TMI Blog1992 (5) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... was entrusted to C.B.I. During investigation it was disclosed that not only the four diamond merchants but also Shri Kulkarni, who is the respondent before us and one driver Babulal were kidnapped between 14th and 15th September, 1991 from two Hotels at Delhi. It emerged during investigation that the said Shri Kulkarni was one of the associates of the accused one Shri R.Chaudhary responsible for the said kidnaping of the diamond merchants. On the basis of some available material Shri Kulkarni was arrested on 4.10.91 and was produced before the Chief Metropolitan Magistrate, Delhi on 5.10.91. On the request of the C.B.I. Shri Kulkarni was remanded to judicial custody till 11.10.91. On 10.10.91 a test identification parade was arranged but Shri Kulkarni refused to cooperate and his refusal was recorded by concerned Munsif Magistrate. On 11.10.91 an application was moved by the investigating officer seeking police custody of Shri Kulkarni which was allowed. When he was being taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the Hospital the same evening where he remained confined on the ground of illness up 21.10.91 and then he was referred to cardic Out-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 167. Procedure when investigation cannot be completed in twenty-four hours.- (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, he if 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a term not exceeding seven days in the aggregate, and, on the expiry of the period of the 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, shall be taken into account in computing the period specified in paragrah 2(a) of the proviso to sub- section (2); Provided that before the expiry of the period aforesaid, the Executive magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer-in-charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. While in some cases the delay in investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete the investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of extension beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such extension....... The Joint Committee, however, with a view to have the desired effect made provision for the release of the accused if investigation is not duly completed in case where accused has been in custody for some period. Sub-section (5) and (6) relating to offences punishable for imprisonment for two years were inserted and the Magistrate was authorised to stop further investigation and discharge the accused if the investigation could not be completed within six months. By the Cr. P.C. Amendment Act 1978 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in such custody as he thinks fit for a term not exceeding fifteen days in the whole. If such magistrate has no jurisdiction to try the case or commit it for trial and if he considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having such jurisdiction. The Section is clear in its terms. The magistrate under this Section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words such custody and for a term not exceeding fifteen days in the whole are very significant. It is also well-settled now that the period of fifteen days starts running as soon as the accused is produced before the Magistrate. Now comes the proviso inserted by Act No. 45 of 1978 which is of vital importance in deciding the question before us. This proviso comes into operation where the magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that the magistrate may autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other custody as ordered by the magistrate but not in the custody of the police. In arriving at this conclusion the Division Bench sought support on an earlier decision in State v. Mehar Chand, 1969 Delhi Law Times 179. In that case the accused had been arrested for an offence of kidnapping and after the expiry of the first period of fifteen days the accused was in judicial custody under Section 344 Cr.P.C.(old code). At that stage the police found on investigation that an offence of murder also was prima facie made out against the said accused. Then the question arose whether the said accused who was in judicial custody should be sent to the police custody on the basis of the discovery that there was an aggravated offence. The magistrate refused to permit the accused to be put in police custody. The same was questioned before the High Court. Hardy, J. held that an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in other case and on the same rule he can be remanded to police custody at a subsequent stage of investigation in the same case when the information discloses his complicity in more serious offences and that on principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) and the police custody cannot be granted after the lapse of the first fifteen days . In State of Kerala v. Sadanadan, (1984) K.L.T.747, a Single Judge 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. The learned Single Judge stated that in the case before him the accused has already been in police custody for fifteen days and therefore he could not be remanded to police custody either under Section 167 or Section 309 Cr.P.C. The learned Additional Solicitor General submitted that the observations made by Hardy, J. in Mehar Chand's case would indicate that during the investigation of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irements of a case with provision for further extensions for restricted periods,if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed underlaw either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days , further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise. The legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case. These observations make it clear that if an accused is detained in police custody, the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused not exceeding seven days in aggregate. It further provides that the period of remand by the Executive Magistrate should also be taken into account for computing the period specified in the proviso i.e. aggregate periods of ninety days or sixty days. Since the Executive Magistrate is empowered to order detention only for seven days in such custody as he thinks fit, he should therefore either release the accused or transmit him to the nearest Judicial Magistrate together with the entries in the diary before the expiry of seven days. The Section also lays down that the Judicial Magistrate who is competent to make further orders of detention, for the purposes of computing the period of detention has to take into consideration the period of detention ordered by the Executive Magistrate. Therefore on a combined reading of Section 167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under Section 167(2) for the rest of the first fifteen days after deducting the period of detention ordered by the Executive Magistrate. The detention there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. If as contended by the learned Additional Solicitor General a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transaction give rise to two different cases and the exercise of power under Section 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. Investigation in one specific case cannot be the same as in the other. Arrest and detention in custody in the context of Sections 167(1) and (2) of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused. As the points considered above have an important bearing in discharge of the day-to-day magisterial powers contemplated under Section 167(2), we think it appropriate to sum up briefly our conclusions as under : 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 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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