15 Days Police Custody Meant To Be Applied To Entire Period Of Investigation As A Whole : Supreme Court Doubts 1992 Precedent

Yesterday, a two-judge bench of the Supreme Court, while dismissing Tamil Nadu Minister Senthil Balaji and his wife's plea against custody by the Directorate of Enforcement (ED), held that the prescribed 15-day-period of police custody can be an aggregate of shorter periods of custody sought over the entire period of investigation lasting 60 or 90 days, as a whole. Therefore, the bench has referred Anupam Kulkarni (1992) to a larger bench for reconsideration.

The bench comprising Justices AS Bopanna and MM Sundresh has held:

“We are conscious of the fact that a different interpretation has been given as to how the total 15 days which could be sought for by an investigating agency, should be construed and reckoned…This period of 15 days has to be reckoned, qua either a police custody or a custody in favour of the investigating officer, spanning over the entire period of investigation…The period of 15 days being the maximum period would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation.”

In Anupam Kulkarni, the Supreme Court had applied the plain meaning rule to Section 167(2) of the Code of Criminal Procedure, 1973, particularly the words “otherwise than in the custody of the police beyond the period of fifteen days” in the proviso to hold that custody after the expiry of the first 15 days can only be judicial custody during the remaining periods of 60 or 90 days and that police custody, if found necessary, can only be of 15 days. However, the Senthil Balaji (2023) bench has disagreed with this interpretation, observing, “It is too well settled that a proviso has to be understood from the language used in the main provision and not vice versa.”

Referring to the language of the main provision in Section 167(2) of the Code, it held:

“To understand the proviso one has to go back to the main provision particularly the words “from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit”, “for a term not exceeding 15 days in the whole”. The interpretation given by us to the main provision would give ample clarity to the proviso. Therefore, the period of 15 days being the maximum period that can be granted in favour of the police would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody.”

Custody should mean 'actual physical custody'

While remanding the embattled minister to police custody till Saturday, August 12, the division bench distinguished between ‘custody’ and ‘actual custody’ or ‘physical custody’, holding that even if an investigating agency were allowed to seek police remand of an accused only for the first 15 days, this bar would be attracted only by actual, physical custody.

The case of the ED was that they did not have effective custody of the Minister during the first 15 days as he was hospitalized during the said period.

The Court said :

“…Even assuming that such custody can only be sought for by an agency within the first 15 days, there has to be a physical custody to count the days…In a case where custody is shifted from judicial to an investigating agency by an order of court, the starting point will be from the actual custody. The moment a person is produced before the court, it assumes custody, divesting the agency of its own. When an order is passed granting police custody, any interdiction by any extraneous circumstance or a Court order would not kick-start the period of custody. The situation may be different in a case where a further custody is not possible due to external factors…We make it clear that our interpretation of physical custody is meant to be applied to Section 167(2) of the Code of Criminal Procedure, 1973 alone.”

After reserving its verdict last week, yesterday, the Supreme Court delivered the judgment on a batch of pleas in connection with the Directorate of Enforcement seeking custody of DMK leader and Tamil Nadu minister Senthil Balaji in connection with a cash-for-jobs scam in the state. Balaji and his wife had both filed separate petitions challenging a verdict of the Madras High Court holding that the central agency was entitled to take him into custody. Not only did the top court dismiss Balaji and his wife's petitions, but it also allowed the Enforcement Directorate to have Balaji's custody till August 12 in this case.

The conclusions in the judgment are as follows :

i When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.

ii. Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002.

iii. An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.

iv. Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.

v. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.

vii. The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.

viii. 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.

ix. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.

x. The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench.

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

Case Details

1. Megala v. The State | Special Leave Petition (Criminal) No. 8652-8653 of 2023
2. V Senthil Balaji v. The State | Diary No. 28176 of 2023
3. Directorate of Enforcement & Anr. v. Megala | Special Leave Petition (Criminal) No. 8750 of 2023]

Citation : 2023 LiveLaw (SC) 611

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