"Custody", “Arrest”, Judicial Custody and Police Custody

"Custody" in ordinary sense, means control or charge over another person. It implies physical detention of a person from movement based on free will. 'Custody' and 'arrest' are not synonymous. A person may be in custody yet not arrested.

"Arrest" is the forceful confinement of a person by police. A person is said to be under arrest when his movements are not free but restricted by police. Section 46 Cr.P.C. explains the procedure of arrest.

• Generally, “Arrest” is followed by “Custody”. But it not necessary that every case of custody must be preceded by arrest.

• With regard to the expression 'in custody' within the meaning of S.439 Cr.P.C., Justice Krishna Iyer, has observed in (Niranjan Singh v. Prabhakar Rajaram Kharote AIR 1980 SC 785) that: "accused can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions."

• Thus, when an accused has surrendered before the Sessions Court, Sessions Court acquired jurisdiction to consider the bail application under Section 439, Cr.P.C.
• Following Niarnjan Singh, the Supreme Court held in 2014 (Sundeep Kumar Bafna v State of MaharashtraAIR 2014 SC 1745) if the High Court permits an accused to surrender before it, he will be under the custody of the High Court. Therefore, the High Court will get jurisdiction to consider application for regular bail under Section 439 Cr.P.C.

Police Custody

When a police officer arrests a person on the suspicion of having committed a cognizable offence, the arrested person is said to be under police custody. The purpose of police custody is to interrogate the suspect to gather more information about the crime, and to prevent destruction of evidences and intimidation of witnesses. According to section 57 Cr.P.C. this custody cannot exceed 24 hours without the orders of a Magistrate.

Every person who is arrested and detained in custody by police should be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate(Article 22(1) of the Constitution of India.)

Judicial Custody

When an accused is under direct control or custody of the Court, whether Magistrate or Sessions Court or High Court, he is said to be in judicial custody. The accused sent to jail is in judicial custody.

• The police can access an accused under judicial custody for interrogation only on the permission from the concerned Magistrate. Mere interrogation by Police, during such custody by permission of the Magistrate, cannot change the nature of custody.

In police custody, the police will have physical custody of the accused. So, when remanded to police custody, the accused will be detained in the lock-up in the police station. In that scenario, the police will be having all time access to the accused for interrogation.

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