Judicial custody

Judicial Custody means detaining an individual in prison under the authority of a Magistrate. Essentially, this implies that the accused is under the supervision and control of the Magistrate. Upon presentation before the Magistrate, the accused may either be incarcerated or returned to police custody.

During judicial custody, the Court assumes responsibility for the suspect. When someone is initially arrested based on a First Information Report (FIR) filed at a police station and charged with a cognizable offense, they are brought before the Magistrate within 24 hours. The Magistrate determines whether to grant bail, order judicial custody, or extend police custody.

The duration of judicial custody can be up to 90 days in cases involving the death penalty, life imprisonment, or imprisonment for 10 years or more. If a person remains in judicial custody without the filing of a charge sheet by the police within 60 days for offenses with imprisonment of 10 years or less, or within 90 days for offenses with imprisonment of 10 years or more, and they have not sought bail, their custody continues.

A Judicial Magistrate has the authority to extend any custody period by up to 15 days, while an executive magistrate can extend it by up to 7 days. After the completion of the 15-day remand in judicial custody, the accused is brought back to court, where the Judge may order a further extension of the remand period. Security during judicial custody is overseen by the judge or magistrate.

Official Definition of ‘Judicial Custody’

Judicial Custody as defined in Legislation

The Code of Criminal Procedure, 1973

Section 167 CrPC uses the terms ‘custody’ and ‘other than in custody of the police’; the provision is thus generally interpreted to permit police custody or judicial custody.

Bharatiya Nagarik Suraksha Sanhita, 2023(BNSS)

Section 187 BNSS contrastingly introduces a new proviso after sub-section (5). This provides that detention shall only be in a police station in police custody or in a prison in judicial custody or in a place declared a prison by the central or state government.

The BNSS allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody.  This may lead to denial of bail for the entire period if the police has not exhausted the 15 days of custody.

The Judicial Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration the status of the accused person as to whether he is not released on bail or his bail has not been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Judicial Magistrate having such jurisdiction. (3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

Provided further that no person shall be detained otherwise than in police station under police custody or in prison under Judicial custody or place declared as prison by the Central Government or the State Government.

National Human Rights Commission

For the purposes of the NHRC’s data, judicial custody means “persons in jails are per the orders of the court”. This includes undertrials and convicts. An undertrial is in the custody of the concerned magistrate but is housed in a jail (used interchangeably with ‘prison’ in India). During judicial custody, the police is not allowed to interrogate the suspect. However, the court may allow the interrogations to be conducted based on facts produced before the court, for which police custody is granted.

Judicial Lock-Ups

Punjab Haryana High Court Rules Chapter 27 Rule 3 describes “Judicial Lock-Ups”.  A Judicial Lock-up refers to any detention facility not intended for Police purposes. Such facilities automatically assume the classification of a Judicial Lock-up. In certain districts, the Judicial Lock-up at the District headquarters is located within the Jail, managed by Jail authorities. Alternatively, in other districts, the Lock-ups at Tahsil headquarters are situated in the local Police Station, designed for the confinement of individuals in both temporary Police and Magisterial custody. Regardless of the location, any Lock-up serving these functions is officially recognized and treated as a Judicial Lock-up. The absence of formally designated establishments for Judicial Lock-ups in specific districts does not indicate their nonexistence. It also provides that it is crucial that at least one Lock-up at the headquarters of every District and Tahsil operates as a Judicial Lock-up. Further, District Magistrates are obligated by rule [rule XVI, clause (iii)] to assign suitable spaces for Judicial Lock-ups and their guards in all Court houses, ensuring prompt adherence, particularly for Courts at the District and Tahsil headquarters.

Appearance of ‘Judicial Custody’ in Databases

Prison Data Report NCRB

As per Prison Data Report of NCRB, the statistics revealed that a total of 257 prisoners escaped during 2022 where 159 escaped from judicial custody.

Types of Escapes by Prisoners during the year 2022 Chart – 9.1 retrieved from https://ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/psiyearwise2022/1701613297PSI2022ason01122023.pdf

During the year 2022, 257 prisoners were reported as escaped from judicial custody. Out of 257 prisoners escaped, 42 prisoners escaped from inside prison premises and 117 prisoners escaped while they were outside prison premises. State of Rajasthan has reported escape of 40 prisoners while they were outside prison premises followed by Bihar (13) and West Bengal(12) .

Total of 1,995 prisoners died while they were in judicial custody during 2022, in the country. Out of which, 1,773 were natural deaths, 159 were due to un-natural causes and 63 deaths were reported as causes not known yet (while furnishing the data). Natural deaths accounted for 88.9% (1,773 out of 1,995) and unnatural deaths accounted for 8.0% (159 out of 1,995) of the total deaths.

This report defined an ‘undertrial prisoner’ as any person who has been committed to judicial custody and against whom a criminal trial has been initiated by a competent authority (trial is yet to start or is in process, but not yet disposed off).

National Human Rights Statistics:

National Human Rights Commission(NHRC) publishes the statistics relating to number of custodial deaths (judicial) and alleged custodial deaths in judicial custody on a monthly basis, in terms of cases registered, cases disposed and pendency as of date. The data relating to recommended monetary relief is also provided.

MONTHLY SALIENT STATISTICS OF CASES REGISTERED / DISPOSED BY NHRC DURING JANUARY, 2024 (data as on 01.02.2024) retrieved from https://nhrc.nic.in/complaints/human-right-case-statistics

Some NHRC Guidelines Compilation Document:

• Letter to the Chief Justices of all High Courts with regard to Human Rights in Prisons: Nearly seventy-nine percent of deaths in judicial custody (other than those attributable to custodial violence) were as a result of infection of Tuberculosis.

• Letter to the Chief Justices of all High Courts with regard to Human Rights in Prisons: The prisoners are in judicial custody and hence it is incumbent upon the Sessions Judges to monitor their living conditions and ensure that humane conditions prevail within the prison walls also.

Synonymous Usage

• “Magistrate Custody” is discussed in light of remand in the District Court website document titled “GENERAL RULES AND CIRCULAR ORDERS”

“(vii) Remand to Magistrate’s custody - Whenever possible, where the object of the remand is the verification of the prisoner's statement he should be remanded to the charge of a Judicial Magistrate.

• Magistrate’s “custody cases” are mentioned in the Maharashtra District Court Website for the purposes of maintaining a register as under

13.Every Magistrate, on receiving or resuming charge of his office, should enquire which accused persons are in detention under the orders of his Court, with a view to their being brought before him within the period specified by law (see section 309 of the Code of Criminal Procedure, 1973). Every Magistrate shall maintain a Register of under­trial prisoners in the following form and check it once in every fortnight with a view to giving priority to the disposal of such cases.