Written by:Adv. Pooja Gupta

Difference between judicial custody & police custody with case law

Introduction of the Difference between judicial custody & police custody: – An individual is taken into custody after being arrested for any reason so that they can question them and conduct investigations. Let us understand the definitions of both in this article.

The term “custody” comes from the Latin word “custodia,” which means “to keep a watch or guard.” It means to detain someone for a specific reason, which could be to effectively prevent the person from breaking the law or to ensure a person’s safety. People frequently use the terms ‘arrest‘ and ‘custody‘ interchangeably.

However, there is a difference between the two. A person is apprehended if he is culpable of a felony or is suspected of committing offence, but custody refers to protecting someone or keeping him in a jail cell temporarily. After being detained, a person is arrested.  As a result, we can conclude that every arrest includes custody but not vice-versa.

What does an arrest mean?

  1. A person’s freedom is only restricted when they are arrested.
  2. Furthermore, custody, in general, refers to care as well as protection, but in this context, the meaning of custody changes from care & safeguards to detention because it is immediately preceded by arrest.

There are 2 categories of custody: police custody and judicial custody

Police Custody

When a police officer arrests a suspect in order to prevent further offences and proceed with the investigation, the suspect is actually brought to the police station. This is known as police custody.

It is when a suspect is being detained by the police in the police station’s police lock-up. During this detention, which shouldn’t last more than 24 hrs, the investigating police officer may question the suspect.

Within 24 hours of being detained, the accused must appear before the magistrate. In this context, custody refers to a police lock-up. On a magistrate’s orders, a person may be held in police custody for 15 days in accordance with section 167 of the CrP.C.

Judicial Custody

The magistrate’s custody is generally referred to as judicial custody. The magistrate will decide whether to release the accused on bail, keep him in judicial custody, or return him to police custody.

Jail is referred to as custody when discussing judicial custody. There are 2 categories of prisons: Central and state. For serious or grievous offences with the capital sanction, such as the death penalty, life in prison, etc., judicial custody may last up to 90 days, and it may last only 60 days for minor offenses.

Distinction between Section 167 and Section 309 CrPC

Section 167 of the Code addresses the custody of a person during the investigation of the case, which can be either judicial or police custody. This Sec. doesn’t apply to someone apprehended later in the investigation. Sec. 309, on the other hand, applies to custody when the court takes cognizance of the case, and the custody will be only judicial custody.

Case Laws Regarding Police & Judicial  Custody

CBI vs Anupam Kulkarni

According to subclause 2 of sec. 167 CrPC, the magistrate may order that the accused be held in whatsoever type of custody for a maximum of fifteen days. Therefore, the initial custody period shouldn’t last longer than fifteen days. Custody may be either police or judicial, as the magistrate considers appropriate.

CBI and Rathin Dandapath

A police remand may be requested for a suspect who has been arrested, even after a charge sheet has been filed.

Gian Singh vs the State of Delhi

Police may question an accused person while they are in judicial custody, but the magistrate has the authority to determine where and how the questioning will take place. Police interrogation would not alter the nature of custody.

Ram Sagar Yadav v. State of Uttar Pradesh

The magistrate should not issue a remand in a mechanical manner, but rather with consideration and good judgment.

Siddharth v. State of U.P 2021

The Supreme Court ruled that if a person complied with the investigation, it is not required to arrest and detain the accused of the crime while filing the charge sheet to the magistrate. It specified the circumstances under which the accused must be taken into custody:

  1. If a custodial investigation is to be conducted;
  2. In the case of heinous and severe crimes;
  3. If there is a probability that the suspect will threaten or cause injury to the witness; and
  4. He may flee.

Legal Recourse if Detention Is Unlawful

According to Articles 226 and 32 of the Indian Constitution, the person’s relative may file a case to the High Court or Supreme Court, respectively. It should be noted that if the accused is in custody, there is no legal recourse for the circumstance.

Conclusion of the Difference between judicial custody & police custody

Influential suspects, such as politicians, are exempt from harsher interrogation techniques. Police are biased towards resourceful people due to the high level of corruption, while innocent people are tortured. Only the legal system, using its judicial brain and investigating the backgrounds of both the accused and the victims, can save such innocent people. Only then can the innocents be saved from being turned from good people into hardened criminals.

Read more: –

Bail and Types of Bail under CrPC

Vulnerable witness definition with case laws

Difference between lawyer, advocate, attorney & barrister

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