1. Introduction:
Police custody and judicial custody, you must have been familiar with these words lots of times in the news channel or the daily newspaper. Most of us think both of these are the same, but let me tell you that these are both different, and we shall look into each other in detail one after the other. Now, we shall see about the two and the laws related to them.
2. Meaning of Arrest:
According to Wikipedia, “An arrest is an act apprehending and taking a person into custody (legal protection or control). Usually, the person suspected of or observed committing a crime may be arrested. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system.” [1].
It’s an act of taking a person under control into custody when he is suspected or observed as a witness at a crime scene. After being in custody, he can be questioned further in the procedure.
Arrest by the magistrate :
Under section 44(1) of CrPc when a crime is committed in the magistrate’s local jurisdiction, he has the power to arrest the person.
3) Meaning of Custody :
According to the legal dictionary “The care, possession, and control of a thing or person. The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and control of the person to whom it is committed. The detention of a person by lawful authority or process.”[2].
If you are taking charge of a person, restricting him from physical movement, or taking him under control based on the suspect. It is called custody.
4) Judicial custody :
When a person is arrested and presented in front of a magistrate, and if he orders to put the suspect or accused in judicial custody, the police should send him to the jail known as judicial custody.
- In case of interrogation, police have to get permission from the magistrate to interrogate the suspect if he is under judicial custody.
- In some cases, a court may accept the request of the police to remand the suspect in judicial custody even after the completion of police custody due to a fair chance of tampering with evidence or witnesses.
- It is a must in criminal cases to file a charge sheet within 90 days. If it is not filed. The accused can get bail after he applies without any obligation.
- In highly committed vicious crimes like rapes and murders, the suspect can be kept in judicial custody for a longer duration despite the filing of a charge sheet for not influencing the trial process of the procedure.
5) what happens after 14 days of judicial custody?
When the suspect is in jail and lives in judicial custody, the police can interrogate them only after permission is granted by the magistrate.
Does a person get bail in judicial custody?
In judicial custody, the suspect can request bail under CrPC chapter 33 related to the bail and bonds. However, the judicial custody can be prolonged up to 60 or 90 days, depending upon the offense committed by the person.
6) What is police custody?
When the suspect is taken under the control of the police in lock-up, restricting his movement is called police custody.
- The accused can only be kept for up to 24 hours in the lock-up, and police present him to the magistrate for further proceedings. They will decide whether they should be in judicial custody or police custody.
- Under section 57 of the code of criminal procedure, 1973, the suspect cannot be kept in police custody for more than 24 hours due to the chances of physical torture and harassment that can be done on the suspect.
What is the period of police custody?
The period of police custody cannot be exceeded by more than 24 hours. The time traveled from the police station to the magistrate can be excluded. If the suspect is taken under the control of the police, they can only keep him for 24 hours.
What is police custody in remand under S. 167 of CrPC?
The remand is an order of the magistrate under section 167(2) of the CrPC. In case of un-completion of the investigation process, this extended remand custody can help the police in the investigation for collecting evidence or the inquiry around the accused person.
Difference between judicial custody and police custody?
- In police custody, the police can interrogate the suspect with their ways directly without higher official permission.
- In judicial custody, the police have to obtain the permission of the magistrate to interrogate the accused person.
7) Difference between arrest and custody:
| No | Arrest | Custody |
| 1 |
The Term Arrest is not defined in the Code of Criminal Procedure Code or the Various Substantive Acts. The arrest is derived from the French word ‘Arrest’- which means “to stop or Stay.” |
According to Section 27 of the Indian Evidence Act of 1872, the expression “in Custody” denotes Surveillance or restriction on the movements of the person connected. |
| 2 | Meaning and Definition of Arrest – An arrest is a restraint of the Liberty of the Person. An arrest is apprehending a person and taking them into custody because they have been suspected of committing or planning a crime. |
Meaning and Definition of Custody – Custody is the state of being guarded or kept in prison temporarily, especially by the police. |
| 3 | Every arrest is custody, but not Vice Versa. | Custody may Amount to an arrest in certain cases but not in all cases. |
8) Difference between judicial custody and police custody:
We have seen the differences in detail earlier about judicial custody and police custody. Here are the few key differences which are the most important.
- If the suspect is in police custody, they can interrogate them without anyone’s concern.
- If the magistrate sends him to judicial custody, then the police need permission for interrogation from the magistrate to go further questioning or proceedings with the suspect.
Provisions or conditions for custody:
If the suspect is taken into custody, it comes under section 167 of the Code of Criminal Procedure, 1973. The period of a suspect who is under custody is given below.
Custody for 7 days:
If the judicial magistrate is not available on duty, the suspect can be brought to the executive magistrate. He will be given custody for seven days. (After that, he has no authority to give more than that period.) See (Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J.Kulkarni) (1992 AIR 1768),[3].
Custody for not more than 15 days :
When the accused is presented in front of the magistrate, he has the authority to put the suspect or accused in custody for 15 days.
Custody of 60 days :
- The magistrate has the right to send the suspect to a prolonged custody period of sixty days based on the charge or crime he or she committed under section 167(2)(a)(ii).
- In this period, police custody can be granted for not more than fifteen days.
Custody for 90 days :
- The magistrate can extend the suspect custody for 90 days for a detailed investigation related to the accused of murder or death or life imprisonment or imprisonment, which will not be less than ten years under section 167(2)(a)(i).
- Here, it is also stated that the accused must be produced in court for police custody. A Suspect can also be produced through video conference when he is in judicial custody.
- If the police cannot make a charge sheet against the accused in 60 or 90 days, then it becomes a right for the suspect to apply for bail, and it can be granted due to no charge sheet.
Rights and Remedies:
When the accused person is in police or judicial custody, he has rights under Article 22 of the Constitution of India, as stated below.
- A suspect arrested or taken into custody must be produced before the magistrate within 24 hours.
- He can consult his lawyer in this period of 24 hours.
- If the police cannot file a charge sheet on the suspect within 60 or 90 days, the accused can get bail.
- This comes under section 167 Code of Criminal Procedure.
- If the custody is done and it has violated any legal right. Then, relatives or persons belonging to him can apply under Article 32 or 226, which is known as habeas corpus.
Reference:
1. https://en.wikipedia.org/wiki/Arrest#India
2. https://legal-dictionary.thefreedictionary.com/custody
3. Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J.Kulkarni (1992 AIR 1768).
