‘Custody' Under Section 167 CrPC Includes Custody Of Other Investigating Agencies Such As ED, Not Just Police: Supreme Court

The Supreme Court on Monday held that ‘custody' under Section 167 of the Code of Criminal Procedure, 1973 includes custody of other investigating agencies such as the Enforcement Directorate and not just the police alone.

The said observation was made by a division bench of Justice A S Bopanna and Justice M M Sundresh while dismissing Tamil Nadu Minister Senthil Balaji's plea challenging custody by Enforcement Directorate in the money laundering case.

Under Section 167(1) of the CrPC, a competent officer has to forward the accused to the Magistrate once detained, if the investigation cannot be completed within 24 hours. Under Section 167(2) of the CrPC, the Magistrate has the power to extend this period of custody from time to time. Referring to Section 167(1) of the Apex Court said:

“The object and rationale behind this provision is rather clear. By restricting the custody to 24 hours, the liberty of the accused is meant to be considered and taken note of by an independent authority in the form a Magistrate. It is also an act of confirmation by the Magistrate on the arrest, followed by grant of custody of an accused person. “

While authorizing the detention of an accused, the Magistrate has got a very wide discretion, the Court observed. Referring to Section 167(2) the Court said:

“The words “such custody as such Magistrate thinks fit” would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, either be it judicial or to an investigating agency or to any other entity in a given case.”  

The Apex Court referred to the 37th Law Commission Report, which interpreted the words “such custody”, under the CrPC as the Magistrate having wide powers under Section 167(2). According to the report, Section 167 cannot be given a narrow interpretation restricting it to the police alone.

“We give our fullest imprimatur to the views expressed by the Law Commission as Section 167 of the CrPC, 1973 is meant for not only protecting the liberty of a person but also to conclude the investigation in a fair manner. A balancing act is expected to be undertaken by the Magistrate.” The Court said.

"The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies", the Court held.

Report about other aspects of the judgment can be read here.

Case Title: V. SENTHIL BALAJI V. THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS., CRIMINAL APPEAL NOS. 2284-2285 of 2023

Citation : 2023 LiveLaw (SC) 611

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