Police custody: India
This is a collection of articles archived for the excellence of their content. |
1992 ruling
Khadija Khan, April 13, 2023: The Indian Express
A bench comprising Justices MR Shah and CT Ravikumar observed that the court needs to review a landmark 1992 ruling, which held that no detention in police custody beyond the first 15 days’ arrest is permissible. Why does SC want a review and what changes if it is revisited?
What is the case about?
The Central Bureau of Investigation (CBI) had moved the Supreme Court seeking additional custody of an accused Vikas Mishra, brother of former Trinamool Congress leader Vinay Mishra. Vikas, who faces charges under the Prevention of Corruption Act and for breach of trust and conspiracy, was remanded to CBI custody for a period of seven days from 16 April 2021. However, Vikas was hospitalised 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’s claim is that it requires fresh custody of Vikas since he could not be interrogated by the CBI earlier despite police custody remand.
Vikas’s lawyers opposed this fresh demand for police custody citing a 30-year-old precedent of the court which has ruled that police custody which shall be beyond the period of 15 days from the date of arrest is not permissible.
The Supreme Court in Central Bureau of Intelligence vs Anupam J. Kulkarni held that an accused cannot be detained in police custody after the lapse of 15 days from the date of arrest.
In Vikas’s case, the court eventually granted four days of police custody to the CBI. “In light of the aforesaid facts and circumstances and the observations made by the learned Special Judge while cancelling the interim bail, the decision of this court in the case of Anupam J. Kulkarni is required to be considered,” the court said, referencing its own 1992 ruling rendered by a two-judge bench.
Both the 1992 ruling and the current one are by two-judge benches. A larger bench will have to now consider the issue afresh and clarify the law.
What does the law say about police custody?
Although magistrates mechanically grant police custody in virtually every case, the law allows police detention only in special circumstances. Police custody is granted by a magistrate for reasons that must be recorded in the order. Section 167 of the Code of Criminal Procedure governs how this works. In fact, the provision is titled “Procedure when investigation cannot be completed in twenty-four hours.” This means detention beyond 24 hours is an exception.
Section 167 (2) of the CrPC gives power to the Magistrate to “authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole.”
This provision, the SC said in the 1992 Anupam Kulkarni case is “intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers.”
Why is police custody allowed only at the time of arrest?
A complete reading of Section 167 CrPC essentially shows that after the 15-day police custody, further remand during the period of investigation can only be in judicial custody. Judicial custody is in a central jail under the supervision of a magistrate, whereas police custody would be in a police station for officers to interrogate an accused.
The law is a check on the state’s power to restrict an individual’s liberty so when the police know that they only have fifteen days, it will strive to finish the investigation on time. However, this is routinely circumvented using an exception to the 15-day rule.
The 15-day bar does not apply if the accused is involved in a different case arising out of a separate cause of action. Then, even if he is in judicial custody in one case, he can formally be arrested in the other case and the police can seek custody again, starting another 15-day cycle.
For example, in the case of Alt News co-founder Mohammed Zubair, multiple FIRs across the state were weaponised to continue the 15-day police custody cycle. Zubair was granted bail by the Supreme Court in July last year holding that there is no justification to keep him in continued custody.
What happens after the 15-day custody?
The CrPC allows an accused to be released on bail if the investigation is not completed within the prescribed number of days. This is usually referred to as ‘default bail’ or ‘statutory bail’.
The first limit is 24 hours. Then, this can be extended by a magistrate to a maximum of 15 days. Section 167(2) (a) allows the Magistrate to “authorise the detention of the accused person, otherwise than in the custody of the police” beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so. However, this too cannot exceed 60-90 days.
Essentially, it says that when further detention of an accused becomes necessary to complete the investigation, the Magistrate may authorize it, but not beyond 90 days for offences punishable with death, or life imprisonment and 60 days for all other offences.
In its 1975 ruling in “Matabar Parida vs. State of Orissa”, the Apex Court held that if it’s not possible to complete the investigation between the 60-90 day period, then even in “serious and ghastly types of crime” the accused will be entitled to be released on bail.
The objective of this provision is to ensure the investigating agency completes its investigation expeditiously within a reasonable time.
Time in hospital
Hospital, time in, will not be part of police custody period: SC
AmitAnand Choudhary, April 11, 2023: The Times of India
New Delhi : It has become very common nowadays that an accused after getting arrested becomes ill and gets hospitalised, and police custody expires during treatment, denying the cops an opportunity to interrogate him/her. But the Supreme Court said that police may get additional time to quiz accused to compensate for the time lost in treatment.
A bench of Justices M R Shah and C T Ravikumar said that no accused can be allowed to play with the investigation and/or the court’s process. It allowed a CBI plea seeking additional time to interrogate a coal-scam accused belonging to West Bengal, noting that the agency was given seven days’ custody but it could interrogatehim only for two-and-half days as he was admitted to hospital and subsequently granted interim bail.
Additional solicitor general Aishwarya Bhaticontendedthat the CBI could not exercise the police remand as allowed by the special judge due to hospitalisation of Vikas Mishra and therefore the CBI should be given police custody of the accused for the remaining period of the seven days.
The bench said, “. . . the respondent-accused has successfully avoided the full operation of the order of police custody granted by the learned special judge. . . No accused can be permitted to play with the investigation and/or the court’s process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process. ”
Accepting CBI’s contention, the SC said, “The appellant-CBI is permitted to have police custody remand of the respondent for a period of four days. ”
