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
Dev Chaudhary
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