Police and Judicial Custody

Delhi’s Rouse Avenue Court has sent former Delhi Deputy Chief Minister Manish Sisodia to judicial custody till March 20 in connection with a corruption case related to alleged irregularities in the now-scrapped excise policy.

Background –

In India, the various procedures of the administration of the criminal law are governed by the legislation called the Code of Criminal Procedure or Criminal Procedure Code (CrPC), which came into force in 1973, after its enactment building up on the British era legislation.

Provisions of arrest –

• Chapter 5 of the CrPC starting from section 41 lists the legal provisions about the arrest. Arrest primarily means putting restrictions on the movement of a person. It can be done by a police officer or officer of investigating agency if the officer is satisfied that the arrest is necessary: to prevent the person from committing the offence further, to prevent tampering if evidence, for proper investigation, to prevent the person from dissuading those acquainted with facts and more.
• As per the provisions, an arrested person has the right to be informed about grounds of arrest and there is obligation on the person making the arrest, to inform about the arrest, to a nominated person. Arrested person also has the right to meet an advocate of choice during interrogation. The law also makes an examination by a medical practitioner mandatory after the arrest.
• The arresting authority can not detain a person in custody for more than 24 hours without producing him or her before a magistrate as per section 57 of CrPC.
• The Article 22 of the Constitution of India also has provisions for protection of a person during arrest of detention.

What is ‘police custody’ and ‘judicial custody’?

• Whenever a person is arrested by police or investigating agency and detained in custody and if the investigation can not be completed in 24 hours, the person is mandated to be produced before a magistrate court. The section 167 of CrPC and subsequent provisions lay down procedures that may follow in various scenarios.
• The magistrate may further remand the person to custody of police for a period not more than 15 days as a whole. The police custody means that the person is confined at a lock up or remains in the custody of the officer.
• After lapse of 15 days or the police custody period granted by the magistrate, the person may be further remanded to judicial custody. Judicial custody means that the person is detained under the purview of the judicial magistrate is lodged in central or state prison.
• Section 167 also has some amendments which are specific to individual states in the country. In some cases investigation agencies may not seek police custody immediately and one of the reasons can be judicious use of the maximum 15 days at their disposal. In some cases courts may directly remand a person to judicial custody, if the court concludes that there is no need of police custody or extension of police custody.
• In judicial custody, the person can apply for a bail as per the CrPC chapter 33 pertaining to the bails and bonds. The judicial custody can extend up to 60 or 90 days as a whole, depending upon the maximum punishment prescribed for the offence.
• An undertrial person can not remain in judicial custody beyond half the time period of prescribed maximum punishment.

Difference between the judicial custody and police custody –

• Apart from basic differences pertaining to the purview and place of detention there are some basic differences between the two.
• In police custody, the investigating authority can interrogate a person while in judicial custody, officials need permission of the court for questioning.
• In police custody, the person has the right to legal counsel, right to be informed of the grounds which the police have to ensure.
• In the judicial custody in jails, while the person under responsibility of the magistrate, the Prison Manual comes into picture for routine conduct of the person.