Custody

When a person is arrested by a police officer, he should be produced before a Magistrate within 24 hours. The Magistrate then remands the person to judicial custody, that is, the person is sent to jail. In such a case, the police would not have any access to the accused person. Hence where for interrogation purposes,  the presence of the arested person is required, the  prosecution (police) would file an application to the Magisatrate concerned  seeking police  custody of the accused person. The accused person in such a case would be handed over to police custody till the time granted by the Magistrate. Thereafter the accused person would be produced before the court and would be sent to judicial custody till he is let out on bail.
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The following will explain the position in detail.

The investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167.  While doing so, the police should also transmit a copy of the entries in the diary relating to the case which is meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not.  Even at this stage the Magistrate can release him on bail if an application is made and it he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 167.
 
The Judicial Magistrate can in the first instance authorise the detention of the accused in either police or judicial custody from time to time but the total period of detention cannot exceed fifteen days in the whole.  Within this period of fifteen days there can be more that one order changing the nature of such custody / either from police to judicial or vice-versa.
 
If the arrested accused is produced before Executive Magistrate having judicial powers where Judicial Magistrate is not available, the Executive Magistrate is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely b y one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records.  When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, the Judicial Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial.
 
Likewise the remand under Section 309 Cr.P.C. can be only to judicial custody in terms mentioned therein. Section 309 comes into operation after taking cognizance and not during the period of investigation and the remand under this provision can only be to judicial custody and there cannot be any controversy about the same.
 
After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody.  Police custody found necessary can be ordered only during the first period of fifteen days.  If a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days.  The detention in police custody is generally disfavored  by law.  The whole scheme underlying S.167 is intended to limit the period of police custody in order to protect the accused from the methods, which may be adopted by some overzealous and unscrupulous police officers.
 
There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.  But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction.  Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the provision and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the provision as discussed above.
 
If the investigation is not completed within the period of ninety days or sixty days as provided under the provision to sub-section (2) of Section 167 then the accused has to be released on bail as provided under the provision to Section 167(2).
 
The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police.  Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.

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Great post!:)

Thanks to Dear Shambasiv & Dear Prakash for the information. What will the consequences if the person arrested could not be produced before a magistrate within 24 hours?

You need to complain about the same to the Magistrate concerned.

The following are the constitutional rights available to the people including arrested persons

CONSTITUTIONAL AND LEGAL RIGHTS AVAILABLE TO PEOPLE INCLUDING ACCUSED PERSONS


Presumption of innocence of the accused, burden of proof on the prosecution , observance of principles of natural justice and requirement of mens rea are among the basic features of our criminal justice system. Important Constitutional and legal safeguards available against arbitrary law enforcement are given in the following paragraphs:


Article 20 of the Constitution of India prohibits:


* Conviction or greater sentence for an offence under ex post facto criminal laws.

* Prosecution and punishment for the same offence more than once.

* Compelling a person accused of any offence to be a witness against himself.


Article 21 protects against arbitrary:

* Arrest,

* Detention and

* Deprivation of life and personal liberty.


Article 22 guarantee to a person arrested for any offence:


* Right to be informed as soon as may be of the grounds of arrest,

* Right of freedom to consult and to be represented by a lawyer of his own choice,

* Right to be produced before a Magistrate within 24 hours of arrest and detention beyond the said period only on the order of the Magistrate.


Free legal aid is provided to those who cannot afford the same.


It is provided not only when trial commences but also during police custody or during production before the magistrate for the first time or for remand from time to time. Eligible persons for free legal aid in UT of Chandigarh are:


(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood,drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital/or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987; or

(h) in addition to the persons mentioned in clauses (a) to (g) of section 12 of the Act, a citizen of India whose annual income from all sources does not exceed fifty thousand rupees.


Section 50 CrPC provides for Communication of:


* Grounds of arrest to the accused person.

* Right to be released on bail if a person is arrested not for a non-bailable offence and that he may arrange for sureties on his behalf.


Sections 49, 54, 56 and 76 CrPC put in effect Constitutional provisions to prevent arbitrary exercise of power to arrest.


* An arrested person cannot be subjected to more restraint than is necessary to prevent his escape. (Section 49 CrPC).

* Use of handcuffs is permitted only in exceptionally rare cases to prevent escape or violence keeping in view the propensity of the arrested person.

*Medical examination of an accused by a medical practitioner. (Section 54 CrPC).

* Expeditious production of a person arrested without a warrant, subject to provisions regarding bail, before a Magistrate or the officer in charge of a police station. (Section 56 CrPC).

*No detention of a person arrested without warrant beyond 24 in the absence of a special order of a Magistrate under section 167 CrPC (Sec. 57 CrPC).

*Production before a Magistrate within 24 hours of person arrested in execution of warrant. (Sec. 76 CrPC).

Section 47, 51, 100 and 165 Cr.PC while empowering search also lay down safeguards.

*Safe custody of articles seized from the person of an arrested person and giving of a receipt in this regard. (Sec. 51CrPC).

*Association of witnesses, search in their presence and signing of the search list by them; occupant or his representative to be allowed to be present during the search and providing of a list of seized articles to the person searched. (Sec.100 and 165 CrPC).


Section 436, 437, 438 alongwith Sections 50(2) and 167 CrPC provide for the procedure for release on bail.


*Bail, on production of proper surety/bond, is a matter of right in case of bailable offences. (Sec. 436 CrPC).

*In non bailable cases, the arrested person or his counsel can move the appropriate Court for bail, which may be granted or denied keeping in view the legal provisions and the facts and circumstances of the case.

Thanks Mr Prakash, its very useful. Regards-- Sanjay Dixit