Report No. 152

Chapter 2

Circumstances Leading to Crime in Custody

2.1. Arrest and its significance.-

Arrest of a person leads to custody, which provides possible opportunity for commission of crime against the person in custody. Commission of a crime by a public servant against the arrested or detained person while in custody amounts to custodial crime. The custodial crime is preceded by arrest or detention. In generals "custody" commences on a person being arrested, the arrest may be legal or illegal: it may be formal or informal; it may be by word or action.1-6 Whatever be the origin or category of the act of arrest, it has one very important consequence; it deprives the person arrested of his personal liberty.

From that moment onwards, he is totally under the control of the person arresting him. His movements, his freedom, his actions, even his thinking, come under the exclusive control and mastery of another person. His personality becomes subordinate to that of the person in whose custody he is placed. Every arrest amounts to custody. Arrest and custody are not synonymous terms. Custody may amount to arrest in certain circumstances but not in all circumstances.7

Arrest is a formal mode of taking a person in custody, but a person may be in the custody in other ways also. Ordinarily, the term "custody" in relation to detention of a person implies restraint upon the movement of the person concerned denying him freedom to move about according to his volition. Thus a person after arrest, formally or informally is in custody of the authority concerned.

1. 113th Report of Law Commission of India on Injuries in Police Custody.

2. Uttam Chand v. Mahnwd jewa, MR 1936 Nag 200.

3. Chottey Lal v. State of Uttar Pradesh, AIR 1954 All 687.

4. Muthiah Chettiar v. Ganesan, AIR 1960 Mad 91.

5. Paramhamsa facia, v. State of Orissa, AIR 1964 Ori 144.

6. Jodha Khoda Rabari v. Slate of Gujarat, 1992 Cr LR 3298.

7. Directorate of Enforcement v. Deepak Mahajan, JT 1994 (1) SC 299 (306).