TOPIC- A STUDY ON THE CONCEPT OF JUDICIAL

CUSTODY AND ITS NECCESSITY (WITH EMPHASIS ON

SECTION 167 OF THE CODE OF CRIMINAL PROCEDURE)

SUBJECT- CODE OF CRIMINAL PROCEDURE

SEMESTER IV

SUBMITTED BY,
TANAY DINESH BOTHRA,
B.B.A. L.L.B.,
SAP ID- 81022019351,
DIVISION- F,
ROLL NO- F008,

SUBMITTED TO,
PROF. TANMAY TRIPATHI
Table of Contents

Introduction.........................................................................................................3
Aim................................................................................................................3
Purpose.........................................................................................................3
Keywords......................................................................................................3

Research Objectives............................................................................................3

Research Methodology.......................................................................................4

What is Judicial Custody?.................................................................................4

Importance of Judicial Custody........................................................................5

Difference between Police Custody and Judicial Custody..............................5

Difference between Sections 167 & 309 of Cr.P.C...........................................6

Difference between Arrest and Custody...........................................................7

Conclusion...........................................................................................................7

References............................................................................................................9
Introduction
The word 'custody' means apprehending someone for protective care. In case, you are in
charge of a room with some kids and you find acts of one of those kids dangerous to other
kids, you'll want to tie arms of that kid and make him sit away from other kids. So this is the
principal behind arresting the suspect of a crime, to save other people in the society. The
words "custody" and "arrest" are not synonymous. It is true that in every arrest there is
custody but vice versa is not true. Mere utterance of words or gesture or flickering of eyes
does not amount to arrest. Actual seizure or touch of a person's body with a view to arresting
is necessary. Arrest, remand and bail are components related to investigation. They generally
come into play as an aid to investigation. Arrest directly curtails personal liberty of an
individual. It strikes at his freedom. Therefore, many a times unwarranted arrests have
reached courts of law. There have been occasions when unlawful detention has been
considered as a violation of fundamental right and compensation thereof has been paid. There
are several provisions which incorporate safeguards for illegal arrest. If the method of arrest
is not performed as prescribed by Sec. 46, the arrest would be nugatory.
Aim- Through this research we will make an attempt to understand different facets of judicial
custody which includes all the provisos and exceptions, this would be done in a much
comprehensive manner after we study Section 167 of the Criminal Procedure Code which
basically deals with judicial custody on a whole. We will also study the importance of
judicial custody and the origin of it through different case laws that have assisted in the
development of the law that is abided by today.
Purpose- This study will clear all the blurry lines that exist between arrest and custody, this
will further on help us to understand the concept of judicial custody and as to why does it
exist in India
Keywords- Custody, Magistrate, Detention, Police, Judiciary

Research Objectives
 To understand the difference between arrest and custody
 To understand the importance of judicial custody
 To understand the difference between Section 167 and 309 of the CRPC
 To understand the difference between Police Custody and Judicial Custody
Research Methodology
This research is going to be assisted by a lot of different resources, considering the fact that
the study is going to be an analysis of an existing law, the entire study will be done through
the method of secondary research. The researcher is going to analyse sections in the Criminal
Procedure Code and different case laws related to judicial custody. We will also be using a
few journals and articles that have been authored by distinguished legal professionals to add
credibility to the study.

What is Judicial Custody?

According to Section 167(2) in The Code of Criminal Procedure, 1973, when a police officer
presents the arrested person in front of the Magistrate, Magistrate can order to send him either
to police custody or judicial custody. In judicial custody, the magistrate has the custody of the
arrested person. During this custody, police can interrogate the arrested person only after
taking the permission of the Magistrate. The first thing that happens to a suspect on arrest is
that he is taken into police custody, following which he is taken before a magistrate and he
may either be remanded to judicial custody or be sent back into police custody. When a
person is held under the judicial custody, he can be investigated by the police with the
permission of the appropriate magistrate. A person can be kept under Judicial Custody if it
deems fit to do so and if there is proof that the person is a suspect for the crime that has been
committed. As the paper and the study goes about, we will study the different provisions and
conditions under the concept of Judicial Custody. Whenever a person is arrested by police or
investigating agency and detained in custody and if the investigation cannot 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.
Importance of Judicial Custody
As mentioned above, a person is remanded back to judicial custody after spending 15 days in
police custody if the magistrate wishes to do so. Under this section we will try to analyse and
study as to why judicial custody is such an important and integral part of criminal
administration in India. Custody is often extended of people who are suspected of having
committed a crime. Both judicial custody and police custody limit the liberty and range of
movement of a person. The law and its agents (specifically, the police and the courts) employ
a protective and preventive method by taking an individual who is suspected of a crime away
from the general public. This allows law enforcement to properly investigate the accusation
of a crime and have the suspect stand trial for the crimes accused to him. In police custody,
the police officer detains any offender or suspected person under his custody as an action
taken by him, but in Judicial custody, the accused person is kept in jail upon the order of the
concerned magistrate. A person lodged in police custody has to appear before the concerned
magistrate within 24 hours but the person detained in judicial custody is kept in jail until
Court gives bail. Police custody begins when a police officer arrests a suspect upon receiving
a complaint or FIR. Whereas, the Judicial custody begins when the public prosecutor satisfies
the court that for the purpose of the investigation, custody of such accused is necessary. The
maximum period of police custody is 24 hours and which may be extended to 15 days as a
whole by the appropriate magistrate Whereas in Judicial custody the maximum period of
detention is 90 days where the investigation is related to offenses punishable with death,
imprisonment for life or imprisonment for a term not less than ten years and 60 days where
the investigation is related to offenses punishable with imprisonment for a term less than 10
years. Police custody is under the security provided by the police whereas in judicial custody
the security is provided by the judge/magistrate.

Difference between Police Custody and Judicial Custody

When a person accused of a cognizable offence is arrested and detained by the police and
produced within 24 hours(excluding travelling time from the place of arrest),or he himself
surrenders before the nearest Magistrate. Then the Magistrate can either release him on bail
or he can either send him to judicial custody or to police custody. If the accused is juvenile,
his age is to be ascertained and if he finds that he is juvenile, then he be directed to be
produced before Juvenile Justice Board. A suspect under Police Custody or Judicial Custody
is assumed to be a suspect. A suspect becomes a criminal only after the court finds him/her
guilty and convicts him/her for the crime reported of. These types of custodies are preventive
measures. A police officer in charge of a suspect may treat the suspect arbitrarily. In case of
arrests by police and pending the investigation, the lawyer of a suspect generally prays for
Bail or Judicial Custody. In Judicial Custody, suspect becomes responsibility of Court. Police
Custody with permission to interrogate - During Judicial Custody, the police officer in charge
of the case is not allowed to interrogate the suspect. However, the court may allow the
interrogations to be conducted if it opines the interrogation being necessary under the facts
produced before the court.

Difference between Sections 167 & 309 of Cr.P.C

In case of State through C.B.I. -v- Dawood Ibrahim Kaskar and others reported in 1997
Cri.L.J. 2989 - The Hon'ble Apex Court held that there cannot be any manner of doubt that
the remand and the custody referred to in the first proviso to S. 309(2) are different from
detention in custody under Section 167. While remand under the former relates to a stage
after cognizance and can only be to judicial custody, detention under the latter relates to the
stage of investigation and can initially be either in police custody or judicial custody. Since,
however, even after cognizance is taken of an offence the police has a power to investigate
into it further, which can be exercised only in accordance with Chapter XII, there is no reason
whatsoever why the provisions of Section 167 thereof would not apply to a person who
comes to be later arrested by the police in course of such investigation. If Section 309 (2) is
interpreted - to mean that after the Court takes cognizance of an offence it cannot exercise its
power of detention in police custody under Section 167, the Investigating Agency would be
deprived of an opportunity to interrogate a person arrested during further investigation, even
if it can on production of sufficient materials, convince the Court that his detention in its
(police) custody was essential for that purpose. Therefore the words "accused if in custody"
appearing in Section 309(2) refer and relate to an accused who was before the Court when
cognizance was taken or when enquiry or trial was being held in respect of him and not to an
accused who is subsequently arrested in course of further investigation. So far as the accused
in the first category is concerned he can be remanded to judicial custody only in view of
Section 309 (2), but he who comes under the second category will be governed by Section
167 so long as further investigation continues. That necessarily means that in respect of the
latter the Court which has taken cognizance of the offence may exercise its power to detain
him in police custody, subject to the fulfilment of the requirements and the limitation of
Section 167. Following the above ruling in case of C.B.I. v Rathin Dandapath and others
reported in AIR 2015 S.C. 3285 , the Hon'ble Supreme Court reiterated that police remand
can be sought in respect of accused arrested even after filing of charge-sheet.

Difference between Arrest and Custody

The main difference between Arrest and Custody is that Arrest means apprehending someone
and taking them into custody for committing a crime or planning to commit one. On the other
hand, The situation of being detained or temporarily imprisoned, particularly by the police, is
known as Custody. It is also defined as a legitimate right or obligation to look after someone
or an object. Taking someone into custody or putting them under constraint, typically to force
them to obey the law is called Arrest. The goal of the constraint if the arrest occurs during
prosecution is to detain the person for a response to a criminal offense or to keep him from
executing an offensive or criminal activity. As soon as a person is charged with a crime and
held in police custody, they must appear in court for the court to determine whether the
individual should remain in Custody. The police can usually detain an individual for 24 hours
before they have to charge them with a crime or let them free. This whole procedure is known
as Custody.

Limitations
The entire study was done through the means of secondary research, although the reason why
was because this study was heavily supported by analysis of the current legislation on judicial
custody, the paper would have still been a lot more comprehensive if it were supported by
primary research as it would different opinions from distinguished jurists, legal professionals
etc. The study was also conducted with a deadline in hand so there was a potential that the
study could have been done in a much more comprehensive manner.

Conclusion
The provisions for holding a person in custody for the purpose of furthering investigation, in
India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the
Code allows that a person may be held in the custody of the police for a period of 15 days on
the orders of a Magistrate. A Judicial Magistrate may remand a person to any form of custody
extending up to 15 days and an executive magistrate may order for a period of custody
extending up to 7 days. A person may be held in the custody of the police or in judicial
custody. Police custody may extend only up to a period of 15 days from the date custody
begins but judicial custody may extend to a period of 90 days for a crime which entails a
punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60
days for all other crimes if the Magistrate is convinced that sufficient reasons exists,
following which the accused or suspect must be released on bail.
References

 Citizen Centric Service. Home - eCourt India Services. (n.d.). Retrieved April 12,
2022, from http://www.ecourts.gov.in/
 Ramkumar, J. V. (2021, October 9). The concept of 'detention' under section 167
(2) Cr.P.C. and its scope, range and legality – part - I [webinar video and notes].
Live Law. Retrieved April 12, 2022, from
https://www.livelaw.in/top-stories/detention-under-s167-2-crpc-scope-legality-
arrest-remand-judicial-custody-police-183462
 Remand by a judicial magistrate if investigation is not completed within 24 Hrs.
Legal Service India - Law, Lawyers and Legal Resources. (n.d.). Retrieved April
12, 2022, from https://www.legalserviceindia.com/legal/article-573-remand-by-a-
judicial-magistrate-if-investigation-is-not-completed-within-24-hrs.html