Explainer : Judicial Custody And Police Custody

"Custody", in ordinary sense, means control or charge over another person. It implies physical detention of a person from movement based on free will. Custody is a direct invasion on the right to personal liberty guaranteed under Article 21 of the Constitution of India. Therefore, an elaborate procedure has been laid down in law to ensure that a person is taken into custody by a legal authority only for lawful purposes, in a manner which is fair, reasonable and proportionate. 'Custody' and 'Arrest' 'Custody' and 'arrest' are not synonymous. Arrest is the forceful confinement of a person by police[1]. Arrest is followed by custody. But it not necessary that every case of custody must be preceded by arrest. For example, when one surrenders before Court, one is under custody, though there is no arrest. While interpreting the expression 'in custody' within the meaning of S.439 CrPC, Justice Krishna Iyer,. observed in Niranjan Singh v. Prabhakar Rajaram Kharote that: "He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions."[2] Thus, when an accused has surrendered before the Sessions Court, Sessions Court acquired jurisdiction to consider the bail application under Section 439,CrPC[3]. Following Niarnjan Singh, the Supreme Court held in 2014 if the High Court permits an accused to surrender before it, he will be under the custody of the High Court. Therefore, the High Court will get jurisdiction to consider application for regular bail under Section 439 CrPC[4]. Police Custody When a police officer arrests a person on the suspicion of having committed a cognizable offence, the arrested person is said to be under police custody. The purpose of police custody is to interrogate the suspect to gather more information about the crime, and to prevent destruction of evidences and intimidation of witnesses. This custody cannot exceed 24 hours without the orders of a Magistrate. Every person who is arrested and detained in custody by police should be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate[5]. No person can be detained in custody beyond the period of 24 hours without the authority of a Magistrate[6]. Judicial Custody The Magistrate has two options when an accused arrested by police is produced before her to - remand the accused to police custody or judicial custody. This is clear from the wordings of Section 167(2) of CrPC that the Magistrate may "authorize the detention of accused in such custody as such Magistrate deems fit". In police custody, the police will have physical custody of the accused. So when remanded to police custody, the accused will be detained in the lock-up in the police station. In that scenario, the police will be having all time access to the accused for interrogation. In judicial custody, the accused will be under the custody of the Magistrate, and will be sent to jail. The police can access an accused under judicial custody for interrogation only on the permission from the concerned Magistrate. Mere interrogation by Police, during such custody by permission of the Magistrate, cannot change the nature of custody[7]. To invoke S.167(1), it is not necessary that in all circumstances, the arrest should have been effected by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows on mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest on a reasonable belief that the arrestee "has been guilty of an offence punishable" under the relevant law, he can be remanded, notwithstanding the fact that officer who arrested the accused is not a police officer in its stricto sensu.[8] Police Custody not beyond first fifteen days after arrest. The accused can be sent to police custody only within first fifteen days of the presentation before the Magistrate after the arrest. Proviso (a) to Section 167(2) CrPC states that Magistrate can authorize the detention of accused beyond the period of fifteen days, otherwise than in the custody of the police. The detention in police custody is generally disfavored by law. The scheme of S.167 is is intended to protect the accused from the methods which may be adopted by "some overzealous and unscrupulous police officers"[9]. Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso, it has been held that the custody after the expiry of the first fifteen...

Explainer : Judicial Custody And Police Custody

Manu Sebastian

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