The debate around the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”), as regards timing of police custody has reawakened since the Supreme Court in V. Senthil Balaji vs. State represented by Deputy Director & Ors.[1]; 2023 SCC Online SC 934(“Senthil Balaji Case”), sought to re-examine the position. In the course of assessing the import of Section 167(2) of CrPC, the Supreme Court has raised doubts on the otherwise settled position of law laid down in the Central Bureau of Investigation vs. Anupam J. Kulkarni[2];(1992) 3 SCC 141, later concurred by a Full Bench of the Supreme Court in Budh Singh vs. State of Punjab; (2000) 9 SCC 266. The Supreme Court has referred the matter to the Chief Justice of the Supreme Court for appropriate orders to form a larger bench.
Police vs. Judicial Custody: Powers Of Discretion Under Section 167(2) Of The Crpc:
Before delving into the question of import of Section 167(2) of the CrPC, it is imperative that the underlying importance of investigation, police custody and custodial interrogation is accredited and shed light upon. While police custody is not the be-all and end-all of the whole investigation, it is one of the primary requisites, particularly when investigating serious and heinous crimes.[3] The Supreme Court, in a plethora of judgements, has acknowledged how effective and necessary custodial interrogation is, to collect evidence for proving an offence.[4] It thus becomes incumbent upon Courts to presume that police officers would conduct themselves in a manner that is responsible and not conduct themselves as offenders.[5] This seems to be the underlying intent and objective behind Section 167(2), which is to give powers to the police to interrogate and simultaneously empower the Magistrate to decide between police and judicial custody.
At this juncture, it would be relevant to note that during the first fifteen (15) days of detention of an accused, the custody can be changed from police custody to judicial custody and vice-versa and it can also be intermittent.[6] Against this backdrop, Courts have been vigilant in exercising the discretion accorded to them whenever an opportunity to decide between police and judicial custody is presented. The cautious stance was in full display when the Delhi High Court refused to grant further police custody after one day, holding that refusal to grant police custody does not mean that the investigating agency cannot probe and extract evidence from the accused persons in judicial custody, pursuant to permission of the relevant Magistrate.[7]
History: The age-old import of Section 167(2) of the Crpc
The Delhi High Court in 1982 had dealt with a similar question. It was of the view that police custody may only be allowed during the first fifteen (15) days as envisaged under Section 167(2) of CrPC. Further, the Delhi High Court had observed that the discretion to alter judicial custody to police custody and vice versa would only lie with the Magistrate in those first fifteen days.[8] The Supreme Court addressed this import of Section 167(2) of the CrPC for the first time in the Central Bureau of Investigation vs. Anupam J. Kulkarni. While the Supreme Court acknowledged the wide discretion that the provision accords to the Magistrate, it opined that the Magistrate could only authorise the detention of an accused in custody for a term not exceeding fifteen (15) days from the date of the arrest.
The Supreme Court in the Central Bureau of Investigation vs. Anupam Kulkarni, observed that detention in police custody is generally disfavoured by law. Despite this observation, the Court acknowledged that there might be cases of grave crimes where it might be impossible for the police to gather evidence within the first fifteen (15) days. In such cases, if some valuable information is disclosed at a later stage and police custody is denied, then the investigation is bound to be hampered and can result in failure of justice. However, the Supreme Court went on to hold that the purpose of police custody and the approach of the legislature places limitation on this.
Limiting the period of police custody to the first fifteen (15) days of arrest was relooked by the Supreme Court after two decades in CBI vs. Vikas Mishra;(2023) 6 SCC 49.[9] The Supreme Court sought to examine the law laid down by the Central Bureau of Investigation vs. Anupam Kulkarni and consequently opined that the law laid down therein should be reconsidered. Further, contradicting the dicta laid down in the Central Bureau of Investigation vs. Anupam Kulkarni, the Court took a positive view on the issue of allowing police custody after the first 15 days of arrest. However, the Supreme Court paused there and did not refer the matter to the larger bench. Interestingly, the Madras High Court in the State represented by the Taluk Circle Inspector of Police vs. Nagaraj and another; Crl.O.P.No.8883 of 2023, followed the decision of the Supreme Court in the CBI vs. Vikas Mishra and went on to allow police custody for a period of 24 hours after the completion of the first fifteen days.
Essential Ingredients of Section 167(2) of the Crpc – Following in the footsteps of the Senthil Balaji Case:
After the CBI vs. Vikas Mishra expressed doubts on the mandate and import of Section 167(2) of the CrPC, ambiguity in the interpretation of the provision has resurfaced in V. Senthil Balaji case. The Supreme Court has relied on various cases and rules of interpretation to substantiate its position that the period of fifteen (15) days for police custody is to be spread out across the investigation. The Supreme Court went on to dissect and interpret the various ingredients of Section 167(2) to reach its conclusion. Section 167(2) of the CrPC is reproduced hereinbelow:
“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, a term not exceeding fifteen days in the whole.”
Undoubtedly, the provision sets out an outer limit of fifteen (15) days beyond which police custody may not be allowed, however, the Supreme Court has, in this recent judgment, taken a view that Section 167(2) does not mandate that these fifteen (15) days should commence from the day of arrest. The use of the words in Section 167(2) such as “from time to time”, “magistrate thinks fit”, “not exceeding fifteen days in the whole”,[10] indicate the discretion provided by the legislation to the Magistrate to order police custody. The Supreme Court placed reliance on the State of Rajasthan vs. Basant Agrotech;(2013) 15 SCC 1, wherein the Supreme Court defined the term “time to time” to indicate that the power can be used “as occasion may arise” and will not mean from one fixed day to another.[11]
Further, reference was drawn to Kanai Lal Sur vs. Paramnidhi Sadhukhan ;AIR 1957 SC 907, wherein the Supreme Court had observed that the first and primary rule of construction is that the intention of legislature must be found in the words used by the legislature itself.[12] The Supreme Court in Senthil Balaji case further opined that Section 167(2) of the CrPC provides for a fine balancing between the liberty of the individual and proper investigation.
Concluding remarks:
It is a general rule of interpretation that the most functional and purposive interpretation must be given to the words of the statute.[13] The Senthil Balaji case attempts to recast the age-old understanding of the Courts in relation to the import of Section 167(2) of the CrPC. It would be interesting to note how the larger Bench of the Supreme Court, once formed, interprets the provision and whether it dissents from the settled position taken by the Supreme Court back in 1992.
It is noteworthy that Clause 187(2) has been introduced in the Bhartiya Nagarik Suraksha Sanhita (“Bill”), which corresponds to Section 167(2) of the present CrPC. Clause 187(2) of the Bill seems to give effect to the rationale of the Supreme Court judgment in the Senthil Balaji case and changes the phraseology of the erstwhile provision to clarify that the period of custody could be fifteen days in the whole or in parts. Essentially, it seems likely that the Parliament would give its imprimatur to the view taken by the Division Bench in the Senthil Balaji case and CBI vs. Vikas Mishra.
A far-reaching consequence of the view taken in Senthil Balaji case becoming the law, post affirmation by the larger Bench of the Supreme Court or the newly inserted provision in Bill finding place in the new legislation, could be on the provision of bail under the CrPC. Courts are usually more receptive to allowing bail applications during judicial custody of an accused person.[14] With the possibility of the accused being sent to police custody at any point during the investigation period, chances of him securing bail even during judicial custody might shrink. Consequently, it could impinge on the principally accepted rule of ‘Bail is the rule, jail is the exception’.
For further information, please contact:
Ankoosh Mehta, Partner, Cyril Amarchand Mangaldas
ankoosh.mehta@cyrilshroff.com
[1] V. Senthil Balaji vs. State represented by Deputy Director & Ors, 2023 SCC Online SC 934.
[2] Central Bureau of Investigation vs. Anupam J. Kulkarni, (1992) 3 SCC 141.
[3] The Inspector Of Police vs. K.C. Palanisamy, (2011) SCC OnLine Mad 1780.
[4] M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, AIR 2020 SC 5245; P. Chidambaram vs. Directorate of Enforcement, AIR Online 2019 SC 1001.
[5] State, represented by the CBI vs. Anil Sharma, (1997) 7 SCC 187
[6] Central Bureau of Investigation vs. Anupam J. Kulkarni, (1992) 3 SCC 141.
[7] Central Bureau of Investigation vs. E. Eswara Reddy & Ors, W.P.(CRL) 1409/2022.
[8] State (Delhi Administration) vs Dharam Pal & Ors, 1981 SCC OnLine Del 368.
[9] CBI vs. Vikas Mishra, (2023) 6 SCC 49.
[10] The Code of Criminal Procedure, § 167(2), 1973.
[11] State of Rajasthan vs. Basant Agrotech, (2013) 15 SCC 1.
[12] In Kanai Lal Sur vs. Paramnidhi Sadhukhan, AIR 1957 SC 907 (AIR p. 910, para 6).
[13] Franklin Templeton Trustee Services Private Limited vs. Amruta Garg and ors, (2021) 9 SCC 606.
[14] B. Rafeek v. Station House Officer, 2016 SCC OnLine Ker 38557.
