By Dhruva Vig
Introduction
Under Black’s Law Dictionary, ‘Custody’ has been defined as “the care and control of a thing or person for inspection, preservation, or security.”[1]
In Indian context as well, the word custody is often associated with the intent to apprehend someone for protective care. Although, it must be noted that the term custody differs from arrest, as in every arrest that is made, there is custody. However, in every Custody, there is no arrest of any sort.
These two terms share a genus-specie relationship with each other. Judicial custody, also referred to as Judicial Lock-ups, have been provided under the Delhi High Court Rules under Volume III, where Chapter 27[2] talks about ‘Judicial Lock-ups’ in great detail.
Essential difference between a Judicial and a Police Lock-up:
(i) The main difference would be, that in case of a Judicial Lock-up, no prisoner can be kept without the written order of a Judicial officer to the Jailor of such lock-up, or other officer in-charge, stating the offence for which the prisoner has been detained and whether the provision of bail has been allowed to such person or not, nor can a prisoner be removed without such written order from any lock-up;
(ii) On the other hand, in the case of a Police Lock-up, no prisoner can be detained longer than a time period of twenty-four hours, which shall be exclusive of the period that is necessary for journey from the place where arrest was made, to the Magistrate’s Court without the requirement of any special order of a Magistrate.
Persons to be kept in Judicial Lock-up:
(i) Any persons/individual who are under trial before any Magistrates, including persons who have been remanded at the request of the Police as well as persons in cases who have been remanded to the Police;
(ii) Any persons/individuals who are under trial before the Sessions Judge; and
(iii) In certain districts, prisoners who are under sentence for short term periods who are detained in Lock-ups for the whole period of their sentence, and prisoners under sentence for long term periods, who are similarly detained in such cases, until opportunity offers for their transfer to the nearest jail.
When lock-ups are to be treated as Judicial lock-ups
Every Lock-up which is used for purposes other than that for which the Police are entitled to use a Lock-up must ipso facto be regarded and treated as Judicial Lock-up. In such instances, District Magistrates are required by the rules[3] to assign places which are proper for Judicial Lock-ups and their guards at all Court houses/premises, and should supervise that such rules are complied with at once, in regard to the Courts at the headquarters of the Districts and at each Tahsil as well.
Control, management and inspection of Judicial Lock-ups
Judicial Lock-ups which are located within or are attached to any Jail shall be managed entirely by the Jail Department itself, provided that they shall be subject to the Court rules with regard to inspection by the Sessions Judge of the Division, which such lock-ups have been situated, and to the submission of the monthly statements and weekly reminders hereinafter prescribed.
Every Judicial lock-up shall be under the direct control of the State Government which shall be exercised through the Commissioner and the District Magistrate according to relevant circumstances. The Sessions Judge shall, however, be responsible for the inspection of all such Judicial lock-ups, which shall be subject to the general control of the High Court.
As per the purposes mentioned therewith, every Judicial Lock-up is be regarded as being subject to the orders of the Inspector-General of Prisons, namely:
(a) Adjustment of budget estimates;
(b) Sanction to expenditure;
(c) Entertainment of establishments.
For the purposes of this provision, the Inspector-General of Prisons will, from time to time, issue such instructions as may be necessary, direct to District Magistrates for carrying out such rules.
Officers in charge of Judicial Lock-ups
Every Judicial Lock-up which is situated at the headquarters of any district, other than a Lock-up referred to in clause (i) of Rule I, shall be in the charge of the Sheriff, and every Judicial Lock-up situated elsewhere shall be in charge of such officer as the District Magistrate may, from time to time. appoint in that behalf of such Lock-up.
Responsibility of Police
The Police Department shall be held responsible for the security of every Judicial Lock-up, not located within or attached to any Jail, and shall supply with the necessary guards for the protection of such Lock-ups, and for the purposes of conduct of prisoners to and from the Courts, both at the headquarters of Districts and in Sub-Divisions, Tahsils and Cantonments, in accordance with the orders of Government and the rules of that Police Department.
Provision of a Lock-up in each Court-house
In each Court-house premises or in the buildings that are attached to it, a proper place shall be provided for the prisoners who are under trial and their guard.
It must be noted that the amount of space which should be available in a Judicial Lock-up, should ordinarily be not less than 648 cubic feet of air space and 36 feet of floor area per prisoner in such Lock-ups. Lateral ventilation exclusive of iron bars and door jambs should not be less than ten square feet.
Further, separate accommodation should be provided for both females and juveniles.
Punishment for breach of discipline
The following punishments are awardable for breaches of rules, and such punishments may be inflicted under the written order of the Magistrate having control over the Lock-up. These shall be as follows:—
- Isolation in a cell or separate ward for a period which shall not exceed seven days;
- Penal diet which shall consist of bread and water for a period which shall not exceed three days; where the quantity of bread is to be 8 chattacks of wheaten flour made into chapatis.
- In instances of turbulent or dangerous prisoners, confinement in fetters must be done.
Legal Provisions
A.) Section 167 of the Code of Criminal Procedure, 1973 governs the provisions for holding of any person in custody for the purposes of proceeding further with the investigation of a case. This section allows for a person to be detained under police custody on the orders of a Magistrate for a period which may be of 15 days under regular circumstances.
Judicial Magistrate of competent authority may remand any person/party for a period which may extend to 15 days, to any form of custody, be it police or judicial. Furthermore, an executive Magistrate may pass an order to extend the period of such custody of any persons for up to 7 days as well.
However, no Magistrate shall authorise any detention of the accused persons under police custody under the provisions of this section, unless the accused person has been produced before the magistrate in-person for the first time, and subsequently every time till such accused person remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused person, either in-person or through the medium of electronic video linkage, as the case maybe.
B.) Under Delhi Prison Rules, 2018, “Prison offences and Punishments” [4] have been provided which deal with the provisions relating to offences which may be committed by prisoners and punishments therewith.
Rule 1269 lays down the acts of the prisoners which shall constitute prison offences. Under Entry LIII, offences committed by a prisoner while in transit or in judicial lock-up have been laid out, where any of the offences, mentioned in the Act and the preceding rule shall be deemed to be the prison offence being committed by a prisoner while in transit from one prison to another or to hospital or to court or while in judicial lock-ups or any other place.
He can be awarded punishment by the Superintendent after obtaining the report of the officer in-charge of the escort.
Case Laws
Kewalbai W/o Madhavrao Ghorband v. The State of Maharashtra & Ors.[5]
Held:
“Persons landing up in lock up are in most of the cases likely to have criminal bend of mind and it is responsibility of the State to ensure that officials who are posted at such lock up are selected by such process or are so trained that they are competent to handle stress or even provocation, so as to keep their cool and not to become law unto themselves.”
The Registrar General High Court, Madras v. The District Collector Vellore District & Ors.[6]
Held:
Addressing the issue of providing separate lock-ups for women prisoners complete with all the basic amenities, the division Bench of S.K. Kaul, C.J. and M. Sathyanarayanan, J. laid down certain directions which were issued to the concerned authorities in order to monitor the issue and ensure the provision relating to separate prison cells. Perusing the submissions that were made and taking the compliance of report on record in the present case, the Court laid down following directions with respect to the issue:
- The Tamil Nadu State Legal Services Authority (TNSLSA) along with the Court Commissioner continuously monitor the prisons to ensure that reforms have been undertaken.
- TNSLSA would also file a tri-monthly periodic progress report till such time the Court is satisfied that monitoring is not necessary.
- TNSLSA may examine the issue of requiring a Visitor’s Panel for every district.
Pradeep Ram v. State of Jharkhand[7]
Held:
Remand of an accused when possible.—
(i) An accused can be remanded under Section 167(2) CrPC during investigation till cognizance has not been taken by court,
(ii) Even after such cognizance has been taken by the court, when an accused is subsequently arrested during further investigation, such an accused can also be remanded under Section 167(2) CrPC, but
(iii) When cognizance has been taken by a court and the accused who is under custody at the time of taking of cognizance or when inquiry or trial was being held in respect of such accused, he/she can be remanded to judicial custody only under the provisions of Section 309(2) of CrPC.
Suresh Kumar Bhikamchand Jain v. State of Maharashtra[8]
Held:
Nature of obligation of Magistrate/Court concerned to release accused on bail on non-filing of charge-sheet within period stipulated therein is mandatory. In such instances, any detention beyond the stipulated time period shall be held to be illegal.
Rakesh Kumar Paul v. State of Assam[9] and, Rambeer Shokeen v. State (NCT of Delhi)[10]
Held:
An accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) CrPC if the police has failed to file the charge-sheet within 60 days of his arrest that was made for the offence which shall be punishable with an “imprisonment for up to 10 years”.
Ashok Munilal Jain v. Directorate of Enforcement[11]
Held:
As per provisions of Section 4(2) CrPC, the procedure that is contained therein applies in respect of special statutes as well, unless the applicability of such provisions have been expressly barred. Moreover, Sections 44 to 46 under the Prevention of Money Laundering Act, 2002 have specifically incorporated provisions of CrPC to trials under PMLA Act.
Thus, not only is there no provision in PMLA Act excluding applicability of CrPC, on the contrary, provisions of CrPC are incorporated by specific inclusion. Even Section 65, PMLA Act, itself settles the controversy beyond any doubt in such behalf,
Chandayam Makki v. State of Kerala[12]
Held:
Scope.—Section 167 is the sole repository of the power of remand during investigation. No Magistrate is entitled to travel beyond the scope of this section to exercise this power.
Hussainara Khatoon v. State of Bihar[13]
Held:
Article 21, Legal Aid and remand of undertrials.—When an undertrial who has been in detention for 90 or 60 days, as the case may be, is produced before the Magistrate, held, he is bound to inform the accused that he is entitled to bail as provided by proviso (a) to Section 167(2).
Held, further, the state is bound to provide free legal aid to enable the accused to exercise that right and the Magistrate must ensure that he is so provided—This constitutional mandate, held binds every Magistrate and every State Government — Magistrate to apply his mind before passing remand order.
Achpal v. State of Rajasthan[14]
Held:
Extension of period of custody.—Extension of period of total custody without charge-sheet having been filed, beyond the outer limits specified in Section 167 of ninety/sixty days, not permissible.
References
Court Rules (delhihighcourt.nic.in)
CourtRuleFile_ (delhihighcourt.nic.in)
DIFFERENCE BETWEEN POLICE CUSTODY AND JUDICIAL CUSTODY – Tripaksha Litigation
What is difference between judicial custody and police custody? – Law Times Journal
What is the difference between police custody and judicial custody? – India Legal
Difference between Police Custody and Judicial Custody under Cr.P.C – iPleaders
- Black’s Law Dictionary (9th ed.), pg. 441 “Custody” ↑
- CourtRuleFile ↑
- Rule XVI, clause (iii) ↑
- Delhi Prison Rules, 2018, Page 356 ↑
- 2013 SCC OnLine Bom 773 : (2013) 5 AIR Bom R 375 : 2013 Cri LJ (NOC 564) 202 ↑
- 2014 SCC OnLine Mad 7422 : WP 21243/2006 and WP 33956/2007 ↑
- (2019) 17 SCC 326 ↑
- (2013) 3 SCC 77 : (2013) 1 SCC (L&S) 480 : (2013) 2 SCC (Cri) 229 ↑
- (2017) 15 SCC 67 ↑
- (2018) 4 SCC 405) ↑
- (2018) 16 SCC 158 ↑
- 1980 Cri LJ 1195, 1197 (Ker) ↑
- (1980) 1 SCC 108 : 1980 SCC (Cri) 50 ↑
- (2019) 14 SCC 599 ↑