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

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

FACTS

Mr. Anupam J. Kulkarni who was a businessman by profession was arrested and produced before the Chief Metropolitan Magistrate, Delhi who was the nearest magistrate as required under Section 167(1) Code of Criminal Procedure. The Central Bureau of Investigation (CBI) had formed a Special Investigation Cell-1 to investigate the case. During the investigation, it was discovered that Shri Kulkarni was one of the associates of the accused Shri R. Chaudhary responsible for the abduction of four diamond merchants namely Mahesh Manek, Ramanlal M. Shah, Kantibhai Pandya, and Subhash R. Shah, who were kidnapped from Mumbai and brought to Delhi in 1990. He pretended to be sick and was admitted in Hospital for his treatment. On the request of the C.B.I, Kulkarni was again remanded to judicial custody by the Magistrate till October 11, 1991 and thereafter he was sent to jail. The investigating officer applied to the Chief Metropolitan Magistrate for police custody of Kulkarni in view of the fact that the police could not take him into custody because of his admission in the hospital.  The remand of Kulkarni in police custody was refused by the court relying on the judgement of State (Delhi Administration) v. Dharam Pal (1980 Cri LJ 1394). A revision petition was filed before the High Court against the order of the Magistrate. The Delhi High Court did not decide whether or not a person can still be remanded to police custody by the Magistrate after the expiry of the initial period of 15 days therefore it granted the accused bail without deciding on the issue. Subsequently, the order of the High Court was challenged by the CBI.

ISSUES RAISED

1. Whether a person arrested and produced before the nearest magistrate as required under the section 167(1) CrPC can still be remanded to police custody after the expiry of the initial period of 15 days?
2. Whether a person arrested with respect to an offence committed by him during an occurrence, can be detained again in police custody with respect to another offence committed by him in the same case where the fact comes to light after the expiry of the period of 15 days of his arrest?
3. Did the High Court err in granting bail to Shri Kulkarni without deciding the question of whether he can be remanded to police custody as prayed for by the C.B.I?

CONTENTIONS OF THE PETITIONERS

The Additional Solicitor General appearing for the C.B.I. challenged the order of the High Court, contending that –  

• the Chief Metropolitan Magistrate erred in not granting police custody
• Dharam Pal’s case on which he placed reliance was wrongly decided
• the High Court erred in granting bail to Kulkarni without deciding the question whether he can be remanded to police custody
• 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

According to him there could be cases where a remand in police custody would become absolutely necessary at a later stage.

He also submitted that in cases of grave nature it would be impossible for the police to gather all the material facts within the first 15 days and if some valuable information is disclosed at a later stage, and if police custody is denied custody, the investigation will be hampered and will result in failure of justice.

CONTENTIONS OF THE RESPONDENTS

Shri Ram Jethmalani, counsel for the respondent accused submitted that Section 167 CrPC is clear and police custody if at all granted by the Magistrate, should only be 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.

JUDGEMENT

After a lengthy trial, the case was heard by the Delhi High Court, which held that the prosecution had successfully proved the charges against Kulkarni and his associates, including abduction, criminal conspiracy, and extortion. Kulkarni appealed against the decision in the Supreme Court, which upheld the lower court’s verdict and sentenced him to seven years’ rigorous imprisonment and a fine of Rs. 50,000.

The court referred to section 167 of CrPC. which elaborates in detail the procedure to be followed when the investigation cannot be completed in 24 hours. Article 22(2) of the Constitution of India and Section 57 of CrPC. mandates that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the magistrate court. 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. The Judicial Magistrate can authorize the detention of the accused in such custody, either police or judicial but cannot exceed 15 days. Within this period, he can order change in the nature of custody either from police to judicial or vice-versa. The Executive Magistrate is empowered to authorize the detention either in police or judicial custody only for a week, but after one week he should transmit it to the nearest Judicial Magistrate along with the records. When the arrested accused is transmitted to the Judicial Magistrate, for the remaining period, he may authorize further detention either to police or judicial custody. There cannot be any detention in the police custody after the expiry of the first 15 days in cases where more offences either serious or otherwise committed by him in the same transaction even when it comes to light at a later stage. This does not apply if the same arrested accused is involved in a different case arising out of a different transaction. If the investigation is not completed within the period of 90/60 days, the accused has to be released on bail as provided under the proviso to Section 167(2). After the expiry of the period of first 15 days the accused shall only be sent to judicial custody. Here, in this case, the accused has already been in police custody for 15 days and therefore he could not be remanded to police custody either under Section 167 or Section 309 CrPC. 

The court reaffirmed the decision in the case of Dharam Pal where it stated that the custody after the expiry of the first 15 days can only be in judicial custody. The court also stated that detention in police custody is generally disfavoured by law. Such detention can be allowed only in special circumstances and only by a remand granted by the magistrate for reasons judicially scrutinized and for the necessity of the case. 

Also, the Court held that even if during the investigation the complicity of the accused in more serious offences, during the same occurrence is disclosed, that does not authorize the police to ask for police custody for a further period after the expiry of the first 15 days. If that is permitted, then the police can go on adding offences of serious nature at various stages and seek further detention in police custody. But this limitation does not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction.

Thus, the Supreme Court in this case firmly held that, after the expiry of the first 15 days, the further remand during the period of investigation can only be in judicial custody. 

CONCLUSION

The appeals were dismissed and the Supreme Court affirmed the verdict of the lower court and found Anupam J. Kulkarni guilty of abduction, criminal conspiracy, and extortion.

The scheme of Section 167 is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. The legislature, however, disfavoured even the prolonged judicial custody during investigation. After the expiry of the first period of fifteen days, the further remand during the period of investigation can only be in judicial custody. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction.

written by Aditi Ananya intern under legal vidhiya

Admin