When an individual commits a crime he/she needs to be stopped for what they have done and for stopping them we have a tendency to need to arrest them and take them in custody for questioning them. Now custody and arrest include a ton of giant difference. Generally, an individual who breaks the law is arrested. So, what’s an arrest? Normally term, arrest suggests that ‘a physical restraint’ during which the arrested person loses some freedom and liberty. In laymen’s terms, Custody suggests that protective care of someone. In India, the provisions for holding an individual in custody so as to proceeds more with the investigation method are governed by Section 167 of the Code of Criminal Procedure. The arrest of any individual is followed by the custody by police however it’s not the case that every custody might even be preceded by arrest. Custody is of two types: 1) Police custody and 2) Judicial custody.
The first step to prevent the crime is to arrest the criminal and take him to police custody. Basically, police custody is when physical custody of the accused is with police and the accused is lodged in lockup. It is the arrest of a suspected person in crime to gather more information by the police officer in case of cognizable offence. Another aim of police custody is to prevent evidence from destruction. During this period, the police officer who is accountable will interrogate the arrested person.
According to Section 57, without the order of magistrate, it can not exceed more than 24 hours. A person who was arrested ought to be produced before the Magistrate nearest from the place of arrest within 24 hours. Time for the journey from the place of arrest to the Magistrate can be excluded for this.[i] The police seek his remand to police custody in order to complete the investigation expeditiously, the police decide for how long the accused must be kept in custody, which can not exceed a period of 15 days.
Sometimes police take advantage of their custodian power and exceed their power to such extent that they forget the fundamental rights of the accused. That is why the accused used to be afraid of police custody as they were subject to torture, harassment, sexual abuse et cetera. But now the Supreme Court judgments enumerated the rights of the accused, these incidents have got less. Resourceful accused, politicians and others enjoy immunity from third-degree or to say enhanced interrogation methods.
According to Section 167(2) , when police officer presents the arrested person in front of Magistrate, Magistrate can order to send him either to police custody or to judicial custody.
This type of custody takes place in heinous offences. Police can directly give the accused person to judicial custody in which the accused have to stay in jail. In case of not serious offences where judicial custody need not to take place first, Magistrate has to pass the order for police custody of the accused where police will have actual physical custody of the accused, and police custody can extend to 15 days with the order of Magistrate not more than this.
In judicial custody, Magistrate will have the custody of the arrested person and he will be sent to jail. During this custody, police can interrogate the arrested person only after the permission of the Magistrate. 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. But, in case of heinous offenses, like rape or murder, the accused is generally kept in judicial custody for a longer duration despite the filing of a charge sheet, in order to not influence the process of trial.
The charge sheet is to be filed within 60 days from the date of arrest of the accused in cases triable by lower courts and 90 days in cases triable by the Court of Sessions.
In case of, Mukesh & Anrs V. State For Nct Of Delhi & Ors, the court exceeded days to file charge sheet to 90 days.
In case of, P. Chidambaram V. Directorate Of Enforcement, the court granted bail to Chidambaram when charge sheet was not filed within 90 days because that crime was not heinous as compare to Nirbhaya case
As we have seen earlier the meanings of both the custodies and in which section they lay in with case laws. Now we will see the major differences between both the custodies.
|SL. NO||POLICE CUSTODY||JUDICIAL CUSTODY|
|1||In police custody, police get the right of physical custody of the accused to interrogate him/her.||In judicial custody, the accused’s custody is under the magistrate.|
|2.||Accused stays in lockup under police surveillance.||Accused stays in jail on the order of magistrate. Jail either can be central jail or state jail.|
|3.||Under police custody, the accused have the right to counsel and the right to be informed on which ground has been arrested.||Under judicial custody, no one can meet the accused without the permission of Magistrate. Rights and duties of accused managed by prison manual.|
|4.||The accused lodged in 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.||If it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation can ask for more time for custody of the accused which shall not extend to 15 days on the order of magistrate.||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.|
Provisions Related To Law Of Custody
In India Section 167, deals with the provisions holding an individual in custody for the purpose of continuing further with the investigation. A Judicial Magistrate might remand an individual for an amount of 15 days to any sort of custody. An executive Magistrate might order to increase the period of custody for up to 7 days. A person may be controlled in police custody or judicial custody. Police custody might extend up to an amount of 15 days from the date the custody begins, whereas the judicial custody might reach an amount of 90 days for the crimes that entail life imprisonment or death penalty or imprisonment for a term of not under ten years and 60 days for crimes wherever the imprisonment is for less than 10 years, if the Magistrate is convinced that there are sufficient existing reasons, following that the suspect or defendant should be released on bail.
Central Cell-I, New Delhi v. Anupam J.Kulkarni
In this case, the issue of arrest and detention was reviewed, and it was pointed out that according to Section 167(2) of the above opinion, the judge may authorize the detention of the defendant if he considers it appropriate, but the time limit should not exceed 15 days. Therefore, the initial period of detention 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 ladies who are accused of any offense and if inactive before long when childbirth, they will be taken to the official only they’re in correct condition to travel. Personal suffering and risk to health shouldn’t be usually removed. They should be allowed to stay in an exceedingly proper charge within the care of their relations or will be sent to the closest clinic and remain there till it’s certified by the officer guilty of a dispensary that the lady has sufficiently recovered. In such cases, there must be a police sanction obtained from the closest official for either the detention at their homes or in an exceedingly dispensary, on the far side 24 hours amount because it is allowed under Section 57.
An analogous procedure ought to be followed within the case wherever the suspect persons are too unwell 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. However, it has to be noted that a writ cannot lie against legal custody, no matter whatever rights have been violated before lawful custody.
State of U.P. v. Dharam Pal And Others
In this case, it was held that the character of the custody is usually altered from judicial custody to police custody and contrariwise throughout the primary amount of fifteen days mentioned in Section 167(2) of the Code. After 15 days, the suspect will only be kept in judicial custody or the other custody as ordered by the Magistrate, however not below the custody of the Police.
Such suspect is 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 an amount of 10 years or less), 90 days (in case the offense is punishable with an amount of more than 10 years) and even then, if the suspect does not file the bail bond, then he continues with the judicial custody.
If a police report is filed at intervals a number of similar days, then the suspect won’t be discharged on a default bail and continues to be beneath judicial custody, as a result of inquiry starts once the amount of investigation.
State of U.P. v. Ram Sagar Yadav
Remand should be passed by Magistrate on proper application of mind and not mechanically.
The law provides for safeguards against abuse however there’s a necessity to get rid of all contradictions and obstructions. The magistrate should see the victim’s background before passing orders. There’s a need to expand Section 167 so the remedies must be offered for the past smuggled arrests and detentions.
In this article, we tend to mention police custody and judicial custody conjointly and we’ve got discussed differences between them. The most purpose of custody is to keep up peace and avoid any more wrong activities. Police arrest the suspected person to assemble more data and to avoid any reasonable destruction of evidence. The concept of custody is formed by varied cases. A number of the cases are discussed to know this idea more clearly.
 The criminal procedure code, 1973
 The Code of Criminal Procedure, 1973 (Indian kanoon)
 2017 6SCC 1
 Criminal procedure code, 1973
 1992 AIR 1768, 1992 SCR (3) 158 (Indian kanoon)
 1975 AIR 1917, 1976 SCR (1) 587
 AIR 1985 SC 416
 (1997) 1 SCC 416
This article has been written by Drishti, B. A. LL.B student at Chanderprabhu Jain College Affiliated By GGSIPU
Also Read – Can An Arrest Be Made Without An Arrest Warrant?
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