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Key takeaways

  • An accused cannot be held in police custody for more than 24 hours after the arrest is made. The accused needs to appear before the concerned Magistrate within 24 hours of his arrest.
  • The concerned Magistrate has the power to pass the order and to transfer the accused from the police custody to the judicial custody.
  • Preventive detention is made on the grounds of suspicion. When the police are suspicious about the actions of the offender that he is doing something wrong or something against the lawand order, he can be detained to prevent such wrongful things.

Introduction

At the outset, we’ll see what custodial detention means.Custodial detention is when an individual is taken into custody because of any law enforcement official who has told the individual that he or she is under arrest, or when an individual believes that he or she is not free to leave the custody of the law enforcement official, while considering the circumstances.

There are different types of custodial detention they are as follows:

  • Police Custody
  • Judicial Custody
  • Remand
  • Preventive Detention

Police Custody

Police custody means that physically, the accused is with the police in the lock-up of police station.

When a FIR/complaint/report is filed against the accused for cognizable offence, then the accused is arrested by the police and kept in the custody of police to prevent any further offensive acts and to prevent the accused from tampering the evidences or influencing the witnesses.

Under Section 57 of Criminal Procedure Code, the police have no power to keep the accused in custody for more than 24 hours.In this detention of the accused, the police officer who is in charge of the case may interrogate the suspect. The accused needs to be presented in front of the Magistrate within 24 hours after arresting him. The police can seek for the remand of the accused in police custody in order to complete the investigation.

Earlier, the accused were afraid of police custody because of physical torture, beatings and harassment but after the judgment was passed by the Supreme Court of India regarding the custodial deaths and the harassment caused in the detention and also regarding the rights and immunity granted to the accused, such incidents are less frequent. Actions are also taken against some police officers because of the physical torture and harassment caused to the accused in detention.

Judicial Custody

Judicial custody means that the accused is in the custody of the concerned Magistrate. When the accused is in the police custody, he is in the lock-up of the police station but when he is in judicial custody, he is detained in the jail.

Judicial custody is there in case of serious offences. When the police officials present the accused in the Court before the Magistrate,the Court has the power to decide whether to send the accused in police custody again or to remand him in judicial custody. The accused is taken into judicial custody after the period of police custody expires to prevent him from tampering the evidences and influencing the witnesses.

It is necessary to file a chargesheet within 90 days in criminal cases. If the chargesheet is not filed within the prescribed time period, then bail can be granted to the accused but in case of rape or murder or any other terrific crimes, the accused can be kept in the judicial custody even if the chargesheet is not filed within the prescribed time period.

The judicial custody may be for the time period of 60 days but if the Court thinks fit it the accused can be released on bail.

Difference between Police Custody and Judicial Custody

Police custody means that the accused is in lock-up in police station. Judicial custody means that the accused is in jail under the custody of Magistrate.
In police custody, the accused needs to appear before the concerned Magistrate within 24 hours. In judicial custody, the accused is kept in jail until the order of bail is directed from the Court.
As soon as a FIR/complaint is registered and the police arrest the accused, then the police custody begins. When the public prosecutor satisfies the Court that the accused should be kept in custody for investigation, then the judicial custody begins.
The time period of custody is 24 hours in police custody. It can be extended to 15 days if directed by the concerned Magistrate. The time period for custody in is 60 days in detention if the offence committed is punishable for less than ten years but the maximum time period is 90 days when the offense committed is punishable for more than ten years/life imprisonment/death penalty.
The security is provided by the police in police custody. The security is provided by the Magistrate or judge in the judicial custody.
In police custody, strong charges are made against the accused. Those strong charges can be nullified in judicial custody if the accused is proven guilty.
The accused is kept in lock-up for investigation.                                                                                                                                                                                                                                                                                               The accused is kept in jail as per the order of the Magistrate or judge of the concerned Court.

Remand

The word remand has two different meaning in legal world. First, to send the accused back to the competent authority for investigation and second, to send back the case from appellate Court to the lower Court.

According to the Section 57 of Code of Criminal Procedure, 1973 (CrPC) when a police officer detains a person without the warrant, he cannot keep that person in custody for more than 24 hours without the permission of the concerned Magistrate under Section 167 of CrPC. This permission which is given by the Magistrate is known as remand and it is also known as pretrial detention.

The power of the Court to take the accused in remand is referred in certain Sections 167(2), 209(b) and 309(2) of CrPC. Each section is an independent one and such remands are ordered in different stages of proceedings.

According to Section 167 of CrPC, there is a specified procedure to follow when the investigation agency is not able to complete the investigation within 24 hours after the arrest or detention of an individual. Whenever the police after the arrest are not able to complete the investigation within 24 hours, then the accused needs to appear before the concerned Magistrate. The Magistrate then as he thinks fit, authorizes the detention of the accused.

According to Section 167(2), the Magistrate has the authority to take the accused in judicial remand which shall not exceed more than 60 days if the offence committed by the accused is punishable for less than ten years and the maximum time period for the judicial remand can be 90 days in case where the offence (rape, murder) committed by the accused is punishable for more than ten years, life imprisonment or death penalty.

If after 60 or 90 days of judicial remand, still the investigation is not completed by the investigation agency,then the accused can be out on bail as directed by the concerned Magistrate.

Preventive detention

The action of preventive detention is made by the police on the grounds of suspicion that such person who is detained may have committed something wrong under Section 151 of the Criminal Procedure Code, 1973 (CrPC).

If an individual has committed any offence which comes into knowledge of the police officer, then the police officer has the power to arrest such person with a warrant by the concerned Magistrate.

In case any police officer is misusing his power to arrest any person without the warrant by the concerned Magistrate, then Article 22 of the Constitution of India comes into picture.

Article 22 provides an individual with protection against the arrest and detention.

Article 22 clause (2) reads, “Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.”

Article 22 clause (4), reads as, “No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Article 22 clause (5) reads as, “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

The only difference between “arrest” and “preventive detention” is that, an arrest is done when the person is charged with a crime and after his arrest, he needs to appear before the concerned Magistrate within 24 hours of arrest. The preventive detention is made in order to restrict a person from doing something wrong or something against the lawand order.

Important case laws

In the case of Raj Pal Singh v. State of U.P.it was held that the remand order need not look like judgement which is delivered after the full trial but the application of the main ground must be evident.

It is the right of the accused to be presented before the concerned Magistrate within 24 hours of the arrest, excluding the time of transportation from the place of custody to the Magistrate.

In case of KanuSanyal v. Dist. Magistrate, 1974 the Supreme Courtobserved that “while a person is committed to the jail custody by the competent Court by an order, which prima facie does not appear to be a one without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”. It was held that a crucial date when the legality of a remand is to be looked into is the date when a petition comes up for hearing”.

In case of Kana v. State of Rajasthan, 1985 it was observed by the Court that “if the detention of the accused is legal when the bail application is preferred, his previous illegal detention should not be considered”.

In case of Laxmi Narain Gupta v. State, 1986 it was observed that “along with the present petition, at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts concerned for admitting them to bail. They are in judicial custody because they have not been able to arrange a surety while the orders for their judicial remands are being passed in a routine manner”.

Such situation happens when the accused is not aware of his rights.

In case of State (Delhi Administration) v. Dharam Pal, 1981 the Court held that after the expiry of the time period of 15 days under Section 167(2) of CrPC, the accused cannot be kept in the police custody, but only in any custody ordered by the Magistrate or Judicial Custody.

In case of Artatran Mahasurana and Ors. v. State of Orissa, 1956it was held that in order to obtain the order of remand from the Magistrate, the police need to give sufficient evidences to the Magistrate which can be used to pass the order of remand but if the Magistrate is not satisfied with the evidences which are presented in the Court, then the police need to obtain more evidence in order to satisfy the Magistrate. When the Magistrate is satisfied, only then the remand order can be passed by the Magistrate.

In case o fSundeep Kumar Bafna v. State of Maharashtra and Anr, 2014 itwas held that the accused cannot be denied for anticipatory bail if there is a legitimate cause of him being in police custody under Section 167(2) of CrPC.

In case of Manubhai Ratilal Patel v. State of Gujarat and others, 2012 it was observed by the Supreme Court that there should be reasonable ground to pass the order of remand. It is the fundamental judicial function of the Magistrate. The Magistrate should be satisfied by all the facts and evidences provided by the investigation agency before passing the order of remand. The Magistrate needs to apply his own mind by analyzing the facts and evidences of the case and not just going by the mechanical manner before passing the order of remand.

Conclusion

The Magistrate needs to analyze the background of the accused and the facts and evidences which are provided by the police before passing the remand order. The accused and the offenders who are detained have the right to know about their rights. Section 167 of CrPC needs to be modified to provide the offenders or alleged accused person with remedies against illegal or wrongful detention. The Magistrate should have proper reason to take the accused in remand.

Hope you find the article informative.

Questions

1) What are the remedies which are provided to an individual for illegal detention?

2) The Constitution allows preventive detention but stipulates:

a) That the detenu must be produced before the nearest Magistrate within a period of 24 hours of his arrest.

b) That no one should be detained beyond 3 months unless an Advisory Board authorizes detention beyond that period.

c) That the ground for detention should be conveyed to him before arresting him.

d) All of the above.


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