C.B.I. VS. Anupam J. Kulkarni – on 08.05.1992 An important question that arises for consideration is whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) Cr.P.C. can still be remanded to police custody after the expiry of the initial period of 15 days? This question was brought before the Hon’ble Supreme Court comprising K. JAYACHANDRA REDDY JUSTICE and the order was passed on 08.05.1
The case is related to the abduction of four Bombay based diamond merchants. Along with the four merchants, Mr. K. Kulkarni and Mr. Babulal were also kidnapped. On investigation, it was found that Mr. Kulkarni was one of the associates of the other accused responsible for the abduction. As Mr. Kulkarni didn’t cooperate with the investigation for all 15 days the Chief Metropolitan Magistrate refused the extension of police remand. This refusal caused an appeal in the High court of Delhi. Bail was granted in the High Court on the basis of the lag of proofs relating Mr.Kulkarni and others for the case of the abduction of four merchants. This was made an appeal in the Supreme Court.
The learned Additional Solicitor General appearing for the C.B.I. (appellant) the Chief Metropolitan Magistrate erred in not granting police custody. High Court erred has erred in granting bail to Shri. Kulkarni without deciding the question of whether he can be remanded to police custody as prayed.
Shri Ram Jethmalani learned counsel for the respondent stated Section 167 Cr.P.C which states that the Magistrate can grant police custody only for a period of first 15 days and no later subsequent custody if any should only be judicial custody and the question of granting police custody after the expiry of first 15 days remand does no arise.
As stated by section 167 of the Code of Criminal Procedure:
If an investigation cannot be completed within 24 hours the officer in charge of the police station or the investigating officer (not below the rank of sub-inspector) should transmit to the nearest Judicial Magistrate a copy of the entries and forward the accused to the Magistrate. If the Magistrate to whom the accused is brought has no jurisdiction, he can initially remand him for 15 days. To extend the time period after the period of 15 days he may forward it to a Magistrate having such jurisdiction provided that-
Only if the magistrate is satisfied that extension of the time period is valid and the magistrate having jurisdiction can only extend to a period of 90 days if the offense is punishable with death or life imprisonment or imprisonment for 10 years.
60 days for other offenses. The accused will be released in bail after the expiry of 60 or 90 days.
The Magistrate cannot give detention unless the accused is produced before him.
Thus the court opined that an accused can be remanded for a period of 15 days initially by the Magistrate even though he does not have the jurisdiction. But to extend the period of remand he has to pass the accused to the Magistrate who has jurisdiction over the issue as mentioned in section 167 of Cr.P.C. The Magistrate having jurisdiction can extend the remand period to either 60 or 90 days accordingly. But this extension will make the accused to come under judicial custody and not under police custody. The accused will be in police custody only for the first 15 days and after the extension, he will be brought under the judicial custody. Therefore the court dismissed the appeals accordingly.
The difference between police and judicial custody is as follows:
Police Custody means that the Accused is in control of the Police, and is kept in the Police Station. This is granted by the Court, when the Police authorities want to question the accused, during the investigation of the case. The Police authorities can freely interrogate the accused while he is in Police Custody. Judicial Custody means that the Accused is under control of the Court, and is kept in the Central Jail. The police authorities have no access to the accused and cannot question him without the explicit permission of the Court.
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– AKSHAYAN .K.S.
