Police Remand or Police
Custody.
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 or information is
well-founded, the officer in charge of the police station or the police officer
making the investigation, if he 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 not jurisdiction to try the case, from time
to time, authorise the detention of the accused in such custody as such
Magistrate thinks fit, 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-
1[(a) The Magistrate may
authorize 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 offence
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
offence,
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 to released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under
this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in
this behalf by the high Court, shall authorize detention in the custody of the
police.
2[Explanation I. For the
avoidance of doubts, it is hereby declared that, notwithstanding the expiry of
the period specified in paragraph (a), the accused shall be detained in Custody
so long as he does not furnish bail.]
3[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 authorizing detention.
2[(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, lot reasons to be recorded in
writing, authoress the detention of the accused person in such custody as he
may think fit for a term not exceeding seven days in the aggregate; and on the
expiry of the period of detention so authorized, 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 paragraph (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 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 authorizing 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 in 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 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 specific.
See the Judgment:
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 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 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 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 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
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
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 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.
169
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 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
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
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
172
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
173
police
custody under orders of remand for effective investigation of cases has at the
same time taken 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 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 175
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
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
177
including
the so-called serious offences discovered at a 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 178
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 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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