Explainer : Judicial Custody And Police Custody

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 days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody, if found necessary, can be ordered only during the first period of fifteen days.^[10]

The SC has observed :

"It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences"^[11]

Judicial custody may extend to a period of 90 days for a crime which entails a punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60 days for all other crimes if the Magistrate is convinced that sufficient reasons exists.

Accused in judicial custody, if circumstances justify, can be remanded to police custody or vice versa within time limit (15 days) as prescribed in S.167(2) Cr.P.C^[12].

Police custody when an accused has committed several offences.

If it is known to police that an accused, who is already under custody for a suspected offence, is linked with some other offences, can police custody in respect of the other offences be sought, even though the accused has completed fifteen days of police custody in respect of the first offence?

Yes, provided that the other offences are arising out of transactions different from the offence in respect of which he was taken into custody for the first time. Merely because more serious offences arising out of the same occurrence for which the accused was taken into custody are discovered during interrogation, that will not authorize police to seek police custody beyond 15 days.

This position has been explained in detail by the Supreme Court decision Central Bureau of Investigation, Special Investigation Cell - I, New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768.

"In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying S.167.

However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody."

In S. Harsimran Singh v. State of Punjab, 1984 CriLJ 253, a Division Bench of the Punjab and Haryana High Court considered the question whether the limits of police custody exceeding fifteen days as prescribed by S.167(2) is applicable only to a single case or is attracted to a series of different cases requiring investigation against the same accused and held thus (para 10A):

"We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either rearrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under S. 167(2) of the Code for investigating another offence. Therefore, a rearrest or second arrest in a different case is not necessarily beyond the ken of law".

This view by the P&H HC was approved as "practicable" by the Supreme Court in Kulkarni case(supra).

After the expiry of 15 days, there cannot be detention in police custody, even if some more offences that may have been committed by the accused in the same transaction come to light at a later time.(Budh Singh v State of Punjab (2000) 9 SCC 266)

When accused is arrested during further investigation

Proviso to Section 309(2) CrPC deals with the power of the Court to remand an accused to custody after taking cognizance. This remand can only be to judicial custody.

So, can there be a police remand of an accused who is arrested at the stage of further investigation, after the filing of charge-sheet?

Can such an accused be remanded to only judicial custody in view of Proviso to Section 309(2) CrPC?

The answer to these questions were provided by the Supreme Court in the decision CBI v Dawood Ibrahim Kaskar^[13]. The Court held that remand of an accused who is arrested at the stage of further investigation has to be dealt with by Section 167(2) and not proviso of Section 309(2). Because, as far as that accused, investigation is still progressing, and police cannot be denied the opportunity to have his police custody.

The Court held :

"There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under S.167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of S.167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation.

If S.309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under S.167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient material, convince the Court that his detention in its (police) custody was essential for that purpose.

We are, therefore, of the opinion that the words "accused if in custody" appearing in S.309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation."

Police custody of absconding accused who is arrested after cognizance

Applying the principle in Dawood Ibrahim case, the Supreme Court later held that an absconding accused who is arrested after filing charge-sheet can be remanded to police custody^[14]. The High Court order refusing police remand on the reasoning that remand was under Section 309(2) was set aside by the Supreme Court.