Question

Do u think a person who is detained and in a custody has any right ?Explain.

Answer 1

The provisions for holding a person in custody for the purpose of furthering investigation, in India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows that a person may be held in the custody of the police for a period of 15 days on the orders of a magistrate. This paper discusses the laws of custody in India and also the rights of an accused person. It also discusses the remedies that an accused has if he/she challenges the legality of the arrest.

INTRODUCTION

It is often the case when the police arrest a person in suspicion of a crime they are unable to complete the investigation in 24 hours. At this juncture when they require the accused or suspect to be kept away from society at large for the protection of society, of the accused or for the purpose of ensuring his availability for investigation, they may produce him before a magistrate, who may allow for the suspect to be held in the custody of the police or the judiciary.

The provisions for holding a person in custody for the purpose of furthering investigation, in India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows that a person may be held in the custody of the police for a period of 15 days on the orders of a magistrate. A judicial magistrate may remand a person to any form of custody extending up to 15 days and an executive magistrate may order for a period of custody extending up to 7 days. A person may be held in the custody of the police or in judicial custody. Police custody may extend only up to a period of 15 days from the date custody begins but judicial custody may extend to a period of 90 days for a crime which entails a punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60 days for all other crimes if the magistrate is convinced that sufficient reasons exists, following which the accused or suspect must be released on bail.

The magistrate has the authority to remand the person into judicial or police custody. The detaining authority may be changed during the pendency of the detention, provided that the total time period does not extend 15 days. If a person is transferred from police to judicial custody the number of days served in police custody is deducted from the total time remanded to judicial custody.

The difference between judicial and police custody apart from the difference in custodian authority, is that under police custody, the suspect may be interrogated by the police but under judicial custody interrogation  is not permitted except in exceptional circumstances, police custody starts when a person is taken into custody by the police and his rights are read out to him along with the explanation for reasons for custody but judicial custody starts when a judge orders for judicial custody. The first thing that happens to a suspect on arrest is that he is taken into police custody, following which he is taken before a magistrate and he may either be remanded to judicial custody or be sent back into police custody. He may also gain temporary relief by posting bail.

RIGHTS OF ACCUSED

The rights of the accused begin from the time of his arrest. The Constitution of India under Article 22 provides for the protection of the arrested person to the extent that he has a right to be informed of the reason for arrest and he must be produced before the nearest magistrate within a period of 24 hours. Article 22 (1) also provides that he shall be entitled to consult and to be defended by a legal practitioner of his choice[i]. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5) of the Constitution of India, enacts, that the persons arrested should be informed of the ground of arrest, and of right to bail.

After the legal arrest of a person, his rights are protected through the time period for which he may be held in custody. For the custody to be a legal, a person may not be held in custody for more than 15 days. A magistrate must be convinced that that there are exceptional circumstances present to extend this custody for a maximum of 60-90 days depending in the nature of the crime being investigated. A cautious reading of S.167(1) of the code of criminal procedure makes it clear that the officer in charge of the police station or the investigating officer (if he is not below the rank of sub-inspector) can ask for remand  only when there are grounds to believe that the accusation or information is well founded and it appears that the investigation cannot be completed within the period of twenty-four hours as specified under Section 57. Hence, Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his power of remand. The same was held in Raj Pal Singh v. State of U.P[ii] the case also said that the remand order sheet need not look like, a judgment delivered after full trial but application of main must be evident.

Answer 2

a person who is detained and is in a custody has rights as constitution of india as the provisions for holding a person in custody for the purpose of further investigation are governed by the Section of 617 of the code which specifies that a person can be kept by the police for 15 days on the order if magistrate.Thus paper discussed the law of custody in india and also the right if accused person.I t also discusses the remidies that an accused had challenged the legality of arrest .

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