Introduction to investigation and the difference between police custody and judicial custody

This article is a subtle attempt to throw some light on the subject of Custody as per the Code of Criminal Procedure.

1. What goes behind the entire process of investigation?
2. How custody plays an important role in ensuring a smooth investigation which doesn’t affect the rights of the accused?
3. What is the difference between judicial custody and police custody?

This article revolves around these questions and aims to provide credible and detailed information.

Upon lodging a FIR, the police can arrest the individual depending on the nature of the offence i.e. the offence being cognizable in nature or non-cognizable. If the inspector has a suspicion on the accused, then he can arrest him for the purpose of investigation.

An investigation comprises of arrest, custody/remand and bail. These facilitate to complete investigation in a smooth manner. Arrest is the first step to proceed with the investigation. The importance of arrest has been stated in the case of Adri DaharanDas V. State of W.B ((2005) 4 SCC 303) The court held that by way of arrest, the accused is prevented from causing any sort of hindrance in the process of investigation. It serves various purposes such as protecting the witnesses, protecting the society, maintaining law and order etc because of which arrest becomes an inevitable section of investigation.

Once the accused is arrested, the police inspector is required to present the accused in front of the magistrate within 24 hours, as prescribed in Section 57 of the Code. It is pertinent to understand that the investigation process cannot be completed in one day and the reason behind the appearance of the accused before the magistrate is to allow the police to investigate the matter in its entirety. The availability of the accused in the police custody is essential as firstly it ensures that the accused no more a threat to the society and secondly a fair investigation can be carried out without any intervention or without the fear of the accused absconding.

This highly crucial procedure is dealt by section 167 of the Code. It permits for the police custody of the accused which might extend up to 15 days and the same is to be referred to the judicial magistrate. Therefore, it can be inferred that the remand order of an accused is at the discretion of the Judicial Magistrate. As for the Executive Magistrate, she/he may order a remand for a period not extending a week.

The main objective of this section, i.eSection 167 of the CrPCis to well-differentiate between Judicial Custody and Police Custody. Police custody may extend only up to 15 days, however, Judicial Custody may extend up to 90 days for a crime which necessitates a punishment of death, life imprisonment or imprisonment extending 10 years and in case of all other crimes which entails punishment less than 7 years or in any other case where the magistrate is provided with sufficient reasoning, the Judicial Custody may extend to a period of 60 days.

To put it in other words Section 167 of the code clearly mentions as to how the Police Custody and the Judicial Custody can be altered and what time frame is followed for the same.

The terms ‘arrest’ and ‘custody’ though look similar but in fact they bear a different meaning altogether. The term Arrest though not defined anywhere in the Code of Criminal Procedure simply means ‘a seizure or a forcible restraint’.

Custody may or may not amount to arrest as the police can keep an individual in custody if they have some suspicion against him/her. But the same cannot exceed 24 hours.

The word ‘custody’ implies detaining someone for their protection. The principle behind arresting the suspect of a particular crime is to save and protect the society. There are generally two types of custody

1. Police custody; and
2. Judicial custody.

An accused is kept in custody for mainly two reasons;

1. To prevent the commission of any further crime and
2. To facilitate the process of investigation. Section 167 of the Code provides certain rules for keeping an accused under police or judicial custody.

Police custody is generally when the accused is in the physical custody of the police officers for the purpose of completion of investigation. While in Judicial custody or remand, the accused/suspect is under the custody of the Magistrate.

The Judicial Magistrate can exercise the power of remand for a period of not more than 15 days and an Executive Magistrate may order the remand of the arrested person for a week. The Judicial Custody commences when the period of 15 days over. It may extend to 90 days wherein the offences are punishable with death penalty, life imprisonment or imprisonment exceeding 10 years and 60 days for all other offences if the Magistrate is satisfied with grounds and materials.

According Section 57 of the Code, the Police officer cannot keep the accused for more than 24 hours, irrespective whether or not the investigation is complete or not. Hence, it is the duty of the officer to present the accused before the Magistrate within 24 hours of the arrest. The concept of custody comes into picture at this very juncture.

When an accused is in the lock-up of the police station, it can be said to be Police Custody and when an accused is in the jail under the charge of the Magistrate, it is known as Judicial custody.

The differences between Police custody and judicial custody have been highlighted further in a tabular form.