CBI  Vs Anupam Kulkarni

SUPREME COURT OF INDIA 

CBI  – Petitioner

Anupam Kulkarni – Respondent

Bench – REDDY, K. JAYACHANDRA

Facts of the Case

A case relating to the abduction of four diamond merchants and one K was registered at the 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.

Issues Involved

The main issues involved in this case are ;

1. Whether the remand for police custody can only be extended to 15 days?

2. Is there any provision that can allow police custody to be extended more than 15 days where police were not able  to have the accused under their custody within the given period of time by the court?

Contentions of petitioner

The Petitioner contended 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 the first fifteen days yet a remand to the police custody even later was not precluded.

Contentions of respondent 

The Respondent contended 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 the first 15 days remand did not arise.

Legal Provisions

• Section 167 of CrPC

• Article 22(2) of Constitution of India

• Section 57  CrPC

• Section 54 CrPC

Legal Reasoning

Section 167 CrPC

(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 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 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 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;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.  (a), the accused shall be detained in custody so long as he does not furnish bail;]. (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 reasons to be recorded in writing, authorise 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 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.

Article 22(2) of constitution

Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate

Section 57 CrPC

Person arrested should not be detained for more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.

Section 54 CrPC

Examination of the arrested person by medical practitioner at the request of the arrested person. When a person who is arrested, whether on a charge or otherwise alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

Judgement

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 a 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 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 considerations may arise on the basis of the language employed in those amendments.

The appeals are accordingly dismissed

Conclusion

In this case the question arises. the period of detention of. a accused for the  initial by  a judicial or police custody.here the respondent  was under the treatment in hospital during the period of police custody as mentioned by the court.so the investigating team challenged for the increase in   police   custody because it was difficult for them to interrogate the accused for more evidence but the first class magistrate dismissed the petition and send the accused to judicial custody.as they appealed to the high court the court had  even given  bail  to the accused this arised them to challenge it on supreme court but  court states there is no such provision in which the detention can be extended and hence dismissed all the petition.

In my opinion it should have been needed for an amendment in this rule otherwise the detention period can be misused by  the accused by having  checkups and all .

written by SHIBIN P intern under legal vidhiya