The concepts of police custody and judicial custody are essential components of the Indian criminal justice system, governed primarily by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Both forms of custody involve the detention of an accused person during the investigation or trial of a criminal case, but they differ in terms of who holds the accused, the purpose of detention, and the legal rights available to the accused. Below is a detailed breakdown of the differences between police custody and judicial custody.
Definition and Purpose
- Police Custody
Police custody refers to the period when the accused is detained directly under the control of the police during the initial stage of the investigation. The police may hold the accused at a police station or lockup for interrogation, recovery of evidence, or other investigative purposes. The primary purpose of police custody is to facilitate effective investigation by allowing the police access to the accused. - Judicial Custody
Judicial custody means the accused is remanded to jail or prison under the authority of the court, with the accused remaining under judicial oversight. In this case, the police no longer have direct access to the accused unless they seek the court’s permission. The purpose of judicial custody is to ensure that the accused is detained during the trial or investigation to prevent tampering with evidence or absconding.
Governing Law
- Both police and judicial custody are regulated under Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This section sets out the maximum time limits for keeping an accused in custody during the investigation stage before a charge sheet is filed.
Custodial Authority
- Police Custody:
- In police custody, the police have direct control over the accused. They can question the accused, gather evidence, and conduct a more detailed investigation by keeping the accused in their physical custody.
- The accused is typically held at the police station or lockup and remains under the supervision of the police.
- Judicial Custody:
- In judicial custody, the court has authority over the accused, and the individual is transferred to a jail or prison under the management of jail authorities.
- The accused cannot be directly questioned by the police unless the court grants special permission for further interrogation.
Place of Detention
- Police Custody:
The accused is detained in a police station or lockup, which is under the control of the police. - Judicial Custody:
The accused is detained in a jail or prison, managed by prison authorities under the supervision of the court.
Duration of Custody
- Police Custody:
- The police can keep an accused in police custody for up to 15 days, including the initial period of arrest, as per Section 187(2) of B.N.S.S.
- After the first 24 hours of arrest, the police must produce the accused before a Magistrate. If the police require further custody for interrogation or investigation, they must seek the Magistrate’s permission.
- After the 15-day period, if the police require further investigation, they must seek judicial custody.
- Judicial Custody:
- Judicial custody can extend up to 60 days for offenses punishable with imprisonment of less than 10 years, 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 (60 or 90 days), the accused is entitled to default bail under Section 187(2) of B.N.S.S.
Rights of the Accused
- Police Custody:
- The accused is under the direct supervision of the police and may be subject to interrogation. Due to potential risks of abuse, the law provides certain safeguards:
- Right to legal representation: The accused has the right to be represented by a lawyer during custody.
- Right against self-incrimination: The accused cannot be forced to confess or give self-incriminating evidence under duress.
- Right to medical examination: The accused has the right to a medical examination to prevent torture or mistreatment while in custody.
- Right to remain silent: The accused can choose not to answer questions without legal representation.
- The accused is under the direct supervision of the police and may be subject to interrogation. Due to potential risks of abuse, the law provides certain safeguards:
- Judicial Custody:
- In judicial custody, the accused enjoys relatively greater protection from police harassment because the police no longer have direct access.
- Right to apply for bail: Bail applications can be made during judicial custody. Since the investigation may be complete or underway, courts may be more inclined to grant bail.
- Right to legal counsel: The accused has a right to legal representation and may request legal aid if they cannot afford a lawyer.
- Right to humane treatment: The accused must be treated humanely under prison rules and has access to medical facilities and other rights as a prisoner.
- In judicial custody, the accused enjoys relatively greater protection from police harassment because the police no longer have direct access.
Interrogation and Investigation
- Police Custody:
- During police custody, the police can interrogate the accused, gather evidence, and potentially extract information that can help in solving the crime or lead to the recovery of material evidence.
- The police often request police custody immediately after the arrest, particularly in complex cases like murder, fraud, or other serious crimes, where direct access to the accused is essential.
- Judicial Custody:
- In judicial custody, the police no longer have free access to the accused for interrogation. If the police want to interrogate the accused while in judicial custody, they must seek permission from the court.
- The court may grant temporary police custody if it deems necessary for further interrogation, but only after evaluating the necessity of such custody.
Bail Considerations
- Police Custody:
- Bail during police custody is less likely to be granted because the investigation is still in its early stages, and the court may consider the accused’s detention necessary to avoid tampering with evidence or influencing witnesses.
- However, bail may still be granted depending on the circumstances of the case and the nature of the offense.
- Judicial Custody:
- Bail applications are more commonly considered during judicial custody. Since the investigation is ongoing or near completion, the court may grant bail based on various factors, including:
- The nature of the offense
- The likelihood of the accused tampering with evidence
- The risk of the accused fleeing
- The accused’s past criminal record
- Bail applications are more commonly considered during judicial custody. Since the investigation is ongoing or near completion, the court may grant bail based on various factors, including:
Extension of Custody
- Police Custody:
- Police custody cannot extend beyond 15 days in total, including any initial time spent in custody before being produced before a Magistrate.
- Judicial Custody:
- Judicial custody can be extended for a longer period (up to 60 or 90 days) until the investigation is complete or the charge sheet is filed. After this period, the accused is entitled to default bail.
Differences in Duration and Court Oversight
- Police Custody is shorter in duration (maximum of 15 days) and directly under police control, while Judicial Custody can last longer (60 or 90 days) and is supervised by the judiciary.
- Police custody typically takes place in the earlier stages of investigation, and the accused remains under interrogation, while judicial custody comes into play when further police interrogation is not required but the accused needs to remain in custody.
Key Differences Between Police Custody and Judicial Custody at a Glance
| Aspect | Police Custody | Judicial Custody |
|---|---|---|
| Authority | Police | Judiciary (Court) |
| Place of Detention | Police Station or Lockup | Jail or Prison |
| Duration | Maximum 15 days | Maximum 60 days (for lesser offenses) or 90 days (for severe offenses) |
| Interrogation | Police can directly interrogate the accused | Police need court permission to interrogate |
| Bail | Less likely during police custody | Courts more likely to consider bail during judicial custody |
| Purpose | Facilitate police investigation | Ensure accused is detained pending trial/investigation |
| Rights | Limited, risk of custodial abuse | Greater protection from police, right to apply for bail |
FAQs on Police Custody vs Judicial Custody
1. Can the accused be moved from judicial custody back to police custody?
Yes, if further interrogation is needed, the court may grant permission to transfer the accused back to police custody for a limited period.
2. Is bail easier to obtain in judicial custody?
Yes, bail is often more likely to be granted during judicial custody as the court considers various factors such as the progress of the investigation, the nature of the crime, and whether the accused poses a risk to the investigation.
3. Can an accused be kept in judicial custody indefinitely?
No, judicial custody is limited to 60 or 90 days depending on the offense. If the police do not file a charge sheet within this time, the accused is entitled to default bail.
Conclusion
Police custody is a short-term detention where the police hold the accused for interrogation, while judicial custody is a longer-term detention under court supervision. Both have different legal implications, with police custody focusing on investigation and judicial custody emphasizing the legal process. Both forms of custody are vital for the smooth functioning of the criminal justice system, ensuring that justice is served while safeguarding the rights of the accused.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304