The following article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article discusses various aspects of judicial custody and what differentiates it from police custody and the laws and landmark case laws governing it.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The word ‘custody’ has been derived from the Latin word ‘custodia’ or ‘custos’ which means ‘guardian’. According to Merriam-Webster, ’custody’ means the immediate charge and control (over ward or suspect) exercised by any person or authority.
Custody, in the case of criminal offences, is divided into two categories. The first one is the police custody and the other one is the judicial custody. Police custody indicates that police personnel has physical custody of the accused. On the other hand, judicial custody indicates an accused is in the custody of the magistrate of court or in simple words, under the supervision of the judiciary. In police custody, the accused is lodged in the lock-up of the concerned police station. In the case of judicial custody, the accused is sent to any prison.
In India, the laws related to the custody in case of criminal offences by the Code of Criminal Procedure (here-in-after referred to as CrPC), which came into force in 1973 based on the British era legislation, an exhaustive Act dealing with criminal procedures in India.
Section 167 of CrPC lays down all the detailed instructions in this regard.
Judicial custody
In simple words, judicial custody means the accused is in custody under the supervision of the Judicial Magistrate. The term ‘judicial custody’ can be defined as follows:
- The accused is in the custody and under the purview of a Judicial Magistrate.
- The accused is lodged in either any of the Central or State prisons as directed by the Judicial Magistrate.
- The concerned Judicial Magistrate may, if required, detain the accused.
- During the period of judicial custody, the police may interrogate the accused but only after obtaining due permission from the Court.
In the case of State v. Gali Chalapathi Rao And Ors. (1974) , the Andhra High Court held that in case of judicial custody, the police can only interrogate the accused in jail after obtaining the permission of the Court.
In another case of Gian Singh And Ors. v. State (Delhi Administration) (1980), the Delhi High Court ruled that mere interrogation by police during judicial custody does not change the nature of custody. It was also held in the same case that the accused cannot be sent back to police custody in connection with or in continuation of the same investigation once he is remanded to judicial custody.
Necessity of judicial custody
Whenever a person is arrested by police or any other investigating agency and if the investigation cannot be completed within 24 hours, the person is required to be produced before the nearest Magistrate.
The Magistrate may further authorise the person to remain in police custody for a period not exceeding 15 days as a whole. After the lapse of 15 days, as granted by the Magistrate, the person may be remanded to judicial custody under the authority of the Magistrate in a prison.
How is judicial custody different from police custody
Police custody means that an accused is either locked in the lock-up of the concerned police station or at least in the physical custody of the investigating agency probing the matter.
On the other hand, judicial custody implies that the accused is under the custody of a Judicial Magistrate and is lodged in any central or state prison. In police custody, the police personnel or the investigating authority can interrogate the accused but if the accused is under judicial custody, the concerned officials require permission from the Court.
The basic factors that differentiate judicial custody from police custody are illustrated below:
| Differentiating factors | Police custody | Judicial custody |
| Authorised official | In police custody, the accused is under the authority of the concerned police or investigating agency who possess the physical custody of the accused. | In case of judicial custody, the accused is under the authority of the concerned Judicial Magistrate. |
| Place of detention | The accused is kept under the lock-up of the concerned police station. | The accused is lodged in either of the central or state prisons. |
| Requirements | Immediately after the arrest, the accused is taken to police custody. After completion of 24 hours in the police custody, the accused should be forwarded to the nearby Judicial Magistrate. The concerned Judicial Magistrate may extend the period of the police custody to a maximum of 15 days. | After the completion of the 15-day period, the Judicial Magistrate may further remand the accused to judicial custody. In some cases, the Judicial Magistrate may send the accused directly to judicial custody, if it is concluded that there is no need of police custody or extension of police custody. |
| Maximum period or duration | The police custody is of a maximum period of 15 days. | Judicial custody may extend up to a period of 60 or 90 days as a whole, depending upon the maximum punishment prescribed for the offence. |
| Custodial interrogation | The accused can be interrogated by the police or the investigating agency. | No interrogation of the accused can be done in judicial custody without the permission of the Court. |
| Legal rights of the accused | In police custody, the accused has the right to legal counsel, the right to be informed of the grounds during interrogation. The legal rights of the accused such as the right to a fair trial, get bail, hire a criminal lawyer, free legal aid in India, and more should be ensured by the police or the investigating agency. | In the judicial custody in jails, the accused is under the responsibility of the Judicial Magistrate, the Prison Manual governs the routine conduct of the person. |
Events that happen after judicial custody is over
The maximum duration of judicial custody is 90 days. If the charge sheet is not filed within that period, the court normally grants bail to the accused.
In case of heinous crimes like rapes and murders, the accused is kept under judicial custody even after the filing of the charge sheet so that the trial proceedings are not influenced.
In the case of Suresh Kumar Bhikamchand Jain v. State of Maharashtra (2013), the Hon’ble Apex Court has held that after filing a charge sheet within the statutory period, the issue of granting bail does not arise since the filing of a charge sheet complies sufficiently with Section 167(2) CrPC.
It was further held that the accused would remain in the custody of the concerned Judicial Magistrate till such time cognizance is taken under Section 309(2) of the CrPC.
Similarly, in Sh. Deepak v. Govt of NCT of Delhi (2022), the Delhi District Court held that after filing of the charge sheet, the investigation comes to an end. After that, the accused can be further remanded to custody only after taking cognizance of the alleged offence.
Application for bail in judicial custody
An accused can apply for a bail as provided under the CrPC Chapter XXXIII (Section 436 to Section 450) pertaining to the bails and bonds.
Section 437 of CrPC only allows to grant bail for an accused under any non-bailable offence and consequently arrested or detained without a warrant. On the other hand, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody.
Section 442 of CrPC specifically deals with discharge from custody, in particular bail from judicial custody.
According to Section 442(1) of CrPC, the accused shall be released immediately after the execution of the bond. It further provides that if the accused is in jail, i.e. under judicial custody, the court admitting to bail the accused must issue an order of release to the officer in charge of the jail. The concerned officer will release the accused after receiving such an order.
Section 442(2) of CrPC states that even if a person has been released on bail, he/ she may be detained for some other matter except for which the bond was executed under this Section or under Section 436 or Section 437.
In the case of Sundeep Kumar Bafna v. State Of Maharashtra & Anr (2014), the Hon’ble Supreme Court held that if the appellant pleads to surrender before the Court, the Appellant would come under judicial custody and Section 439 of CrPC can be contemplated. It was further ruled that both the Sessions Court and the High Court can exercise concurrent powers under Section 439 and would have to decide the merits of whether the Appellant has shown sufficient reasons or grounds for granted bail.
The Supreme Court in the case of Rakesh Kumar Paul v. State of Assam (2017), held that even if the police failed to file the charge-sheet within 60 days of arrest for the offence punishable with imprisonment up to 10 years, an accused is entitled to get bail under Section 167(2)(a)(2) of CrPC.
Rights of an individual under arrest and custody
The rights of the accused should be ensured since the time of the arrest. Article 21 of the Constitution of India guarantees the fundamental right of protection of life and personal liberty. Clauses under Article 22 in the Constitution of India offer protection against arrest and detention in certain cases. Hence, it is evident that the protection of the fundamental right to life is very much embedded in the Constitution of India which also directly secures the rights of any person under judicial custody. The rights of a person under judicial custody are as follows:
Protection of the arrested person in custody
Article 22 of the Constitution of India safeguards an individual against arbitrary arrest and detention. A person should be informed of the reason for his arrest.
Right to have a legal counsel
According to Article 22(1), a person cannot be taken into custody after arrest without being informed of the grounds leading to the person’s arrest. The article further provides the individual with the right to have a legal counsel of their own individual choice. The individual has the right to consult and to be defended by the legal counsel.
Production of the accused before the nearest Magistrate
According to Article 22(2), the arrested person cannot be detained in custody for more than a period of twenty-four hours of arrest. An individual arrested and detained in custody should be produced before the nearest magistrate within a period of twenty-four hours of such arrest. However, this excludes the time required for the journey from the place of arrest to the court of the magistrate.
Beyond the period of twenty-four hours, an individual can only be detained in custody with the permission of the court and the authority of the judicial magistrate. The said provision has been echoed in Section 167 of the Code of Criminal Procedure (CrPC). However, Article 22(2) does not operate against the judicial custody as observed by the Supreme Court in the case of Sadhwi Pragyna Singh Thakur v. State of Maharashtra (2011).
Production before the executive magistrate in case of unavailability
If no judicial magistrate is available within the time period of twenty-four hours, the person under custody should be taken before an executive Magistrate. The Executive Magistrate may extend the custody for a maximum period of 7 days following which the individual must be taken before a judicial magistrate.
Supervision of the Judicial Magistrate
A person sent to judicial custody remains under the purview of the judicial magistrate.
The judicial magistrate needs to make sure that the fundamental rights of the individuals are properly protected and that the individual is provided with all the necessities. If the judicial magistrate grants police personnel or the investigating authority the right to custodial interrogation, he/ she also needs to ensure that the individual is not subjected to any unlawful detention or torture. The judicial magistrate further carries the responsibility to provide all the care and protection for the person in custody.
Prison manual and Acts regarding prison
A person under judicial custody is usually lodged in any of the Central or State prisons. In judicial custody, the person is under the responsibility of the magistrate.
In this case, the Prison Manual governs the rights and responsibilities of the person under judicial custody.
Prison is a state subject under the State List of the Seventh Schedule to the Constitution of India. The management and administration of Prisons is under the control of the respective state governments. The Prisons Act, 1894, and the Prison Manuals of the respective state governments (modelled on the Central Prison Manual), besides governing the conducts of the prisoners, also ensure that the rights of the individual are protected.
Special rights during arrest and custody
There are also some special rights during arrest and custody, specifically governing the rights of medically unfit prisoners.
If any individual is in a position so that he/she cannot be produced before the Magistrate without personal suffering and risk to health, they should be given time until they are fit enough to travel.
If the accused person is old and unfit, proper medical attention should be provided if required.
In case of a pregnant woman, or any woman arrested soon after childbirth, she should be kept in custody with proper medical care. In all these cases, the officer in charge should certify that they are in a fit condition and after that they will be taken into custody.
No compulsion to be a witness against one
Article 20(3) in The Constitution of India provides that an accused individual should not be compelled to be a witness against oneself.
The Hon’ble Apex Court reinstated the decision in the case of Nandini Satpathy v. Dani (P.L.) And Anr (1978).
Right to remain under proper care
An accused person, if medically unfit or too ill to travel, should be allowed to remain under proper charge in the care of their relatives, or should be sent to the nearest medical institution.
However, in this case, the police must obtain a sanction from the nearest judicial magistrate.
Right to legal recourse
An individual may take the path of legal recourse in case of unlawful custody and detention. He/she has the right to file a writ of habeas corpus under Article 32 or Article 226 of the Constitution of India.
However, a writ is not applicable in case of legal custody irrespective of the rights that have been violated. This was observed by the Apex Court in the case of Kanu Sanyal v. District Magistrate, Darjeeling (1973) that “a person is committed to jail custody by a competent Court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”.
Laws of custody in India
Article 21 of the Constitution of India provides the invaluable fundamental rights to life and personal liberty. It states that no person should be deprived of life or personal liberty except “according to procedure established by law”. Article 22 also provides protection against unlawful arrest and detention in custody. While the basic principles of right to life and personal liberty are embedded in the Constitution itself, the CrPC governs the laws regarding custody in India.
Judicial custody under Section 167 of CrPC, 1973
As soon as an accused is arrested without a warrant, Section 57 of CrPC comes into effect. It clearly mentions that a police officer cannot detain more than 24 hours without a special order of a Magistrate under Section 167.
Production of the accused before the Magistrate
Section 167(1) of CrPC states that if the investigation with regards to the crime committed by the accused is not completed within 24 hours as mentioned in Section 57 of the CrPC and the accusations or information regarding the offence have a strong ground, the officer-in-charge of the police station or the investigating officer should present the accused to the nearest Judicial Magistrate alongwith the copy of the entries in the diary relating to the case. The rank of the concerned officer should not be below the rank of sub- inspector.
When to send an accused to judicial custody
Section 167(2) of CrPC further provides the following conditions –
- The concerned Magistrate, irrespective of the jurisdiction to try the case, may authorise the detention of the accused in the custody as deemed fit, for a period not exceeding fifteen days; and
- In case of lack of jurisdiction of the Judicial Magistrate to try the case or commit it for trial, and if he/she considers further detention unnecessary, the accused may be ordered to be forwarded to a Magistrate with the jurisdiction.
- The Magistrate with jurisdiction may release the accused on bail or order to send to police or judicial custody.
Conditions of judicial custody
Section 167(2) further provides that after the lapse of 15 days of the police custody period directed by the magistrate, the accused may be further remanded to judicial custody –
- for ninety days if the investigation is related to any offence which is punishable with death, imprisonment for life or imprisonment for a minimum term of ten years;
- Sixty days in case of offences belonging to other categories;
- After the completion of the said period of ninety days or sixty days, the accused is to be released on bail on furnishing bail under the provisions of Chapter XXXIII.
- The Magistrate is not authorised to detain the accused in any custody unless the accused is produced before him.
- Any Magistrate of the second class, if not specially empowered in this behalf by the High Court, is not entitled to authorise detention of the accused in the police custody.
An accused shall be detained in custody so long as no bail is furnished. The proof of the production of an accused person was produced before the Magistrate may be proved by signature on the order authorising detention.
Examination of legality of the arrest before sending to judicial custody
The judicial magistrate should ensure that the arrest so made is legal before sending the accused into judicial custody.
In the case of Arnesh Kumar v. State of Bihar and Another (2014), the Supreme Court of India took note of arbitrary arrests and issued certain directions regarding that.
The concerned Magistrate has to examine that i) the arrest is legal and it was performed in accordance with law and ii) The constitutional rights of the accused are not violated. Only after examining the issues, the Magistrate can authorise to send the accused in custody under Section 167 CrPC,.
If the arrest by the police is made without warrant and is not in accordance with Section 41 of CrPC, the Magistrate should not authorise further detention of the accused in custody and should release the accused.
In simple words, when an accused is produced before the Magistrate, the Magistrate should examine that the conditions of arrest under Section 41 CrPC have been followed and only after that, the Magistrate may authorise the detention of the accused.
Landmark case laws with respect to judicial custody
There exists a catena of judgments by the Hon’ble Apex and High courts regarding judicial custody and various characteristics. Some of the landmark cases in regards to judicial custody are summarised below:
Gaibidingpao Kabui v. Union Territory Of Manipur And Ors. (1962)
Here, a writ of ‘Habeas Corpus’ was filed under the Gauhati High Court for releasing the petitioner Gaibidingpao Kabui from Jail custody.
Brief facts of the case
In this case, Gaibidingpao Kabul and two others were arrested by the Army under Section 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958 and produced before 1st Class Magistrate, Imphal. The Magistrate sent them to custody for 15 days without any offence report from the Police. The writ petition was filed at this stage.
Issue involved in the case
Without a proper police report, it was not possible to know the offence of the petitioners.
The Gauhati High Court examined the issue of whether without the absence of a copy of the entries in the diary describing before the Magistrate that investigation could not be completed within 24 hours and that there are grounds for believing that the accusation or information is well-founded, the Magistrate has no jurisdiction to direct the detention of the arrested person. In such a case, whether a Magistrate can send them to judicial custody.
Observations by the Court
The Court held that it is a travesty of justice to detain without proper police reports. The Magistrate should act according to the Section 167 of CrPC and abide by the strict provisions of the said section.
Judgement of the Court
The Court held that the detention of the petitioners was totally against law and directed to release them from judicial custody.
Central Bureau of Investigation v. Anupam J. Kulkarni (1992)
This is a judgement by a division bench of the Supreme Court of India.
Brief facts of the case
In this case, an individual K was arrested and was produced before the Chief Metropolitan Magistrate regarding the abduction of four diamond merchants. He pretended to be sick and was admitted to Hospital for treatment of his illness. K was again remanded to judicial custody by the Magistrate and thereafter he was sent to Jail.
The investigating officer has applied to the Chief Metropolitan Magistrate for police custody of K. The police remand of K was refused and a revision was filed before the High Court against the order of the Magistrate.
The High Court granted the accused bail without deciding on the issue. Subsequently, the order of the High Court was challenged by the CBI.
Issue involved in the case
The main issue of the case was whether an accused can be sent to police custody rather than judicial custody after the expiry of the initial period of 15 days.
Observations by the Court
The Supreme Court considered the question of whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) CrPC can still be sent to police custody after the expiry of the initial period of 15 days as provided.
The Court observed that if any person is arrested under Section 57 Cr.P.C. ,the person should be produced before the nearest Magistrate within 24 hours irrespective of the jurisdiction of the Magistrate to try the case.
If a Judicial Magistrate is unavailable, the police officer may produce the accused to the nearest Executive Magistrate.
Judgement of the Court
The Hon’ble Apex Court held that after the expiry of the first period of fifteen days further remand can only be in judicial custody.
In case if investigation is not completed within the period of ninety days or sixty days, the accused has to be released on bail as provided under Section 167(2).
Sunil Kumar Sharma v. the State (NCT Of Delhi) (2005)
This is a case before the Delhi High Court dealing with the question whether the judicial custody becomes unlawful after filing of chargesheet.
Brief facts of the case
The petitioner was arrested and remanded to judicial custody based on an FIR under Section 363 of IPC filed by the father of the prosecutrix. Subsequent remand orders under Section 167(2) CrPC passed from time to time extending the judicial custody of the petitioner. Thereafter, the charge-sheet was submitted before the Metropolitan Magistrate under Section 363/376/34 IPC but the accused being in judicial custody was not produced. For this, a production warrant was issued and the accused was produced before the Magistrate.
During the time in judicial custody, The petitioner moved an application for grant of bail before the Sessions Court under Section 439 CrPC read with Section 309(2) CrPC which was rejected by the Additional Sessions Judge.
Issue involved in the case
The issue before the Court was whether the custody of an accused under the previous order under Section 167 CrPC became unlawful due to the charge-sheet and the cognizance taken by the magistrate.
Another issue was that since the Magistrate has not passed an express order of remand under Section 309, whether an order of remand passed on a subsequent date be valid and legal.
Observations by the Court
The Court did not agree with the view that as soon as the charge-sheet is filed, the period of remand under Section 167(2) CrPC comes to an end.
However, it was held that that once the charge-sheet is filed, the magistrate cannot thereafter exercise any powers under Section 167(2) CrPC because after the filing of the charge-sheet, the period of investigation terminates and the magistrate cannot pass an order of remand under Section 167 CrPC.
A remand order in such a case can only be passed under Section 309 CrPC. But this does not imply that once the charge-sheet is filed and cognizance is taken, an order passed under Section 167 CrPC would automatically be rendered inoperative. The Court observed that the aforementioned order would remain valid until it is replaced by an order under Section 309 CrPC.
Judgement of the Court
The Delhi High Court ruled that the petitioner was in judicial custody based on a valid remand order and not entitled to be released on bail.
Dinesh Dalmia v. C.B.I (2007)
This is a case decided by the Supreme Court on whether an individual is entitled to bail from judicial custody after filing a chargesheet.
Brief facts of the case
The CBI lodged a first information report against the appellant and three companies on a complaint made by the Securities and Exchange Board of India (SEBI) where he was named. However, he was evading arrest by going to the United States. CBI contended that the appellant entered into India illegally as no endorsement had been made in his passport.
A non-bailable warrant of arrest against him based on the prayers of the CBI. After completion of investigation, a charge sheet was submitted before the Magistrate under Section 173(2) of the Code where the name of the appellant appeared along with the said three companies.
The appellant was sent to police custody and thereafter to judicial custody. After the expiry of 60 days, an application under Section 167(2) for statutory bail was filed. When the said application was pending consideration, the CBI sought for his remand in judicial custody under Sub-section (2) of Section 309 which was rejected. Thereafter, the CBI appealed in the High Court and the decision was overturned. Based on this decision, the appellant filed an appeal to the Supreme Court.
Issue involved in the case
The issue was to decide whether the accused was entitled to bail from judicial custody in case of incomplete investigation.
Observations by the Court
The Apex Court observed that remand of an accused is contemplated at two stages: pre-cognizance and post cognizance. So long a charge sheet is not filed under Section 173(2) of the CrPC, the investigation remains pending. However, it does not create any obstructions before an investigating officer to carry on further investigation.
Only when a charge sheet is not filed and investigation is kept pending, the right to statutory bail under Section 167(2) of the CrPC would be available to an offender.
The Court decided that once a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.
Judgement of the Court
The Court ruled that the appellant had no statutory right to be released on bail as observed by the High Court.
Saroj Rani v. Govt. Of N.C.T. Of Delhi & Ors. (2010)
This is a case decided by the Delhi High Court regarding the death of the accused in judicial custody.
Brief facts of the case
The husband of the petitioner Vinod Kumar was arrested by the Delhi Police and was sent to judicial custody in Tihar Jail. He died while being in judicial custody in Tihar Jail. Several injury marks were found on his body and he was also found to be alcoholic. The wife of late Vinod Kumar who is also the mother of two small children filed the petition before the Court seeking compensation for his death from both the Delhi Police as well as the Tihar Jail authorities.
Issue involved in the case
The issue before the Hon’ble Court was to decide whether the family of the deceased in judicial custody was entitled to compensation or not.
Observations of the Court
The jail authorities submitted that there was no violation of the rights of the accused and informed the fact that the accused was alcoholic.
However, in the post-mortem report, multiple injuries and bruises were found on the deceased’s body. The Felfi Police, however, did not accept the post-mortem report and decided to review it. The Court observed that the statements from several witnesses also “do not also throw light on how Vinod Kumar suffered these injuries while he was in custody”.
The Court observed that the demand of compensation by the family was totally justified and that the Delhi Police was violative of the guidelines laid down in D.K. Basu v. State of West Bengal (1997). The Court further questioned why for an offence under Section 107 and Section 151 of CrPC, the Petitioner could not have been released on a bond and further why he had to be sent to judicial custody for 14 days.
The fact that the deceased Vinod Kumar was an alcoholic was explained by the Court that someone working with sewage, and with corpses in mortuaries take alcohol to cope with the repulsive and revolting nature of their work. The emphasis of the fact does not justify ‘doing away’ with Vinod Kumar while in judicial custody.
Judgement of the Court
The Court ruled that the homicidal death of late Vinod Kumar took place while he was in judicial custody in the Tihar Jail. It is a case of violation of the fundamental right of the late Vinod Kumar under Article 21 of the Constitution and the state is liable for custodial death.
Hence, the Court awarded the family a compensation of Rs. 6,54,584/- and an additional sum of Rs Rs.15,000/-
Sanjay Chandra v. CBI (2011)
This is a judgement of a Division Bench in the Supreme Court regarding bail application in judicial custody.
Brief facts of the case
The accused person in the 2G Spectrum Scam case, filed the bail application. The Petitioner was arrested during the investigation of the case, and was in custody for seven months. The bail application was rejected by both the Trial Court and the Delhi High Court on several grounds. Finally, they approached the Supreme Court seeking bail.
Issue involved in the case
The petitioner was accused under Sections 420, 468, 471 and 109 of Indian Penal Code and Section 13(2) of CrPC read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The Supreme Court specifically dealt with the issue of whether an accused should be punished before conviction.
Observations by the Court
The Court stressed on the two main principles of criminal jurisprudence –
(i) the presumption of innocence and (ii) committing an undertrial in jail is an exception.
Judgement of the Court
Based on the observations, the Supreme Court granted the accused bail and since then, it has become an important judgement in matters regarding bail.
Gautam Navlakha v. National Investigation Agency (2021)
In this case, the Apex Court extended the meaning of ‘judicial custody’.
Brief facts of the case
Gautam Navlakha was originally detained under Section 167 of the CrPC on August 28, 2018, and appeared before a Delhi Court for remand to be brought to Pune because of an FIR under the Unlawful Activities (Prevention) Act, 1967 in connection with 2018 Bhima Koregaon violence.
The Delhi High Court transit stayed by the remand preventing his transfer from Maharashtra. Navlakha filed an appeal with the Bombay High Court, challenging the decision of NIA special court. After the anticipatory bail application was denied, the Supreme Court ordered him to surrender within three weeks on March 16, 2020, which was extended by one week on April 8, 2020 due to the COVID-19 pandemic. He surrendered to the National Investigation Agency (NIA) on April 14, 2020 and was not allowed to leave the premises of his Pune home during his house arrest. The NIA filed a chargesheet against him on October 9, 2020. Navlakha could not be deemed to be in police custody for investigation because the transit remand order was stayed.
He filed a petition with the Supreme Court seeking default bail by including in his wrongful detention for 34 days in 2018 when calculating the time limit under the Unlawful Activities Prevention Act (UAPA).
Issue involved in the case
The issue before the Supreme Court was to decide whether the period of 34 days spent in detention during house arrest can be counted as judicial custody of the period of 90 days under Section 167 CrPC for default bail purposes.
Another issue was to decide whether an order of judicial custody in house arrest under Section 167 could be passed by Magistrate
Observations of the Court
The Supreme Court dismissed the default bail appeal and observed that since the order for house arrest was not specifically passed by Magistrate in the above mentioned case, the period of 34 days of house arrest cannot be counted into the mandatory period of 90 days of judicial custody.
Judgement of the Court
The Court observed that judicial custody does not essentially mean that the accused should be lodged in prisons. The Court, if necessary, can also employ the method of house arrest under judicial custody.
The Court extended the ambit of judicial custody and increased the power of Judicial Magistrate to specify house arrest in specific cases. Several factors such as age, health condition, background of the accused, nature of crime should be taken into consideration while specifying the order of house arrest under judicial custody.
C. Parthasarthy v. Directorate of Enforcement (2022)
This is a recent judgement dated 17.05.2022 passed by the Telangana High Court.
Facts of the case
Several FIRs were filed against the company M/s. Karvy Stock Broking Ltd by the Directorate of Enforcement for the offence of money laundering under the Prevention of Money Laundering Act, 2002. The petitioner is the Chairman and Managing Director of the company.
He was produced before the Metropolitan Sessions Judge–cum–Special Court and was remanded to judicial custody.
He filed an application on 21.03.2022 after the expiry of sixty days of judicial custody seeking default bail under Section 167(2) of the Cr.P.C. The application was held as infructuous because a charge sheet was filed just before the expiry of sixty days.
Subsequently on 31.03.2022, the Directorate of Enforcement filed another application under Section 167 to extend the remand to complete the investigation. The application was allowed and the custody of the Petitioner was extended till 13.04.2022.
The Petitioner filed another default bail application on 01.04.2022 under Section 167(2) of the Cr.P.C based on the application dated 31.03.2022 filed by the Directorate of Enforcement which stated that investigation is yet not completed and another application on 13.04.2022 under Section 167 of the Cr.P.C. was filed again to seek extension of remand. Based on the application, the remand was extended till 27.04.2022.
The petition challenged the order of extension of remand on the ground that he is entitled for statutory bail under Section 167(2) of the Cr.PC.
Issue involved in the case
The issue before the concerned Court was to decide whether the petitioner is entitled to statutory bail under Section 167(2) CrPC if the investigation does not end even within the period of judicial custody.
Observations of the Court
The Court relied on various rulings of the High Courts and Supreme Court and various reports of the Law Commission that direct police or investigative authorities to finish the investigation within the specific time period of sixty days. The Court explained, “it is clear that a time limit for completing investigation was incorporated in order to ensure that the accused does not languish in jail for the investigative authority’s failure to complete investigation.”
The Court further held that said right to bail is interlinked with personal liberty under Article 21 of the Constitution of India.
Judgement of the Court
The Court ruled that the accused is entitled for statutory bail under Section 167(2) of the Cr.PC even if the investigation is incomplete.
Conclusion
Under judicial custody, the liberty and range of the movement of an accused is restricted by the Judicial Magistrate for a specific time period. The police or investigative authorities can continue the investigations of the allegations and may also resort to custodial interrogation if required.
The various case laws relating to judicial custody have helped to shape and also to extend the ambit of the laws regarding judicial custody under the provisions of Section 167 of Cr.P.C. It also allows the granting of bail to any accused if there is not enough cause to keep in custody.
However, under the provisions of CrPC, if an accused is unable to furnish bail, he continues to remain in custody.
Frequently Asked Questions (FAQs) on judicial custody
- How is judicial custody different from any other custody?
Judicial custody is used in criminal proceedings to send an accused under the custody of the concerned Magistrate.
- What happens after judicial custody is over?
The accused should file an application for bail in the concerned court or in the High Court of the state as soon as the judicial custody is over. Depending on the situation and the gravity of the crime committed, the Court may grant bail to the accused or may extend the span of the judicial custody as laid under the Section 167 of CrPC.
- How long does judicial custody take?
Judicial custody can be for a maximum period of 90 days for offences punishable with more than 10 years of imprisonment, and 60 days for all other offences.
- Can someone be interrogated in judicial custody?
An accused can be interrogated in judicial custody but only after obtaining due permission from the concerned Court. The interrogation is termed as custodial interrogation in judicial custody.
- What is the difference between police custody and judicial custody under CrPC?
Under the police custody, the police have the physical possession of the accused in the police lock up. Whereas, in judicial custody, the accused is sent to prison under the supervision of the concerned Judicial Magistrate
- Where is a person lodged under judicial custody?
An accused under judicial custody is usually kept in any of the central or state prisons. However, the Supreme Court in the case of Gautam Navlakha v. National Investigation Agency (2021) stated that house arrest under specific situations, specially the age and health conditions of the accused and the gravity of the allegations or the alleged crime committed.
References
- https://legislative.gov.in/sites/default/files/A1974-02.pdf
- https://timesofindia.indiatimes.com/india/how-police-custody-differs-from-judicial-custody/articleshow/71132035.cms
- https://indianexpress.com/article/explained/explained-police-and-judicial-custody-in-context-of-rhea-chakraborty-6589444/
- https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/aryan-khan-drug-case-explained-difference-between-custodial-interrogation-judicial-custody-and-interim-bail/articleshow/86847626.cms
- https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-section-167-of-the-code-of-criminal-procedure/
- http://mja.gov.in/Site/Upload/GR/Title%20NO.152(As%20Per%20Workshop%20List%20title%20no152%20pdf).pdf
- https://www.studocu.com/in/document/university-of-delhi/administration-law/essential-judicial-rulings-for-police-officers/12519164
- https://www.scconline.com/blog/post/2021/09/28/enlarging-custody-under-section-167-an-analysis-of-the-concepts-of-house-arrest-and-transit-remand-in-light-of-the-supreme-courts-judgme/
- https://www.livelaw.in/top-stories/detention-under-s167-2-crpc-scope-legality-arrest-remand-judicial-custody-police-183462
- https://mnlumumbai.edu.in/pdf/Report%20Criminal%20Law%20Reforms,%20Volume%20%E2%80%93%20II.pdf
- https://www.barandbench.com/news/litigation/house-arrest-section-167-crpc-supreme-court-appropriate-cases
- https://www.livelaw.in/news-updates/telangana-high-court-statutory-bail-crpc-chargesheet-not-final-incomplete-investigation-200906
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
