What is Judicial Custody? It’s Meaning and Importance in the Indian legal system

What is Judicial Custody? It's Meaning and Importance in the Indian legal system
What is Judicial Custody? It's Meaning and Importance in the Indian legal system


The Oxford Dictionary defines custody as “the state of being in prison while awaiting trial” in terms of its legal meaning. A person who is suspected of committing a crime or has been accused of committing one is apprehended and detained to ensure the safety and security of the rest of society. A person is kept in custody so that the crime may be investigated and information regarding the participation of other suspects in the crime can be gathered. Section 167 of the Code of Criminal Procedure governs the provisions of retaining a person in custody for further investigation in India. According to this Code, a person may be kept in police custody for up to 15 days if a magistrate warrants it. A person may be kept in custody by the police or the court, both of which can only be ordered by the magistrate. The definition of judicial custody and its standards are covered in brief in the section that follows.


Meaning of Judicial Custody 

Unlike Police Custody where the accused is in the physical custody of the police, judicial custody is when the accused is kept in the custody of a Judicial Magistrate. In police custody, the accused is kept in the lockup while in judicial custody he is sent to central jail. Whenever a person is taken into custody it is the duty of the concerned police officer to produce the accused before the Magistrate within 24 hours of his arrest which is reiterated in the Code of Criminal Procedure. 

It is up to the Magistrate to decide whether to put the accused in police or judicial custody. When a person accused of a cognizable offense is arrested and detained by the police and produced within 24 hours(excluding traveling time from the place of arrest), or he surrenders before the nearest Magistrate. Then the Magistrate can either release him on bail or he can either send him to judicial custody or police custody. While granting bail the Magistrate has also to look into certain factors like the age of the accused (if he is a minor). If there are reasonable grounds to believe that the suspect is minor then his age shall be ascertained and he must be produced before the juvenile board.


The Conduct of the Law Enforcement Authorities in Judicial Custody

Police officers frequently treat suspects unjustly, and there have been serious cases of custodial violence because the defendant was held in custody, where the officers have the most power. However, in a judicial custody situation, the court is in charge of the suspect, therefore the police officer assigned to the case can only question the suspect if the court determines that it is required in light of the evidence presented in court. Police are not allowed to question the suspect while in judicial custody unless the court finds it essential for them to do so.

Another feature of judicial custody is that, unlike police custody, which may only be extended for a maximum of 15 days after the start of custody, judicial custody may be extended for up to 90 days in cases where the crime involved carries a sentence of death, life in prison, or a term of imprisonment longer than 10 years.


Rights of a Suspect in Judicial custody

According to Section 436A of the Code of Criminal Procedure, if the accused is awaiting trial and has already served half of the maximum sentence allowable for the offense, he may be released on default bail. This eases the situation of judicial detention. Therefore, the maximum time in judicial custody may not exceed half of the maximum time that may be granted for the infraction. The Indian Constitution’s Article 22 guarantees the protection of the person who has been detained since he or she has a right to know the basis for the arrest and is required to appear before the closest magistrate within 24 hours of the arrest. Additionally, according to Article 22 (1), he has the right to confer with and be represented by a lawyer of his choosing.

Proper care and facilities must be offered to the suspect throughout their stay in custody if they have a disease, are pregnant, or have recently given birth. Also Under Articles 32 or 226 of the Indian Constitution, the accused may submit a writ of habeas corpus if the detention order was issued by an incompetent court or if the arrest was illegal due to a lack of procedure. However, it is important to remember that a writ does not lie against legal or judicial custody, regardless of any rights that may have been infringed before the legal custody.


Written by Avantika Mandar Chavan

Her name is Avantika Mandar Chavan a 2nd year law student currently pursuing her BBA LLB from Jindal Global Law school. She has a keen interest in various laws particularly ones concerning Mediation & Arbitration and IPR. She also likes to keep updated with current affairs and news related to  International organizations.

Leave a Reply

Your email address will not be published. Required fields are marked *

Common Law vs Civil law: Meeting Ends of Justice

Battery as a part of Tort Law: What does it mean?