In this blog post, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, writes about the issue of custody of a person under criminal law in India. The post highlights the provision of Section 167 of the CrPC and also other related Sections. Rights of a person in custody are discussed in this post. The post also highlights the remedies on which a person in custody may rely upon.

Many time it happens that when a person is arrested in connection with a crime or suspicion of a crime, the police may not be able to complete the investigation within 24 hours and present the person in front of the magistrate. At this point in time, with it is important to keep the person away from the society, for the security of the society and the security of the person himself. It is also necessary that he is present for further investigation and inquiry and does not evade the law. In such a case, the person may be kept police custody. The person any also be submitted to judicial custody.

Holding a person in custody for further inquiry and investigation is governed by Section 167 of the Code of Criminal Procedure. Section 167[1] provides that a person may be kept in police custody to the extent of 15 days at the order of the Magistrate. Inthe case of an Executive Magistrate, the Executive Magistrate may grant custody of police to the extent of seven days. A Judicial Magistrate has the power to grant police the custody of a person for 15 days. Police custody can only extend up to the period of 15 days. Beyond this, even if the custody of the person is required, it has to be judicial custody.

A judicial custody may extend up to the period of 90 days if the person is arrested in connection to a crime which is punishable by an imprisonment of 10 years or more, life imprisonment, and capital sentence. In any other case, the judicial custody of such person may extend up to the period of 60 days.[2] After the period of 60 or 90 days, the person is entitled to bail, till the time police have not filed the charge sheet. Once the police files the charge sheet, the person cannot claim bail as a matter of right.

As already stated above, the Magistrate may grant police or judicial custody of the person. The detaining authority may be changed during the pendency of the detention, subject to the fact that the period of detention has not crossed the 15 days mark. If in between police custody, the person is shifted to judicial custody, the number of days served in police custody is deducted from the number of days of judicial custody.

The difference between police custody and judicial custody, first of all, relates to the authority. Also, in a case of police custody, a person can be interrogated, but in judicial custody, a person cannot be interrogated except in exceptional circumstances. Police custody starts as soon as a person is arrested, but judicial custody starts when the Magistrate orders it.

 

Rights of the Person in Custody

Rights of a person start as soon as the person is arrested. Under Article 22[3] of the Indian Constitution provides for protection of the arrested person. He has to be informed about the reason for his arrest. Article 22 (1) states that the person should be allowed to consult a lawyer of his own choice. Section 50[4] of the CRPC is a supplementary to Article 22 (1) and (5) which states that the person should be given the reason for his arrest and has the right to bail.

 

A deep reading of Section 167 (1) states that the officer in charge of a police station or the investigation officer dealing with the case can only ask for police custody only when there are reasonable grounds, and there is no chance that the investigation can be finished within 24 hours as mentioned under Section 57 of the CRPC. Hence, the power to grant police custody is not mechanically give to the magistrate. He should ensure that there is sufficient cause to grant police custody. This was also stated in the case of Raj Pal Singh v the State of UP.[5]

The accused has the right to be brought before the magistrate within 24 hours of his arrest. Thisperiod of 24 hours is calculated excluding the time taken for transportation of the accused from one place to the other. If no Judicial Magistrate is available, the accused has to be taken to Executive Magistrate, who may, if he thinks fit, grant police custody to the extent of 7 days. In the judicial pronouncement of CBI v Anupam J Kulkarni[6], the question regarding arrest and detention of a person was dealt with. The Court stated that under Sec 167 (2) of the CRPC, a Magistrate has the power to grant police custody, but again, the police custody should not exceed the time limit of 15 days as a whole.

The term “not exceeding fifteen days in whole” is of vital importance. If Section 167 (2) and (2A)[7] is read together, it becomes clear that a judicial magistrate can send a person to police custody, where the person has been forwarded to him by the Executive Magistrate after deducting the period of police custody which has already been granted by the Executive Magistrate.

There are other rights also if the arrested person become ill or is medically unfit. They shouldn’t be moved until they are fit enough.  Also, in the case of women accused, who is to be arrested in connection with any crime, she has the right not to be taken in custody until she has recovered and there is no personal risk to her health. In such circumstances the accused person should be sent to the nearest dispensary and shouldn’t be taken in custody until and unless a medical practitioner certifies that they have recovered and can be moved or taken into custody. The police have to take the permission of the Magistrate to place the accused under detention at their homes or the place where the accused has been taken for treatment. This kind of detention which beyond the period of 24 hours can be allowed under Section 57[8] of the CRPC, subject to special order given by the Magistrate under Section 167 of the CRPC

The basic principles of natural justice also have to be followed. The accused has the right to get over with his case as soon as possible. In the judicial pronouncement of Elumalai v State of TN[9], the Court held that speedy trial is right of the accused also, and the prosecution should complete the investigation and file their reports as quickly as possible to ensure a speedy trial.

 

Remedies

First of all, if a person has been arrested and the custody has extended up to the period of 90/60 days, the person can give an application for bail.  The bail will be valid only till the charge sheet is filed.

The person who has been arrested and kept in custody can file the writ of habeas corpus if he feels that the proper procedure hadn’t been followed while taking him into custody, or no reason for the arrest was given, or the custody wasn’t granted by the proper authority, or if it did not pass through the proper structure and framework of the law. The Writ can be filed either under Article 32[10] or Article 226[11] of the Constitution. The point here to be noted here is that the writ wouldn’t provide relief to the person in custody, if the custody is done in a valid way, no matter how many rights of the person has been violated.

In the case of K Sanyal v District Magistrate, Darjeeling[12], the Apex Court was of the view that when a person has been sent to police custody, and such order of sending the person does not prima facie looks illegal, or for that matter without jurisdiction, the writ of habeas corpus cannot be granted.

In the case of K v State of Rajasthan,[13] the Supreme Court also opined that if the detention of the accused is done legally, and a bail application has been moved by the accused, any previous illegality in detentions should not be considered and bail should be given only on the merits of the present case.

 

Concluding Remarks

In India matters of law enforcement is very tricky. The rights of the underprivileged section of the society often get buried under factors like red tapism, corruption and lethargic attitude of the authorities. For instance, let us take Section 167 (c)[14] of the CRPC which states that a person should be released on bail if there are no sound reasons of ground to keep him in custody. But the section also states very specifically that the person would be released on bail only if he can furnish the amount of the bail. In case he is not able to furnish the amount, the person keeps on languishing in custody, even when there is no reason to keep him under custody. The Supreme Court, in the case of Laxmi Narain Gupta v State,[15] made a very important observation. It observed that many accused or suspects remain in custody just because they are poor and can’t furnish the bail. While they are entitled to bail and are not able to furnish it, their rights are being violated because the orders for remand are being passed as a routine thing.

The problem also occurs when people are not aware of their rights.

While Section 167 has been denied by the statute very clearly, the same can’t be said about other provisions like the inability of the police to get custody when a person is ill, or if taking a person into physical custody is not practicable at all.

These questions remain unanswered, and both the victim (accused or the suspect in this case) and the authorities face challenges when such situation arises.

The law tries to provide as many safeguards as it can against abuse. But the need of the hour is to remove the contradictions and other ancillary barriers. Section 167 should also be amended to make its scope broader, where more remedies are available. The executive should also play their role and make sure that people are aware of their rights.

 

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Footnotes:

[1]https://indiankanoon.org/doc/1687975/

[2] Section 167 (2) (a) (i) and (ii)

[3]https://indiankanoon.org/doc/581566/

[4]https://indiankanoon.org/doc/1848903/

[5]1983 CriLJ 1009

[6]AIR 1992 SC 1768

[7] subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).

[8]https://indiankanoon.org/doc/571025/

[9]1983 Mad LW (Cri) 121

[10]https://indiankanoon.org/doc/981147/

[11] https://indiankanoon.org/doc/1712542/

[12]1990 CriLJ 2685

[13]1980 Cri LJ 344

[14]For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail , supra 2

[15]2002 CriLJ 2907