Police Custody and Judicial Custody: Difference

Whenever a person is arrested, we often hear that he has been sent either to police custody or judicial custody. Let us know what is the difference between police custody and judicial custody and what are the legal provisions related to it?

What is police custody?

Police custody means that the accused remains in the lock-up of the police station or in the custody of the investigating agency that is investigating the case. During this period, the police can question the accused and collect evidence related to the crime.
Police custody is given when the investigation is at an early stage, and the police need to interrogate the accused to find out more details, identify other suspects, or recover stolen property or weapons used in the crime.
The police can also bring the accused face-to-face with witnesses or other people involved in the case to find out the truth. But police custody is always under legal rules to make sure the police do not misuse their power.
Example: Suppose someone is arrested in a robbery case. The police may request police custody so that they can question him and try to recover the stolen items.

Common Misunderstanding About Police Custody

Many people think that the police can keep someone in jail for a few days just for questioning, but this is not correct. After arrest, the accused is kept in a police lock-up, not jail. Jail (or prison) is different and comes under court custody. The law clearly says that the police must take the accused to a magistrate within 24 hours of arrest. Only the magistrate can decide whether to send the person to police custody, judicial custody, or grant bail. Police cannot keep anyone locked up for 2 or more days just for enquiry without court permission.

What is judicial custody?

Judicial custody means that the accused is in the custody of the concerned court and is kept in jail (also called prison or judicial lock-up). During judicial custody, the accused is not in the direct control of the police, and any interrogation by the police must be approved by the court.
Judicial custody is considered safer for the accused, as it reduces the chances of torture or illegal treatment. The accused is sent to jail, and the jail authorities are responsible for their security and well-being.
The court monitors the entire process, ensuring that the accused’s rights are protected. It is also the stage where the accused can apply for bail or judicial review.
Example: After completing police custody, if the investigation is still going on and the accused cannot be released on bail, the court may send him to judicial custody.

Legal Provisions
Custody means controlling the personal liberty of another person, for which it is necessary to keep a person in custody. The personal liberty, granted under Article 21 of the Indian Constitution, is interfered with. When a person is kept in custody, there is a possibility of him being abused or beaten up, that is why many rules and laws have been made related to this.
In India, the provisions for detaining a person for furtherance of the process of investigation or inquiry are given in Section 187 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 [Section 167 of Cr.P.C.]. This section deals with both police custody and judicial custody.

Who Authorizes Custody?

Only a Judicial Magistrate can authorize either police custody or judicial custody. The police must produce the accused before the magistrate within 24 hours of arrest, excluding travel time, as per Article 22(2) of the Constitution and Section 57 of Cr.P.C.
The magistrate then decides whether to:
• Remand the accused to police custody
• Send the accused to judicial custody
• Release the accused on bail

Period of Police Custody

According to Section 187 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 [Section 167 of Cr.P.C.] the maximum period of police custody can be 15 days. This period is not always continuous. For example, a magistrate may grant 5 days of police custody first, and later allow more days up to a total of 15 days.
{During this time, the court may also ask for the progress of investigation to avoid unnecessary extension.}
Important Note: Police custody must be granted within the first 15 days from the date of arrest. After that, the court can only authorize judicial custody, not police custody.

Period of Judicial Custody

The duration of judicial custody depends on the seriousness of the offence:
According to Section 187 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 [Section 167 of Cr.P.C.], in cases where the punishment is life imprisonment, death or imprisonment of at least 10 years, the period of judicial custody during investigation or inquiry can be up to 90 days. In other cases, the period of judicial custody can be up to 60 days.
If the investigation is not completed within this period and the accused is not granted bail, they must be released on default bail under Section 167(2) of Cr.P.C. [now covered in BNSS, 2023].

Rights of the Accused in Custody

Even when an accused is in custody, he has certain legal rights:
• Right to be informed of the grounds of arrest
• Right to consult a legal practitioner
• Right to be produced before a magistrate within 24 hours
• Right to remain silent
• Right to free legal aid, if the person cannot afford a lawyer
• Protection against torture or inhuman treatment

The Supreme Court of India has laid down many guidelines to prevent custodial torture and deaths, including the right to have a friend or relative informed about the arrest.
These rights apply equally whether the person is in police custody or judicial custody. Violations of these rights can lead to legal action against the authorities.

Conclusion

Understanding the difference between police custody and judicial custody is important because both affect a person's freedom and rights. Police custody is mainly for investigation, while judicial custody is to keep the accused secure under the court’s supervision during the legal process.
The law ensures that no one is detained illegally or unnecessarily, and that every person, even if accused of a crime, is treated with dignity and fairness.
It is essential for citizens to know these distinctions so that they can be aware of their rights and seek legal support when needed. Awareness is the first step towards justice.