Present article defines the meaning or arrest, Judicial custody and Police custody. Proper emphasis have been given to differentiate the Judicial and Police Custody
What is an Arrest?
Generally, a person who breaks the law is arrested. The term arrest stands for the meaning that apprehension of a person by the legal authority to cause deprivation of liberty. Furthermore, an arrest can also be understood as a seizure or forcible restraint. It is an exercise of power to deprive a person of his or her liberty and involves the keeping of a person in custody by legal authority, especially, in response to a criminal charge.
Under criminal law; an arrest is an important tool to bring an accused before the court and to not let him abscond.
What is Custody?
The word ‘custody’ means apprehending someone for protective care. It may be understood as care, possession, and control of a thing or person. Custody refers to a person who is being held in captivity after being charged with a crime or convicted of an offense.
Police Custody
In the case of a cognizable offense, it is the apprehension of a suspect for the police officer to gather more details. Another objective of police custody is to avoid evidence tampering. During this time, the arrestee will be interrogated by the officer in charge. According to Section 57 of The Code of Criminal Procedure, 1973, the person who is arrested should be produced before the Magistrate within 24 hours. However, the time for the journey from the place of arrest to the Magistrate does not include in the prescribed minimum time i.e., 24 hours.
Judicial Custody
According to Section 167(2) in The Code of Criminal Procedure, 1973, when a police officer presents the arrested person in front of the Magistrate, Magistrate can order to send him either to police custody or judicial custody.
When the Magistrate orders to send the person to police custody, police have the actual physical custody of the arrested person. Police detain the arrested person in lock-up and interrogate him/her to collect the necessary information.
In judicial custody, the magistrate has the custody of the arrested person. During this custody, police can interrogate the arrested person only after taking the permission of the Magistrate.
Landmark Judgments
In this case, it was held that the nature of the custody can be altered from judicial custody to police custody and vice versa during the first period of 15 days mentioned in Section 167(2) of the Code of Criminal Procedure. After 15 days, the accused will only be held in judicial custody or some other type of custody that the Magistrate orders, but not in police custody.
In this case, the court held that the custody of 7 days after expiry of 15 days of police remand was held violative of Section 167 of the Code of Criminal Procedure.
In this case, Patna High court held that if the detention of the accused is legal; when the bail application is preferred, his previous illegal detention should not be considered.
In this case, the court held that the remand should be passed by the Magistrate on the proper application of mind and not mechanically.
In this case, the court held that any remand to police custody including a second remand application can be made only within the first 15 days after the arrest and not after that.
Difference between Police and Judicial Custody
Following are some of the key differences between Police and Judicial Custody:
| S. No. | Police Custody | Judicial Custody |
| 1. | The accused is held in a police station’s prison cell or the custody of an investigating agency probing into the matter. | The accused is locked up in jail and is under the custody of the Magistrate. |
| 2. | The accused is under the custody of police and here the process of the first interrogation commences. | In judicial custody, the accused is under the custody of the Magistrate. |
| 3. | The accused is kept in lock-up for further inquiry or investigation. | The accused is kept in lock-up as per the orders of the magistrate or court for a duration above 15 days. |
| 4. | The accused lodged in police custody has to appear within 24 hours before the concerned Magistrate. | The accused is kept in lockup until he/she is granted bail from the Court of Law. |
| 5. | The police custody begins as soon as the suspect is arrested by a police officer after receiving a complaint or an FIR. | The judicial custody begins after the public prosecutor satisfies the court that the custody of the accused is necessary for investigation. |
| 6. | In police custody, the period is 24 hours which can be extended to a period of 15 days by the orders of an appropriate Magistrate. | In the non-bailable cases punishable with life imprisonment, death, or imprisonment for a term of not less than ten years, the maximum period for detention is 90 days. However, in the bailable cases, the maximum period for detention is 60 days. |
| 7. | The security is provided by the police in the police custody. | The judge/magistrate provides security in judicial custody. |
| 8. | The police officer in charge has complete control over arresting the accused or suspect/investigate in their provisional area. | Judicial custody works on the orders of the court where the judge/magistrate takes a call on the case navigation. |
| In police custody, the investigation is carried out by the police officer. | In judicial custody, the investigation is not the job of the magistrate. The magistrate adheres to the evidence that is provided by the experts’ reports and hearing in the trial court. |
Conclusion
As per Article 21 of the Indian Constitution, the police or judicial custody must be reasonable, applicable, and legally viable. It’s important to note that arrest and detention are not synonymous. Custody is a remand, while arrest is a form of forced imprisonment. Post detention is the Arrest.
Section 167 of the Code of Criminal Procedure deals with the provisions of police and judicial custody. Both judicial and police custody limit the liberty and range of movement of a person under both state situations. According to the laws outlined in the Code of Criminal Procedure (Cr.P.C.); 1973, the convicted person is arrested and held in police and judicial custody.
I think India is trying to follow rule of law as contemplated in art.21 of the Indian Constitution. As such there has been an amendment to s. 167 of their Code of Criminal Procedure.1973. In the old Code of 1898 there was no power for Magistrate/court to remand the accused to police custody in s.167(1) except to complete the Investigation within given time of 24 hours vide s.61 (present s.57). Amended s.167(1) allows the Magistrate to remand to police custody for maximum 15 days. In the old s.61 and 167(1) the Legislative intention was never to allow the police to torture the accused for max 15 days. It was max. 15 days judicial custody not police custody. I strongly would opine that the law (s.57/61 old of CrPC) strictly limits to only max.24 hours for Police custody on arrest without warrant for cognizable offence for completion of investigation and Magistrates order is needed for custody beyond 24 hours only to complete investigation on exceptional case where investigation remained incomplete. It is understood, remand cannot be given more than part of 24 hours or max. another 24 hours in police custody to complete the investigation. Keeping the accused in police custody can serve no other purpose than to extract information by unlawful means of inducement, threat or promise, or torture etc. the the accused is not bound to talk. So, the amendment has been made in wrong premise allowing police to torture out any clue for investigation. The code should repealed to allow max 24 hours police custody to complete the incomplete investigation that was to be completed with initial 24 hours in police custody after arrest.