July 31, 2020
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Police Custody and Judicial Custody

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DIFFERENCE BETWEEN POLICE CUSTODY AND JUDICIAL CUSTODY

Author: Mansi Rana, UPES Dehradun

Introduction :

Many times, when someone is arrested or suspected of committing a crime, the police may not be able to complete the investigation within 24 hours and present the person to a magistrate. At this point in time, it is important to keep people away from society for the safety of society and the safety of people themselves. He must also be present for further investigation and inquiry, and not to escape the law. So for such cases, the person is kept in police custody and can also be submitted to judicial custody.

Custody basically means protective care or guardianship of someone or something. There are two types of custody one is police custody and the other is judicial custody.  In both the process, the person is detained so that he can’t commit the crime and to prevent him to do any interference with the case going on. The decision whether the person should be kept in judicial custody or police custody is decided on the bases of the provisions provided under Criminal Procedural Law, 1973.

What is Police Custody?

Police custody can be defined as the physical custody of the accused. In this case when a police officer receives any complaint/ report about any person, the concerned police officer arrests the suspect of the crime so that further crime can be prevented. The accused is lodged up in the lockup of the police station.

In police custody, the suspect of the case can be kept in custody for not more than 24 hours and during this, the police officer can interrogate the suspect. 

Then the officer in charge of the case is required to produce the suspect before the appropriate judge within 24 hours, these 24 hours exclude the time of necessary journey from the police station to the court.

Mithabhai Pashabhai Patel vs State of Gujarat[1], in this case,e it was held that if one is granted bail cannot be taken into police custody again for further investigation unless the bail is canceled.

Pralhad Singh Bhati vs N.C.T. Delhi[2] reported if the defendant has been granted bail for bailable, and if a non-bailable offense is later added, the police can arrest the defendant without seeking to cancel the bail order.

What is Judicial Custody?

In judicial custody, the accused is in the custody of the concerned magistrate. Judicial custody means that the person will be put in prison on the order of a magistrate. In other words, it can be said that the defendant is under the supervision of a magistrate. When the defendant raises it before the magistrate, he can be sent to prison or returned to police custody. In judicial custody, the suspect becomes the responsibility of the court.

Kanu Sanyal vs Dist. Magistrate, Darjeeling[3]  The Supreme Court stated: A person cannot be granted a writ of habeas corpus when he is sentenced to jail by a competent court on an order that does not appear to have any jurisdiction or is completely illegal.

What is the difference between Judicial and Police Custody :

  1. In police custody, the offender is kept in the custody of the police officer i.e. the lockup while in judicial custody the suspect is kept in the prison on the order of the concerned magistrate.
  2. Persons detained by the police must appear in court within 24 hours, but a person detained by the magistrate will be detained until the court order for bail.
  3. The maximum time period of police custody is 24 hours while there is no limit in judicial custody.
  4. The details of the crime from the suspects can be interrogated by the police, but under judicial custody, this is invalid. The judicial custody can be revoked only when the judge orders the abolition of the gap.
  5. Police custody is against any crime, such as murder, robbery, kidnapping, intimidation, theft, etc. Judicial detention is applicable to such cases as police Custody Crimes, Defiance of Court, Bail dismissal.

How long can the accused be detained under police and judicial custody?

According to section 167[4] of the Code of Criminal Procedure a person may be detained by the police for 15 days on the order of a magistrate. Judicial magistrates have the power to grant police custody of a person for 15 days. The maximum extent of police detention is 15 days[5]. In addition, even if custody is required, it must be judicial.

If arrested on suspicion of committing a crime, punishable by imprisonment for more than 10 years, life imprisonment and the death penalty, judicial detention can be up to 90 days. In any other case, the person’s judicial custody may be extended to 60 days[6]. After 60 or 90 days, the person is entitled to bail until the police do not submit a charge form. Once the police filed the charge form, the person is not entitled to claim bail.

CrPC Section 57 states that if a person is arrested without a warrant, the investigation must be completed within 24 hours. If the investigation is not completed within 24 hours and the police officer needs to detain him for more time to successfully complete the investigation, he cannot be detained without a court order under CrPC section 167 (2). As a result, the magistrate is not given mechanically the powers conferred on police detention. He should ensure that there are good reasons to grant police detention

What are the rights of an accused during custody?

  1. Right to know the grounds of the arrest: The accused has the right to know the reason why he has been arrested and information should be provided to him in the language he is able to understand.
  1. Right to be taken before the magistrate without any delay: Whether the arrest is made with or without warrant the police officer is should make the arrested person appear in front of the concerned magistrate without any delay
  1. Right to information regarding bail: It is the duty of the concerned police officer to tell the arrested person that he is entitled to bail and that he can arrange the surety for the same.
  1. Rights at trial: the arrested person has the right of the fair trial which is proved in the Article 14 of the Indian constitution and speedy trial.
  1. Right to get free aid: in one of the cases it was held that it is the constitutional mandate to provide the arrested person with free legal aid.
  1. Right of consultation to a legal practitioner[7]: according to Article 22(1) no arrested person can be denied the right to consult a legal practitioner.
  1. The right to produce evidence from his side: The accused is even entitled to produce evidence from his side as well. After cross-examination prosecution witnesses, i.e. after the completion of the prosecution case, the defendant can be asked to defend him and fill out the records in a written statement. He may even ask for a cross-examination.

What is remand and who makes the remand application?

When a person is remanded, it means that they will be detained in prison until a trial or hearing later. Most remand prisoners have not been convicted of criminal offences and are awaiting trial after pleading guilty. If someone is convicted and remanded before the sentence is pronounced, it is called “judicial remand”.

The intensity of remand under S.167 can be additionally arranged into 2 heads on the premise with respect to who is the power requesting it. According to S167 (2), one is handled by the judicial magistrate, and the other party provides it to the administrative magistrate according to S.167 (2A). He can only practice if there is no judicial magistrate. According to the requirements of S.167 (1), the police officer in charge of the police station or the police officer conducting the investigation shall reapply, but he believes that he is not lower than the position of the sub-inspector at all times It will be completed within 24 hours, and he has reason to believe that the allegations or information are fully informed. He must also forward the defendant and a copy of the registration form.

Ramdoss & Ors vs State Of Tamil Nadu & Another[8] The Madras High Court held in its decision to remand u/s 167 CrPC The magistrate must note: (i) the reason for seeking detention for more than 24 hours. (ii) if a report discloses an identifiable crime. (iii) if the case is registered for investigation. But magistrates cannot question why such cases were accepted without materials.

Raj pal Singh vs state of U.P.[9] It has been observed that the remand order cannot be made without application of mind, nor can it be carried out in a conventional and mechanical manner. But, again, it doesn’t require the order form to look like a judgment made after a full trial.

Bibliography :

  1. www.indiankanoon.com
  2. www.lawctopus.com
  3. www.legalservices.com
  4. www.ipleader.com
  5. www.casemine.com
  6. www.manupatra.com

 

[1](2009) 6 SCC 332

[2] AIR 2001 SC 1444

[3] 1974 AIR 510

[4] https://indiankanoon.org/doc/1687975/

[5] AIR 1992 SC 1768

[6] 2006 CriLJ 4266

[7]1994 AIR 1349

[8] 1993 CriLJ 2147

[9] 2007 (2) AWC 1471

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