The Supreme Court, in its analysis in a recent case titled CBI vs. Vikas Mishra (hereafter ‘Vikas Mishra’)[1] has said that it has become necessary to reconsider the view that there cannot be police custody beyond fifteen days from the date of arrest. However, this goes against well-reasoned principles that are in line with CrPC’s scheme of placing the accused at the centre of the criminal justice system.

In this paper, I seek to analyse and assess different cases that have dealt with this specific aspect and argue that allowing police custody beyond the period of 15 days would be prejudicial to various right of the accused and pose itself in contradiction to legislative intent. I’ve also taken a look at certain international conventions that India is a party to in order to demonstrate that the rights of the accused hold significance not just in India but rather throughout the globe.

WHAT THE PROVISION IN THE CODE SAYS

Section 167(2) of the CrPC governs the issue concerned. The said sub-section is quoted below:

“167. Procedure when investigation cannot be completed in twenty four hours.

(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”[2]

On the face of it, section 167(2) does not prescribe whether the custody of the accused during the initial 15 days ought be with the police or whether he/she ought to be kept in judicial custody. It only gives power to the magistrate to authorise detention of the accused in such custody as he thinks fit. However, it is good law that custody during the intial 15 days can be both police as well as judicial custody.

Hence, in order to understand the nuances and intricacies of section 167(2), it is important to look at how the courts and interpreted and explained the scope, ambit and powers inherent under the said section.

IMPORTANT CASES

CBI vs Anupam J Kulkarni –[3]

This is the landmark case that deals with the question of custody under section 167(2). The main question that the court dealt with in this case was whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) CrPC can still be remanded to police custody after the expiry of the initial period of 15 days. In this case, the magistrate had not arraigned the accused to police custody during the initial 15 days. Due to this fact, the investigating officer filed an application before the magistrate stating that the case could not be investigated properly and thus requested the magistrate to authorize the detention of the accused in police custody in order to facilitate interrogation and investigation. The Supreme Court held that custody initially must not exceed 15 days in the whole. That custody can be both police as well as judicial custody. It also said that the period of 15 days started running from the day the accused was produced before the magistrate.

The Court also made a few observations with respect to the proviso to section 167. Proviso (a) to section 167(2) is worded as follows:

[(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;]

The Supreme Court interpreted this proviso in such a way as to mean that if the accused was detained in police custody, the maximum period for which he could be kept in such custody is only 15 days, either pursuant to a single order or more than one orders by the magistrate. But, on a whole, it could not be more than 15 days and any further remand of the accused could only be to judicial custody.[4]

This case also dealt with the legislative intent behind the introduction of this section. The Court noted that the old section 167 (of the 1898 version of the CrPC) provided for the detention of the accused for a term not exceeding fifteen days on the whole, unlike the current provision which has made room for detention up to even 90 days. It was observed that that provision (the old section 167) was not adhered to in spirit. The police used to file an incomplete preliminary charge-sheet and move the court for remand under section 344 (which has been replaced by section 309 of the current CrPC). It was then that the Law Commission took up this issue and made certain recommendations in the statement of objects and reasons of the current CrPC when it was introduced as a bill.[5]

On the grounds of inability or the impracticability of completing the investigation within a mere fifteen-day period, the commission recommended that the period of custody ought to be extended beyond 15 days. However, it said that it ought not to be mandatory and that the discretion to grant further custody must lie with the magistrate, who had to apply his judicial mind to arrive at a decision with regard to whether s(he) ought to grant further custody beyond the period of 15 days in the interest of justice.[6]

Gian Singh vs. State (Delhi Administration)[7]

In this case, a single judge bench of the High Court of Delhi had taken the view 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.[8] However, this decision was overruled in Anupam J Kulkarni’s case. It was held that custody can be of either form (police or judicial) during the initial fifteen days, even if the magistrate, to begin with, had ordered judicial custody of the accused.

State (Delhi Administration) vs. Dharam Pal – [9]

In this case, it was (rightly) held by a Division Bench of the High Court (effectively overruling Gian Singh’s case) that the phrase “from time to time” under section 167(2) indicated that multiple orders may be issued under the said section and that, during the first 15 days specified under section 167(2) of the code, the type of custody may be changed from judicial to police or vice versa. This, the court held, had to be done by the magistrate by applying his/her “judicial” mind to the case and his actions ought to be guided solely by the interest of justice. The division bench also held that after the initial fifteen days, the accused may only be arraigned to judicial custody and not in the custody of the police.

State of Kerala vs. Sadanandan – [10]

In this case, a single judge bench 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.”[11]

Conclusion (with respect to the cases)

The courts have clearly laid down the rule with respect to detention on the basis of justice and equity. Thus, there is no need for any amendments on this issue. Further, Article 21 of the Constitution guarantees the protection of life and personal liberty. This includes the right to a hassle-fair, non-abusive investigation process under the criminal justice system. Although not explicitly mentioned under this article is the duty of the criminal justice system to make sure the processes entailing the criminal trial are right, just, and fair, and not arbitrary, fanciful or oppressive.[12] The accused cannot be heckled back and forth by the courts of law in the name of justice. A fundamental, principal aim of the criminal justice system is to balance the rights of the accused with the quest for truth and justice.

INTERNATIONAL CONVENTION

It is not the Courts in India that have vouched for better rights and safeguards to the accused. There are also present international conventions to which India is a party, that strive to protect, preserve and give effect to the rights of the accused.

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment – [13]

This is a significant international human rights instrument adopted by the United Nations General Assembly on 9 December, 1988. It serves as a framework for safeguarding the rights and dignity of individuals who have been detained or imprisoned, regardless of their reasons for detention. It comprises 39 principles,[14] some of which are the principles of non-discrimination, of prohibition of torture, of access to legal counsel, Habeas Corpus, of dignity of the individual under custody and so on. It serves as a valuable reference for countries to ensure that the rights and dignity of persons under detention are protected, preserved, and respected.

Further, it also deals with the aspect of custodial torture. It refers to the use of physical or psychological violence and coercion by custodial authorities and other law enforcement officers. It occurs typically within the confines of a police station, prisons, detention centres, etc.

CONCLUSION

Section 167(2) of the CrPC plays a pivotal role in regulation the processes of detention, investigation, and custody of an accused individual, ensuring that the principles of justice, fairness and human rights are upheld. In light of judicial interpretations, international conventions as well as the growing prevalence of custodial torture, I argue that there is no need to reconsider the issue of a magistrate arraigning the accused to police custody beyond the initial period of fifteen days.

In sum, I argue that the law laid down by the Supreme Court in CBI vs Anupam J Kulkarni is good law and there is no need to reconsider the aspect of extending the detention of the accused under police custody beyond the initial period of fifteen days.  

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[1] CBI v. Vikas Sharma, 2023 LiveLaw SC 283

[2] The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 167(2)

[3] CBI v. Anupam J Kulkarni, (1992) 3 SCC 141.

[4] Id. pp. 8

[5] Id. pp. 4

[6] ibid

[7] Gian Singh v. State (Delhi Administration), MANU/DE/0052/1982

[8] Ibid

[9] State (Delhi Administration) v. Dharam Pal, MANU/DE/0059/1981

[10] State of Kerala v. K.V. Sadanandan, 1984 CriLJ 1823

[11] ibid

[12] Maneka Gandhi v. Union of India, MANU/SC/0133/1978

[13] Office of the High Commissioner of Human Rights, The Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, UN Doc General Assembly Resolution 2200A (XXI) (Dec. 09, 1988)

[14] Ibid

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Author: Dhani Hiremath

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