Gavin Howe
In India, 'judicial custody' refers to the detention of an accused person in jail under the supervision of a judicial magistrate. It is one of two types of custody, the other being ''police custody', which refers to the physical detainment of a suspect or accused person by law enforcement officials within the confines of a police station. The key difference between the two is that, in judicial custody, the accused is under the control of a magistrate, whereas, in police custody, the accused is under the control of the police.
| Characteristics | Values |
|---|---|
| Definition of 'custody' | Apprehending someone for protective care |
| Difference from 'arrest' | 'Custody' and 'arrest' are not synonymous. Arrest directly curtails personal liberty and strikes at freedom. |
| Police custody | Physical detainment of a suspect or accused person by law enforcement officials within the confines of a police station |
| Judicial custody | An accused is in the custody of the court, under the supervision of the judiciary |
| Police custody duration | A remand of up to 15 days under the police officer's discretion |
| Judicial custody duration | Maximum period of detention is 90 days. For less serious crimes, this may not extend beyond 60 days. |
| Police custody process | Commences with an arrest and ends when the individual is handed over to judicial custody or released |
| Judicial custody process | The accused is sent to any prison. The accused is lodged in either any of the Central or State prisons as directed by the Judicial Magistrate |
| Police custody interrogation | The police officer in charge may interrogate the suspect |
| Judicial custody interrogation | The police cannot freely access or interrogate the suspect without permission from the court |
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What You'll Learn
Police custody vs. judicial custody
In India, police custody and judicial custody are essential components of the criminal justice system. While both forms of custody involve the state detaining the accused, they differ in terms of who holds the accused, the purpose of detention, and the legal rights available to the accused.
Police Custody
Police custody refers to the physical detainment of a suspect or accused person by law enforcement officials within the confines of a police station. It typically commences with an arrest and ends when the individual is either handed over to judicial custody or released, depending on whether the police produce the accused before the judiciary within the stipulated time frame. The police have certain powers and responsibilities during this period, but they must also maintain the rights and dignity of the detained individual as prescribed by law. The Code of Criminal Procedure, 1973, and the Constitution of India provide rights to the arrested person.
The primary purpose of police custody is to facilitate an effective investigation by allowing the police access to the accused for interrogation, recovery of evidence, or other investigative purposes. The police have direct control over the accused during this stage, and the accused is usually allowed a remand of up to 15 days under the police officer's discretion. If further investigation is required, the police must seek judicial custody or an extension from the magistrate.
Judicial Custody
Judicial custody implies that the accused is remanded to jail or prison under the authority and supervision of the court, with the individual becoming the responsibility of the court and correctional authorities. The purpose of judicial custody is to ensure that the accused is detained during the trial or investigation to prevent tampering with evidence or influencing witnesses. The police no longer have direct access to the accused unless they seek the court's permission for further interrogation or investigation.
The judicial magistrate decides whether the accused should be kept in jail under judicial custody or handed over to the police for further investigation based on the nature and severity of the crime. Judicial custody can extend up to 60 days for less serious offenses and up to 90 days for offenses punishable by death, life imprisonment, or imprisonment exceeding 10 years. If the police fail to file a charge sheet within the prescribed period, the accused is typically granted bail.
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Rights of the accused
Judicial custody in India refers to the custody of an accused person by the court, where the accused is kept in jail upon the order of a magistrate. This is different from police custody, where the accused is detained by law enforcement officials within the confines of a police station.
In India, the accused has certain fundamental rights under the Constitution, which are provided at different stages of the legal process: before, during, and after the trial. These rights are given to all, regardless of whether a person is accused of a crime, and are based on the principle that "hundreds go unpunished, but [do] not punish an innocent person".
The rights of the accused in India include:
- Right to Fair Trial: The accused has the right to a fair trial, which is free of any bias or prejudice.
- Right to Legal Aid: The accused has the right to hire a lawyer to defend them. If they cannot afford a lawyer, the State must provide free legal aid for their representation in court.
- Right to Know the Charges Against Them: The accused has the right to know the charges against them, including the precise legislation allegedly broken and access to pertinent documentation.
- Right to Humane Treatment: Accused persons have the right to have all their human rights respected while in prison.
- Right to Compensation: Victims of unlawful arrest or detention have the right to compensation under Article 9(5) of the International Convention on Civil and Political Rights, 1966.
- Right to Medical Attention: A person who has been detained is entitled to a medical check-up to ensure they have not been tortured or physically abused while in police custody. The police must also offer medical aid if needed.
- Right to be Produced Before a Magistrate: Under Section 57, 58, and 78 of the BNSS, the accused has the right to be produced before the nearest magistrate within 24 hours of their arrest, excluding travel time if arrested from a separate place.
- Right to Bail: The accused has the right to file a bail application to be released from jail custody. There are three types of bail under Indian law: anticipatory bail, interim bail, and bail by bond.
- Right to Appeal: The accused has the right to file an appeal against their conviction in a higher court.
It is important to note that these rights are not exhaustive, and there may be additional rights and protections afforded to the accused under Indian law.
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Duration of custody
The duration of police custody in India is typically limited to 24 hours, after which the accused must be released or handed over to judicial custody. During this time, the police may interrogate the accused, gather evidence, and perform other investigative duties.
Judicial custody, on the other hand, is a longer-term detention under court supervision. The maximum period of detention in the case of judicial custody is typically 90 days for offences punishable by death, life imprisonment, or imprisonment exceeding 10 years. For less serious crimes, judicial custody may not extend beyond 60 days.
The judicial magistrate has the power to extend the period of custody from time to time. A judicial magistrate can extend the duration of custody by up to 15 days, and an executive magistrate can extend it by up to 7 days. If the police report is not filed within the prescribed period of 60 or 90 days, the accused may be released on default bail.
It is important to note that both police custody and judicial custody are governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Code of Criminal Procedure (Cr.P.C.), which outline the rights of the accused and the procedures to be followed during detention and interrogation.
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Types of custody
Custody refers to the apprehension of an individual for protective care. In India, there are two main types of custody: police custody and judicial custody.
Police Custody
Police custody refers to the physical detainment of a suspect or accused person by law enforcement officials within the confines of a police station. It typically begins with an arrest and ends when the individual is either handed over to judicial custody or released. The police have certain powers and responsibilities during this time, but they must also maintain the rights and dignity of the detained individual as prescribed by law. The accused in police custody has a limited opportunity to communicate or interact with their legal counsel.
Judicial Custody
Judicial custody occurs when the accused is kept in jail upon the order of a magistrate. The accused is no longer subjected to direct police interrogation and is instead under the supervision of the judiciary. The magistrate makes decisions based on the evidence provided by interrogation reports and the hearing in the trial court. If further investigation is required, the accused may be sent back to police custody for a maximum of 15 days.
Child Custody
Child custody is another type of custody that arises in cases of divorce or separation. In India, child custody is decided on a case-by-case basis, with the child's welfare being the most crucial factor. The court may grant physical custody, legal custody, or both to one or both parents. Physical custody refers to the day-to-day raising of the child, while legal custody entails the right to make major decisions about the child's life.
Other types of child custody arrangements include split custody, where custody of multiple children is divided and alternated between the parents, and interim custody, which is temporary custody granted during ongoing divorce or separation proceedings.
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Bail applications
In India, bail applications are an important aspect of the criminal justice system, allowing for the temporary release of suspects who are awaiting trial. The bail process in India involves several stages, including arrest, recording the accused's personal details and statement, production before a magistrate, filing a bail application, and the court's decision. Bail can be sought at various stages of a case and is typically determined by the nature of the offence and whether the individual has been arrested.
When applying for bail, it is recommended to seek the assistance of a criminal lawyer, preferably one located in the same city to cut down on costs. The lawyer can help prepare the formal application, which should include details of the accused, case facts, reasons for applying for bail, and relevant statutory provisions. Additionally, the accused's identification proof, such as an Aadhaar card or passport, is required when applying for bail.
To obtain bail from a police station in India, individuals typically need to submit a bail application form, proof of identity, address proof, and a surety bond. The bail application form helps to record the accused's personal details and statement. The proof of identity can include documents such as an Aadhaar card or passport, while address proof can be demonstrated through a ration card or electricity bill. The surety bond is a guarantee that the accused will comply with the conditions of their release.
The decision to grant bail is at the court's discretion and depends on the specific facts and circumstances of each case. In bailable offences, bail is typically granted as a matter of right. However, in non-bailable cases, the court has the discretion to grant or deny bail based on the nature and severity of the crime. The court may consider factors such as the risk of the applicant obstructing witnesses or tampering with evidence, the accused's criminal record, and the potential impact on the process of justice.
It is important to note that there are two types of bail in India: regular bail and anticipatory bail. Regular bail is sought after an individual has been arrested, while anticipatory bail is applied for by someone who expects to be arrested for a non-bailable offence but has not yet been arrested. Anticipatory bail provides interim relief until the court determines the application for regular or anticipatory bail.
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Frequently asked questions
Judicial custody means an accused person is kept in jail upon the order of a magistrate.
Police custody refers to the physical detainment of a suspect or accused person by law enforcement officials within the confines of a police station. Judicial custody, on the other hand, indicates that an accused person is in the custody of a magistrate or court.
The maximum period of detention in the case of judicial custody is 90 days. For less serious crimes, judicial custody may not extend beyond 60 days.
After the accused is kept in police custody for the presiding period, the court can remand the accused in judicial custody. This typically occurs when the police investigation does not conclude within the stipulated timeframe.
An accused person in judicial custody has certain rights, including protection from mistreatment and undue pressure. The magistrate exercises control over the detention, preventing abuse of the accused's rights by law enforcement.
