You must have heard about judicial custody and police custody in news many times. But do you know the difference between these two. Many people think that arrest and custody both are the same. In this article we will learn about, what is judicial custody and policy custody? And difference between them. Also we will look into various case laws and legal provisions related to this.
Dictionary meaning of ‘Custody’
According to Cambridge Dictionary, the meaning of custody is the legal right or duty to care for something or something or the state of being kept in prison, especially while waiting to go to court for trial.[i]
Do ‘arrest’ and ‘custody’ is same?
Custody and arrest are not same. Arrest of any person is followed by the custody by police but it is not case that every custody may be preceded by arrest.
Arrest means confinement of a person forcefully by police.
It is the arrest of a suspected person in crime to collect more information by the police officer in case of cognizable offence. Another aim of the police custody is to prevent evidence from destruction. During this period, police officer who is in charge can interrogate the arrested person.
According to section 57 of The Code of Criminal Procedure, 1973, without the order of magistrate it cannot exceed more than 24 hours. Person who was arrested should be produced before the Magistrate nearest from place of arrest within 24 hours. Time for the journey from place of arrest to the Magistrate can be excluded for this.[ii]
According to Section 167(2) in The Code of Criminal Procedure, 1973, when police officer presents the arrested person in front of Magistrate, Magistrate can order to send him to police custody or judicial custody.
When Magistrate orders to send the person to police custody, police will have actual physical custody of the arrested person. Police will detain arrested person in police lock-up and interrogate him to collect necessary information.
In judicial custody, Magistrate will have the custody of the arrested person and he will be sent to jail. During this custody, police can interrogate the arrested person only after the permission of Magistrate. In case of Gian Singh v State of Delhi Administration[iii] it was decided that only interrogation during judicial custody does not change the nature of custody.
Difference between police custody and judicial custody
As we have discussed earlier there is a difference between the two custodies in terms of authority. When accused is sent to police custody, police will have the authority. Under judicial custody, Magistrate will have the custody. Another difference is that during police custody, police can interrogate the accused directly without any authority’s permission. But in judicial custody police cannot interrogate accused without permission of Magistrate.
Provisions for custody
In India, custody is governed by section 167 of Code of Criminal Procedure, 1973. According to this section, time period of custody is given as follows:
- Custody for not more than 15 days
When arrested person is produced before Magistrate, he can send the accused to custody for a time period of 15 days.[iv]
- Custody for 7 days.
If Judicial Magistrate is not available then the Executive Magistrate can give custody of accused for time period not more than seven days.[v]
- Custody for 60 days.
According to Section 167(2)(a)(ii), Magistrate can send accused to extended custody for period of sixty days on reasonable grounds. In these sixty days, police custody will not be more than fifteen days.
- Custody for 90 days.
According to section 167(2)(a)(i), Magistrate can extend custody up to 90 days for investigation of offence related to punishment of death or life imprisonment or imprisonment not less than ten years.
In this section it is also mentioned that accused must be present in the court for police custody. For judicial custody accused can also address Court through video conferencing. When police fail to file charge sheet even after custody of sixty days or ninety days it becomes right of accused to get bail after application for bail.
Rights and Remedies
There are various rights and remedies for accused person. Under Article 22 of Constitution of India, person who was arrested has the right to be informed after arrest and he must be produced before Magistrate within 24 hours. Also he has the right to seek for the consultation from his lawyers.
Another right of an accused person which we have already discussed is that under section 167 of Code of Criminal Procedure, if police is unable to file charge sheet or failed to complete investigation even after extension of 60 or 90 days accused will be entitled to bail.
If custody is not valid or has violated any legal right of person or it is not according to the legal framework, he can file writ of Habeas Corpus under Article 32 or 226 of Constitution of India.
Some case laws
- State of U.P. vs Dharam Pal And Others[vi]
In this case it was held that the nature of the custody can be altered from judicial custody to police custody and vice versa during the first period of 15 days mentioned in S. 167(2) of the Code. After 15 days, the accused can only be kept in judicial custody or any other custody as ordered by the Magistrate, but not under the custody of the Police.
- CBI v Anupam J. Kulkarni[vii]
In this case custody of 7 days after expiry of 15 days of police remand was held violative of Section 167 of the Code of Criminal Procedure.
- Babunandan Mallah v. State[viii]
In this case Patna High court held that if the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered.
- State of U.P. v. Ram Sagar Yadav[ix]
Remand should be passed by Magistrate on proper application of mind and not mechanically.
- Devender Kumar v. State of Haryana[x]
Any remand to police custody including second remand application, held, can be made only within first 15 days after arrest and not after that.
In this article we discussed the police custody and judicial custody also we have discussed difference between them. The main purpose of custody is to maintain peace and avoid any further wrong activities. Police arrest the suspected person to gather more information and to avoid any kind of destruction of evidence. We also have discussed rights and remedies of accused person. The concept of custody is shaped by various cases. Some of the cases have been discussed to understand this concept more clearly.
“The views of the authors are personal“
[i]See this https://dictionary.cambridge.org/dictionary/english/custody (last visited- 12 September 2019).
[ii] Section 57 ofthe Code of Criminal Procedure, 1973.
[iii]1981 CriLJ 100.
[iv]Section 167(1)(a) of the Code of Criminal Procedure, 1973.
[v]Section 167(2A) of the Code of Criminal Procedure, 1973.
[vi] 1980 CriLJ 1394.
[vii] 1992 AIR 1768.
[viii]1972 Crl.L.J. 423.
[ix](1985) 1 SCC 552.
[x](2010) 6 SCC 753.