Grant Of Custody Of Accused To Investigating Agency Under Section 167 Of CrPC

Section 167 of CrPC, particularly sub-section (2) of Section 167 contains essential feature of right to fair and speedy trial enshrined in Article 21 of the Indian Constitution, by prescribing time-limits within which the investigating agency is required to file the chargesheet. The provision provides a balancing right to both the investigating agency and the arrestee to seek enforcement of their respective right by resorting to appropriate applicable legal mechanism. On one hand, it provides the police officer right to seek the custody of the accused for the purpose of investigation and on other hand it provides right to the accused to seek the relief of statutory bail if the police officer is unable to file the chargesheet within the prescribed time. Even though Section 167 (2) provides right to both investigating agency and the accused, but the rights so granted are tilted more in favor of the accused, as the grant of default bail to the accused is a mandatorily interpreted provision, while the grant of accused’s remand to the investigating agency is subject to a discretion of the Courts.

In terms of Section 57 of the CrPC a person arrested without warrant cannot be detained by the police officer beyond 24 hours of arrest unless specifically ordered by the Magistrate under Section 167 CrPC. Once the period of 24 hour expires the accused is produced before the Magistrate and the police officer seeking remand of the accused is required to satisfy the Magistrate that the investigation cannot be completed within 24 hours of detention and there are sufficient reasons demonstrating complicity of the accused in the alleged offence, therefore accused’s custody is required to facilitate the investigation. The object of producing the accused before the Magistrate is to enable Magistrate to apply his judicial mind as to whether the remand to police officer is necessary and at the same time allow accused to make representation that he wish to make before the Magistrate. On judicial application of mind the Magistrate, is of the view that there exist genuine reasons for investigating agency for not being able to complete the investigation within 24 hours of detention and custody of the accused is required to investigate the matter, may extend the accused’s custody to the police officer or investigating agency. Section 167 CrPC imposes restriction in confining the period of accused’s custody to police officer or investigating agency only within initial 15 days of detention with a view to prevent the accused from unnecessary harassment that he may be subjected to at the later stage of inquiry and trial and at later stage of the proceedings, the custody of the accused cannot be granted to police custody or investigating agency.

The conundrum surfacing the position of law concerning grant of custody of the accused to the police officer or investigating agency in terms of sub-section (2) of Section 167 CrPC, has been under spotlight for quite a while. The moot point which led to the conundrum was the observations made by the Apex Court in the case of CBI Vs Anupam J. Kulkarni, wherein it was held that police officer cannot get the custody of the accused beyond first 15 days of detention as per sub-section (2) of Section 167 CrPC.

The recent see-saw of judicial orders discussing the scope of exclusion of time-limit prescribed in the Section 167(2), in the event the investigating agency has not been able to actually take the custody of the accused for reasons outside the control of the investigating agency is the steaming point of discussion, specially the Apex Court’s verdict in the matter of CBI vs Vikas Mishra. In order to best understand the finding of the Apex Court in Vikas Mishra’s case, it is necessary to delve into material facts which led the Apex Court to observe that the accused’s custody can be granted to the investigating agency even after expiry of the initial 15 days of the arrest. The Special Court granted the custody of the accused to the investigating agency till 22.04.2021, however owing to accused’s ailment the investigating agency was not able to take the accused’s custody within the period of remand order. In the meantime the accused simultaneously applied for the interim bail and right one day before the expiry of the remand order the accused was enlarged on interim bail on 21.04.2022, the said interim protection was further extended to the accused from time to time, however the interim protection was cancelled by the Court at the later stage as the accused did not comply with the conditions stipulated in the interim protection order. At the subsequent stage, when the accused was remanded to judicial custody, he was again hospitalized on various occasions. The events demonstrate the way in which the accused processed the legal machinery to benefit himself and in the process deprived the investigating agency with the right to interrogate the accused, and hence the Apex Court observed that the right of custodial interrogation/investigation is an important right in favor of the investigating agency to unearth the truth and depriving the investigating agency with such right owing to extraneous reasons will give premium to accused to frustrate the trial, and thereby granted the custody of the accused after expiry of the initial 15 days of the investigation. The tipping point which further broiled the contention was the specific observation i.e. the rule contained in CBI vs Anupam Kulkarni needs consideration.

This observation led to further contemplation of the existing jurisprudence concerning fetters imposed on the right of investigating agency to take the custody of the accused only within initial 15 days of the detention, even when the peculiar circumstances prevented the investigating agency to actually take the custody of the accused. In this series, the judgment which led to further development was judgment delivered by the High Court of Madras in the case of Megala Vs State & Ors., wherein the Court while dealing with the issue, when it is not possible to entrust the custody of the accused to the investigating agency in the first 15 days of the detention, for reasons peculiar to the particular case, can custody of the accused still be given to the investigating agency even after the expiry of the initial 15 days of detention. Placing reliance on the Apex Court’s verdict in Vikas Mishra’s case, Justice Bharatha Chakravarthy stated that “it can no more be said that the rule relating to 15 days is inviolable”, thereby observed that the custody of the accused be extended to the investigating agency even after expiry of the initial 15 days from arrest as the investigating agency was not able to actually take the custody of the accused. Interestingly, Justice Nisha Banu delivering the split verdict while dealing with the same issue of exclusion of first 15 days for the purpose of granting custody to the investigating agency, also places reliance on Vikas Mishra’s judgment and notes that there existed extraordinary situation in Vikas Mishra’s case as the accused was indulged in the unscrupulous methods to frustrate the investigation and thereafter held that since such circumstances does not exists in the matter as the ailment of the detenue appears genuine and the fact that ED is not entitled for custodial interrogation, therefore the question of time ceased to arise. Owing to split findings matter was referred to the third judge to decide on the split issues and Justice CV Karthikeyan concurred with the findings of Justice Bharatha Chakravarthy and observed that since the facts and circumstances of the case so warranted, thereby extending the custody of the accused to the investigating agency even after expiry of the initial 15 days of the arrest.

Even though Apex Court verdict in Vikas Mishra’s case does not enumerate list of events as to when can the rule contained in Section 167(2), i.e. investigating agency to have the custody of accused only in initial 15 days of arrest, be diluted, still one cannot lose sight of established principle of law i.e. procedure is only handmaiden to justice and not mistress to justice. Recently, the two-judge bench of the Apex Court in the case of V. Senthil Balaji vs State, while discussing the extent of Section 167(2) in relation to the custody to investigating agency, observed that Section 167 (2) does a fine balancing act between the liberty of individual and a proper investigation, and the scope of custody enshrined in the provision in not restricted to the police custody but it extends to the custody of investigating agency also. The judgment further observes that curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction and yet again observes that the rule contains in CBI vs Anupam Kulkarni requires reconsideration by a larger bench.

There is no denying the fact that the initial days of the investigations are crucial and critical for an effective and proper investigations where personnel of the investigating agency are working day in and night out to prevent prospective pitfalls that may occur at the subsequent stage of proceedings, particularly at the stage of trial. Therefore, custody of accused assumes importance more so in favor of the investigating agency investigating the offence of money laundering where every stage of the proceedings has to be tested with the rigor of recording “reasons to believe to be recorded in writing” by the officials undertaking various proceedings under the law. This latest enunciations are more clarificatory in nature and assumes significance in the interest of proper investigation undertaken by the investigating agency and greater significance in the larger interest of speedy and fair trial which extends in favor of the investigating agency as well.

With introduction of Bharatiya Nagarik Suraksha Sanhita, 2023 (Bill No. 122 of 2023) the corresponding provisions to Section 167 (2) CrPC is contained in Section 187 (2) of the newly introduced Bharatiya Nagarik Suraksha Sanhita, 2023 and the new provision essentially addresses the issues which prevents the investigating agency to take the custody of the accused in the initial 15 days of detention by enlarging the scope of seeking custody of the accused at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be.

Views are personal.