DIFFERENCE BETWEEN JUDICIAL CUSTODY AND POLICE CUSTODY

Table of Contents

Introduction

First, we know that “custody” and “arrest” are not synonymous. It is true that in every arrest there is custody but vice versa is not valid. The word ‘custody’ means apprehending someone for protective care.

The mere utterance of words or gestures or flickering of eyes does not amount to arrest. Actual seizure or touch of a person’s body with a view to arrest is necessary. Arrest, remand, and bail are components related to the investigation. They generally come into play as an aid to research.

There are two types of Custody-

Police Custody
Judicial custody

POLICE CUSTODY

This is the power of a police officer to keep a person in their custody for a maximum period of 24 hours.

When following the receipt of an information/complaint/report by police about a crime, an officer of police arrests the suspect involved in the crime reported, to prevent him from committing the offensive acts further, such officer brings that suspect to a police station, it’s called Police Custody

Relevant Sections of the Code of Criminal Procedure (CrPC) that govern police custody

Section 167: This section empowers the police to detain an accused person for a limited period, usually up to 15 days, with the permission of the Magistrate.

Section 167(3): This section specifies the conditions under which police custody can be extended beyond the initial period of 15 days, subject to the Magistrate’s approval.

JUDICIAL CUSTODY

Police Custody means that police have the physical custody of the accused while Judicial Custody means an accused is in the custody of the concerned Magistrate. In the former, the accused is lodged in a police station lockup while in the latter, it is the jail. When the Police take a person into custody, the Cr. P.C. kicks in and they produced him/her before a Magistrate within 24 hours of the arrest.

This is the power of a court to keep a person in their custody. The maximum period of judicial custody is 60 days for a non-bailable offence and 15 days for an available offense

Relevant Sections of the Code of Criminal Procedure (CrPC) that govern judicial custody:

Section 167: This section empowers the police to detain an accused person for a specific period, after which the individual must be produced before the court.
Section 309: This section provides guidelines on the duration of judicial custody, the conditions of detention, and the power of the court to extend or modify the custody period.

Difference between Judicial Custody & Police Custody

Police custody	Judicial custody
The police officer who is in charge of the police station has control over police custody.	The magistrate has the control over the custody.
The police conduct the investigation.	The magistrate relies on the evidence produced in the court.
A person is kept in police custody after he is arrested on the basis of an FIR or suspicion.	A person is kept in judicial custody after the public prosecutor makes the court believe that such custody is necessary for further investigation.
It is 15 days for police custody.	In the case of non-bailable offences, punished with life imprisonment or imprisonment not less than 10 years, the period of detention is 90 days, and in bailable offenses, the maximum period is 60 days.
The person arrested must be produced before the magistrate within 24 hours and if charges are not proved, then he is granted bail, or else he is sent back to police custody for further investigation and interrogation.	The person is kept in judicial custody on the orders of the magistrate until and unless he is granted bail.
A person in police custody is kept in prison or a cell at that particular police station.	A person in judicial custody is kept in central jail.
Police officers can interrogate a person in police custody.	The officers in order to ask questions to the person in judicial custody have to take permission from the court.

Landmark Cases

The State of U.P vs Boota Singh and Others (1978)

This is a landmark case in which it was established that the police cannot force an accused person to sign a confession. This principle is based on the fundamental right to a fair trial guaranteed by the Constitution of India “Article 20(3)”. The Court held that the police cannot use coercion to extract a confession from an accused person, as this would violate the accused person’s right to silence and their right to a fair trial.

D.K. Basu vs State of West Bengal and Ors. (1996)

This case laid down the foundation stone in the form of a set of guidelines for the protection of the rights of an accused person in police custody. These guidelines include the right to be informed of the reasons for arrest, the right to consult a lawyer, the right to be produced before a magistrate within 24 hours of arrest, and the right to be free from torture or ill-treatment

Siddharth v. State of Uttar Pradesh (2021)

The appellant along with other people was arrested due to an FIR lodged 7 years ago. They cooperated in the investigation and a charge sheet was to be filed soon. The appellant applied for anticipatory bail but the high court rejected his application. As a result, he moved to the Supreme Court. It was argued that the charge sheet will not be submitted unless the person is kept in custody.

Judgment of Supreme Court – The Supreme Court held that where the person cooperated in the investigation process, it is not necessary to arrest and keep every person accused of the offence in custody while filing the charge sheet to the magistrate. It gave certain circumstances where it becomes necessary to keep the accused in custody:

If a custodial investigation is to be done;
In case of heinous and serious crimes;
If there is a possibility that the accused will threaten or inflict harm to the witness; and
He may run away.