JUDICIAL CUSTODY AND POLICE CUSTODY – RECENT TRENDS

INTRODUCTION:
Public trial in open Court is undoubtedly essential for the healthy, objective and fair administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, Courts must generally hear causes in open and must permit the public admission to the Court-room. See. Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr, 1967 AIR, 1 1966 SCR (3) 744.

Article 22 (2) of the Constitution of India and Section 57 of Cr. P.C. give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. (See. State(Delhi Admn.) v. Dharam Pal and others, 1982 Crl. L.J.1103; Trilochan Singh’s case (infra); Also see. Central Bureau Of Investigation vs. Anupam J. Kulkarni, 1992 AIR 1768, 1992 SCR (3) 158.

When does Section 167 come into play?
Section 167 of Cr.P.C does not confer power on a Magistrate to dispense with police custody but what it does is to empower him to extend such custody beyond what is permitted under Section 57 thereof. Reading these two sections together one can safely conclude that Section 167 comes into play only when

(1) the accused is arrested without warrant and is detained by a police officer,
(2) it appears that more than twenty-four hours will be needed for investigation,
(3) there are grounds for believing that the accusation or information against him is well founded, and
(4) the officer in charge of the police station or the investigating officer not below the rank of a Sub-Inspector forwards the accused before the Magistrate.

When this happens, the Magistrate can refuse to detain him or direct his detention either in police custody or judicial custody. When once he directs judicial custody, there is no question of police remand for the simple reason that the conditions aforesaid are no more there. See.Trilochan Singh vs The State (Delhi Administration, 20 (1981) DLT 20 b.

The detention in police custody is generally disfavoured by law:-
The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers.

Accused should be produced before the nearest Magistrate within 24 hours:- Whenever any person is arrested under Section 54 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.

Custody of accused – either police or judicial from time to time:- 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 days in the whole. The Privy Council in Emperor Vs. Khwaia Nazir Ahmad, AIR 1945 PC 18 : 1945-46 Cri LJ 413 that under the Code there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime and that the functions of the judiciary and the police are complementary and not overlapping in this regard. On larger principle also, it seems apt that whilst the accused person must be guaranteed a fair investigation and a judicial trial thereafter, yet equally the police, which has a statutory duty to investigate, is not hampered or obstructed in the delicate task of unravelling crime at the threshold stage of the investigation. Therefore, the interpretative approach to these provisions is to strike a true balance in the larger social interest between a competent and incisive investigation into serious crimes by the police, on the one hand and the guaranteed right of the citizen to personal liberty under a reasonable and fair procedure established by law, on the other. See. S. Harsimran Singh vs State Of Punjab,1984 CriLJ 253. 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.

Executive Magistrate is empowered to authorise accused to detain only for a week:- 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.

After the expiry of the first period of 15 days, the further remand during the period of investigation can only be in judicial custody:- 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 of 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.

What is the except to this general rule? 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) of Cr.P.C and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days thereafter in accordance with the proviso.

If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail :- 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) of Cr.P.C. 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.

Duty of the Magistrate:- Investigation is one of the steps in that direction and that has got to be regulated by the provisions of the Code. Section 167 of Cr.P.C. insists that judicial custody can be permitted for specified period if the police custody is refused, or if allowed, the permitted days of such custody are over, only where the Magistrate is satisfied that adequate grounds exist for doing so. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorised any type of custody. He cannot be permitted to make an argument of his own lapse in the matter. See. Trilochan Singh’s 20 (1981) DLT 20 b.

How to compute the first period of 15 days? The first period of fifteen days mentioned in Section 167 (2) of Cr.P.C 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. In Chaganti Satynarayana and Ors. Vs. State of Andhra Pradesh, [1986] 3 S.C.C.141 the Hon’ble Supreme Court examined the scope of Section 167 (2) provisos (a)(i) and (ii) and held that the period of fifteen days, ninety days or sixty days prescribed therein are to be computed from the date of remand of the accused and not from the date of his arrest under Section 57 and that remand to police custody cannot be beyond the period of fifteen days and the further remand must be to judicial custody. Though the point that precisely arose before the Apex Court was whether the period of remand prescribed should be computed from the date of remand or from the date of arrest under Section 57, there are certain observations throwing some light on the scope of the nature of custody after the expiry of the first remand of fifteen days and when the proviso comes into operation.  In Chaganti Satyanarayan’s case it was held that “It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order or remand.” Therefore the first period of detention should be computed from the date of order or remand.

Person arrested and produced before Magistrate-Remand to police
custody after initial period of 15 days-Whether legal.
It was observed thus As sub-section (2) of Section 167 as well as proviso (1) of sub -section (2) of Section 309 relate to the powers of remand of a magistrate, though under different situations, the two provisions call for a harmonious reading insofar as the periods of remand are concerned. It would, therefore, follow that the words “15 days in the whole “occurring in sub-section (2) of Section 167 would be tantamount to a period of “15 days at a time” but subject to the condition that if the accused is to be remanded to police custody the remand should be for such period as is commensurate with the requirements 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 days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody. See. Chaganti Satynarayana’s case; also See, Central Bureau Of Investigation vs. Anupam J. Kulkarni,1992 AIR 1768.

When formal arrest is necessary?
As seen from Central Bureau Of Investigation vs. Anupam J. Kulkarni,1992 AIR 1768, if during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, the Apex court clarified that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be as different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody.

Latest and Important judgments on the Police Custody and Judicial Custody:-

1. Sundeep Kumar Bafna vs State Of Maharashtra & Anr, Criminal Appeal No. 689 OF 2014[Arising out of SLP (Crl.)No.1348 of 2014, Dt. 27 March, 2014 where in it was observed that as follows: ”we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of Cr.P.C of the Code is made out by the investigating agency.” See. Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980 AIR 1632.

2. In Dinubhai Boghabhai Solanki vs State Of Gujarat & Ors, Criminal Appeal No. 492 OF 2014(Arising out of SLP (Crl.) No. 8406 of 2012)Date of judgment on 25 February, 2014, it was observed that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a world of difference between conclusions in two cases.” See. Bharat Petroleum Corporation … vs N.R. Vairamani And Anr.

3. As was observed in Dr KS Rao Vs. State of Hydrabad, AIR 1957 AP 416, in remanding the accused to police custody the Magistrate ought to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.

4. Important rulings as to the subject matter of ‘police custody and judicial custody’ — State Rep by Inspector of Police and Ors V NMT Joy Immaculate 2004 5 SCALE 330, CBI SIT New Delhi v Anupam J Kulkarni AIR 1992 SC 1768, Mithabhai Pashabhai Patel & Ors Vs St of Gujarat CDJ 2009 SC 1014.
5. S. Harsimran Singh vs State Of Punjab,1984 CriLJ 253
6. Gian Singh And Others vs State (Delhi Administration), 1981 CriLJ 670
7. Trilochan Singh vs The State (Delhi Administration, 20 (1981) DLT 20 b
8. Chaganti Satynarayana and Ors. Vs. State of Andhra Pradesh, [1986] 3 S.C.C.14. As was held in 1981 CriLJ 1773 (1776 – Para 9), Perusal of the case diary is a must before remand of any kind – be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody.

9. A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds. Remand order should not be passed mechanically without proper application of mind. State of UP versus RamsagarYadav, (1985) 1 Crimes 344.

10. S.167(2) only prescribes the maximum period of 15 days, but that does not authorize the Magistrate automatically to remand the accused for the period. At every stage when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient evidence against the accused and further evidence might be obtained; and it is only when the Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR 1956 Orissa 129.To authorize remand to Police custody is a very serious and sensitive judicial function of utmost responsibility.

11. The scheme of the section after the amendment of the year 1978 is intended to protect the accused from unscrupulous police officers. Great care has now been taken to see that the accused persons are not unnecessarily remanded. The object of the section is to see that the person arrested by the Police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the person produced should further be kept in Police custody and also to allow said accused to make such representation as he wish to make, 1980 CriLJ 1195.

12. The Magistrate should not authorize detention of an accused to any custody mechanically in routine. If the Law Officers charged with the obligation to protect the liberty of the person, are mindless of the constitutional mandate and the dictates of the Code, how can freedom survive for the ordinary citizen. See. Mantoo Majumdar Vs. State of Bihar, AIR 1980 SC 847.

13. It was held in Kana Vs. St of Rajasthan, 1980 CriLJ 344., Magistrate must give reasons for authorizing detention of accused to custody. Such orders cannot be passed as a matter of course.

14. Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. It is not a empty formality or a routine course to extend remand time and again as and when sought by the police. The order therefore should contain the reason to extend remand further. See. 2003 CriLJ 701 at page 702.
15. As has been observed in Muthoora Vs. Heera, AIR 1951 M B 70; 17 W R 55, if the evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that fresh evidence may turn up.
16. See Arnesh Kumar versus State of Bihar, JT 2014 (7) SC 527, Joginder Kumar Versus State Of Uttar Pradesh, 1994 (4) SCC 260 : AIR 1994 SC 1349, a critical and detailed observation of the Hon’ble Supreme Court in respect of unabated practice of mechanical arrests.
17. The Hon’ble Supreme Court in the case of Sanjay Chandra versus CBI (2012) 1 SCC 40 (Popularly known as 2G scam case), where in it was extensively discussed with the issue of granting or refusing the grant of Bail.
18. As was pointed out in Kalyan Chandra sarkar Vs. Rajesh Ranjan, AIR 2004 SC 1866, while a vague allegation that the accused may temper with the evidence or witnesses may not be a ground to refuse a bail, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or temper with the evidence, then bail may be refused.
19. In D K Basu versu State of West Bengal, AIR 1997 SC 610, the Hon’ble Supreme Court has given certain guidelines- 1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register; 2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning; 3) The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention; 4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest; 5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested; 6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention; 7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men; 8) While an accused is in Police custody, his lawyer should be permitted to visit him; 9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters.
20. Recent judgments in Rajesh Sharma Vs.Uttara Pradesh, Criminal Appeal NO. 1265 OF 2017[Arising out of Special Leave Petition (Crl.) No.2013 of 2017] which was pronounced in July 27, 2017 and Maharashtra -based NGO Nyayadhar’s cases are also relevant to understand the issue of restoration of immediate arrest in matrimonial cases.

Conclusion:-
As seen from Central Bureau Of Investigation vs. Anupam J. Kulkarni,1992 AIR 1768, whenever any person is arrested under Section 57 Cr.P.C. such person 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 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) of Cr.P.C 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) of Cr.P.C. 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) of Cr.P.C 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.

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