government Attorney supervises police investigation to ensure it complies with legal procedures and constitutional protections. If police violate rights, the Government Attorney should object.

Review of Statements: The Government Attorney should review statements obtained from detained persons to assess their voluntariness and admissibility.

Decision to Charge: The Government Attorney, not police, makes the ultimate decision whether to file charges. This ensures that decisions to prosecute are made by prosecutors, not merely by investigating police.

9.2 Protections Through Government Attorney Involvement

The Government Attorney's involvement in custody matters provides protections:

Non-Police Decision-Maker on Remand: The Government Attorney presents remand applications to the court, but courts make remand decisions. The court is a neutral, non-police authority.

Investigation Review: If investigation procedures violated law or rights, the Government Attorney may refuse to participate in procedural steps, potentially leading to case dismissal or evidence suppression.

Ethical Obligations: Government Attorneys have ethical obligations to ensure just outcomes and compliance with law. These obligations should limit prosecutorial participation in rights violations.

Section 10: Special Issues in Police Custody

10.1 Custody of Juveniles

Juveniles (persons under 18 years) require special protections during custody, recognizing their developmental immaturity and increased vulnerability to coercion.

Parental Notice: Parents or guardians should be notified immediately that the juvenile is in custody. Police should facilitate prompt contact between the juvenile and parents.

Parental Presence: For interrogation of juveniles, the presence of a parent or guardian should be permitted and encouraged. Parental presence provides protection against coercion and ensures the juvenile's interests are protected.

Enhanced Counsel Rights: Juveniles should have enhanced access to counsel. Counsel presence at interrogation should be particularly important for juveniles.

Separate Facilities: Juveniles should be held in facilities separate from adults, to the extent possible. Adult detention facilities subject juveniles to danger and inappropriate conditions.

10.2 Custody of Persons with Mental Illness or Intellectual Disability

Persons with mental illness or intellectual disability require special protections, as these conditions affect capacity to understand rights, resist coercion, and participate in interrogation.

Assessment of Capacity: Police should assess whether the detained person has mental illness or intellectual disability affecting capacity. If so, special procedures should apply.

Counsel and Support Persons: Persons with disability should have enhanced right to counsel and to support persons during interrogation.

Medical Assessment: Medical or psychological evaluation should be conducted to assess capacity and mental state.

Limitations on Interrogation: Interrogation of persons with severe mental illness or intellectual disability should be limited to simple questions they can understand. Extended interrogation that exploits their condition is abusive.

10.3 Custody of Women and Gender Issues

Women in custody face particular risks, including sexual abuse by male police officers.

Female Officers: Women in custody should be handled by female police officers, particularly during searches or body-related procedures.

Safety: Special measures should protect women in custody from sexual abuse or harassment from male detainees or officers.

Medical Care: Women in custody requiring medical attention (particularly reproductive health matters) should receive appropriate care from female medical personnel.

Section 11: Practical Guidance for Defense Counsel - Protecting Client Rights in Custody

11.1 Initial Client Contact and Assessment

When counsel is contacted about a client in police custody, counsel should:

Verify Detention Status: Confirm that the person is actually in police custody, where they are being held, and when they were arrested.

Visit Client Immediately: Counsel should visit the client as soon as possible. This both establishes counsel relationship and enables assessment of the client's condition.

Examine for Injury: Carefully examine the client for signs of torture or abuse. Document any injuries through notes or photographs (if the client consents).

Interview Client: Counsel should interview the client regarding: the arrest circumstances; any police conduct during custody; interrogation procedures; any statements made; any torture or abuse; and the client's needs and concerns.

Advise of Rights: Counsel should explain to the client: the 24-hour custody limit; the right to counsel; the right to remain silent; the right not to answer police questions; protections against torture; and the bail system.

11.2 Strategic Decisions and Advice

Remaining Silent: Counsel should advise the client that remaining silent during police interrogation is ordinarily advisable. Statements to police can be used as evidence, and remaining silent provides better protection than statements that police may mischaracterize or use against the client.

Refusing Interrogation: Counsel should advise the client that they have the right to refuse police interrogation. If the client does not wish to answer questions, counsel should assist in communicating this refusal to police.

Confession Risks: If police pressure the client to confess, counsel should explain that confessions are powerful evidence used at trial. Counsel should advise against confessing unless the client has decided, with counsel's advice, that confession serves the client's interests.

11.3 Advocacy During Custody

Ensuring Bail Application: Counsel should ensure that a bail application is made at the 24-hour appearance. Even if bail is denied initially, timely bail application preserves rights and provides opportunity for release.

Challenging Unlawful Detention: If detention violates statutory time limits or rights, counsel should file habeas corpus or other motions challenging the detention.

Documenting Rights Violations: If torture, abuse, or other rights violations occur, counsel should carefully document them and file complaints with appropriate authorities.

Facilitating Contact: Counsel should help the client maintain contact with family members, employer, and others, and should relay important information to the outside world regarding the client's condition and needs.

11.4 Investigation Participation

Discovery: Counsel should obtain all investigation materials: police reports, witness statements, physical evidence documentation, medical records, interrogation recordings or notes, and other materials.

Investigation of Police Conduct: Counsel should investigate whether police procedures complied with law: Were rights explained? Was custody extended beyond 24 hours without proper remand? Was torture or abuse used? Were statements voluntary? Did police follow proper procedures?

Locating Witnesses: Counsel should identify and contact potential witnesses to police conduct, detention conditions, or interrogation procedures.

Section 12: Constitutional and Human Rights Jurisprudence on Custody

12.1 Supreme Court Cases on Custody Rights

Nepal's Supreme Court has issued important decisions clarifying custody rights.

24-Hour Limit Cases: The Supreme Court has repeatedly affirmed that the 24-hour limit is absolute and cannot be violated without proper remand. Detention exceeding 24 hours without judicial authorization is unlawful.

Right to Counsel Cases: The Supreme Court has affirmed that the right to counsel during custody is fundamental and cannot be denied. Complete denial of counsel access may be grounds for habeas corpus.

Torture Cases: Supreme Court decisions have addressed torture and abuse in custody, establishing that torture is absolutely prohibited and that statements obtained through torture are inadmissible.

12.2 Emerging Issues and Reforms

Contemporary issues regarding police custody continue to evolve.

Confession Reliability: Growing recognition of false confessions and interrogation coercion is affecting how courts assess confession voluntariness.

Custodial Deaths: Cases involving deaths of detainees in police custody have prompted increased scrutiny of detention conditions and police conduct.

Torture Investigation: Increased pressure for independent investigation of torture allegations (rather than police investigating themselves) is changing torture accountability.

Conclusion: The Critical Role of Defense Counsel in Protecting Custody Rights

Police custody represents a critical period in the criminal process where individual liberty and state investigative authority intersect. For criminal defense lawyers, understanding and advocating for custody rights is absolutely essential to effective representation.

The statutory framework established by the Criminal Procedure Code 2074 BS and the Constitution 2072 BS provide strong protections: the 24-hour limit, the right to counsel, protection against torture, statutory procedures for statements, and judicial review through remand and bail. However, the gap between law on paper and law in practice remains substantial.

Criminal defense lawyers serve as the critical safeguard ensuring that police comply with custody law and constitutional protections. Through immediate client contact, careful documentation of any abuses, vigorous assertion of rights, bail applications, habeas corpus petitions when appropriate, and investigation of police conduct, defense lawyers protect clients during the vulnerable custody period and lay foundation for effective defense through the remainder of the criminal process.

The guidance provided in this comprehensive guide—regarding custody time limits, right to counsel, protection against torture, interrogation procedures, bail applications, habeas corpus remedies, and practical strategies—provides criminal defense lawyers with the knowledge necessary to represent clients effectively during police custody and to hold police accountable to constitutional and statutory requirements.