This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains what custody is, its types (judicial and police custody), and explains how judicial custody differs from police custody.
It has been published by Rachit Garg.
Table of Contents
The word ‘custody’ has been derived from the Latin word “custodia” which means “keeping a watch or guard.” It means to apprehend someone for a reason which could either be to prevent the person from committing a crime or for the safety of a person. At times, people use ‘arrest’ and ‘custody’ synonymously. But there is a difference between the two. A person is arrested if he is guilty of committing a crime or suspected of the same but custody means to guard someone or keep him in prison temporarily. Whenever a person is arrested, he/she is kept in custody. Thus, we can say that every arrest includes custody but not vice-versa. There are 2 types of custody:
- Judicial custody
- Police custody
The article specifically explains the two types of custody and further gives the difference between them. It also provides recent trends related to custody in the country.
What is Judicial custody
- When a person is kept in custody by a magistrate, it is called judicial custody. Unlike police custody, here a person is kept in jail on the orders of the magistrate for a certain period of time which is temporary. The person or the suspect becomes the responsibility of the magistrate and is kept away from the eyes of the public to prevent him from any kind of abuse or harassment by the public or a class of society.
- When a person is first arrested due to an FIR lodged in the police station and is accused of a cognizable offence, he is brought before the magistrate within 24 hours. The magistrate decides whether to release him on bail or send him to judicial custody or police custody. The period of judicial custody can extend upto 90 days in the cases which involve the death penalty as punishment, imprisonment for life, or imprisonment for 10 years or more.
- If a person is in judicial custody and the investigation is still going on and the charge sheet has not been filed by the police within 60 days if the offence has imprisonment for 10 years or less than 10 years and within 90 days for offences having imprisonment for 10 years or more, and he has not applied for bail, he will continue to be in custody.
- According to Section 436A of Criminal Procedure Code, 1973 if a person is in judicial custody for half of the maximum punishment that could be awarded for the offence and the trial is pending in the court, he is eligible to apply for default bail.
What is police custody
- When a person is arrested by police for charges of committing a heinous crime or on suspicion, he is detained in police custody. The rule to produce a person before a magistrate within 24 hours of arrest is given under Section167 of Criminal Procedure Code, 1973. According to this Section, when the accused is produced before the magistrate and he believes that there is a need for further investigation or interrogation, he can order the person to police custody for the next 15 days which can be extended to 30 days in certain cases depending on nature, gravity, and circumstances of each case.
- The magistrate has been given the power under Section 167 to remand a person in police custody. He can also order to change the custody from police custody to judicial custody. In such a situation, the time period of police custody is deducted from the total time period of judicial custody.
- In the case of State v. Dharampal (1982), it was held that a person must be sent to police custody within 15 days from the date he is produced before the magistrate under Section 167 of the Criminal Procedure Code, 1973. But if the accused is in judicial custody, he can be sent to prison either in 15 days or even after that.
- In the case of Mithabhai Pashabhai Patel v. State of Gujarat (2009), it was held that an accused cannot be taken into police custody if he has been granted bail unless his bail is canceled.
Difference between police custody and judicial custody
|Basis of difference||Police custody||Judicial custody|
|Control||The police officer who is in charge of the police station has control over police custody.||The magistrate has the control over the custody.|
|Investigation||The police conducts the investigation.||The magistrate relies on the evidence produced in the court.|
|Procedure||A person is kept in police custody after he is arrested on the basis of an FIR or suspicion.||A person is kept in judicial custody after the public prosecutor makes the court believe that such custody is necessary for further investigation.|
|Period of detention||It is 15 days for police custody.||In the case of non-bailable offences, punished with life imprisonment or imprisonment not less than 10 years, the period of detention is 90 days and in bailable offences, maximum period is 60 days.|
|End of custody||The person arrested must be produced before the magistrate within 24 hours and if charges are not proved, then he is granted bail, or else he is sent back to police custody for further investigation and interrogation.||The person is kept in judicial custody on the orders of the magistrate until and unless he is granted bail.|
|Jail||A person in police custody is kept in prison or a cell at that particular police station.||A person in judicial custody is kept in central jail.|
|Interrogation||Police officers can interrogate a person in police custody.||The officers in order to ask questions to the person in judicial custody have to take permission from the court.|
Section 167 CrPC
According to Section 167 of Criminal Procedure Code, 1973 the maximum time period a person would be in police custody is 15 days. The judicial magistrate can extend the time period of police custody only upto 15 days if the investigation is not complete. In case judicial magistrate is not available, the executive magistrate can order the person to police custody only upto 7 days and not further.
However, the time period of judicial custody can be extended upto 90 days for the offence punishable with death, life imprisonment or imprisonment exceeding 10 years. If the offence is not heinous but the magistrate is satisfied that there are reasons, he can extend the time period of judicial custody upto 60 days provided that he/she will be entitled to bail.
In the case of Rakesh Kumar Paul v. State of Assam, (2017) the Supreme Court held that the period of 90 days in judicial custody to avail the right of bail is not available in offences which are punishable with imprisonment less than 10 years.
Difference between Section 167 and 309 CrPC
Section 167 of the Code talks about the custody of a person during the stage of investigation and can either be judicial custody or police custody. This Section does not apply to a person who is arrested at a later stage when the investigation is going on. But Section 309 applies to custody when the court takes the cognizance of the case and the custody could be only judicial custody.
The power of police to investigate in judicial custody is exercised with the permission of the judicial magistrate. The interrogation of the person in judicial custody is done only if the court orders. If the court takes cognizance of the case, Section 309(2) is applied; otherwise in the stage of investigation, Section 167 is applied. The same was reiterated in the case of CBI v. Dawood Ibrahim Kaskar and Ors. (1997).
Recent trends and developments in law relating to judicial and police custody
The procedure for arrest in criminal cases is given under Chapter 5 of the Criminal Procedure Code, 1973. After a person is arrested by the police, he is to be produced before the magistrate within 24 hours, and then the magistrate after the evidence is produced can send him back to police custody for further inquiry or investigation or judicial custody. The time period of police custody is 15 days after this period gets over, the magistrate if thinks fit can remand the person to judicial custody where the maximum time period for detention is 90 days for non-bailable offences punishable with the death penalty or imprisonment for 10 years or more and 60 days in case of bailable offences. However, a person in judicial custody can apply for bail.
Recently, Actress Rhea Chakraborty was arrested in a drug case by the Narcotics Control Bureau (NCB) and was also related to the death of Sushant Singh Rajput. But after she was produced before the magistrate soon after her arrest, she was detained in judicial custody. Another such recent example is the Cruise ship drugs case in which Aryan khan along with some other accused were arrested by NCB and then remanded to judicial custody which means that they had to be kept in jail until they were granted the bail. The NCB had to investigate after the permission of the court. They did custodial interrogation which means interrogation when the accused is held in their custody. While Aryan Khan was in judicial custody, his lawyer asked for interim bail.
However, there are certain rights given to the accused to prevent him from abuse and harassment by the authorities and officers. Article 20(3) of the Indian Constitution provides the right against self-incrimination which means that a person in custody cannot be compelled to give statements against oneself which have a tendency of exposing him to criminal charges. Article 22 of the Constitution along with Section 50 of Criminal Procedure Code gives the accused the right to be informed about the reasons for his arrest. The police officer is also under an obligation to inform the accused about the free legal aid that he deserves. To produce a person arrested before the magistrate within 24 hours of arrest is also one of the rights given to the accused. In case, no magistrate is available the accused or the person arrested will be produced before the Executive Magistrate who can order to keep him in custody for maximum 7 days after which he must mandatorily be produced before the Judicial Magistrate. In the case of CBI, Special Investigation Cell-II v. Anupam J. Kulkarni (1992), it was held that the magistrate will order such custody for the person arrested which he thinks is fit and does not exceed 15 days. Thus, the period of custody initially will be 15 days and not more than that. However, it can be extended further.
State (Delhi Administration) v. Dharampal and Ors. (1981)
Facts of the case
In this case, a person was accused of a heinous crime and charged under the Indian Penal Code, 1860. They were arrested by police and kept in police custody. But soon the magistrate ordered to keep them in judicial custody for the purpose of an identification parade. After the test, the police requested to return them back to police custody for further investigation but the magistrate refused to do so and referred to the case of Gian Singh v. State (Delhi Administration), (1981) . As a result, a petition was filed challenging the order of the magistrate.
Issues involved in the case
Whether the accused be remanded to police custody after he has been once remanded to judicial custody.
Judgement of the Court
It was held that a person must be sent to police custody within 15 days from the date he is produced before the magistrate under Section 167 of the Criminal Procedure Code, 1973. But if the accused is in judicial custody, he can be sent to prison either in 15 days or even after that. Also, it was stated that the accused will continue to be in judicial custody if the police does not files the chargesheet within 60 days (if the offence is punishable with imprisonment of less 10 years) or 90 days (if the offence is punishable with death penalty or imprisonment upto 10 years or more) and the accused does not files application for bail.
The court also provided that the magistrate should be satisfied that there exists exceptional circumstances in order to extend the period of custody to 60-90 days as per the nature of the case. It also stressed that a person arrested must be informed of his rights and it is the duty of police officers to protect his legal rights even if he is in custody. The police officer can request to extend the time period of police custody only if the investigation has not been completed within 24 hours. In case, judicial magistrate is not available, the accused must be produced before the Executive magistrate.
CBI v. Dawood Ibrahim Kaskar and Ors. (1997)
Facts of the case
In this case, a person was arrested on the grounds of terrorist actvities and bomb explosions in the country which resulted in the killings of masses and destruction to property. The accused was charged under various acts and statutes for terrorist activities.
Issues involved in the case
Difference between custody under Section 167 and 309(2) of Criminal Procedure Code.
Judgement of the Court
The Supreme Court held that there is a significant difference between remand of a person in custody under Section 309(2) of the Code and detention in custody under Section 167 of the Code. Custody under Section 309(2) comes into picture after the court has taken cognizance of the case and a person can be sent to judicial custody only. If a person is under custody as per this Section, police officers can not interrogate a person and have to comply with the provisions of Chapter XII of the Code. But under Section 167, a person can be sent in custody at the investigation stage. It can either be police custody or judicial custody depending on the circumstances of the case and order of the magistrate. However, this Section does not apply to a person who is arrested at a later stage during investigation.
Siddharth v. State of Uttar Pradesh (2021)
Facts of the case
In this case, the appellant along with other people was arrested due to an FIR lodged 7 years ago. They cooperated in the investigation and a charge sheet was to be filed soon. The appellant applied for anticipatory bail but the high court rejected his application. As a result, he moved to the Supreme Court. It was argued that the charge sheet will not be submitted unless the person is kept in custody.
Issues involved in the case
Whether the custody of a person is a must for the charge sheet to be taken on record under Section 170 of Criminal Procedure Code?
Judgement of the Court
The Supreme Court held that where the person cooperated in the investigation process, it is not necessary to arrest and keep every person accused of the offence in custody while filing the charge sheet to the magistrate. It gave certain circumstances where it becomes necessary to keep the accused in custody:
- If a custodial investigation is to be done;
- In case of heinous and serious crime;
- If there is a possibility that the accused will threaten or inflict harm to witness; and
- He may run away.
Thus, it is clear that there are two types of custody: judicial custody and police custody. In judicial custody, the person is kept in jail as per the orders of the magistrate, and the investigation is done with his prior permission while in police custody, the person is kept in a police station’s cell for a maximum of 15 days and after that, if the magistrate thinks fit, he can extend the time period of custody and decide whether the person be remanded in judicial custody or police custody. Earlier, the police officers used to abuse their powers while making arrests and during the time when the person is kept under custody to harm him and torture him. They used third degrees on the accused with the thought that he will answer the questions and accept his guilt. But now there have been developments in laws relating to custody and arrest. The Supreme Court has given many guidelines in various landmark cases to be followed while making the arrest and that the person arrested must be informed of his rights while he is in custody. All this helps prevent the authorities from exercising their powers arbitrarily.
Frequently asked questions (FAQs)
- What do you mean by judicial custody?
When a person is kept in custody by a magistrate, it is called judicial custody. Unlike police custody, here a person is kept in jail on the orders of the magistrate for a certain period of time which is temporary. The person or the suspect becomes the responsibility of the magistrate and is kept away from the eyes of the public to prevent him from any kind of abuse or harassment by the public or a class of society.
- What do you mean by Police custody?
When a person is arrested by police for charges of committing a heinous crime or on suspicion, he is detained in police custody for investigation and inquiry.
- What is the duration of custody in judicial and police custody?
- It is 15 days for police custody.
- In case of non-bailable offences punished with life imprisonment or imprisonment not less than 10 years, the period of detention is 90 days and in bailable offences, the maximum period is 60 days.
- Can the person in judicial custody be interrogated?
The officers in order to ask questions to the person in judicial custody have to take permission from the court.
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