Wednesday 28 September 2016

Central Bureau of Investigation Vs. Anupam J. Kulkarni AIR 1992 SC 1768

This important case that related the Remand of an accused came up before the Supreme Court in 1992. The Judgment was delivered by Justice Jayachandra Reddy. The fact situation was that 4 diamond merchants were abducted in Delhi on between 14th and 15th September, 1991 and one Mr. Kulkarni (the respondent) was also abducted along with them. It was later disclosed during the investigation by the CBI that Mr. Kulkarni was one of the associates of the accused responsible for the kidnapping. The timeline is as follows- Mr. Kulkarni was arrested on 4.10.91 and was produced in front of the CMM, Delhi on 5.10.91. He was remanded to judicial custody till 11.10.91. The investigating officer of the Police moved an application on 11.10.91 seeking police custody and was allowed. However, Mr. Kulkarni pretended to be ill on the way which led to his hospitalization and subsequent stay there till 21.10.91. He was again remanded to judicial custody till 29.10.91 and sent to jail. 

As the Police could not get him in police custody for a single day, the investigation officer again moved to court for police custody of Mr. Kulkarni after 29.10.91 and was refused. The matter was taken up the High Court which did not decide on the issue of remand to police custody after the expiry of first 15 days as in the Section 167 of the CrPC, hence the case.

The Supreme Court in its decision decided upon the issue that whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) of the CrPC can still be remanded to police custody after the expiry of the initial period of 15 days. This was the first time that this issue was taken up the Supreme Court.

The Court started off with looking into the recommendations that were in the objects and reasons of the Bill and in which it was said that conferring the Magistrate the power to extend the period of extension beyond 15 days was reasonable as compared to extending the period in the law from 15 days to 60 days as demanded. It noted that amendments were made into the CrPC through which the Magistrate was empowered to authorize remand for an aggregate period of 90 days and other in which the Executive Magistrate was also empowered to order remand if the Judicial Magistrate was unavailable. On the issue of starting of the 15 day period, the Court observed-“It is also well settled now that the period of 15 days starts running as soon as the accused is produced before the Magistrate.”

The appellant’s contention was 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.” Further, it was contended that further evidence which is sometimes collected at the later stages of investigation require the accused to remanded to police custody in some cases.  The Court went through the precedents and closely looked into the case of State( Delhi Administration) v Dharam Pal and others, 1982 Cr.L.J. 1103 and the judgment of Justice Hardy in State v Mehar Chand, 1969 Delhi Law Review 179 on which the Dharam Pal judgment relied. The cases ruled that the nature of custody could be altered from judicial custody to police custody or vice versa during the first period of 15 days as mentioned in Section 167(2) but after the 15 days, the accused could only be judicial custody.

Rejecting the other contentions of the Appellants that Mehar Chand’s case indicated that there should be no bar to turn an accused to the police custody even after the 15 days if further charges are found against him, the court opinioned that the Mehar Chand case was decided under the old CrPC and the intention of the new code is clear in itself the any kind of custody should not exceed beyond the 15 days and further detention could only be Judicial. Similarly, on the issue 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 Court looked into the plain text meaning of the provision and held that the custody could be only judicial custody after the first 15 days. It laid particular emphasis on the words in the law-“Otherwise than in custody of the police beyond the period of 15 days.”

The important observation made by the court was on the contention raised by the appellant that the denial of police custody at further stages on investigation would hamper it and result in failure of justice. The court to this point noted that-
The proviso to Section 167 is explicit on this aspect. 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. Article 22(2) of the Constitution of India and Section 57 of Cr. PC 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 scrutinize 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 authorizing 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.”

The Court however, was quick in adding that if further interrogation is necessary after the expiry of the first period of 15 days, there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days.

The next major issue was that of whether a person arrested in respect of 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 the first 15 days of his arrest. Rejecting the point, the court was of the opinion that if it is allowed, then the police would go on adding offences at various stages and obtain police custody. This in Court’s view defeated the very object underlying the Section 167 of the CrPC. However, it ruled that for a different case coming out of a different transaction, the bar would not apply and it would be acceptable to arrest a person in custody for a different case. It upheld the decision of the Haryana and Punjab High Court[1] in this matter.

Summing up the judgment relating to various aspects of remand and Section 167 of the CrPC, the Court ruled as follows-

Whenever any person is arrested under Section 57 Cr. PC 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 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. 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 alongwith 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 of investigation - can only be in judicial custody. There can not be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences eitherserious or otherwise committed by him in the same transaction come to 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.”


Although the Supreme Court in this judgment covered all the aspects that could have arisen out of the Section 167 of the CrPC and Remand to Police and Judicial custody, the Court had a mindset that could be called narrow while dealing with the police. The period was when the country was undergoing a change economically and socially and the Court could have broadened its view. With the advancement of science and technology and their subsequent use in crimes, the cases are becoming more and more difficult for the police to crack with its limited means and as such, more time is taken to complete investigation. Describing the police as “overzealous” and “unscrupulous”, the Court showed its complete distrust in the police system. 
The judgment on the whole was well reasoned and due reliance was placed upon the precedents, judgments of the lower courts, legislative history and various other materials.

Dev Chaudhary




[1] S. Harsimran Singh vs. State of Punjab, 1984 Crl. L.J. 253

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