An academic question
Querist :
Anonymous
(Querist) 09 January 2012
This query is : Resolved
I know it is an academic question but I find no way but to come here to ask....
I would like to request experts plz do not disappoint me...
the question is...
76. The expression 'Police custody' means and includes-
(1) Control by the police over the accused directly
(2) Control by the police directly as well as through third persons indirectly over the accused
(3) Control over the accused indirectly through third persons
(4) Some kind of surveillance and restrictions over the accused by Police or through third persons.
Devajyoti Barman
(Expert) 10 January 2012
The CRPC has dealt with all thse aspects in detail.
Do take effort to read the book. It would be of your benefit, not ours.
Advocate. Arunagiri
(Expert) 10 January 2012
You can meet any of advocates nearby for knowing all these academic clarifications. But, first try with your teacher.
Deepak Nair
(Expert) 10 January 2012
Provisions in the CrPC are clear.
Querist :
Anonymous
(Querist) 10 January 2012
I would gratful plz notify which provision of Cr.P.C. Clarifying this query.
More so I went thru the provisions 41, 167 and all relevant but in vain. No where the phrase "police custody" is defined.
I have appeared in judicial services exams and this question was asked there. I got answer nowhere so being an expert member I get no way but to discuss with my brothers.
I would like to ask Mr. Deepak nair as he is looking very confident and commanding on the subject plz tell me the provision.
thanks.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 January 2012
Now exam is over and in next exam some new question will be asked.So try to understand whole concept of law .
Querist :
Anonymous
(Querist) 10 January 2012
why r u escaping to answer the query????????
R.Ramachandran
(Expert) 10 January 2012
I can answer the query, provided you come with your name (including pseudo name) but not "Anonymous".
Ramanathan G
(Expert) 10 January 2012
Sirs, 10-1-12 at 8.55 pm.
A few weeks ago there was another question in LCI about, why the Surrendered Accused in Murder case will be given to Police custody. By thinking about that question, I could formulate an answer after many a days. Hence I did not copy and save that question in my Computer, I could not reply to that question.
What I write below is only my imagination with reference to a lot of cases read under criminal law. Why I write it is, readers may correct or reject and no ego dispute.
Merely by happening of an incident, and that is reported to the Police, the Police cannot file Charge sheet. Many of the offences requires Intention, Knowledge, Negligence etc ingredience. For example, if Mr. A will pick up the Brief Case of Mr.B (played by Jayaram in the Malayalam Movie Second Coming) and run away, due to resemblance of briefcases; ultimately Jayaram will have Mr.A’s briefcase with Narcotic Drug in it, even when Mr.C who is companion of Mr.A will tell Jayaram the secret number of the Number Lock in front of Police, unless the Police can find CONSCIOUS POSSESSION, he cannot arrest Jayaram, but keep him in custody for 24 hours and release him. In the Movie that did not take place.
Now the Police Custody is given, not to obtain any Confession. It is to either find out the Ingredients or to Recover Crime properties. You can make thousands of sub-clauses, like making co-accused to make Disclosure Statements in the presence of recently arrested accused, permit the accused to explain the incident in the presence of witnesses so as to reveal ingredients of Intention etc.
Thus, no witness or accused can escape Police Interrogation. For an accused it is Police Custody and for a Witness, he should go and wait in the PS to be called by the Investigating Officer.
Rest all torture, bribe etc are simple ingredients. When new comer in many of the Colleges and college hostels are ragged, raped and even killed by his/ her seniors, that do not prevent joining for higher studies in India. Torture and death for Dowry and false dowry cases to torture in-laws is common, that do not prevent marriages in any class of the society. Take the work of Police also with similar easiness and you will be able to know what is Police Custody and cooperate with investigations.
If anyone is able to recollect the question I referred above and find my this answer have sense, please copy and paste to that question also.
Ramanathan2108@gmail.com
Querist :
Anonymous
(Querist) 11 January 2012
Ramachandran sir,
It's a deal! I ll reveal my name but first i want answer to my query.
R.Ramachandran
(Expert) 11 January 2012
Sorry. I have a self imposed restrictions not to answer "Anonymous" queries.
V R SHROFF
(Expert) 11 January 2012
"Sorry. I have a self imposed restrictions not to answer "Anonymous" queries"
As a Expert member of the LCI Team,
Knowing very well 90% of Query is "Anonymous"
AND WE ARE COMMITTED TO HELP ALL , WHO KNOCK OUR DOOR, I personally feel your " self imposed restrictions" need Revision "u/s ??"
It is not a Policy of LCI
A Person will Query with False Name, if condition imposed, or a nick name, or any abc name.
So ANo & Non Ano amounts to same.
I found our, with similarity odf date, and subject, that same person, with same tune , or language, same problem, ask questions, and continue changing thread, also caught, as I address that person with Original name, changed as frd, etc. I have live examples.
How can we eliminate it?? Why Promote a false Identity.
Better Reply . Think it over
Shri R R , with due respect,
Adv Shroff
11-01-2012
[N.B.We miss your views on Query. ]
R.Ramachandran
(Expert) 11 January 2012
Dear Mr. Shroff,
With equal (if not more) due respect, I would like to continue my self imposed restrictions. This does not in any way be taken as any disregard to you or other experts in this Forum.
If some one really wants an answer, then it cannot be under his/her terms. It is quite possible that one may not be in a position to give a name for obvious reasons. It is for that purpose at least Psuedo name is understandable.
By insisting on this, I do not consider myself to be unreasonable.
For instance, very recently, in a particular query (see http://www.lawyersclubindia.com/experts/Consummate-266911.asp ) when I felt that the querist ought not to have revealed / used real name, I said the following:
"Dear Geetha,
I am one of the strongest protoganists in this Forum against "Anonymous" queries and was of the view that one has to come up with names even if it is "pseudo name".
But in your case, because of the peculiar and sensitive nature of the issue involved, I am equally of the strongest view that you should not have used your real name to pose the query. I SINCERELY HOPE THAT IT IS NOT THE REAL NAME OF THE QUERIST - or that the matter does not pertain to the personal case of the querist!"
By insisting on at least Psedo name, I do not think there is any promotion of false identify. In any case, I do not have the means of identifying anybody one way or the other. But, still there is a name. That is much better than "Anonymous".
The above problem can be eliminated by one decision of the LCI Administration - that is by removing the option to select "Anonymous". But LCI does not want to do it. One can understand their concern. LCI may or not may not have any policy. In most of the cases I do not think they have any policy. It suits the Administration. It does not suit me. Hence my own decision.
I am conscious of the fact that one indiviual do not count and one individual like me cannot bring about any change. But at least I will be at peace with myself that what I preach I try to practice as well, though in a very very small level.
I hope you appeciate it.
Regards.
prabhakar singh
(Expert) 11 January 2012
Dear Anonymous !
I asked you to do it on your own but you did not.Nor did even you come with a response you tried for but could not succeed.
This itself suggests how much academic interest you wish to carry in life ????
Criminal law has never been my field of practice,not because for me it is tough law to handle,but because people involved in and required to be handled does not suit to my psyche.
Any way i tried to understand your academic problem in my own way investing time i usually invest to reply queries here;what i found that in recent past the matter was in judicial test before high court of Delhi in a case Crl.appeal no.615 of 2008 Mukesh appellant through Shraddha Bhargav advocate
verses state through Richa Kapoor,advocate decided on 04 May 2010 by a division bench and pronounced by Pradeep Nandrajyog J. several numbers of judgments have been discussed there.
What was found that "The expression “custody” appears in number of enactments, like, Sections 438, 439, 442, 451 Cr.P.C., Section 45 of Customs Act, Sections 26 and 27 of Evidence Act etc. However, the expression “custody” has not been defined in any of the enactments. Likewise, the expression “arrest” has not been defined in the Code of Criminal Procedure or Indian Penal Code or any other enactment dealing with criminal offence. The only indication as to what would constitute “arrest” may perhaps be found in Section 46, Cr.P.C. which reads as follows:-
“46. Arrest how made.—(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, an where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.”
In the decision reported as State of UP v Deoman Upadhyaya AIR 1960 SC 1125 the validity of Section 27 of Evidence Act was challenged on the ground that the said section unjustifiably discriminates between the “persons who are in police custody” and the “persons who are not in police custody” and thus offends Article 14 of Constitution of India. The majority judges were of the view that Section 27 is not violative of Article 14 of Constitution of India as the classification made between the “persons who are in police custody” and the “persons who are not in police custody” is based upon an intelligible differentia whereas a minority judge was of the view Section 27 is violative of Article 14 of Constitution of India. While adjudicating upon the validity of Section 27, the majority judges observed as under:-
“12……When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer within the meaning of Section 27 of the Indian Evidence Act: Legal Remembrancer v. Lalit Mohan Singh, Santokhi Beldar v. King-Emperor. Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer...... A person who has committed an offence, but who is not in custody, normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence. The Parliament enacts laws to deal with practical problems which are likely to arise in the affairs of men. Theoretical possibility of an offender not in custody because the police officer investigating the offence has not been able to get at any evidence against him giving information to the police officer, without surrendering himself to the police which may lead to the discovery of an important fact by the police, cannot be ruled out; but such an occurrence would indeed be rare. Our attention has not been invited to any case in which it was even alleged that information leading to the discovery of a fact which may be used in evidence against a person was given by him to a police officer in the course of investigation without such person having surrendered himself…..”
41. In the same decision, the minority judge observed as under:-
“38. During the course of the arguments of the learned counsel for the respondent, to the question put from the Bench whether an accused who makes a confession of his guilt to a police officer would not by the act of confession submit himself to his custody, the learned counsel answered that the finding of the High Court was in his favour, namely, that such a confession would not bring about that result. Learned Additional Solicitor-General in his reply pursued this line of thought and contended that in that event all possible cases of confession to a police officer would be covered by Section 27 of the Evidence Act. The governing section is Section 46 of the Code of Criminal Procedure, which reads: “(1) In making the arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.” It has been held in some decisions that “when a person states that he has done certain acts which amount to an offence, he accuses himself of committing the offence, and if he makes the statement to a police officer, as such, he submits to the custody of the officer within the meaning of clause (1) of this section, and is then in the custody of a police officer within the meaning of Section 27 of the Evidence Act”. But other cases took a contrary view. It is not possible to state as a proposition of law what words or what kind of action bring about submission to custody; that can only be decided on the facts of each case. It may depend upon the nature of the information, the circumstances under, the manner in, and the object for, which it is made, the attitude of the police officer concerned and such other facts. It is not, therefore, possible to predicate that every confession of guilt or statement made to a police officer automatically brings him into his custody. I find it very difficult to hold that in fact that there would not be any appreciable number of accused making confessions or statements outside the custody of a police officer....”
42. In the decision reported as Aghnoo Nagesia v State of Bihar AIR 1966 SC 119 the accused came to the police station and informed the police officer present there that he has committed the murder of his aunt and her daughter, son-in-law and grandson and that he can get recovered the bodies of the deceased person(s) and the tangi used by him for committing the murder(s). The police officer receiving the information registered the FIR based upon the aforesaid information given by the accused. Pursuant thereto, the accused got recovered the bodies of the deceased person(s) and a tangi. One of the questions which arose before Supreme Court was whether the accused was in “custody” of a police officer within the meaning of Section 27 of Evidence Act at the time when he gave the aforesaid information to the police. The court noted the difference of opinion between the majority and minority judges on the meaning of the expression “custody” when the accused makes a confessional statement to the police but did not express any opinion on the said point and proceeded on the basis that the accused was in “constructive custody” at the time when he made the confessional statement to the police officer. The relevant discussion contained in the said decision i.e. Aghnoo Nagesia‟s case (supra) is as under:-
“Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman Upadhyaya. For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence......”
43. An impression does emerge that in Aghnoo Nagesia's case the Supreme Court used the expressions “custody” and “arrest” as synonyms, but such a reading of the decision would not be correct. The fact that Section 46 Cr.P.C. uses both the expressions “custody” and “arrest” indicates the legislative intent that “custody” and “arrest” are not to be treated as synonymous terms. Following observations of the Supreme Court in the decision reported as Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440 make the position somewhat clear:-
“48...It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though „custody‟ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi”
44. After a survey of case law on the point, the meaning of the expression “custody” was succinctly stated by the Orissa High Court in the decision reported as Paramhansa Jadab v State AIR 1964 Ori 144 in the following terms:-
“It is now well settled that "police custody" for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v. Emperor, AIR 1924 Rang 173 the learned Judge pointed out the danger of construing the expression "police custody" in Section 26 of the Evidence Act in a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge observed that if such a view be taken it will be very easy for the police to evade that section and that the correct interpretation would be that "as soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in "custody" within the meaning of Sections 26 and 27 of Evidence Act". In Haroon v. Emperor, AIR 1932 Sind 149 and Pharho Shahwali v. Emperor, AIR 1932 Sind 201 it was pointed out that, even indirect control over the movements of sus-pects by the police would amount to 'police custody' within the meaning of that section. In Gurdial Singh v. Emperor; AIR 1932 Lah 609 and in In re Edukondalu, AIR 1957 Andh Pra 729 also the same principles were emphasised and it was observed that there may be police custody without formal arrest.....”
45. In the instant case, the appellant came to the police station and made a confessional statement to HC Dilbagh Singh PW-8. From that very moment, the movements of the appellant got restricted for surely having told the police that he had murdered his wife, the appellant could not have left the police station against the wishes of the police officer(s) present there. As stated by the Orissa High Court in Paramhansa‟s case (supra), “police custody” for the purposes of Section 26 commences as soon as the movements of the accused get “restricted”; the appellant came into the “custody” of a police officer the moment he made a confessional statement to HC Dilbagh Singh."
In my conclusion The Delhi High Court opined as explained the difference between 'custody' and 'arrest' in as much as Section 26 of Indian Evidence Act requires confession made by an accused "in the custody of a police officer" to be proved. The prosecution had argued that the confessional statement was given by the accused on his own volition when he went to the police station to lodge the first information report in respect of the offence. Holding that 'custody' was different from 'arrest' and that the accused would indeed be held to be within the custody of the police officer, the confession made by him was declared to be inadmissible.
Hence to resolve your query i would like to answer your all questions in affirmative.when ever we can judge simplest control over liberty of the individual by any manner by the POLICE that would amount to custody is my view.
Querist :
Anonymous
(Querist) 11 January 2012
Thanks Prabhakar Sir,
Really you are a great thinker. If someone asked me who was Aristotle? I could only answer, he could not have better knowledge than our Prabhakar sir.
I m not flattering here but it is true. So many time I have acted upon your replies and have succeed.
As you told that I should have done it my own.
Than sir I went thru the sections 41, 46, 167 of cr.p.c. as well as relevant sections of Evidence act. In examination hall all these section were on my fingertips but I couldn't choose a single one out of all four.
After reaching home again i searched the answer in text books but find that the answer depend upon the fact to fact of the case before us. Here in the question no facts or circumstances were given.
I marked the '1st' choice as correct. Still I m in dilemma whether i did correct or not.
No one can master in each and every aspect of law. Seldom being an expert so many queries were resolved by me here in LCI. I often see that experts escapes from answering the academic questions and they treat the questioner like a weak-mind infant. That is why i marked myself anonymous. I didn't commit any crime.
I would like to say all the experts, don't escape to answer the academic questions of such 'weak-mind infants'. Because they want to fly in open sky as well as you.
Ramachandran Sir. I dont know what is the meaning of your phrase 'equal respect'. But what i could say is that I have a great respect towards you, toward every member of LCI, rather every person of our community.
Knowledge cannot be spread by conditions/ restriction. An help has no 'PROPOSAL', 'ACCEPTANCE' or 'CONTINGENCY UPON CONDITION OR RESTRICTIONS'.
Sometimes our one effort can change the fate of advice seeker. Than we are at par as GOD in the view of the seeker.
So kindly plz let the anonymous as anonymous let remain him behind the curtain lest he should escape asking.
prabhakar singh
(Expert) 13 January 2012
Dear!
HAVE YOU HEARD OF A SAYING "KANHA RAJA BHOJ KANHA GANGU TELI"
Aristotle K AAGE TUO MAIN APNE KO GANGU TELI BHI KAHANE KI HIMAKAT NAHI KAR SAKATA YAAR.
Advocate. Arunagiri
(Expert) 13 January 2012
To reply to anonymous or academic queries, is the personal discretion of the experts. Every man will have their style of functioning and feelings.
This does not create conflict with the other experts who are interested in replying the anonymous or academic queries.
So, I request my learned friends, let us not comment others who are refusing to reply to anonymous or academic queries.
Shonee Kapoor
(Expert) 13 January 2012
nice discussion.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Querist :
Anonymous
(Querist) 14 January 2012
Prabhakar Sir,
To disclose my identity i have sent you personal massage. Did you find that??
V R SHROFF
(Expert) 14 January 2012
Dear ANO,
Even if you go to your nearby Advocate, he will certainly not be interested in replying such academic Query
My Experience is, the moment a Client ask Academic, or Procedural Query, I understand, he only want to know,or came to double check his other Advocate, and not to Engage L:awyer or have any intention to Pay my fees. So I immediately cut short Appointment time, and it works.
Usually, Advocate too, do not entertain such Query.
So best Suggestion is, Read Cr.P.C. by Yourself .
Querist :
Anonymous
(Querist) 14 January 2012
Thanks Mr Shroff.
