Custody means confinement
Custody generally means confinement or detainment of a person. In law custody refers to confining or detaining a person accused of an offence in the custody of the authority legally competent to do so.
Arrest, detention & production before Magistrate
When a police officer receives information regarding a cognisable offence he would register a FIR.
In appropriate cases, the accused will be arrested and is taken to police custody, leading to his production before a Magistrate. The Magistrate may either remand the accused to Judicial Custody or Police Custody.
Difference between judicial & police custody
Police Custody means that police have the physical custody of the accused, while Judicial Custody means an accused is in the custody of the concerned Magistrate.
In the former, the accused will be detained in police lockup while in latter, he will be detained in jail.
Police cannot detain for more than 24 hours
The police cannot detain any person in its custody for more than 24 hours excluding the time for transporting the accused from the place of arrest to the Magistrate, under Section 57 of the Criminal Procedure Code (CrPC).
The police officer shall be held guilty of wrongful detention if he fails to do so. During such custody, the police officer in charge of the case, has the power to interrogate the accused.
Executive Magistrate also can remand
If no Judicial Magistrate is immediately available, then the accused may be taken before the Executive Magistrate. He can remand him to custody for a maximum period of 7 days and later the accused must be taken before a Judicial Magistrate.
If the accused is juvenile, his age is to be ascertained. If the accused is a juvenile, he be directed to be produced before Juvenile Justice Board.
Magistrate can allow police custody for 15 days
An accused person can be held in the custody of the police for a period of 15 days, on the orders of a Judicial Magistrate, under Section 167 of the CrPC.
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 exist, following which the accused or suspect must be released on bail. If the police report is filed within stipulated period, then the accused would not get the default bail.
If a person is transferred from police custody to judicial custody, the number of days served in police custody would be deducted from the subsequent period of his remand to the judicial custody.
Magistrate can remand only for remaining period
A combined reading of S.167(2) and 167 (2A) of the CrPC will make it clear that the Judicial Magistrate, whom the Executive Magistrate has forwarded the records of the arrested accused to, can order detention in such custody (police custody or judicial custody) under Section 167(2) CrPC for the rest of the first 15 days after deducting the period of detention by the Executive Magistrate.
Any detention that would be ordered after the initial custody for the first 15 days would be judicial custody alone.
Court can allow interrogation during judicial custody
During Judicial Custody, the investigation officer is not normally allowed to interrogate the accused.
But the court may permit interrogation of the accused based on an application and the facts brought in before the court.
Release of accused when completes half the period
As per Section 436A of the CrPC, If the accused under judicial custody, undergoes half of the maximum punishment set out for the offence, he can be released on default bail.
Person arrested to be informed of his rights
The Section 50 of the CrPC states that the person arrested should be informed of the ground of arrest, and of his right to bail.
The Police Officer, not below the rank of sub-inspector, can ask for remand only when the accusation or information is well founded and the investigation cannot be completed within the period of twenty-four hours as specified under Section 57 of the CrPC.
The Magistrate’s power to order remand is not mechanical but well founded on facts.
Meaning of the term custody u/s 167 & 309 of CrPC
The remand and the custody referred to in the first proviso to Section 167 CrPC are not different from detention in custody under Section 309(2) CrPC.
The term remand referred to in Section 167 relates to the stage of investigation and can initially be either in police custody or judicial custody whereas the term in Section 309 CrPC relates to a stage after taking cognizance and therefore the custody should be judicial custody alone.
Even after taking the cognisance of an offence the police have a power to investigate into the offence. In such case the provisions of Section 167 of the CrPC thereof would apply to a person who comes to be later arrested by the police in course of such investigation.
The phrase “accused if in custody” appearing in Section 309(2) CrPC refer to an accused who was before the court when cognizance was taken, or when enquiry or trial was being held in respect of him, but not to an accused who is subsequently arrested in course of further investigation.
Arrest as part of further investigation
Police remand can be sought in respect of an accused who has been arrested even after filing of charge-sheet.
Accused who has been granted bail cannot be taken into police custody for further investigation unless bail is got cancelled. But if the accused is released on bail for bailable offence and if later non bailable offence is added, then police can arrest the accused without seeking cancellation of order of bail.
Further reading
