Full Judgment Text
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PETITIONER:
CENTRAL BUREAU OF INVESTIGATION, SPECIALINVESTIGATION CELL-I
Vs.
RESPONDENT:
ANUPAM J. KULKARNI
DATE OF JUDGMENT08/05/1992
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
AHMADI, A.M. (J)
CITATION:
1992 AIR 1768 1992 SCR (3) 158
1992 SCC (3) 141 JT 1992 (3) 366
1992 SCALE (1)1024
ACT:
Code of Criminal Procedure, 1973-Section, 167(1)-Person
arrested and produced before Magistrate-Remand to police
custody after initial period of 15 days-Whether legal.
HEADNOTE:
A case relating to abduction of four diamond merchants
and one K was registered at Police Station on 16.9.91. The
investigation was entrusted to C.B.I. During investigation
it was disclosed that between 14th and 15th September 1991,
the four diamond merchants, K and one driver were kidnapped
from two hotels, and that K was one of the associates of the
accused, responsible for the kidnapping.
On 4.10.91 K was arrested and was produced before the
Chief Metropolitan Magistrate, on 5.10.91 and he was
remanded to judicial custody till 11.10.91.
On 10.10.91 a test identification parade was arranged
but K refused to cooperate and his refusal was recorded by
the concerned Magistrate.
On 11.10.91 the investigating officer moved an
application, seeking police custody of K, which was allowed.
When he was being taken on the way K pretended to be
indisposed and he was taken to a Hospital, where he remained
confined on the ground of illness upto 21.10.91 and then he
was referred to Cardiac Out-patient Department of the
Hospital. K was again remanded to judicial custody by the
Magistrate upto 29.10.91 and thereafter he was sent to Jail.
As the Police could not take him into police custody
all these days the investigating officer again applied to
the court of Chief Metropolitan Magistrate for police
custody of K.
The Chief Metropolitan Magistrate relying on a judgment
in State
159
(Delhi Admn.) v. Dharam Pal and others, 1982 Crl. L.J.1103
refused police remand.
A revision was filed before the High Court against the
order of the Magistrate.
The High Court, without deciding the question, whether
or not after the expiry of the initial period of 15 days a
person could still be remanded to police custody by the
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Magistrate before whom he was produced, granted K bail.
In these appeals, the C.B.I. challenged the order of
the High Court, contending that the Chief Metropolitan
Magistrate erred in not granting police custody and that
Dharam Pal’s case on which he placed reliance was wrongly
decided; that the High Court erred in granting bail to K
without deciding the question whether he can be remanded to
police custody; that a combined reading of Section 167(2)
and the proviso therein would make it clear that if for any
reason the police custody could not be obtained during the
period of first fifteen days yet a remand to the police
custody even later was not precluded.
The respondent-accused submitted that the police
custody if at all be granted by the Magistrate u/s. 167 Cr.
P.C. should be only during the period of first 15 days from
the date of production of the accused before the Magistrate
and not later and that subsequent custody if any should only
be judicial custody and the question of granting police
custody after the expiry of first 15 days remand did not
arise.
On the question, whether a person arrested and produced
before the nearest Magistrate as required under Section
167(1) Code of Criminal Procedure could still be remanded to
police custody after the expiry of the initial period of 15
days, this Court dismissing the appeals of the C.B.I.,
HELD : 1.01. Article 22(2) of the Constitution of India
and Section 57 of Cr. P.C. give a mandate that every person
who is arrested and detained in police custody shall be
produced before the nearest magistrate within a period of 24
hours of such arrest excluding the time necessary for the
journey from the place of the arrest to the court of the
magistrate and no such person shall be detained in the
custody beyond the said period without the authority of a
magistrate. These two provisions clearly
160
manifest the intention of the law in this regard and
therefore it is the magistrate who has to judicially
scrutinise circumstances and if satisfied can order the
detention of the accused in police custody. [175 C]
1.02. The detention in police custody is generally
disfavoured by law. The provisions of law lay down that
such detention can be allowed only in special circumstances
and that can be only by a remand granted by a magistrate for
reasons judicially scrutinised and for such limited purposes
as the necessities of the case may require. The scheme of
Section 167 is obvious and is intended to protect the
accused from the methods which may be adopted by some
overzealous and unscrupulous police officers.
[175 B]
1.03. Whenever any person is arrested under Section 54
Cr.P.C. he should be produced before the nearest Magistrate
within 24 hours as mentioned therein. Such Magistrate may
or may not have jurisdiction to try the case. If Judicial
Magistrate is not available, the police officer may transmit
the arrested accused to the nearest Executive Magistrate on
whom the judicial powers have been conferred. [178 D]
1.04. The Judicial Magistrate can in the first instance
authorise the detention of the accused in such custody i.e.
either police or judicial from time to time but the total
period of detention cannot exceed fifteen days in the whole.
Within this period of fifteen days there can be more than
one order changing the nature of such custody either from
police to judicial or vice-versa. [178 E]
1.05. If the arrested accused is produced before the
Executive Magistrate he is empowered to authorise the
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detention in such custody either police or judicial only for
a week, in the same manner namely by one or more orders but
after one week he should transmit him to the nearest
Judicial Magistrate along with the records. [178 F]
1.06. When the arrested accused is so transmitted the
Judicial Magistrate, for the remaining period, that is to
say excluding one week or the number of days of detention
ordered by the Executive Magistrate, may authorise further
detention within that period of first fifteen days to such
custody either police or judicial. After the expiry of the
first period of fifteen days the further remand during the
period of investigation can only be in judicial custody.
[178 G]
161
1.07. There cannot be any detention in the police
custody after the expiry of first fifteen days even in a
case where some more offences either serious or otherwise
committed by him in the same transaction come to light at a
later stage.[178.H]
1.08. But this bar does not apply if the same arrested
accused is involved in a different case arising out of a
different transaction. Even if he is in judicial custody in
connection with the investigation of the earlier case he can
formally be arrested regarding his involvement in the
different case and associate him with the investigation of
that other case and the Magistrate can act as provided under
Section 167(2) and the proviso and can remand him to
such custody as mentioned therein during the first period
of fifteen days thereafter in accordance with the proviso.
[179 A]
1.09.If the investigation is not completed within the
period of ninety days or sixty days then the accused has to
be released on bail as provided under the proviso to Section
167(2). The period of ninety days or sixty days has to be
computed from the date of detention as per the orders of the
Magistrate and not from the date of arrest by the police.
[179 C]
1.10. The first period of fifteen days mentioned in
Section 167(2) has to be computed from the date of such
detention and after the expiry of the period of first
fifteen days it should be only judicial custody. [179C]
State (Delhi Admn.) v. Dharam Pal and Others, 1982
Crl. L.J. 103, approved partially.
S. Harsimran Singh v. State of Punjab, 1984 Crl.
L.J.253, approved.
Gian Singh v. State (Delhi Administration), 1981 Crl.
L.J. 100; Trilochan Singh v. The State (Delhi
Adminitration), 1981 Crl. L.J.1773; State v. Mehar Chand,
1969 D.L.T. 179; State (Delhi Administration) v. Ravinder
Kumar Bhatnagar, 1982 Crl. L.J. 2366; State of Kerala v.
Sadanadan, 19184 K.L.T. 747; Chaganti Satyanarayana and
Others v. State of Andhra Pradesh, [1966] 3 S.C.c. 141 and
Natabar Parida and Others v. State of Orissa, [1975] 2 SCC
220, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
310-311 of 1992.
From the Judgment and Order dated 9.12.1991 of the
Delhi High
162
Court in Crl.M.(M) no. 2409/91 and Crl. R. no. 201 of 1991.
K.T.S.Tulsi, Addl. Solicitor General, Kailash Vasdev
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and Ms. Alpana Kirpal for the Appellant.
Ram Jethmalani, Dinesh Mathur and Ms. Binu Tamta for
the Respondent.
The Judgment of the Court was deliverd by
k.JAYACHANDRA REDDY, J. Leave granted.
An important question that arises for consideration is
whether a person arrested and produced before the nearest
Magistrate as required under Section 167(1) Code of Criminal
Procedure can still be remanded to police custody after the
expiry of the initial period of 15 days. We propose to
consider the issue elaborately as there is no judgment of
this Court on this point. The facts giving rise to this
question may briefly be stated. A case relating to
abduction of four Bombay based diamond merchants and one
Shri Kulkarni was registered at Police Station Tughlak Road
New Delhi on 16.9.91 and the investigation was entrusted to
C.B.I. During investigation it was disclosed that not only
the four diamond merchants but also Shri Kulkarni, who is
the respondent before us and one driver Babulal were
kidnapped between 14th and 15th September, 1991 from two
Hotels at Delhi. It emerged during investigation that the
said Shri Kulkarni was one of the associates of the accused
one Shri R.Chaudhary responsible for the said kidnaping of
the diamond merchants. On the basis of some available
material Shri Kulkarni was arrested on 4.10.91 and was
produced before the Chief Metropolitan Magistrate, Delhi on
5.10.91. On the request of the C.B.I. Shri Kulkarni was
remanded to judicial custody till 11.10.91. On 10.10.91 a
test identification parade was arranged but Shri Kulkarni
refused to cooperate and his refusal was recorded by
concerned Munsif Magistrate. On 11.10.91 an application was
moved by the investigating officer seeking police custody of
Shri Kulkarni which was allowed. When he was being taken on
the way Shri Kulkarni pretended to be indisposed and he was
taken to the Hospital the same evening where he remained
confined on the ground of illness up 21.10.91 and then he
was referred to cardic Out-patient Department of G.B. Pant
Hospital. Upto 29.10.91 Shri Kulkarni was again remanded to
judicial custody by the Magistrate and thereafter was sent
to Jail. In view of the fact that the Police
163
could not take him into police custody all these days the
investigating officer again applied to the court of Chief
Metropolitan Magistrate for police custody of Shri
Kulkarni. The Chief Metropolitan Magistrate relying on a
judgment of the Delhi High Court in State (Delhi Admn.) v.
Dharam Pal and others, 1982 Crl. L.J. 1103 refused police
remand. Questioning the same a revision was filed before
the High Court of Delhi. The learned Single Judge in the
first instance considered whether there was material to make
out a case of kidnaping or abduction against Shri Kulkarni
and observed that even the abducted persons namely the four
diamond merchants do not point an accusing finger against
Shri Kulkarni and that at any rate Shri Kulkarni
himself has been interrogated in jail for almost seven days
by the C.B.I. and nothing has been divulged by him,
therefore it is not desirable to confine him in jail and in
that view of the matter he granted him bail. The High
Court, however, did not decide the question whether or not
after the expiry of the initial period of 15 days a person
can still be remanded to police custody by the magistrate
before whom he was produced. The said order is challenged
in these appeals.
The learned Additional Solicitor General appearing for
the C.B.I. the appellant contended that Chief Matropolitan
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Magistrate erred in not granting police custody and that
Dharam Pal’s case on which he placed reliance has been
wrongly decided. The further contention is that the High
Court has erred in granting bail to Shri Kulkarni without
deciding the question whether he can be remanded to police
custody as prayed for by C.B.I. Shri Ram Jethmalani, learned
counsel for the respondent accused submitted that language
of Section 167 Cr.P.C. is clear and that the police custody
if at all be granted by the Magistrate should be only
during the period of first 15 days from the date of
production of the accused before the magistrate and not
later and that subsequent custody if any should only be
judicial custody and the question of granting police
custody after the expiry of first 15 days remand does not
arise.
Section 167 Cr. P.C. 11973 after some changes reads as
under:
"167. Procedure when investigation cannot be
completed in twenty-four hours.- (1) Whenever any
person is arrested and detained in custody, and it
appears that the investigation cannot be
completed within the period of twenty-four hours
fixed by Section 57, and there are grounds for
believing that the accusation
164
or information is well founded, the officer-in-
charge of the police station or the police officer
making the investigation, he if is not below the
rank of sub-inspector, shall forthwith transmit to
the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed
relating to the case, and shall at the same time
forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or
has not jurisdiction to try the case, from time to
time, authorise the detention of the accused in
such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; 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 Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of
the accused person, otherwise than in the custody
of the police, 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 paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates
to an office punishable with death, imprisonment
for life or imprisonment for a term of not less
than ten years;
(ii) sixty days, where the investigation relates to
any other office,
and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the
accused person shall be released on bail if he is
prepared to and does furnish bail, and every person
released on bail under this sub-section shall be
deemed to be so released under the provisions of
Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any
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custody under this section unless the accused is
produced before him;
165
(c)no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of police.
Explanation 1- For the avoidance of doubts, it is
hereby declared that, notwithstanding the expiry
of the period specified in paragrah (a), the
accused shall be so detained in custody so long as
he does not furnish bail.
Explanation II.- If any question arises whether an
accused person was produced before the Magistrate
as required under paragraph (b), the production of
the accused person may be proved by his signature
on the order authorising detention.
(2A) Notwithstanding anything contained in sub-
section (1) or sub-section (2), the officer-in-
charge of the police station or the police officer
making the investigation, if he is not below the
rank of a sub-inspector, may, where a judicial
Magistrate is not available, transmit to the
nearest Executive Magistrate, on whom the powers
of a Judicial Magistrate or Metropolitan Magistrate
have been conferred a copy of the entry in the
diary hereinafter prescribed relating to the case,
and shall, at the same time, forward the accused to
such Executive Magistrate, and thereupon such
Executive Magistrate may, for reason to be
recorded in writing, authorise the detention of the
accused person in such custody, as he may think for
a term not exceeding seven days in the
aggregate, and, on the expiry of the period of
the detention so authorised, the accused person
shall be released on bail except where an order for
further detention of the accused person has been
made by a Magistrate competent to make such order;
and, where an order for such further detention is
made, the period during which the accused person
was detained in custody under the orders made by an
Executive Magistrate under this sub-section, shall
be taken into account in computing the period
specified in paragrah 2(a) of the proviso to sub-
section (2);
Provided that before the expiry of the period
aforesaid, the Executive magistrate shall transmit
to the nearest Judicial Magistrate the records of
the case together with a copy of the
166
entries in the diary relating to the case which
was transmitted to him by the officer-in-charge of
the police station or the police officer making
the investigation, as the case may be.
(3) A Magistrate authorising under this section
detention in the custody of the police shall record
his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial
Magistrate making such order shall forward a copy
of his order, with his reasons for making it, to
the Chief Judicial Magistrate.
(5) If any case triable by a Magistrate as a
summons-case, the investigation is not concluded
within a period of six months from the date on
which the accused was arrested, the Magistrate
shall make an order stopping further investigation
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into the offence unless the officer making the
investigation satisfies the Magistrate that for
special reasons and in the interests of justice
the continuation of the investigation beyond the
period of six months is necessary.
(6) Where any order stopping further investigation
into an offence has been made under sub-section
(5), the Sessions Judge may, if he is satisfied, on
an application made to him, or otherwise, that
further investigation into the offence ought to be
made, vacate the order made under sub-section (5)
and direct further investigation to be made into
the offence subject to such directions with regard
to bail and other matters as he may specify."
Before proceeding further it may be necessary to
advert to the legislative history of this Section. The old
Section 167 of 1898 Code provided for the detention of an
accused in custody for a term not exceeding 15 days on the
whole. It was noted that this was honored more in the
breach than in the observance and that a practice of
doubtful legality grew up namely the police used to file an
incomplete charge-sheet and move the court for remand under
Section 344 corresponding to the present Section 309 which
was not meant for during investigation. Having regard to
the fact that there may be genuine cases where investigation
might not be completed in 15 days, the Law Commission made
certain recommendations to confer power on the Magistrate to
extend the period of 15 days detention.
167
These recommendations are noticed in the objects and
reasons of the Bill thus:
".........At present, Section 167 enables the
Magistrate to authorise detention of an accused
in custody for a term not exceeding 15 days on the
whole. There is a complaint that this provision is
honored more in the breach than in the observance
and that the police investigation takes a much
longer period in practice. A practice of doubtful
legality has grown whereby the police file a
"preliminary" or incomplete chargesheet and move
the court for remand under Section 344 which is
not intended to apply to the stage of
investigation. While in some cases the delay in
investigation may be due to the fault of the
police, it cannot be denied that there may be
genuine cases where it may not be practicable to
complete the investigation in 15 days. The
Commission recommended that the period should be
extended to 60 days, but if this is done, 60 days
would become the rule and there is no guarantee
that the illegal practice referred to above would
not continue. It is considered that the most
satisfactory solution of the problem would
be to confer on the Magistrate the power to
extend the period of extension beyond 15 days,
whenever he is satisfied that adequate grounds
exist for granting such extension......."
The Joint Committee, however, with a view to have the
desired effect made provision for the release of the
accused if investigation is not duly completed in case where
accused has been in custody for some period. Sub-section
(5) and (6) relating to offences punishable for imprisonment
for two years were inserted and the Magistrate was
authorised to stop further investigation and discharge the
accused if the investigation could not be completed within
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six months. By the Cr. P.C. Amendment Act 1978 proviso (a)
to sub-section (2) of Section 167 has been further amended
and the Magistrate is empowered to authorise the detention
of accused in custody during investigation for an aggregate
period of 90 days in cases relating to major offences and in
other cases 60 days. This provision for custody for 90 days
in intended to remove difficulties which actually arise in
completion of the investigation of offences of serious
nature. A new sub-section (2A) also has been inserted
empowering the Executive
168
Magistrate to make an order for remand but only for a
period not exceeding seven days in the aggregate and in
cases where Judicial Magistrate is not available. This
provision further lays down that period of detention
ordered by such Executive Magistrate should be taken into
account in computing the total period specified in clause
(a) of sub-section (2) of Section 167. Now coming to the
object and scope of Section 167 it is well-settled that it
is supplementary to Section 57. It is clear from Section 57
that the investigation should be completed in the first
instance within 24 hours if not, the arrested person should
be brought by the police before a magistrate as provided
under Section 167. The law does not authorise a police
officer to detain an arrested person for more than 24 hours
exclusive of the time necessary for the journey from the
place of arrest to the magistrate court. Sub-section (1) of
Section 167 covers all this procedure and also lays down
that the police officer while forwarding the accused to the
nearest magistrate should also transmit a copy of the
entries in the diary relating to the case. The entries in
the diary are meant to afford to the magistrate the
necessary information upon which he can take the decision
whether the accused should be detained in the custody
further or not. It may be noted even at this stage the
magistrate can release him on bail if an application is
made and if he is satisfied that there are no grounds to
remand him to custody but if he is satisfied that further
remand is necessary then he should act as provided under
Section 167. It is at this stage sub-section (2) comes
into operation which is very much relevant for our purpose.
It lays down that the magistrate to whom the accused person
is thus forwarded may, whether he has or has not
jurisdiction to try the case, from time to time, authorise
the detention of the accused in such custody as he thinks
fit for a term not exceeding fifteen days in the whole. If
such magistrate has no jurisdiction to try the case or
commit it for trial and if he considers further detention
unnecessary, he may order the accused to be forwarded to a
magistrate having such jurisdiction. The Section is clear
in its terms. The magistrate under this Section can
authorise the detention of the accused in such custody as he
thinks fit but it should not exceed fifteen days in the
whole. Therefore the custody initially should not exceed
fifteen days in the whole. The custody can be police
custody or judicial custody as the magistrate thinks fit.
The words "such custody" and "for a term not exceeding
fifteen days in the whole" are very significant. It is also
well-settled now that the period of fifteen days starts
running as soon as the accused is produced before the
Magistrate.
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Now comes the proviso inserted by Act No. 45 of 1978
which is of vital importance in deciding the question before
us. This proviso comes into operation where the magistrate
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thinks fit that further detention beyond the period of
fifteen days is necessary and it lays down that the
magistrate may authorise the detention of the accused person
otherwise than in the custody of the police beyond the
period of fifteen days. The words ‘otherwise than in the
custody of the police beyond the period of fifteen days’ are
again very significant.
The learned Additional Solicitor General, appearing for
the C.B.I., contended that a combined reading of Section
167(2) and the proviso therein would make it clear that if
for any reason the police custody cannot be obtained during
the period of first fifteen days yet a remand to the police
custody even later is not precluded and what all that is
required is that such police custody in the whole should not
exceed fifteen days. According to him there could be cases
where a remand to police custody would become absolutely
necessary at a later stage even though such an accused is
under judicial custody as per the orders of the magistrate
passed under the proviso. The learned Additional Solicitor
General gave some instances like holding an identification
parade or interrogation on the basis of the new material
discovered during the investigation. He also submitted that
some of the judgments of the High Courts particularly that
of the Delhi High Court relied upon by the Chief
Metropolitan Magistrate do not lay down the correct position
of law in this regard. In Gian Singh v. State (Delhi
Administaration), 1981 Cr.L.J. 100 a learned Single Judge of
the High Court held that once the accused is remanded to
judicial custody he cannot be sent back again to police
custody in connection with or in continuation of the same
investigation even though the first period of fifteen days
has not exhausted. Again the same learned Judge Justice
M.L.Jain in Trilochan Singh v. The State (Delhi
Administration), 1981 Crl.L.J. 1773 took the same view. In
State (Delhi Administration) v. Dharam Pal and others, 1982
Cr.L.J. 1103 a Division Bench of the Delhi High Court
overruled the learned Single Judge’s case and Trilochan
Singh’s case. The Divison Bench held that the words ˜from
time to time" occurring in the Section show that several
orders can be passed under Section 167(2) and that the
nature of the custody can be altered from judicial custody
to police custody and vice-versa during the first period of
fifteen days mentioned in Section 167(2) of the Code and
that after fifteen days the accused could only be kept in
judicial custody or any other custody as ordered by
170
the magistrate but not in the custody of the police. In
arriving at this conclusion the Division Bench sought
support on an earlier decision in State v. Mehar Chand, 1969
Delhi Law Times 179. In that case the accused had been
arrested for an offence of kidnapping and after the expiry
of the first period of fifteen days the accused was in
judicial custody under Section 344 Cr.P.C.(old code). At
that stage the police found on investigation that an offence
of murder also was prima facie made out against the said
accused. Then the question arose whether the said accused
who was in judicial custody should be sent to the police
custody on the basis of the discovery that there was an
aggravated offence. The magistrate refused to permit the
accused to be put in police custody. The same was questioned
before the High Court. Hardy, J. held that an accused who is
in magisterial custody in one case can be allowed to be
remanded to police custody in other case and on the same
rule he can be remanded to police custody at a subsequent
stage of investigation in the same case when the information
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discloses his complicity in more serious offences and that
on principle,there is no difference at all between the two
types of cases. The learned Judge further stated as under:
"I see no insuperable difficulty in the way of the
police arresting the accused for the second time
for the offence for which he is now wanted by them.
The accused being already in magisterial custody
it is open to the learned magistrate under Sec.
167(2) to take the accused out of jail or judicial
custody and hand him over to the police for the
maximum period of 15 days provided in that section.
All that he is required to do is to satisfy himself
that a good case is made out for detaining the
accused in police custody in connection with
investigation of the case. It may be that the
offences for which the accused is now wanted by the
police relate to the same case but these are
altogether different offences and in a way
therefore it is quite legitimate to say that it is
a different case in which the complicity of the
accused has been discovered and police in order to
complete their investigation of that case require
that the accused should be associated with that
investigation in some way."
The Division Bench in Dharam Pal’s case referring to
these observations of Hardy, J. observed that "We completely
agree with Hardy, J. in
171
coming to the conclusion that the Magistrate has to find out
whether there is a good case for grant of police custody." A
perusal of the later part of the judgment in Dharam Pal’s
case would show that the Division Bench referred to these
observations in support of the view that the nature of the
custody can be altered from judicial custody to police
custody or vice-versa during the first period of fifteen
days mentioned in Section 167(2) of the Code, but however
firmly concluded that after fifteen days the accused could
only be in judicial custody or any other custody as ordered
by the magistrate but not in police custody. Then there is
one more decision of the Delhi High Court in State (Delhi
Administration) v. Ravinder Kumar Bhatnagar, 1982 Crl.L.J.
2366 where a Single Judge after relying on the judgment of
the Division Bench in Dharam Pal’s case held that the
language of Section 167(2) is plain and that words "for a
term not exceeding fifteen days in the whole" would clearly
indicate that those fifteen days begin to run immediately
after the accused is produced before the magistrate in
accordance with sub-section (1) and the police custody
cannot be granted after the lapse of the "first fifteen
days". In State of Kerala v. Sadanadan, (1984) K.L.T.747, a
Single Judge of the Kerala High Court held that the initial
detention of the accused by the magistrate can be only for
fifteen days in the whole and it may be either police
custody or judicial custody and during the period the
magistrate has jurisdiction to convert judicial custody to
police custody and vice-versa and the maximum period under
which the accused can be so detained is only fifteen days
and that after the expiry of fifteen days the proviso comes
into operation which expressly refers to police custody and
enjoins that there shall be no police custody and judicial
custody alone is possible when power is exercised under the
proviso. The learned Single Judge stated that in the case
before him the accused has already been in police custody
for fifteen days and therefore he could not be remanded to
police custody either under Section 167 or Section 309
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Cr.P.C.
The learned Additional Solicitor General submitted that
the observations made by Hardy, J. in Mehar Chand’s case
would indicate that during the investigation of the same
case in which the accused is arrested and is already in
custody if more offences committed in the same case come to
light there should be no bar to turn over the accused to
police custody even after the first period of fifteen days
and during the period of ninety days or sixty days in
respect of the investigation of the cases mentioned in
provisos (a) (i) and (ii) respectively. It may be noted
firstly that the Mehar
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Chand’s case was decided in respect of a case arising under
the old Code. If we examine the background in enacting the
new Section 167(2) and the proviso (a) as well as Section
309 of the new Code it becomes clear that the legislature
recognised that such custody namely police, judicial or any
other custody like detaining the arrested person in Nari
Sadans etc. should be in the whole for fifteen days and the
further custody under the proviso to Section 167 or under
Section 309 should only be judicial. In Chaganti
Satyanarayana and others v.State of Andhra Pradesh, [1986] 3
S.C.C.141 this Court examined the scope of Section 167(2)
provisos (a)(i) and (ii) and held that the period of fifteen
days, ninety days or sixty days prescribed therein are to
be computed from the date of remand of the accused and not
from the date of his arrest under Section 57 and that remand
to police custody cannot be beyond the period of fifteen
days and the further remand must be to judicial custody.
Though the point that precisely arose before this Court was
whether the period of remand prescribed should be computed
from the date of remand or from the date of arrest under
Section 57, there are certain observations throwing some
light on the scope of the nature of custody after the expiry
of the first remand of fifteen days and when the proviso
comes into operation. It was observed thus
As sub-section (2) of Section 167 as well as
proviso (1) of sub -section (2) of Section 309
relate to the powers of remand of a magistrate,
though under different situations, the two
provisions call for a harmonious reading insofar
as the periods of remand are concerned. It would,
therefore, follow that the words "15 days in the
whole "occurring in sub-section (2) of Section 167
would be tantamount to a period of "15 days at a
time" but subject to the condition that if the
accused is to be remanded to police custody the
remand should be for such period as is commensurate
with the requirements of a case with provision for
further extensions for restricted periods,if need
be, but in no case should the total period of
remand to police custody exceed 15 days. Where an
accused is placed in police custody for the maximum
period of 15 days allowed underlaw either pursuant
to a single order of remand or to more than one
order, when the remand is restricted on each
occasion to a lesser number of days , further
detention of the accused, if warranted, has to be
necessarily to judicial custody and not otherwise.
The legislature having provided for an accused
being placed under
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police custody under orders of remand for effective
investigation of cases has at the same time taken
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care to see that the interests of the accused are
not jeopardised by his being placed under police
custody beyond a total period of 15 days, under any
circumstances, irrespective of the gravity of
the offence or the serious nature of the case.
These observations make it clear that if an accused is
detained in police custody, the maximum period during which
he can be kept in such custody is only fifteen days either
pursuant to a single order or more than one when such orders
are for lesser number of days but on the whole such custody
cannot be beyond fifteen days and the further remand to
facilitate the investigation can only be by detention of the
accused in judicial custody.
Having regard to the words "in such custody as such
Magistrate thinks fit a term not exceeding fifteen days in
the whole" occurring in Sub-section (2) of Section 167 now
the question is whether it can be construed that the police
custody, if any, should be within this period of first
fifteen days and not later or alternatively in a case if
such remand had not been obtained or the number of days of
police custody in the first fifteen days are less whether
the police can ask subsequently for police custody for full
period of fifteen days not availed earlier or for the
remaining days during the rest of the periods of ninety days
or sixty days covered by the proviso. The decisions
mentioned above do not deal with this question precisely
except the judgment of the Delhi High Court in Dharam Pal’s
case. Taking the plain language into consideration
particularly the words "otherwise than in the custody of the
police beyond the period of fifteen days" in the proviso it
has to be held that the custody after the expiry of the
first fifteen days can only be judicial custody during the
rest of the periods of ninety days or sixty days and that
police custody if found necessary of fifteen days. To this
extent the view taken in Dharam Pal’s case is correct.
At this juncture we want to make another aspect clear
namely the computation of period of remand. The proviso to
Section 167(2) clearly lays down that the total period of
detention should not exceed ninety days in cases where the
investigation relates to serious offences mentioned therein
and sixty days in other cases and if by that time
congnizance is not
174
taken on the expiry of the said periods the accused shall be
released on bail as mentioned therein. In Chaganti
Satyanarayan’s case it was held that "It, therefore, stands
to reason that the total period of 90 days or 60 days can
begin to run from the date of order or remand." Therefore
the first period of detention should be computed from the
date of order or remand. Section 167(2A) which has been
introduced for pragmatic reasons states than if an arrested
person is produced before and Executive Magistrate for
remand the said Magistrate may authorise the detention of
the accused not exceeding seven days in aggregate. It
further provides that the period of remand by the Executive
Magistrate should also be taken into account for computing
the period specified in the proviso i.e. aggregate periods
of ninety days or sixty days. Since the Executive
Magistrate is empowered to order detention only for seven
days in such custody as he thinks fit, he should therefore
either release the accused or transmit him to the nearest
Judicial Magistrate together with the entries in the diary
before the expiry of seven days. The Section also lays down
that the Judicial Magistrate who is competent to make
further orders of detention, for the purposes of computing
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the period of detention has to take into consideration the
period of detention ordered by the Executive Magistrate.
Therefore on a combined reading of Section 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 Section 167(2) for the rest of the
first fifteen days after deducting the period of detention
ordered by the Executive Magistrate. The detention
thereafter could only be in judicial custody. Likewise the
remand under Section 309 Cr. P.C. can be only to judicial
custody interims mentioned therein. This has been concluded
by this Court and the language of the Section also is clear.
Section 309 comes into operation after taking cognizance and
not during the period of investigation and the remand under
this provision can only be to judicial custody and there
cannot be any controversy about the same., vide Natabar
Parida and other v. State of Orissa, [1975] 2 SCC 220.
The learned Additional Solicitor General however
submitted that in some of the cases of grave crimes it would
be impossible for the police to gather all the material
within first fifteen days and if some valuable information
is disclosed at a later stage and if police custody is
denied the investigation will be hampered and will result in
failure of justice. There may be some force in this
submission but the purpose of police custody
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and the approach of the legislature in placing limitations
on this are obvious. The proviso to Section 167 is explicit
on this aspect. The detention in police custody generally
disfavoured by law. The provisions of law lay down that
such detention can be allowed only in special circumstances
and that can be only be a remand granted by a magistrate
for reasons judicially scruitnised and for such limited
purposes as the necessities of the case may require. The
scheme of Section 167 is obvious and is intended to protect
the accused from the methods which may be adopted by some
overzealous and unscrupulous police officers. Article 22
(2) of the Constitution of India and Section 57 of Cr.P.C
give a mandate that every person who is arrested and
detained in police custody shall be produced before the
nearest magistrate within a period of 24 hours of such
arrest excluding the time necessary for the journey from the
place of the arrest to the court of the magistrate and no
such person shall be detained in the custody beyond the said
period without the authority of a magistrate. These two
provisions clearly manifest the intention of the law in this
regard and therefore it is the magistrate who has to
judicially scrutinise circumstances and if satisfied can
order the detention of the accused in police custody.
Section 167(3) requires that the magistrate should give
reasons for authorising the detention in the custody of the
police. It can be thus seen that the whole scheme
underlying the Section is intended to limit the period of
police custody. However, taking into account the
difficulties which may arise in completion of the
investigation of cases of serious nature the legislature
added the proviso providing for further detention of the
accused for a period of ninety days but in clear terms it is
mentioned in the proviso that such detention could only be
in the judicial custody . During this period the police are
expected to complete the investigation even in serious
cases. Likewise within the period of sixty days they are
expected to complete the investigation in respect of other
offences. The legislature however disfavoured even the
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prolonged judicial custody during investigation. That is
why the proviso lays down that on the expiry of ninety days
or sixty days the accused shall be released on bail if he
is prepared to and does furnish bail. If as contended by
the learned Additional Solicitor General a further
interrogation is necessary after the expiry of the period of
first fifteen days there is no bar for interrogating the
accused who is in judicial custody during the periods of 90
days or 60 days. We are therefore unable to accept this
contention.
A question may then arise whether a person arrested in
respect of
176
an offence alleged to have been committed by him during an
occurrence can be detained again in police custody in
respect of another offence committed by him in the same case
and which fact comes to light after the expiry of the period
of first fifteen days of his arrest. The learned Additional
Solicitor General submitted that as a result of the
investigation carried on and the evidence collected by the
police the arrested accused may be found to be involved in
more serious offences than the one for which he was
originally arrested and that in such a case there is no
reason as to why the accused who is in magisterial custody
should not be turned over to police custody at a subsequent
stage of investigation when the information discloses his
complicity in more serious offences. We are unable to
agree. In one occurrence it may so happen that the accused
might have committed several offences and the police may
arrest him in connection with one or two offences on the
basis of the available information and obtain police
custody. If during the investigation his complicity in more
serious offences during the same occurrence is disclosed
that does not authorise the police to ask for police custody
for a further period after the expiry of the first fifteen
days. If that is permitted than the police can go on
adding some offence or the other of a serious nature at
various stages and seek further detention in police custody
repeatedly, this would defeat the very object underlying
Section 167. However, we must clarify that this limitation
shall not apply to a different occurrence in which
complicity of the arrested accused is disclosed. That would
be as different transaction and if an accused is in
judicial custody in connection with one case and to enable
the police to complete their investigation of the other case
they can require his detention in police custody for the
purpose of associating him with the investigation of the
other case. In such a situation he must be formally
arrested in connection with other case and then obtain the
order of the magistrate for detention in police custody.
The learned Additional Solicitor General however strongly
relied on some of the observations made by Hardy, J. in
Mehar Chand’s case extracted above in support of his
contention namely that an arrested accused who is in
judicial custody can be turned over to police custody even
after the expiry of first fifteen days at a subsequent
stage of the investigation in the same case if the
information discloses his complicity in more serious
offences. We are unable to agree that the mere fact that
some more offences alleged to have been committed by the
arrested accused in the same case are discovered in the same
case would by itself render it to be a different case. All
these offences
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including the so-called serious offences discovered at a
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later stage arise out of the same transaction in connection
with which the accused was arrested. Therefore there is a
marked difference between the two situations. The
occurrences constituting two different transaction give rise
to two different cases and the exercise of power under
Section 167(1) and (2) should be in consonance with the
object underlying the said provision in respect of each of
those occurrences which constitute two different cases.
Investigation in one specific case cannot be the same as in
the other. Arrest and detention in custody in the context
of Sections 167(1) and (2) of the Code has to be truly
viewed with regard to the investigation of that specific
case in which the accused person has been taken into
custody. In S. Harsimran Singh v. State of Punjab, 1984
Crl. L.J. 253 a Division Bench of the Punjab and Haryana
High Court considered the question whether the limit of
police custody exceeding fifteen days as prescribed by
Section 167(2) is applicable only to single case or is
attracted to a series of different cases requiring
investigation against the same accused and held thus:
"We see no inflexible bar against a person in
custody with regard to investigation of a
particular offence being either re-arrested for the
purpose of the investigation of an altogether
different offence. To put it in other words, there
is no insurmountable hurdle in the conversion of
judicial custody into police custody by an order of
the Magistrate under S.167(2) of the Code for
investigation another offence. Therefore, a
rearrest or second arrest in a different case is
not necessarily beyond the ken of law".
This view of the Division Bench of the Punjab & Haryana
High Court appears to be practicable and also conforms to
Section 167. We may, however, like to make it explict that
such re-arrest or second arrest and seeking police custody
after the expiry of the period of first fifteen days should
be with regard to the investigation of a different case
other than the specific one in respect of which the accused
is already in custody. A literal construction of Section
167(2) to the effect that a fresh remand for police custody
of a person already in judicial custody during investigation
of a specific case cannot under any circumstances be issued,
would seriously hamper the very investigation of the other
case the importance of which needs no special emphasis. The
procedural law is meant to further the ends of justice and
not to frustrate the same. It is an accepted rule that an
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interpretation which furthers the ends of justice should be
preferred. It is true that the police custody is not the
be-all and end-all of the whole investigation but yet it is
one of its primary requisites particularly in the
investigation of serious and henious crimes. The
legislature also noticed this and permitted limited police
custody. The period of first fifteen days should naturally
apply in respect of the investigation of that specific case
for which the accused is held in custody. But such custody
cannot further held to be a bar for invoking a fresh remand
to such custody like police custody in respect of an
altogether different case involving the same accused.
As the points considered above have an important
bearing in discharge of the day-to-day magisterial powers
contemplated under Section 167(2), we think it appropriate
to sum up briefly our conclusions as under :
Whenever any person is arrested under Section 57
Cr.P.C. he should be produced before the nearest Magistrate
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within 24 hours as mentioned therein. Such Magistrate may
or may not have jurisdiction to try the case. If Judicial
Magistrate is not available, the police officer may transmit
the arrested accused to the nearest Executive Magistrate on
whom the judicial powers have been conferred. The Judicial
Magistrate can in the first instance authorise the detention
of the accused in such custody i.e. either police or
judicial from time to time but the total period of detention
cannot exceed fifteen day in the whole. Within this period
of fifteen days there can be more than one order changing
the nature of such custody either from police to judicial or
vice-versa. If the arrested accused is produced before the
Executive Magistrate he is empowered to authorise the
detention in such custody either police or judicial only for
a week, in the same manner namely by one or more orders but
after one week he should transmit him to the nearest
Judicial Magistrate along with the records. When the
arrested accused is so transmitted the Judicial Magistrate,
for the remaining period, that is to say excluding one week
or the number of days of detention ordered by the Executive
Magistrate, may authorise further detention within that
period of first fifteen days to such custody either police
or judicial. After the expiry of the first period of
fifteen days the further remand during the period o;f
investigation can only be in judicial custody. There cannot
be any detention in the police custody after the expiry of
first fifteen days even in a case where some more offences
either serious or otherwise committed by him in the same
transaction come to
179
light at a later stage. But this bar does not apply if the
same arrested accused is involved in a different case
arising out of a different transaction. Even if he is in
judicial custody in connection with the investigation of the
earlier case he can formally be arrested regarding his
involvement in the different case and associate him with the
investigation of that other case and the Magistrate can act
as provided under Section 167(2) and the proviso and can
remand him to such custody as mentioned therein during the
first period of fifteen days and thereafter in accordance
with the proviso as discussed above. If the investigation
is not completed within the period of ninety days or sixty
days then the accused has to be released on bail as provided
under the proviso to Section 167(2). The period of ninety
days or sixty days has to be computed from the date of
detention as per the orders of the Magistrate and not from
the date of arrest by the police. Consequently the first
period of fifteen days mentioned in Section 167(2) has to be
computed from the date of such detention and after the
expiry of the period of first fifteen days it should be
only judicial custody.
We may, however, in the end clarify that the position
of law stated above applies to Section 167 as it stands in
the Code. If there are any State amendments enlarging the
periods of detention, different consideration may arise on
the basis of the language employed in those amendments.
The appeals are accordingly dismissed.
V.P.R. Appeals dismissed.
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