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Report No. 273

A. Custody means

5.2 The term "custody" has not been defined in any statute. Its dictionary meanings include: "Safe-keeping, protection, charge, care, guardianship, confinement, imprisonment, durance of person, guardianship, the act or duty of guarding and preserving, control of a thing or person."84

5.3 In Black's Law Dictionary, 85 the expression "custody" has been explained to be the term very elastic and may mean actual imprisonment or physical detention and does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty.

5.4 In Niranjan Singh v. Prabhakar Rajaram Kharote,86 the Supreme Court while dealing with the meaning of 'custody' within the purview of Section 439 Cr.P.C. observed:

When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hideand- seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.

5.5 The meaning of the term 'custody' has to be understood with reference to the context in which it is used. 87'

5.6 The Bombay High Court, explained the distinction between arrest and custody in Harbans Singh v. State,88 observing: 'Arrest is a mode of formally taking a person in police custody, but a person may be in the custody of the police in other ways. What amounts to arrest is laid down by the legislature in express terms in S. 46, Cr.P.C., whereas the words 'in custody' which are to be found in certain sections of the Evidence Act only denote surveillance or restriction on the movement of the person concerned, which may be complete, as, for instance, in the case of an arrested person, or may be partial.

The concept of being in custody cannot therefore be equated with the concept of a formal arrest and there is difference between the two. Where, after the statements recorded by the Customs Authorities, due to the night-fall, the accused are put up before a Magistrate only next morning, it cannot be said that the accused were arrested and as such any statement made by them cannot be said to be in violation of Section 24 of the Evidence Act.

5.7 In Directorate of Enforcement v Deepak Mahajan,89 the Supreme Court while differentiating between 'custody' and 'arrest' observed:

'in every arrest, there is custody but not vice-versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi (supra).'

5.8 Thus, in view of the above, the term custody is to be understood in the contextual reference and depending upon the facts and circumstances of a case it may mean that law has taken control of the person. It may also mean surveillance or restriction on the movement of a person. Custody and arrest are not always synonymous.

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