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Difference Between Police Custody and Judicial Custody

Submitted by asandil on Wed, 12/30/2020 - 11:52

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 means in the care of authority, as in where a person charged with a crime or convicted of an offense and held in captivity.

Police Custody

When following to the receipt of an information/complaint/report by police about a crime, a police officer arrests the accused involved in the crime reported, to prevent him from committing the offensive acts further, such officer brings that suspect to the police station, it's called Police Custody. After an FIR is lodged for a cognizable offense, the suspect is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

The police have the physical custody of the accused. Under Section 57 of CrPC, the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police decide for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

These provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinize circumstances and if satisfied can order the detention of the accused in police custody. As stated in the judgment of Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768, 1992 SCR (3) 15

Judicial Custody

In judicial custody the accused is presented in front of the magistrate, the magistrate can take the accused in their judicial custody or send back the accused to police custody for 15 days. If the accused is sent to police custody, police have all the rights to interrogate the accused. Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is compulsory in criminal cases to file a charge sheet within 90 days. If there is a failure in the filing of a charge-sheet, bail is normally granted to the suspect. But, in case of offenses like rape or murder are the exception to this time limit. 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.

Notable Differences between Police custody and Judicial Custody

  1. In the case of police custody, the accused stays in the lock-up of a police station or in the custody of an investigating agency who is handling the case, while in the case of Judicial custody accused is under the custody of the magistrate.
  2. The police custody is under the control of the Police and the first interrogation takes place from there, while the accused is under the custody of the magistrate in judicial custody.
  3. The accused is detained under the lock-up for further inquiry in police custody, while in case of judicial custody the accused is kept in the jail as per the order of the magistrate or the court for the period above 15 days.
  4. In police custody, the security is provided by the police, while in the case of judicial custody the magistrate provides the security.
  5. In police custody, the investigating authority can interrogate the accused, while in the case of judicial custody officer needs the approval of the court for questioning.
  6. The police custody begins as soon as the suspect is arrested by the police officer after receiving a complaint, while judicial custody begins after the court is satisfied that the custody of the accused is necessary for the investigation purpose. 
  7. In the case of police custody, strong charges are put, while in the case of judicial custody charges can be nullified.
  8. In police custody, the time period is 24 hours which can be extended to a period of 15 days as a whole by the appropriate Magistrate, while in the case of 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.

Important judgments on Police and Judicial Custody

1.Sundeep Kumar Bafna vs State Of Maharashtra & Anr, Criminal Appeal No. 689 OF 2014[Arising out of SLP (Crl.)No.1348 of 2014, Dt. 27 March 2014 wherein it was observed that as follows: ”We are unable to agree that anticipatory bail should be refused if a legitimate cause for the remand of the offender to the police custody under Section 167(2) of CrPC of the Code is made out by the investigating agency.”

2. In Dinubhai Boghabhai Solanki vs State of Gujarat & Ors, Criminal Appeal No. 492 OF 2014(Arising out of SLP (Crl.) No. 8406 of 2012) Date of judgment on 25 February 2014, it was observed that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a world of difference between conclusions in two cases.” See. Bharat Petroleum Corporation vs N.R. Vairamani And Anr.

3. As in the case of Dr KS Rao Vs. State of Hyderabad, AIR 1957 AP 416, in remanding the accused to police custody the Magistrate must to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.

4. Chaganti Satynarayana and Ors. Vs. State of Andhra Pradesh, [1986] 3 S.C.C.14. As was held in 1981 CriLJ 1773 (1776 – Para 9), Inspection of the case diary is a must before remanding of any kind whether it is judicial or police custody. It is a dereliction of duty if the magistrate did not ask for and peruse the case diary before he authorizes any custody.

Conclusion

As per Article 21 of the Indian constitution, the police or judicial custody must be reasonable, applicable, and legally viable. It should be noted that arrest and custody are not the same. Custody is plainly a remand taken while the arrest is forceful confinement. The arrest is followed by custody.

Section 167 of the code of criminal procedure deals with the provisions of police and judicial custody.  procedure Both judicial and police custody limit the liberty and range of movement of a person under both state situations.

The accused person is detained and kept under police custody and judicial custody according to the rules laid down in the Code of Criminal Procedure (CrPC),1973. You can contact criminal lawyers for further assistance.

Notes

  1. Section 57, of CrPC.
  2. Section 167 of CrPC.
  3. Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768
  4. Sundeep Kumar Bafna vs State Of Maharashtra & Anr
  5. Dr KS Rao Vs. State of Hyderabad, AIR 1957
  6. Chaganti Satynarayana and Ors. Vs. State of Andhra Pradesh, [1986]
  7. Article 21 of Indian Constitution