Rajiv Jain v. State

7. Section 167 (2) came up for interpretation before a Division Bench of this Court in State (Delhi Admn.) v. Dharam Pal (supra). It was held that the entire object of section 167 is to facilitate investigation and not detention without trial. The language used in the Section allows the Magistrate from time to time to pass an order placing the accused in such custody as he deems fit. Under Section 167(2) of the Cr.P.C., the Magistrate has power to alter the nature of the custody from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in Section 167(2) of the Cr.P.C. After the expiry of first period of fifteen days, the accused can only be kept in judicial custody or any other custody ordered by the Magistrate but certainly not in police custody.

8. While referring a judgment of the Single Bench of this Court in State v. Mehar Chand, (1969) 5 DLT 179, the Division Bench held that the only object of restricting the power of the police to detain the accused in their custody for a total period of fifteen days is to prevent the use of third degree methods by them. The Division Bench while agreeing to the view of Hardy, J., observed as under: “We completely agree with Hardy, J., in coming to the conclusion that the Magistrate has to find out whether there is a good case for grant of police custody. There is no sign in the Section that the nature of the custody cannot be altered. In fact, experience would show that investigation would be hampered and made more difficult if the nature of the custody was not capable of alteration in the first 15 days. It might be necessary to send the accused to a hospital for examination, or to produce him before a Magistrate for recording a confession. In such cases, a useful precaution to take is to send the accused to judicial custody so that the confession might be free and without pressure. Another example is provided on the facts of this case for enabling an identification parade to be held in the jail. Another possibility is that the police may not require the prisoner immediately for lack of material which might be forthcoming later. In such a case the period of police custody might be shortened by remanding the prisoner to judicial custody while the police is collecting the necessary material for further investigation. There can be many examples of this type dependent on the circumstances of the case.”

9. The Apex Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni (supra) while upholding the view of the Division Bench of this Court held that Section 167(2) 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 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.

10. It would be appropriate to refer paras 8 and 13 of the said judgment which read as under:

11. Admittedly, both the petitioners were arrested by the ED on 22nd August, 2017. On the same day they were produced before the learned Special Judge under PMLA who remanded them for three days ED custody. They were again produced before learned Special Judge on 25th August, 2017 and they were remanded to judicial custody for three days. They were again produced on 28th August, 2017 before learned ASJ and the ED requested for 14 days custody for both the petitioners and the learned ASJ without applying his mind to the relevant provision of Section 167 (2) of Cr.P.C. and the law laid down by the Division Bench of this Court in State (Delhi Admn.) v. Dharam Pal (supra) and by the Apex Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni, (supra), and despite the objection taken by learned counsel for the accused/petitioners granted 10 days ED police custody of both the petitioners to the investigation officer for completion of the investigation in the case.

12. Today, when the matter was taken up in the first call in the prelunch session, learned Central Government Standing Counsel, on instructions, submitted that custody of both the petitioners is no more required and today ED intends to produce the petitioners before the learned Special Judge under PMLA.

13. The matter was kept pending and is again taken up in the post lunch session. Learned Central Government Standing Counsel submits that both the petitioners were produced today before the learned Special Judge under PMLA and they have been remanded to the judicial custody. He submits that the impugned order remanding the petitioners cannot be termed per se illegal though the detention would have become illegal beyond fifteen days from the date when they were first produced before the learned Special Judge. He further submits that the impugned August, 2017 remanding the petitioners stands merged with the latest order passed today by which they were sent to judicial custody.

14. Per contra, the learned counsel for the petitioners submits that the impugned order of the learned ASJ dated 28th August, 2017 is apparently illegal and should be set aside in view of settled position in law in State (Delhi Admn.) v. Dharam Pal (supra) and Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni (supra).

15. Admittedly, since both the petitioners were produced before the learned Special Judge under PMLA for first time on 22nd August, 2017, the total period of custody/remand could not have been allowed beyond 5th September, 2017 when they would be completing fifteen days in custody. Learned ASJ could not have given the police/ED remand for more than fifteen days after the petitioners were produced on 22nd August, 2017. Therefore, the impugned order of the learned Special Judge dated 28th August, 2017, being per se illegal, perverse and whimsical, is set aside to the extent of remanding the accused persons beyond period of fifteen days as mandated by Section 167(2) of the Cr.P.C. The Judicial Officers/MM/Special Judges while dealing with the request for remand should be very precise, meticulous and cautious. 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. 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. The Judicial Officer shall ensure that from the first day of his production before him, the accused cannot be sent to police custody after completion of fifteen days. After the expiry of first period of fifteen days, the accused can only be kept in judicial custody but certainly not in police custody. The Judicial Officer is not a post office or mouthpiece of the prosecution and should act in a judicial manner and ensure compliance of Section 167(2) Cr.P.C. and law laid down by Hon’ble Supreme Court of India in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni (supra) and this Court in State (Delhi Admn.) v. Dharam Pal (supra) in its letter and spirit. The purity of justice must be maintained at all cost. It is not out of place to mention that the Public Prosecutor is the officer of the court and not the persecutor. He is supposed to assist the court in proper perspective. Before forwarding application for extension of remand by 14 days, he should have meticulously examined it to ensure that no violation of Section 167(2) of Cr.P.C. takes place. It is noted that the total period of custody with the police cannot exceed 15 days and at the time of making an application for extension of remand by 14 days, the accused had already been in custody for 6 days meaning thereby that he could not have been sent to police custody for more than 9 days. There was thus no occasion for seeking ED remand for 14 days.

16. Copy of this order be circulated to all the judicial officers for their guidance. Learned District & Sessions Judges are requested to sensitize the judicial officers posted under their jurisdiction.

VINOD GOEL, J. SEPTEMBER 04, 2017