Former finance minister P Chidambaram

What is police custody?

Police custody means that police have physical custody of the accused while judicial custody means an accused is in the custody of the court. In the former, the accused is lodged in the lock-up of a police station. Earlier accused were afraid of police custody as they were subjected to harassment and physical torture but such incidents have become fewer after the SC judgments enumerated the rights of accused and brought many police officers to task for custodial torture. Resourceful accused, politicians as well as others, certainly enjoy immunity from “third-degree” or, to use Americanese, “enhanced interrogation methods”.

After lodging of an FIR for a cognisable offence (which provides for punishment of more than 3 years), police arrest the accused to prevent him from tampering with evidence or influencing witnesses. Within 24 hours of arrest, police produce the accused before a court (mandatory under law) and seek his remand to police custody to enable it to complete investigations expeditiously. It is for police to decide how long it is warranted to keep the accused in its custody, which expires in 15 days.

What is judicial custody?

In serious offences, the court may accede to police request to remand the accused in judicial custody after the expiry of police custody so that evidence or witnesses are not tampered with. Law mandates filing of chargesheet in criminal cases within 90 days. If the chargesheet is not filed within 90 days, the court normally grants bail to the accused. But in heinous offences, like murder and rape, the accused is normally kept in judicial custody (kept in jail under the court’s custody) for a longer time despite filing of the chargesheet so that the process of trial is not influenced.

The judicial custody may be of 60 days for all other crimes if the court is convinced that sufficient reasons exist, following which the accused or suspect must be released on bail.

Why did P Chidambaram request court to send him to ED custody?

When Chidambaram was sent to Tihar jail for 14 days in judicial custody by a CBI special court in Delhi after his remand to CBI was over, he filed an application requesting the court to send him to ED custody though he could have remained in judicial custody without ED formally arresting him. The former FM’s earlier insistence to remain in CBI custody instead of getting lodged in Tihar jail (in judicial custody) in INX Media case was probably driven by the fact that he would lose the comfort of a guest house and home-cooked food if sent to Tihar, where he would be treated like other jail inmates without such facilities.

In addition, getting lodged in jail under judicial custody ran the risk of getting arrested by ED yet again for the painful process to be repeated - spending up to 15 days in ED custody, and then getting remanded in judicial custody till he gets bail from a competent court. The purpose behind Chidambaram pleading the trial court to send him to ED custody while he is undergoing judicial custody in CBI was perhaps aimed at shortening the period of his stay in Tihar.

It is still surprising why Chidamabaram requested to be sent to ED custody, which many in the know of the process feel is more rigorous than CBI custody. When in ED custody, an accused is questioned throughout the day and for the night, he is kept in a lock-up at a nearby police station, which in this case could either be Tughlaq Road police station or the one at Tilak Marg, unlike the guest house where Chidambaram was lodged while in CBI custody.

It is well settled by SC that jail is exception and bail is the rule but in cases of heinous offences, including money laundering cases, the court had held that custodial interrogation is needed to unearth the truth and said any protection given to accused during the investigation would hamper the probe.

The high profile accused prefer police custody over judicial custody to avoid social stigma and embarrassment of being lodged in jail with other inmates where he will have no access to luxury and comfort given in police custody.

