Behind Bars: Understanding the Difference between Police Custody and Judicial Custody

Custody is a legal term that refers to the physical control and supervision of a person by the authorities. In India, there are two main types of custody: Judicial Custody and Police Custody. The Code of Criminal Procedure, 1973 (CrPC) defines custody as "the power of a police officer or a court to keep a person in lawful detention." So, let's discuss custody in detail with this article and its two major types so that you don't confuse one with another.

Provisions on Police & Judicial custody

Section 2(2) of the CrPC defines two types of custody:

1. Police custody: This is the power of a police officer to keep a person in their custody for a maximum period of 24 hours.

Relevant Sections of the Code of Criminal Procedure (CrPC) that govern police custody:

• Section 167: This section empowers the police to detain an accused person for a limited period, usually up to 15 days, with the permission of the Magistrate.

• Section 167(3): This section specifies the conditions under which police custody can be extended beyond the initial period of 15 days, subject to the Magistrate's approval.

2. Judicial custody: This is the power of a court to keep a person in their custody. The maximum period of judicial custody is 60 days for a non-bailable offence and 15 days for a bailable offence.

Relevant Sections of the Code of Criminal Procedure (CrPC) that govern judicial custody:

• Section 167: This section empowers the police to detain an accused person for a specific period, after which the individual must be produced before the court.

• Section 309: This section provides guidelines on the duration of judicial custody, the conditions of detention, and the power of the court to extend or modify the custody period.

What is Police Custody? 

• According to Section 167, if the accused is brought before the magistrate and the magistrate deems it necessary for additional investigation or questioning, they have the authority to grant police custody to the individual for a duration of 15 days. 

• However, in certain circumstances, such as considering the case's nature, severity, and circumstances, this period can be extended up to 30 days. He can also order to change the custody from police custody to judicial custody. 

• In such a situation, the time period of police custody is deducted from the total time period of judicial custody. 

• The purpose of police custody is to allow the police to investigate the crime and to question the accused person. During police custody, the police can interrogate the accused person, collect evidence, and bring the accused person to the scene of the crime.

Recently, The Supreme Court sought reconsideration of its 1992 ruling (Central Bureau of Investigation vs Anupam J. Kulkarni), according to which an accused cannot be kept in police custody beyond a period of 15 days from arrest.

Example: A person is arrested for the offence of theft. The person is produced before the magistrate the next day. The magistrate orders the person to be remanded in police custody for 24 hours. During the 24 hours of police custody, the police interrogate the accused person and collect evidence.

Tell us in the comment section below what measures can be taken to prevent custodial deaths and ensure the safety of individuals in police custody. Share your insights and suggestions.

Read our blog on blood-curdling Police Brutality and Custodial torture instances and what are the rights of an arrested person.

What is Judicial Custody?

• Judicial custody is the most common type of custody in India. It is ordered by a court after the accused person has been arrested and produced before the court. The court may order judicial custody for several reasons, such as to protect the accused person from harm, prevent them from interfering with the investigation, or ensure that they appear for trial.

• When an individual is held in custody by a magistrate, it is known as judicial custody, as per Section 167 of the Code of Criminal Procedure (CrPC). Unlike police custody, in judicial custody, the person is confined in a jail facility under the magistrate's orders for a temporary period. This ensures that the person or suspect is under the magistrate's protection, shielded from potential abuse or harassment by the public or any specific group in society.

• When a person is arrested based on a First Information Report (FIR) filed under Section 154 of the CrPC for a cognizable offence, they must be presented before a magistrate within 24 hours.

• In cases involving offences punishable with the death penalty, life imprisonment, or imprisonment for a term of 10 years or more, the period of judicial custody can be extended up to 90 days, as stipulated under Section 167(2) of the CrPC.

• The court determines the duration of judicial custody. The maximum period of judicial custody for a non-bailable offence is 60 days. However, the court may extend the period of judicial custody for a further period of 30 days, if it is satisfied that the extension is necessary

Therefore, the provisions under Section 167 of the CrPC govern the duration and circumstances of judicial custody, ensuring that the rights and well-being of the person in custody are protected.

Example: A person is arrested for the offence of murder. The person is produced before the court the next day. The court orders the person to be remanded in judicial custody for 15 days. After 15 days, the court reviews the case and orders the person to be remanded in judicial custody for a further 30 days.

Difference between Judicial Custody & Police Custody

Landmark Cases 

• D.K. Basu vs State of West Bengal and Ors. (1996): This case laid down the foundation stone in the form of a set of guidelines for the protection of the rights of an accused person in police custody. These guidelines include the right to be informed of the reasons for arrest, the right to consult a lawyer, the right to be produced before a magistrate within 24 hours of arrest, and the right to be free from torture or ill-treatment.

• The State of U.P vs Boota Singh and Others (1978): This is a landmark case in which it was established that the police cannot force an accused person to sign a confession. This principle is based on the fundamental right to a fair trial guaranteed by the Constitution of India “Article 20(3)”. The Court held that the police cannot use coercion to extract a confession from an accused person, as this would violate the accused person's right to silence and their right to a fair trial.

• Dhananjaya Chauhan v. State of Rajasthan (1989): In this case, the court addressed the issue of police custody and set a crucial precedent. The judgment held that the police cannot interrogate the accused person for more than 24 hours without the permission of the magistrate. This decision was significant as it aimed to prevent custodial abuse and protect the rights of individuals in police custody. By imposing a time limit on police interrogation, the court ensured that suspects were not subjected to prolonged detention or coercive tactics, reinforcing the principles of fairness and justice in criminal proceedings.

Do you believe stricter regulations or additional safeguards should be in place to prevent abuse of power during police custody? Share your views and any ideas you have for reform.

Conclusion

Police custody allows the police to interrogate the accused, collect evidence, and conduct further investigation. The duration of police custody is generally limited to 24 hours, but it can be extended up to 15 days with the Magistrate's permission and in certain cases, up to 30 days. The recent reconsideration sought by the Supreme Court regarding the duration of police custody emphasizes the need to balance the rights of the accused with the investigative requirements.

On the other hand, judicial custody serves the purpose of ensuring the safety of the accused, preventing interference with the investigation, and ensuring their presence during trial. The court has the authority to order judicial custody for a specific period, usually up to 60 days, for non-bailable offenses. The duration can be extended by an additional 30 days if required.  To further improve the system, it is essential to have stricter regulations and additional safeguards to prevent abuse of power during police custody. Reforms could include mandatory video recording of interrogations, regular medical check-ups for those in custody, and independent oversight of custodial facilities.

Frequently Asked Questions (FAQs)

1. Which article in our Constitution affirms our right to remain silent?

A. Article 20(3) of the Constitution of India affirms the right to remain silent. It states that no person accused of an offence shall be compelled to be a witness against himself. This fundamental right protects individuals from self-incrimination and ensures that they have the freedom to choose whether to speak or remain silent during the course of legal proceedings.

2. What are some important sections pertaining to judicial custody and police custody?

A. Relevant sections of the Code of Criminal Procedure (CrPC) pertaining to judicial custody include Section 167, which empowers the police to detain an accused person for a specific period before producing them before the court, and Section 309, which provides guidelines on the duration of judicial custody and the power of the court to extend or modify the custody period.

For police custody, important sections include Section 167, which allows the police to detain an accused person for a limited period, usually up to 15 days, with the permission of the Magistrate, and Section 167(3), which specifies the conditions under which police custody can be extended beyond the initial period of 15 days, subject to the Magistrate's approval.

3. Which article in our Constitution affirms our right to remain silent?

A. Article 20(3) of the Constitution of India affirms the right to remain silent. It states that no person accused of an offence shall be compelled to be a witness against himself. This fundamental right protects individuals from self-incrimination and ensures that they have the freedom to choose whether to speak or remain silent during the course of legal proceedings.

4. What is the difference between Judicial Custody and Police Custody?

A. Police and judicial custody differ in granting authority and purpose. Police custody is initially granted to the police for investigation purposes, allowing them to interrogate the accused and gather evidence. It typically lasts for a maximum of 24 hours but can be extended to 15 days with Magistrate's permission and up to 30 days in certain cases. On the other hand, judicial custody is ordered by a court to ensure the accused's safety, prevent interference with the investigation, and secure their presence during trial. The accused is held in jail under the court's orders, with a maximum duration of 60 days for non-bailable offences, extendable by 30 days if necessary.