Case Comment On Central Bureau Of Investigation v. Anupam J Kulkarni (1992 AIR 1768)

About the Author

Nivea Robin D Cruz is a BA English and Communicative English graduate from All Saints’ College, Thiruvananthapuram. She is currently a 4th semester student pursuing Three Year Unitary LLB at Government Law College, Thiruvananthapuram.

FACTS

Mr. Kulkarni was arrested and produced before the Chief Metropolitan Magistrate, Delhi with respect to the abduction of four diamond merchants. He pretended to be sick and was admitted in Hospital for his treatment. Kulkarni was again remanded to judicial custody by the Magistrate 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 Admn.) v. Dharam Pal (1980 CriLJ 1394). A revision petition was filed before the High Court against the order of the Magistrate. The High Court granted the accused bail without deciding on the issue. Subsequently, the order of the High Court was challenged by the CBI.

ISSUES RAISED

Whether a person arrested and produced before the nearest magistrate as required under the section 167(1) Cr.P.C can still be remanded to police custody after the expiry of the initial period of 15 days?
Another issue which was raised before the court while referring to the case of State v. Mehar Chand ( 5 (1969) DLT 179) was 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?

CONTENTIONS OF CBI

The Additional Solicitor General appearing for C.B.I. contended that Dharam Pal’s case has been wrongly decided and the High Court has erred in granting bail to Shri Kulkarni without deciding the question whether he can be remanded to police custody. 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 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.

He criticized some of the judgments of the High Court:

Gian Singh v. State (Delhi Administration) (19 (1981) DLT 168)
Trilochan Singh v. The State (Delhi Administration) (20 (1981) DLT 20 b)
State (Delhi Administration) v. Dharam Pal (1980 CriLJ 1394), where the Delhi High Court overruled its decision in Gian Singh’s case and Trilochan Singh’s case and held that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first period of 15 days. After 15 days the accused could only be kept in judicial custody and not in police custody.
State v. Mehar Chand ( 5 (1969) DLT 179) – Referring to this case the court came up with the 2^nd issue.
State (Delhi Administration) v. Ravinder Kumar Bhatnagar (21 (1982) DLT 442)
State of Kerala v. Sadanadan (1984 CriLJ 1823)

CONTENTIONS OF RESPONDENT

Shri Ram Jethmalani, counsel for the respondent accused submitted that Section 167 Cr.P.C. 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 subsequent custody if any should only be judicial custody.

JUDGEMENT

The court referred to section 167 of Cr.P.C 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 Cr. P.C. 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 Judicial Magistrate is not available, the police officer may transmit the arrested accused to 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 him 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 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 Cr.P.C.

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 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 occurrences 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.

Note: Recently, in the case Central Bureau of Investigation v. Vishal Mishra ( Criminal Appeal No. 957 OF 2023), the court observed that it needs to reconsider this 1992 landmark judgement.

In this case, CBI had moved to the Supreme Court seeking additional custody of an accused Vikas Mishra, brother of former Trinamool Congress leader Vinay Mishra.Vikas was remanded to CBI custody for a period of seven days. However, he was hospitalized after two and a half days in custody and was later granted bail. His bail was cancelled and he was in judicial custody before being granted regular bail again. The investigative agency required for fresh custody of Vikas since he could not be interrogated by the CBI. Vikas’ lawyers opposed the fresh demand for police custody citing this 30-year-old precedent of the court which ruled that police custody beyond the period of 15 days from the date of arrest is not permissible. The court eventually granted four days of police custody to the CBI stating that it requires to reconsider its own 1992 ruling in the case of CBI v. Anupam J Kulkarni.