This article is written by Vanya Verma from Alliance University, Bengaluru. This is an exhaustive article which deals with custody laws in India, police custody and judicial custody, provisions under the Code for custody and case laws.

Introduction

The meaning of the word custody is to apprehend someone for protective care. The words custody and arrest are different from each other. In every arrest, there is custody but in every custody, there is no arrest. In India, the provisions for holding a person in custody in order to proceed further with the investigation process is governed by Section 167 of the Code of Criminal Procedure.

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused is lodged in a lock-up of a police station.

After an FIR is lodged for a cognizable offense (provides punishment for more than three years), the accused is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

Under Section 57 of CrPC, the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police custody in order to complete the investigation expeditiously, the police decides for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

Earlier the accused were afraid of the police custody as they were subjected to physical torture and harassment, but after the Supreme Court judgements enumerated the rights of accused, these incidents have got less, Supreme Court brought to task many police officers for custodial torture. Resourceful accused, politicians and others enjoy immunity from third-degree or to say enhanced interrogation methods.

Judicial Custody 

Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a chargesheet within 90 days. If there is failure in the filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in case if heinous offenses, like rape or murder, the accused is generally kept in a judicial custody (that is kept in jail under the custody of the court) for a longer duration despite the filing of a chargesheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it convincing that sufficient reason exists, following which the suspect or accused may be released on bail.

Major differences between police custody and judicial custody

The major differences between police custody and judicial custody are:

1. Police custody means that the accused stays in the lock-up of a police station or in the custody of an investigating agency who is probing the concerned matter, whereas judicial custody means that the accused is lodged up in jail and is under the custody of the Magistrate.
2. A person lodged in a police custody has to appear within 24 hours before the concerned Magistrate, whereas in the judicial custody the person is kept in jail until there is an order from the Court for bail.
3. Police custody begins as soon as the suspect is arrested by a police officer after receiving a complaint or filing of an FIR, whereas, the judicial custody begins after the public prosecutor satisfies the court that the custody of the accused is necessary for the investigation purpose.
4. In police custody, the time period is 24 hours which can be extended to a period of 15 days as a whole by the appropriate Magistrate, whereas in Judicial Custody the maximum time period for detention is 90 days, in the cases where the investigation is related to offenses punishable with life imprisonment, death or imprisonment for a term of not less than ten years and detention is 60 days for crimes where the imprisonment is for less than ten years.
5. In police custody, the security is provided by the police, whereas in judicial custody the judge/magistrate provides the security.

S.No.	Police Custody	Judicial Custody
	The accused stays in the lock-up of a police station or in the custody of an investigating agency who is probing the concerned matter.	The accused is lodged up in jail and is under the custody of the Magistrate.
2.	The police custody is under the control of police and it is also a place where the first interrogation starts.	The accused is under the custody of the Magistrate in judicial custody.
3.	The accused is kept in lockup for further inquiry or investigation.	The accused is kept in the jail as per the order of the magistrate or court for duration above 15 days.
4.	The accused lodged in a police custody has to appear within 24 hours before the concerned Magistrate.	The accused is kept in jail until there is an order from the Court for bail.
5.	The police custody begins as soon as the suspect is arrested by a police officer after receiving a complaint or filing of an FIR.	The judicial custody begins after the public prosecutor satisfies the court that the custody of the accused is necessary for the investigation purpose.
6.	In a police custody the time period is 24 hours which can be extended to a period of 15 days as a whole by the appropriate Magistrate.	In a judicial custody the maximum time period for detention is 90 days, in the cases where the investigation is related to offenses punishable with life imprisonment, death or imprisonment for a term of not less than ten years and detention is 60 days for crimes where the imprisonment is for less than ten years.
7.	In police custody the security is provided by the police.	In judicial custody the judge/magistrate provides the security.
8.	The police officer at duty has a complete control over taking charge, arresting a accused or suspect in their provisional area.	Judicial custody works on the orders of the court laws where the judge/magistrate takes a call on the case navigation.
9.	In police custody, the investigation is carried out by the police officer.	In a judicial custody investigation is not the job of the magistrate. The magistrate adheres to the evidence that is provided by the interrogation reports and hearing in the trial court.
10.	Strong charges are put.	The charges put on an accused or suspect in police custody can be nullified at the judicial court if proven not guilty.

Law relating to custody in India

Section 167 of the Code of Criminal Procedure, 1973 governs the provisions for holding a person in custody for the purpose of proceeding further with the investigation. Section 167 of CrPC allows a person to be held in police custody on the orders of a Magistrate for a period of 15 days.

A Judicial Magistrate may remand a person for a period of 15 days to any form of custody. An executive Magistrate may order to extend the period of custody for up to 7 days.

A person may be held in police custody or judicial custody. Police custody may extend up to a period of 15 days from the date the custody begins, whereas the judicial custody may extend to a period of 90 days for the crimes which entails life imprisonment or death punishment or imprisonment for a term of not less than ten years and 60 days for crimes where the imprisonment is for less than ten years, if the Magistrate is convinced that there are sufficient existing reasons, following which the suspect or accused must be released on bail.

The Magistrate has the authority to remand the person into police custody or judicial custody.

The detaining authority may be changed during the pendency of detention, provided that a total time period of custody does not exceed 15 days. If a person is transferred from police custody to judicial custody, then the number of days the person has served in police custody are deducted from the total time that is remanded to judicial custody.

State v. Dharampal, 2001

In this case, it was held that the accused can be sent to police custody only within the first 15 days since the day of his presentation before the Magistrate after the arrest is done as mentioned in proviso (a) of Section 167(2) of CrPC. In the case of judicial custody, the accused person can be sent to prison either in the first 15 days or even thereafter.

Such accused can be kept in judicial custody if it is a case of a police investigation, that is challan or police report has not been filed before the Magistrate within a period of 60 days (in case the offense is punishable for a period of 10 years or less), 90 days (in case the offense is punishable with a period of more than ten years) and even then, if the accused does not file the bail bond, then he continues with the judicial custody.

If a police report is filed within a period of the aforementioned days, then the accused will not be released on a default bail and continues to be under judicial custody, because enquiry starts after the period of investigation.

Under Section 436A of CrPC, if the accused is undertrial and has undergone judicial custody for half of the maximum awardable punishment for the offense, he can be released on a default bail. Thus, the maximum period of judicial custody can be up to half of the maximum period that can be awarded for the offense.

As soon as there is an arrest the rights of the accused begins. Article 22 of the Constitution of India, 1949 provides protection to the arrested person to the extent that he has the right to know the reason for arrest and he must be produced within 24 hours before the nearest Magistrate. 

It is also provided under Article 22(1) that the arrested person has the right to consult and be defended by a legal practitioner of his choice. 

Section 50 of CrPC is a corollary to Article 22(1) and Article 22(5), which enacts that the person who is arrested should be informed about the ground of his arrest and right to bail.

After a legal arrest of a person, his rights are protected throughout the time period he is held in custody.  In legal custody the person cannot be held up for more than 15 days.

In order to extend the custody, the Magistrate must be convinced that exceptional circumstances are present in order to extend the custody for a maximum period of 60 to 90 days, depending upon the nature of the crime that is being investigated.

Section 167(1) of CrPC makes it clear that the office in charge of the police station or the investigating officer (not below the rank of sub-inspector) can ask for remand only if there are grounds to believe that the information or accusation is well-founded and it appears that investigation can not get completed within 24 hours as specified under Section 57 of CrPC. Thus, the Magistrate’s power to give a remand is not mechanical, there should be adequate grounds to exercise the remand. In Raj Pal Singh v. State of U.P., it was held that the remand order need not look like a judgement that is delivered after a full trial, but the application of the main ground must be evident.

It is the right of the accused to be brought within 24 hours before a Magistrate, excluding the transportation time from the place of custody to Magistrate.

If there is no judicial Magistrate available immediately, then he may be taken to the Executive Magistrate who can remand him to custody for a maximum period of 7 days after which he must be taken to a Judicial Magistrate.

Central Cell-I, New Delhi v. Anupam J.Kulkarni, 1992

In this case, the question regarding the arrest and detention in custody was dealt with. It was held that the Magistrate under Section 167(2) in such custody can authorise the detention of the accused if he thinks fit but the period should not exceed 15 days as a whole. 

Therefore, initially, the custody should not exceed 15 days. The custody can either be judicial custody or police custody as the Magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days in the whole” are important. Under Section 167(2) read along with (2A), the arrested accused when forwarded by the Executive Magistrate to the Judicial Magistrate can order detention in such custody that can either be police custody or judicial custody under Section 167(2) for a period of rest 15 days after the period of detention is deducted by the Executive Magistrate. Thereafter the detention could only be judicial custody. 

There are specific rights during an arrest and custody, which also governs the right of medically unfit prisoners. 

Thereafter the detention can only be in judicial custody. The women who are accused of any offense and if arrested soon after childbirth, they can be taken to the Magistrate only when they are in proper condition to travel. Personal suffering and risk to health shouldn’t be ordinarily removed. They should be allowed to remain in a proper charge in the care of their relations or can be sent to the nearest dispensary and remain there until it is certified by the officer in charge of a dispensary that the woman has sufficiently recovered. In such cases, there must be a police sanction obtained from the nearest Magistrate for either the detention at their homes or in a dispensary, beyond 24 hours period as it is allowed under Section 57 of CrPC. A similar procedure should be followed in the case where the accused persons are too ill to travel.

If there is an invalid arrest on account of the procedure or if there is any violation of a right or if the custody is not passed with the framework of law by a competent Magistrate who is having jurisdiction over the issue, the person so attained has a right to file a writ of habeas corpus under Article 32 of the Constitution of India, 1949 and Article 226 of the Constitution of India, 1949. However, it has to be noted that a writ cannot lie against legal custody, no matter whatever rights have been violated before a lawful custody.

The Supreme Court observed in the case of Kanu Sanyal v Dist. Magistrate, 1974 that “while a person is committed to the jail custody by the competent Court by an order, which prima facie does not appear to be a one without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”. It was held that a crucial date when the legality of a remand is to be looked into is the date when a petition comes up for hearing.

In the case of Kana v. State of Rajasthan, 1985 it was held that “if the detention of the accused is legal when the bail application is preferred, his previous illegal detention should not be considered.

Materials must be transmitted

The police officer must transmit the entries in a case diary before forwarding the accused to the Magistrate, when the application for remand has been made by a police officer. The object of this is to provide the Judicial Magistrate information to decide whether to authorize the detention of the accused in custody and also to enable the Magistrate to form an opinion as to whether there is necessity of any further detention.

In the case of Gaibidingpao Kabui v. Union Territory of Manipur, 1962, it was held that if the copy of the entries in the diary related to the case is not transmitted to the Court by the Police, in order to satisfy the Magistrate that there are grounds for believing the accusation or information is well-founded, and for the purpose of an investigation a remand is absolutely necessary, the Magistrate does not have any jurisdiction to direct the detention of the accused.

With the remand report a case diary must be sent, but a mere violation of this cannot discard the evidence. The violation may in some cases taint the prosecution when the facts justify. If there are other materials on record, non-production of the case diaries do not vitiate the police remand order.

An accused is kept in the custody mainly for two reasons:

• To prevent the commission of any further crime.
• In order to facilitate the investigation process.

Landmark Judgments

• Laxmi Narain Gupta v. State, 1986

In this case, it was observed that “Along with the present petition at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts concerned, for admitting them to bail. They are in judicial custody because they have not been able to arrange a surety while the orders for their judicial remands are being passed in a routine manner”.

This drawback exists when the accused is not aware of his rights.

• State (Delhi Administration) v. Dharam Pal, 1981

In this case, it was held that after the expiry of 15 days mentioned in Section 167(2), the accused cannot be kept in a police custody, but only in judicial custody or any custody ordered by a Magistrate.

• Artatran Mahasurana and Ors. v. State of Orissa, 1956

In this case, it was held that it is the duty of the police to satisfy the Magistrate so as to obtain an order of remand, that there is sufficient evidence against the accused. It was further stated by the Court that if the Magistrate is not satisfied on the present evidence, further evidence must be obtained by the police to obtain the order for remand. The remand order is made only after the satisfaction of the Magistrate.

• Manubhai Ratilal Patel v. State of Gujarat and others. 2012

In this case, it was observed by the Supreme Court that remand is a fundamental judicial function of the Magistrate. Magistrate while performing his judicial functions must be satisfied that there are reasonable grounds and the materials placed before him justify the order of remand for an accused. While passing the remand order of the accused, the Magistrate is obligated to apply his mind to the facts and not just automatically pass a remand order or in a mechanical manner.

• Sundeep Kumar Bafna v. State of Maharashtra and Anr, 2014

In this case, it was observed that an anticipatory bail cannot be refused if there is a legitimate cause for the remand of an offender to the police custody under Section 167(2) of CrPC that is made out by an investigating agency.

• Dinubhai Boghabhai Solanki vs State Of Gujarat, 2017

In this case, it was observed that the Court should not rely on decisions without discussing the factual situation that fits into the case on which reliance is placed. It was further observed that the judgement of the Courts  should not be construed as the statutes, and the observation of the Court must be read in the context in which they appear to be stated.

• Mantoo Majumdar and Basdev Singh v. State of Bihar, 1980

In this case, it was held that the Magistrate should not authorize mechanically the detention of the accused. If the law officers who are charged with the obligation to protect the liberty of people, if they are only mindless of the constitutional mandate and the dictates of the Code, then how can freedom survive for an ordinary citizen.

• Kana v. St of Rajasthan, 1985

In this case, it was held that reasons must be given by the Magistrate in order to authorize detention of the accused to custody. Such orders cannot be passed as a matter of a course.

Conclusion

The law provides for the safeguards against abuse but there is a need to remove all contradictions and obstructions. The Magistrate must see the victim’s background before passing orders. There is a need to expand Section 167 so that the remedies must be available for the past illegal arrest and detentions. The Executive must make sure that the people under custody are aware of their rights.

Reference

• https://m.timesofindia.com/india/how-police-custody-differs-from-judicial-custody/amp_articleshow/71132035.cms
• https://lawcorner.in/difference-between-judicial-custody-and-police-custody/
• https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-section-167-of-the-code-of-criminal-procedure/
• http://www.legalserviceindia.com/legal/article-573-remand-by-a-judicial-magistrate-if-investigation-is-not-completed-within-24-hrs.html

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