JUDGE VS MAGISTRATE

A very common doubt, frequently misunderstood by students until they come to court practice and even later, is a judge and a magistrate the same? Is the power, jurisdiction same?

so here comes the simple chart that shall clear your doubts.

 

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COGNIZABLE AND NON-COGNIZABLE OFFENCES

Schedule I of CrPC which refers to all the offences under the Indian Penal Code and puts them into cognizable and non-cognizable categories.

Cognizable offence:

• Cognizable offenses are of much serious nature. 
• In a Cognizable offense, the police officer can arrest a person without a warrant. 
• A cognizable offense is defined under section 2 (c) of the CrPC. 
• The moment it is intimated to the police that any offense which is cognizable in nature has been committed in its local jurisdiction, the police are bound to register an FIR under section 154 of the CrPC.  
• The seriousness of the offence leads for maximum punishment. A cognizable offense is an offense which is punishable with imprisonment for 3 years or more. 

• A complaint can also be given to a Magistrate and the Magistrate orders the officer in- charge and forwards the complaint. The officer then registers the FIR. 
• In a cognizable offense, the police can start the investigation immediately after filing the FIR. No permission from the Magistrate is required.
• offenses which are serious in nature examples offences-

1. Waging or attempting to wage war, or abetting the waging of war against the government of India,
2. Murder,
3. Rape, 
4. Dowry Death,
5. Kidnapping,
6. Theft,
7. Criminal Breach of Trust,
8. Unnatural Offenses.

Non Cognizable offence:

• Non Cognizable offenses have been defined under section 2 (I), of Cr.PC. as an offense. 
• A police officer has no authority to arrest without warrant.
• Such offences are minimal offences where the injury done to the society is comparatively small. 
• The aggrieved party expected to file a complaint before criminal proceedings starts.
• There are punishable with imprisonment for less than 3 years or with fine only.
• A police officer cannot arrest without a warrant and such an officer has neither the duty nor the power to investigate into such offences without the authority given by a Judicial Magistrate.

• These offences are not much serious in nature like 

1. Assault,
2. Cheating,
3. Forgery

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POLICE CUSTODY VS JUDICIAL CUSTODY (INDIAN SCENARIO)

POLICE CUSTODY 

VS

JUDICIAL CUSTODY

After the custodial death in Sathankulam in Tamiladu, there has been a lot of confusion and misinterpretation of custody,arrest, custodial death, police and judicial custody. So we are here to discuss on the difference of these custody and its power, along with some famous cases. This blog is made as simple as possible for easy understanding so that the concept is easily understood yet covers the examination perspective too. Ready?

The word 'custody' means apprehending someone for protective care.The words "custody" and "arrest" are not synonymous. 

It is true that in every arrest there is custody but vice versa is not true. Actual seizure or touch of a person's body with a view to arresting is necessary, mere utterance of the word does not amount to arrest .

Arrest, remand and bail are components related to investigation. They generally come into play as an aid to investigation. Arrest directly curtails personal liberty of an individual. It strikes at his freedom. Therefore, many a times unwarranted arrests have reached courts of law. There have been occasions when unlawful detention has been considered as a violation of fundamental right and compensation thereof has been paid. There are several provisions which incorporate safeguards for illegal arrest. 

• A suspect under Police Custody or Judicial Custody is assumed to be a suspect. A suspect becomes a criminal only after the court finds him/her guilty and convicts him/her for the crime reported of.

One of the landmark case on the guidelines to be followed during arrest.

Now you can easily compare the hot current case of sathankulam for becoming sensational. read ahead to understand better and know more 

POLICE CUSTODY:

• When following to the receipt of an information/complaint/report by police about a crime, an officer of police arrests the suspect involved in the crime reported, to prevent him from committing the offensive acts further, such officer brings that suspect to police station, it's called Police Custody.
• It is actually the custody of a suspect with the police in a jail at the police station, to detain the suspect.
• During this detention, the police officer in charge of the case, may interrogate the suspect and this detention is not supposed to be longer than 24 hours.
• The officer in charge of the case is required to produce the suspect before the appropriate judge within 24 hours, these 24 hours exclude the time of necessary journey from the police station to the court.

Highlights:

• If the method of arrest is not performed as prescribed by Sec. 46 of CrPC, the arrest would be nugatory.
• Police Custody means that police has the physical custody of the accused.
• the accused is lodged in police station lockup
• Section 167 of the Code of Criminal Procedure allows that a person may be held in the custody of the police for a period of 15 days on the orders of a Judicial Magistrate and an executive magistrate may order for a period of custody extending up to 7 days. 
• If no judicial magistrate is immediately available then he may be taken before an executive Magistrate who can remand him to custody for a maximum of 7 days following which he must be taken before a judicial magistrate.

The Procedure

• When a person accused of a cognizable offence is arrested and detained by the police and produced within 24 hours(excluding travelling time from the place of arrest),or he himself surrenders before the nearest Magistrate. 
• Then the Magistrate can either release him on bail or he can either send him to judicial custody or to police custody. 
• If the accused is juvenile, his age is to be ascertained and if he finds that he is juvenile, then he be directed to be produced before Juvenile Justice Board.
• A police officer in charge of a suspect may treat the suspect arbitrarily.
• In case of arrests by police and pending the investigation, the lawyer of a suspect generally prays for Bail or Judicial Custody. In Judicial Custody, suspect becomes responsibility of Court.

Police Custody with permission to interrogate -

• During Judicial Custody, the police officer in charge of the case is not allowed to interrogate the suspect.

However, the court may allow the interrogations to be conducted if it opines the interrogation being necessary under the facts produced before the court.

• If the accused is released on bail for bailable offence and if later on non bailable offence is added, then police can arrest the accused without seeking cancellation of order of bail 

JUDICIAL CUSTODY:

• Judicial Custody means an accused is in the custody of the concerned Magistrate.
• the accused is the jail
• A 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 
• 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.
• 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.
•  in case of judicial custody ,such person can be sent to Prison, either within first fifteen days or even thereafter.
• On a combined reading of S.167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under S.167(2) for the rest of the first fifteen days after deducting the period of detention order by the Executive Magistrate. The detention thereafter could only be in judicial custody.
• The provisions of Section 167 of Cr.P.C extends to allowing the person bail if there is not sufficient cause to hold him in custody. The Section, however also explicitly states that if the accused is unable to furnish bail then he continues to remain in custody. 

Specific Rights during arrest and custody: 

• While passing the orders, the Magistrates must also see to the background of the victims and follow the guidelines mentioned in D.K.Basu V. State of West Bengal (AIR 1997 SC 610)
• Governing the right of medically unfit prisoners
• These are that women accused of any offence, if arrested so soon after child birth that they cannot at once be taken before the Magistrate without personal suffering and risk to health should not ordinarily be removed until they are in a proper condition to travel.
• They should be allowed to remain under proper charge in the care of their relations, or be sent to the nearest dispensary, and suffered to remain there until the officer in charge of the dispensary certifies that they are sufficiently recovered.
•  sanction must be obtained by the police from the nearest Magistrate for their detention at their homes, or in the dispensary, beyond the period of 24 hours as allowed by section 57 of the code of criminal procedure 1973.

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