Holding

After the first fifteen days of remand, police custody cannot be ordered; only judicial custody is permissible, unless the accused is arrested for a different case or transaction.

Summary

The CBI investigated the kidnapping of four diamond merchants and a person named Kulkarni, who was arrested on 4 October 1991 and produced before the Chief Metropolitan Magistrate. After an initial period of judicial custody, the CBI sought police custody for Kulkarni, but the magistrate refused, relying on a prior Delhi High Court decision. The CBI appealed, arguing that Section 167(2) and its proviso allow police custody beyond the first fifteen days if the total police custody does not exceed fifteen days. The Supreme Court examined the language of Section 167, the proviso, and numerous precedents, concluding that police custody is permissible only within the first fifteen‑day period and thereafter only judicial custody is allowed, except when a different case or transaction is involved. Consequently, the Court dismissed the CBI's appeals and upheld the magistrate's refusal to grant further police custody.

Issues considered

Whether a person produced before a magistrate under Section 167(1) can be remanded to police custody after the expiry of the initial fifteen‑day period.
Whether the proviso to Section 167(2) permits police custody beyond the first fifteen days.
Whether police custody can be ordered for additional offences discovered in the same transaction after the first fifteen days.

Legislation cited

Code of Criminal Procedure, 1973s. 167(1), s. 167(2), s. 167(2A), s. 167(3), s. 167(4), s. 167(5), s. 167(6), s. 309, s. 57
Constitution of Indias. Article 22(2)

Subjects

police custodyjudicial custodySection 167remandbailmagistrateinvestigationconstitutional rightsArticle 22CBIkidnapping

Judgment

A CENTRAL BUREAU OF INVESTIGA:tlON, SPECIAL r-
INVESTIGATION CELL-I, NE,W DELHI.
'
ANUPAM J. KULKARNI

MAYS, 1992
B
[A.M. AHMADI AND K. JAYACHANDRA REDDY, JJ.]
.)....
Code of Criminal Procedure, 1973-Section 167(1)-f'erson arrested
and produced before Magistrat~emand to police custody after initial period
c of 15 days-Whether legal.

A case relating to abduction of four diamond merchants and one K
-
was registered at Police Station o,n 16.9.91. The investigation was entrusted
to C.B.I. During investigation it was disclosed that between 14th and 1$th
September 1991, the four diamond merchants, K and one driver were
)(
D ki~apped from two hotels, and that K was one of the associates of the
accused, responsible for the kidnapping.
/
On 4.10.91 K was arrested and was produced before the Chief
Metropolitan Magistrate, on 5.10.91 and he was remanded to judicial
custody till 11.10.91.
E
On 10.10.91 a test identification parade was arranged but K refused
to cooperate and his refusal was recorded by the concerned Magistrate.

On 11.10.91 the investigating officer moved an application, seeking
police custody of K, which was allowed:
F
When he was being taken on the way K pretended to be indisposed ~
and he was taken to a Hospital, where he remained confined on the ground
of illness upto 21.10.91 and then he was referred to Cardic Out-patient
Department of the Hospital. K was again remanded to judicial custody by
G the Magistrate upto 29.10.91 and thereafter he was sent to Jail.

As the Police could not take him into police custody all these days
the investigating officer again applied to the court of Chief Metropolitan
M~gistrate for police custody of K.

H The Chief Metropolitan Magistrate relying on a judgment in State
158
C.B.I. v. AJ. KULKARNI 159

(Delhi Admn.) v. Dharam Pal and others, 1982 Crl. W. 1103 refused police A
remand.

A revision was filed before the High Court against the order of the
Magistrate.

The High Court, without deciding the question, whether or not after B
the expiry of the initial period of 15 days a person could still be remanded
to police custody by the Magistrate before whom he was produced, granted
K bail.
'
In these appeals, the C.B.I. challenged the order of the High Court, C

- contending that the Chief Metropolitan Magistrate erred in not granting
police custody and that Dharam Pal's case on which he placed reliance was
wrongly decided; that the High Court erred in granting bail to K without
deciding the question whether he can be remanded to police custody; that
a combined reading of Section 167(2) and the proviso therein would make
it clear that if for any reason the police custody could not be obtained . D
during the period of first fifteen days yet a remand to the police custody
even later was not precluded.

The respondent-accused submitted that the police custody if at all
be granted by the Magistrate u/s. 167 Cr. P.C. should be only during the
E
period of first 15 days from the date of production of the accused before
the Magistrate and not later and that subsequent custody if any should
only be judicial custody and the question of granting police custody after
the expiry of first 15 days remand did not arise.

On the question, Whether a person arrested and produced before F
the nearest Magistrate as requied under Section 167(1) Code of Criminal
Procedure could still be remanded to police custody after the expiry of the
initial period of 15 days, this Court dismissing the appeals of the C.B.I.,

HELD: 1.01. Article 22(2) of the Constitution of India and Section
57 of Cr. P.C. give a mandate that every person who is arrested and G
detained in police custody shall be produced before the nearest magistrate
within a period of 24 hours of such arrest excluding the tim~ necessary for
the journey from the place of the arrest to the court of the magistrate and

- no such person shall be detained in the custody beyond the said peri~d
without the authority of a magistrate. These two provisions clearly H
160 SUPREME COURT REPORTS (1992] 3 S.C.R.

A manifest the intention of the law in this regard and therefore it is the
magistrate who has to judicially scrutinise cicumstances and if satisfied . )-
can order the detention of the accused in police custody. (175 CJ

1.02. The detention in police custody is generally disfavoured by law.
The provisions of law lay down that such detention can be allowed only in
B special circumstances and that can be only by a remand granted by a
magistrate for reasons judicially scrutinised and for such limited purposes
as the necessities of the case may require. The scheme of Section 167 is
obvious and is intended to protect the accused from the methods which )-
may be adopted by some overzealous and unscrupulous police officers~
c (175 BJ

1.03. Whenever any person is arrested under Section 54 Cr.P.C. he
should be produced before the nearest Magistrate within 24 hours as
...
mentioned therein. Such Magistrate may or may not have jurisdiction to
try the case. If Judicial Magistrate is not available, the police officer may
D transmit the arrested accused to the nearest Executive Magistrate on
whom the judicial powers have been conferred. (178 DJ

1.04. The Judicial Magistrate ·can in the first instance authorise the
detention of the accused in scuh custody i.e. either police or judicial from
.time to time but the total period of detention cannot exceed fifteen days in
E 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. (178 EJ

1.05. If the arrested accused is produced before the Executive
F Magistrate he is empowered to authorise the detention in such custody
either police or judicial only for a week, in the same manner namely by
one or more orders but after one week he should transmit him to the
nearest Judicial Magistrate along with the records. (178 FJ

1.06. When the arrested accused is so transmitted the Judicial
G Magistrate, for the remaining period, that is to say excluding one week or
the number of days of detention ordered by the Executive Magistrate, may
authorise further detention within that period of first fifteen days to such
custody either police or judicial. After the expiry of the first period of
fifteen days the further remand during the period of investigation can only
H be in judicial custody. (178 GJ

...
~ C.B.I. v. AJ. KULKARNI 161

1.07. There cannot be any detention in the police custody after the A
-( expiry of first fifteen days even in a case where some more offences either
serious or otherwise committed by him in the same transaction come to
light at a later stage. [178 HJ

1.08. But this bar does not apply if the same arrested accused is
involved in a different case arising out of a different transaction. Even ifhe is B
in judicial custody in connection with the investigation of the earlier case he
can formally be arrested regarding his involvement in the different case and
associate him with the investigation of that other case and the Megistrate can
act as provided under Section 167 (2) and the proviso and can remand him to
such custody as mentioned therein during the first period of fifteen days and c
thereafter in accordance with the proviso. [179 AJ

1.09. If the investigation is not completed within the period of ninety
days or sixty days then the accused has to be released on bail as provided
·y
under the proviso to Section 167 (2). The period of ninety days or sixty days
has to be computed from the date of detention as per the orders of the D
Magistrate and not from the date of arrest by the police. (179 CJ

1.10. The first period of fifteen days mentioned in Section 167(2) has
to be computed from the date of such detention and after the expiry qf the
period of first fifteen days it should be only judicial custody. [179 CJ
~ E
State (Delhi Admn.) v. Dharam Pal and Others, 1982 Crl. L.J. 1103,
·approved partially.

S. Harsimran Singh v. State of Punjab, 1984 Crl. LJ. 253, approved.

Gian Singh v. State (Delhi Administration), 1981 Crl. L.J. 100; F
Tri/ochan Singh v. The State (Delhi Administration), 1981 Crl. L.J. 1773;
State v. Mehar Chand, 1969 D.L.T. 179; State (Delhi Administration) v.
Ravinder Kumar Bhatnagar, 1982 Crl. L.J. 2366; State of Kera/a v.
Sadanadan, 1984 K.L.T. 747; Chaganti Satyanarayana and Others v. State of
Andhra Pradesh, (1966) 3 S.C.C. 141 and Natabar Parida and Others v. State G
of Orissa, (1975) 2 SCC 220, referred to.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 310-311 of 1992.

From the Judgment and Order dated 9.12.1991 of the Delhi High H
162 SUPREME COURT REPORTS (1992) 3 S.C.R.

A Court in Crl.M.(M) no. 2409/91 and Crl. R. no. 201 of 1991.

K.T.S.Tulsi, Addi. Solicitor General, Kailash Vasdev and Ms. Alpana
Kirpal for the Appellant.

Ram Jethmalani, Dinesh Mathur and Ms. Binu Tamta for the
B Respondent.

The Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. Leave granted.

c An important question that arises for consideration is whether a
person arrested and produced before the nearest Magistrate as required
under Section 167(1) Code of Criminal Procedure can still be remanded
to police custody after the expiry of the initial period of 15 days. We
-
propose to consider the issue elaborately as there is no judgment of this
D Court on this point. The facts giving rise to this question may briefly be
stated. A case relating to abduction of four Bombay based diamond
merchants and one Shri Kulkarni was registered at Police Station Tughlak
Road New Delhi on 16.9.91 and the investigation was entrusted to C.B.I.
During investigation it was disclosed that not only t~e four diamond
merchants but also Shri Kulkarni, who is the respondent before us and one
E driver Babulal were kidnapped between 14th and 15th September, 1991
from two Hotels at Delhi. It emerged during investigation that the said Shri
Kulkarni was one of the associates of the accused one Shri R.Chaudhary
responsible for the said kidnapping of the diamond merchants. On the
basis of some available material Shri Kulkarni was arrested on 4.10.91 and
F was produced before the Chief Metropolitan Magistrate, Delhi on 5.10.91.
On the request of the C.B.I. Shri Kulkarni was remanded to judicial
custody till 11.10.91. On 10. 10.91 a test identification parade was arranged
but Shri Kulkarni refused to cooperate and his refusal was recorded by the
concerned Munsif Magistrate. On 11.10.91 an application was moved by
the investigating officer seeking police custody of Shri Kulkarni which was
G allowed. When he was being taken on the way Shri Kulkarni pretended to
be indisposed and he was taken to the Hospital the same evening where
he remained confined on the ground of illness upto 21.10 ..91 and then he
was referred to Cardic Out-patient Department of G.B. Pant Hospital.
Upto 29.10.91 Shri Kulkarni was again remanded to judicial custody by the
H Magistrate and thereafter was sent to Jail. In view of the fact that the Police
C.B.I. v. AJ. KULKARNI [REDDY, J.] 163

·-,:- could not take him into police custody all these days the investigating A
officer again applied to the court of Chief Metropolitan Magistrate for
police custody of Shri Kulkarni. The Chief Metropolitan Magistrate relyfug
on a judgment of the Delhi High Court in State (Delhi Admn.) v. Dharam
Pal and others, 1982 Crl. LJ. 1103 refused police remand. Questioning the
same a rivision was filed before the High Court of Delhi. The learned
B
Single Judge in the first instance considered whether there was material to
make out a case of kidnapping or abduction against Shri Kulkarni and
~ observed that even the abducted persons namely the four diamond mer-
chants do not point an accusing finger against Shri Kulkarni and that at
any rate Shri Kulkarni himself has been interrogated in jail for almost seven
days by the C.B.I. and nothing has been divulged by him, therefore it is not c
- desireable to confine him in jail and in that view of the matter he granted
him bail. The High Court, however, did not decide the question whether
or not after the expiry of the initial period of 15 days a person can still be
y remanded to police custody by the magistrate before whom he was
produced. The said order is challenged in these appeals.
D
The learned Additional Solicitor General appearing for the C.B.I.
the appellant contended that the Chief Matropolitan Magistrate erred in
not granting police custody and that Dharam Pal's case on which he placed
reliance has been wrongly decided. The further contention is that the High
~
Court has erred in granting bail to Shri Kulkarni without dt:ciding the E
question whether he can be remanded to police custody as prayed for by
the C.B.I. Shri Ram Jethmalani, learned counsel for the respondent ac-
cused submitted that the language of Section 167 Cr.P.C. is clear and that
the police custody if at all be granted by the Magistrate should be only
during the period of first 15 days from the date of production of the
F
accused before the magistrate and not later and that subsequent custody
-~
if any should only be judicial custody and the question of granting police
custody after the expiry of first 15 days remand does not arise.

Section 167 Cr. P.C. 1973 after some changes reads as under:
G
"167. Procr.dure when investigation cannot be completed in
~
twenty-four hours. - (1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by
Section 57, and there are grounds for believing that the accusa· H
164 SUPREME COURT REPORTS [1992] 3 S.C.R.

A tion or information is well founded, the officer-in-charge of the
police station or the police officer making the investigation, he
if is not below the rank of sub-inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the case, and shall at
the same time forward the accused to such Magistrate.
B
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction
to try the case, from time to time, authorise the detention of
the accus:::d in such custody as such Magistrate thinks fit, for
c a term not exceeding fifteen days in the whole; and if he has
no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the
-
accused to be forwarded to a Magistrate having such jurisdic-
tion:

.D Provided that-
(a) the Magistrate may 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, but no Magistrate shall authorise the deten-
E tion of the accused person in custody under this paragraph for
a total period exceeding, -

(i) ninety da.ys, where the investigation relates to an office
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
F
(ii) sixty days, where the investigation relates to any other office, ~

and, on the expiry of the said period of ninety days, or sixty
days, as. the case may be, the accused person shall be released
on bail if he is prepared to and does furnish bail, and every
G
person released on bail under this sub-section shall be deemed
to be so released under the provisions of Chapter XXXIII for
the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody
H under this section unless the accused is produce before him;
C.B.I. v. AJ. KULKARNI [REDDY, J.] 165

-f" (c) no Magistrate of the second class, not specially empowered A
in this behalf by the High Court, shall authorise detention in
the custody of the police.

Explanation 1-For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be so detained in B
custody so long as he does not furnish bail.
--.4
Explanation II. - If any question arises whether an accused
person was produced before the Magistrate ;tS required under
paragraph (b), the production 'Jf the accused person may be
,,.._. proved by his signature on the order authorising detention.
c
(2A) Notwithstanding anything contained in sub-section (1) or
y sub-section (2), the officer-in-charge of the police station or
the police officer making the investigation, if he is not below
the rank of a sub-inspector, may, where a judicial ~agistrate D
is not avilable, transmit to the nearest Executive Magistrate, on
whom the powers of a Judicial Magistrate or Metropolitan
Magistrate have been conferred a copy of the entry in the diary
hereinafter prescribed relating to the case, and shall, at the
~ same time, forward the accused to such Executive Magistrate,
and thereupon such Executive Magistrate may, for reasons to
E
be recorded in writing, authvrise the detention of the accused
person in such custody, as he may think for a term not exce.ed-
ing seven days in the aggregate, and, on the expiry of the period
of the detention so authorised, the accused person shall be
released on bail except where an order for further detention F
of the a~used person has been made by a Magistrate com-
petent to make such order; and, where an order for such further
detention is made, the period durilig which the accused person
was detained in custody under the orders made by an Executive
Magistrate under this sub-section, shall be taken into account
G
in computing the period specified in paragraph 2(a) of the
proviso to sub-section (2);
-~

Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the H
1

166 SUPREME COURT REPORTS (1992) 3 S.C.R.

A entries in the diary relating to the case which was transmitted
to him by the officer-in-charge of the police station or the police
r
officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the
custody of the police shan record his reasons for so doing.
B
. (4) Any Magistrate other than the Chief Judicial. Magistrate
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate. >-
(5) If any case triable by a Magistrate as a summons-case, the
c investigation is not concluded within a period of six months
from the d<l.e on which the accused was arrested, the
Magistrate shall make an order stopping further investigation
-
into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the ···f
D interests of justice the continuation of the investigation beyond
the period of six months is necessary.

(6) Where any order stopping further investigation into an
offence has been made under sub-section (5), the Sessions
Judge may, if he is satisfied, on an application made to him, or
E otherwise, that further investigation into the offence ought to
be made, vacate the order made under sub-section (5) and
direct further investigation to be made into the offence subject
to such directions with regard to bail and other matters as he
may specify."
F
Before proceeding further it may be necessary to advert to the
legislative history of this Section. The old Section 167 of 1898 Code
provided for the detention of an accused in custody for a term not exceed-
ing 15 days on the whole. It was noted that this was honoured more in the
breach than in the observance and that a practice of doubtful legalify grew
G up namely the police used to file an incomplete charge-sheet and move the
court for remand under Section 344 corresponding to the present Section
309 which was not meant for during htve~tigation. Having regard to the fact ~
that there may be genuine cases where investigation might not be com-
pleted in 15 days, the Law Commission made certain recommendations to
H confer power on the Magistrate to extend the period of 15 days detention.
C.B.I. v. AJ. KULKARNJ [REDDY, J.] 167

These recommendations are noticed in the objects and reasons of the Bill A
thus:

".............. At present, Section 167 enables the Magistrate to
authorise detention of an accused in custody for a term not
exceeding 15 days on the whole. There is a complaint that this B
provision is honoured more in the breach than in the obser"
vance and that the police investigation takes a much longer
pariod in practice. A practice of doubtful legality has grown
- ...( whereby the police fde a "preliminary" or incomplete char-
gesheet and move the court for remand under Section 344
which is not intended to apply to the stage of investigation. C
While in some cases the delay in investigation may be due to
the fault of the police, it cannot be denied that there may be
genuine cases where it may not be practicable to complete the
investigation in 15 days. The Commission recommended that
y the period should be extended to 60 days, but if this is done,
D
60 days would become the rule and there is no guarantee that
the illegal practice referred to above would not continue. It is
considered that the most satisfactory solution of the problem
would be to confer on the Magistrate the power to extend the
period of extension beyond 15 days, whenever he is satisfied
that adequate grounds exist for granting such exten- E
sion.............."

The Joint Committee, however, with a view to have the desired effect
made provision for the release of the accused if investigation is not duly
completed in case where .accused has been in custody for some period. F
Sub-section (5) and (6) relating to offences punishable for imprisonment
for two years were inserted and the Magistrate was authorised to stop
further investigation and discharge the accused if the investigation could
not be completed within six months. By the Cr. P.C. Amendment Act 1978
proviso (a) to sub-section (2) of Section 167 has been further amended and
the Magistrate is empowered to authorise the detention of accused in G
custo<ly during investigation for an aggregate period of 90 days in cases
relating .to inajor offences and in other cases 60 days. This provision _for
custody for 90 days in intended to remove difficulties which actually arise
in completion of the investigation of offences of serious nature. A new
sub-section (2A) also has been inserted empowering the Executive H
168 SUPREME COURT REPORTS (1992] 3 S.C.R.

A Magistrate to make an order for remand but only for a period not exceed-
ing seven days in the aggregate and in cases where Judicial Magistrate is ..
.not available. This provision further lays down that period of detention
r
ordered by such Executive Magistrate should be taken into account in
computing the total period specified in clause (a) of sub-section (2) of
Section 167. Now coming to the object and scope of Section 167 it is
B well-settled that it is supplementary to Section 57. It is dear from Section
57 that the investigation should be completed in the first instance within
24 hours if not the arrested person should be brought by the police before
a magistrate as provided under Section 167. The law does not authorise a
police officer to detain an arre~ted person for more than 24 hours exclusive
c of the time necessary for the journey from the place of arrest to the
magistrate court. Sub-section (1) of Section 167 covers all this procedure
and also lays down that the police officer while forwarding the accused to
the nearest magistrate should also transmit a copy of the entires in the diary
-
D
relating to the case. The entries in the diary are meant to afford to the
magistrate the necessary information upon which he can take the decision
whether the accused should be detained in the custody further or not. It ·
-,,
may be noted even at this stage the magistrate can release him on bail if
an application is made and if he is satisfied that there are no grounds to
remand him to custody but if he is satisfied that further remand is necessary
then he should act as provided under Section 167. It is at this stage
E sub-section (2) comes into operation which is very much relevant for our
purpose. It lays down that the magistrate to whom the accused person is )-,
thus forwai;ded may, whether he ·has or has not jurisdiction to try the case,
from time to time, authorise the detention of the accused in such custody
as he thinks fit for a term not exceeding fifteen days in the whole. If such
F magistrate has no jurisdiction to try the case or commit it for trial and if
he considers further detention unnecessary, he may order the accused to
be forwarded to a magistrate having such jurisdiction. The Section is clear
in its terms. The magistrate under this Section can authorise the detention
of the accu~d in such custody as he thinks fit but it should not exceed
fifteen days in the whole. Therefore the custody initially should not exceed
G fifteen days in the whole. The custody can be police custody or judicial
custody 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 ;:....
H the accused is produced l?efore the Magistrate.
C.B.I. v. AJ. KULKARNI (REDDY, J.) 169

Now comes the proviso inserted by Act No. 45 of 1978 which is of A
vital importance in deciding the question before us. This proviso comes
into operation where the magistrate thinks fit that further detention beyond
the period of fifteen days is necessary and it lays down that the magistrate
may authorise the deten~on of the accused person otherwise than in the
custody of the police beyond the period of fifteen days. The words "other-
B
wise than in the custody of the police beyond the period of fifteen days"
are again very significant.

The learned Additional Solicitor General appearing for the C.B.I.
contended that a combined reading of Section 167(2) and the proviso
therein would make it clear that if for any reason the police custody cannot C
be obtained during the period of first fifteen days yet a remand to the
police custody even later is not precluded and what all that is required is
' that such police custody in the whole should not exceed fifteen days.
According to him there could be cases where a remand to police custody
would become absolutely necessary at a later stage even though such an D
accused is under judicial custody as per the orders of the magistrate passed
under the proviso. The learned Additional Solicitor General gave some
instances like holding an identification parade or interrogation on the basis
of the new material discovered during the investigation. He also submitted
that some of the judgments of the High Courts particularly that of the Delhi
High Court relied upon by the Chief Metropolitan Magistrate do not lay E
down the correct position of law in this regard. In Gian Singh v. State (Delhi
Administaration), 1981 Cr.L.J. 100 a learned Single Judge of the High
Court held that once the accused is remanded to judicial custody he cannot
be sent back again to police custody in connection with or in continuation
of the same investigation even though the first period of fifteen days has F
not exhausted. Again the same learned Judge Justice M.L. Jain in Trilochan
Singh v. 17ie State (Delhi Administration), 1981 Crl.L.J. 1173 took the same
view. In State (Delhi Administration) v. Dharam Pal and others, 1982 Cr .LJ.
1103 a Division Bench of the Delhi High Court overruled the learned
Single Judge's judgments in Gian Singh's case and Trilochan Singh's case.
The Division Bench held that the words "from time to time" occurring in G
the Section show that several orders can be passed under Section 167(2)
and that the nature of the custody can be altered from judici~ custody to
police custody and vice-versa during the first period of fifteen days men-
tioned in Section 167(2) of the Code and that after fifteen days the accused
could only be kept in judicial custody or any other custody as ordered by H
1

170 SUPREME COURT REPORTS (1992] 3 S.C.R.

A the magistrate but not in the custody of the police. In arriving at this
conclusion the Division Bench sought support on an earlier decision in
State v. Mehar Chand, 1969 Delhi Law Times 179. In that case the accused
r
had been arrested for an offence of kidnapping and after the expiry of the
first period of fifteen days the accused was in judicial custody under
Section 344 Cr.P.C. (old code). At that stage the police found on investiga-
B tion that an offence of murder also was prima facie made out against the
said accused. Then the question arose whether the said accused who was
in judicial custody should be sent to the police custody on the basis of the
discovery that there was an aggravated offence. The magistrate refused to
permit the accused to be put in police custody. The same was questioned
c before the High Court. Hardy, J. held that an accused who is in magisterial
-
custody in one case can be allowed to be remanded to police custody in
other case and on the same rule he can be remanded to police custody at
a subsequent stage of investigation in the same case when the information
discloses his complicity in more serious offences and that on principle,
D there is no difference at all between the two types of cases. The learned
Judge further stated as under:

"I see no insuperable difficulty in the way of the police arresting
the accused for the second time for the offence for which he
is now wanted by them. The accused being already in
E magisterial custody it is open to the learned magistrate under
Sec. 167(2) to take the accused out of jail or judicial custody
and hand him over to the police for the maximum period of 15
days provided in that section. All that he is required to do is

F
to satisfy himself that a good case is made out for detaining the
accused in police custody in connection with investigation of -
'
the case. It may be that the offences for which the accused is
now wanted by the police relate to the same case but these are
altogether different offences and in a way therefore it is quite
legitimate to say that it is a different case in which the com-
plicity of the accused has been discovered and police in order
G to complete their investigation of that case require that the
accused should be associated with that investigation in some
way."
.)....

The Division Bench in Dharam Pal's case referring to these observa-
H tions of Hardy, J. obserVcd that "We completely agree with Hardy, J. in
C.B.I. v. AJ. KULKARNI [REDDY, J.) 171
----#
coming to the conclusion that the Magistrate has to find out whether there A
---r: is a good case for grant of police custody." A perusal of the later part of
the judgment in Dharam Pal's case would show that the Division Bench
referred to these observations in support of the view that the nature of the
custody can be altered from judicial custody to police custody or vice-versa
during the first period of fifteen days mentioned in Section 167(2) of the
B
Code, but however firmly concluded that after fifteen days the accused
could only be in judicial custody or any other custody as ordered by the
magistrate but not in police custody. Then there is one more decision of
the Delhi High Court in State (Delhi Administration) v. Ravinder Kumar
Bhatnagar, 1982 Crl.L.J. 2366 where a Single Judge after relying on the
judgment of the Division Bench in Dharam Pal's case held that the Ian- c
guage of Section 167(2) is plain and that words "for a term not exceeding
fifteen days in the whole" would clearly indicate that those fifteen days
begin to run immediately after the accused is produced before the
magistrate in accordance with sub-section (1) and the police custody
cannot be granted after the lapse of the "first fifteen days". In State of n·
Kera/a v. Sadanadan, (1984) K.L.T. 747 a Single Judge of the Kerala High
Court held that the initial detention of the accused by the magistrate can
be only for fifteen days in the whole and it may be either 'police custody or
judicial custody and during the period the magistrate has jurisdiction to
convert judicial custody to police custody and vice-versa and the maximum
period under which the accused can be so detained is only fifteen days and E
~
that after the expiry of fifteen days the proviso comes into operation which
expressly refers to police custody and enjoins that there shall be no police

- custody and judicial custody alone is possible when power is exercised
under the proviso. The learned Single Judge stated that in the case before
him the accus.ed has already been in police custody for fifteen days and F
therefore he could not be remanded to police custody either under Section
167 or Section 309 Cr.P.C.
:-4.
The learned Additional Solici~or General submitted that the obser-
vations made by Hardy, J. in Mehar Chand's case would indicate that
during the investigation of the same case in which the accused is arrested G
and is already in custody if more offences committed in the same case come
to light there should be no bar to turn over ,the accused to police custody
~-
even after the first period of fifteen days and during the period of ninety
days or sixty days in respect of the investigation of the cases mentioned in
provisos (a) (i) and (ii) respectively. It may be noted firstly that the Meltar H
172 SUPREME COURT REPORTS [1992) 3 S.C.R.

A Chand's case was decided in respect of a case arising under the old Code.
If we examine the background in enacting the new Section 167(2) and the
proviso (a) as well as Section 309 of the new Code it becomes clear that
the legislature recognised that such custody namely police, judicial or any
other custody like detaining the arrested person in Nari Sadans etc. should
be in the whole for fifteen days and the further custody under the proviso
B to Section 167 or under Section 309 should only be judicial. In Chaganti
Satyanarayana and others v. State of Andhru Pradesh, [1986) 3 S.C.C. 141
this Court examined the scope of Section 167(2) provisos (a)(i) and (ii)
and held that the period of fifteen days, ninety days or sixty days prescribed
therein are to be computed from the date of remand of the accused and
c not from the date of his arrest under Section 57 and that remand to police
custody cannot be beyond the priod of fifteen days and the further rei.lland
must be to judicial custody. Though the point thali precisely arose before
this Court was whether the period of remand prescribed should be com-
puted from the date of remand or from the date of arrest under Section
-
D 57, there are certain observations throwing some light on the scope of the
nature of custody after the expiry of the first remand of fifteen days and
when the proviso comes into operation. It was observed thus:

"As sub-section (2) of Section 167 as well as proviso (1) of
sub-section (2) of Section 309 relate to the powers of remand
E of a magistrate, though under different situations, the two
provisions call for a harmonious reading insofar as the periods
of remand are concerned. It would, therefore, follow that the
words "15 days in the whole" occurring in sub-section (2) of
Section 167 would be tantamount to a period of "15 days at a
F time" but subject to the condition that if the accused is to be
remanded to police custody the remand should be for such
period as is commensurate with the requirements of a case with
provision for further extensions for restricted periods, if need
be, but in no case should the total period of remand to police
custody exceed 15 days. "W1tere an accused is placed in police
G custody for the maximum period of 15 days allowed under/aw
either pursuant to a single order of remand or to more than one
order, when the remand is restricted on each occasion to a lesser
number of days, further detention of th.e accused, if wa"anted,
has to be necessari~v to judicial custody and not otherwise. The
H legislature having provided for an accused being placed under
C.B.l. v. A.J. KULKARNI [REDDY, J.] 173

police custody under orders of remand for effective investiga- A
tion of cases has at the same time taken care to see that the
interests of the accused are not jeopardised by his being placed
under police custody beyond a total period of 15 days, under
any circumstances, irrespective of the gravity of the offence or
the serious nature of the case.
B
(emphasis supplied)

These observations make it clear that if an accused is detained in
police custody the maximum period during which he can be kept in such
custody is only fifteen days either pursuant to a single order or more than C
one when such orders are for lesser number of days but on the whole such
custody cannot be beyond fifteen days and the further remand to facilitate
the investigation can only be by detention of the accused in judicial custody.

Having regard to the words "in such custody as such Magistrate
thinks fit for a term not exceeding fifteen days in the whole" occurring in D
Sub-section (2) of Section 167 now the question is whether it can be
construed that the police custody, if any, should be within this period of
first fifteen days and not later or alternatively in a case if such remand had
not been obtained or the number of days of police custody in the first
fifteen days are less whether the police can ask subsequently for police
custody for full period of fifteen days not availed earlier or for the remain-
E
ing days during the rest of the periods of ninety days or sixty days covered
by the proviso. The decisions mentioned above do not deal with this
question precisely except the judgment of the Delhi High Court in Dharam
Pal's case. Taking the plain language into consideration particularly the
words "otherwise than in the custody of the police beyond the peiod of F
fifteen days" in the proviso it has to be held that the custody after the
expiry of the first fifteen days can only be judicial custody during the rest
of the periods of ninely days or sixty days and that police custody if found
necessary can be ordered only during the first period of fifteen days. To
this extent the view taken in Dliaram Pal's case is correct.
G
At this juncture we want to make another aspect clear namely the
computation of period of remand. The proviso to Section 167(2) clearly
lays down that the total period of detention should not exceed ninety days
in cases where the investigation relates to serious offences mentioned
therein and sixty days in other cases and if by that time congnizance is not H
174 SUPREME COURT REPORTS [1992) 3 S.C.R.

A taken on the expiry of the said periods the accused shall be released on
bail as mentioned therein. In Chaganti Satyanarayan 's case it was held that
"It, therefore, stands to reason that the total period of 90 days or 60 days
can begin to run from the date of order of remand." Therefore the first ·
period of detention should be computed from the date of order of remand.
Section 167(2A) which has been introduced for pragmatic reasons states
B that if an arrested person is. produced before an Executive Magistrate for
remand the said Magistrate may authorise the detention of the a€Cused not
exceeding seven days in aggregate. It further provides that the period of
remand by the Executive Magistrate should also be taken into account for
, computing the period specified in the proviso i.e. aggregate periods of
.C ninety days or sixty days. Since the Executive Magistrate is empowered to
order detention only for seven days in such custody as he thinks fit, he
should therefore either release the accused or transmit him to the nearest
Judicial Magistrate together with the entires in the diary before the expirey
-
of seven days. The Section also lays down that the Judicial Magistrate who
D is ~mpetent to make further orders of detention, for the purposes of
computing the period of detention has to take into considereation the
period of detention· ordered by the Executive Magistrate. Therefore on a
combined reading of Sections 167(2) and (2A) it emerges that the Judicial
Magistnte to whom the Executive Magistrate has forwarded the arrested
accused can order detention in such custody namely police custody or
E judicial custody under Section 167(2} for the rest of '.he first fifteen days
after deducting the period of detention ordered by the Executive
Magistrate. The detention thereafter could only be in judicial custody.
Likewise the remand under Section 309 Cr.P.C. can be only to judicial
custody in terms mentiont<d therein. This has been concluded by this Court
F and the language of the Section also is clear. Section 309 comes into
operation after taking cognizance and not during the period of investiga-
tion and the remand under this provision can oiily be to judicial custody
and there cannot be any controversy about the same., vide Natabar Parido
and others v. State of Orissa, [1975] 2 SCC 220.

G The learned Additional Solicitor General however submitted that in
some of the cases of grave crimes it would be impossible for the police to
g~ther all the materials within first fifteen days and if some valuable
information is disclosed at a later stage and if police custody is d.enied the
investigation will be hampered and will result in failure of justice. There
H may be some force in this submission but the purpose of police custody

-
C.B.I. v. AJ. KULKARNI [REDDY, J.] 175

and the approach of the legislature in placing limitations on this are A
obvious. The proviso to Section 167 is explicit on this aspect. The detention
4t police custody is generally disfavoured by law. The provisions of law lay
down that such detention can be allowed only in special circumstances and
that can be only by a remand granted by a magistrate for reasons judicially
scrutinised and for such limited purposes as the necessities of the case may B
require. The scheme of Section 167 is obvious and is intended to protect
the accused from the methods which may be adopted by some overzealous
and unscrupulous police officers. Article 22(2) of the Constitution of India
and Section 57 of Cr.P.C. give a mandate that every person who is arrested
and detained in police custody shall be produced before the nearest

- magistrate within a period of 24 hours of such arrest excluding the time C
. necessary for the journey from the place of the arrest to the court of the
magistrate and no such person shall be detained in the custody beyond the
said period without the authority of a magistrate. These two provisions
clearly manifest the intention of the law in this regard and therefore it is
the magistrate who has to judicially scrutinise circumstances and if satisfied D
can order the detention of the accused in police custody. Section 167(3)
· requires that the magistrate should give reasons for authorising the deten-
tion in the custody of the police. It can be thus seen that the whole scheme
underlying the Section is intended to limit the period of police custody.
However, taking·into account the difficulties which may arise in completion
of the investigation of cases of serious nature the legislature added the E
proviso providing for further detention of the accused for a period of ninety
days but in clear terms it is mentioned in the proviso that such detention
could only be in the judicial custody. During this period the police are
expected to complete the investigation even in serious cases. Likewise
within the period of sixty days they are expected to complete the investiga- F
tion in respect of other offences. The legislature however disfavoured even
the prolonged judicial custody during investigation. That is why the proviso
lays down that on the expiry of ninety days or sixty days the a_ccused shall
be released on bail if he is prepared to and does furnish bail. If as
contended by the learned Additional Solicitor General a further interroga-
tion is necessary after the expiry of the period of first fifteen days there is G
no bar for interrogating the accused who is in judiCial custody during the
periods of 90 days or 60 days. We are therefore unable to accept this
contention.

A question may then arise whether a person arrested in respect of H
176 SUPREME COURT REPORTS (1992) 3 S.C.R.

A an offence alleged to have been committed by him· during an occurrence 'r
can be detained again in police custody in respect of another offence
committed by him in the same case and which fact comes to light after the
expiry of the period of first fifteen days of his arrest. The learned Addi-
tional Solicitor General submitted that as a result of the investigation
carried on and the evidence collected by the police the arrested accused
B may be found to be involved in more serious offences than the one for
which he was originally arrested and that i-:1. such a case there is no reason
as to why the accused who is in magisterial custody should not be turned )'"
over to police custody at a subsequent stage of investigation when the
information discloses his complicity in more serious offences. We are
c unable to agree. In one occurrence it may so happen that the accused might
have committed several offences and the police may arrest him in connec-
tion with one or two offences on the basis of the available information and
obtain police custody. If during the investigation his complicity in more
-
serious offences during the same occurrence is disclosed that does not
authorise the police to ask for police custody for a further period after the
D
expiry of the first fifteen days. If that is permitted than the police can go
on adding some offence or the other of a serious nature at various stagei;
and seek further detention in police custody repeatedly, this would defeat
the very object underlying Section 167. However, we must clarify that this
limitation shall not aply to a different occurrence in which complicity of
E the arrested accused is disclosed. That would be a different transaction and >----
if an accused is in judicial custody in connection with one case and to
enable the police to complete their investigation of the other case they can
require his detention in police custody for the purpose of associating him
with the investigation of the other case. In such a situation he must be
F formally arrested in connection with other case and then obtain the order
of the magistrate for detention in police custody. The learned Additional
Solicitor General however strongly relied on some of the observations A
made by Hardy, J. in Mehar Chand's case extracted above in support of his
contention namely that an arrested accused who is in judicial custody can
be turned over to police custody even after the expiry of first fifteen days
G at a subsequent stage of the investigation in the same case if the informa-
tion discloses his complicity in more serious offences. We are unable to
agree that the mere fact that some more offences alleged to have been )...._
committed by the arrested accused in the same case are discovered in the
same case would by itself render it to be a different case. All these offences
H
C.B.I. v. A.J. KULKARNI [REDDY, J.] 177

--( including the so-called serious offences discovered at a later stage arise out A
of the same transaction in connection with which the accused was arrested.
Therefore there is a marked difference between the two situations. The
occurrences constituting two different transactions give rise to two different
cases and the exercise of power under Section 167(1) and (2) should be in
consonance with the object underlying the said provision in respect of each
of those occurrences which constitute two different cases. Investigation in
B
one specific case cannot be the same as in the other. Arrest and detention
-..(
in custody in the context of Sections 167(1) and (2) of the Code has to be
truly viewed with regard to the investigation of that specific case in which
the accused person has been taken into custody. In S. Harsimran Singh v.
State of Punjab, 1984 Crl. L.J. 253 a Division Bench of the Punjab and c
Haryana Hig~ Court considered the question whether the limit of police
custody exceeding fifteen days as prescribed by Section 167(2) is applicable
only to a single case or is attracted to a series of different cases requiring
investigation against the same accused and held thus:
D
"We see no inflexible bar against a person in custody with
regard to the investigation of a particular offence being either
re-arrested for the purpose of the investigation of an altogether
different offence. To put it in other words, there is no insur-
,-..A, mountable hurdle in the conversion of judicial custody into
police custody by an order of the Magistrate under S.167(2) of E
the Code for investigation another ·offence. Therefore, a re-
arrest or second arrest in a different case is not necessarily
beyond the ken of law."

This view of the Division Bench of the Punjab & Haryana High Court F
_/,..,_ appears to be practicable and also conforms to Section 167. We may,
however, like to make it explicit that such re-arrest or second arrest and
seeking police custody after the expiry of the period of first fifteen days
should be with regard to the investigation of a different case other than the
specific one in respect of which the accused is already in custody. A literal
construction of Section 167(2) to the effect that a fresh remand for police G
::J, custody of a person already in judicial custody during investigation of a
specific case cannot under any circumstances be issued, would seriously
hamper the very investigation of the other case the importance of which
needs no special emphasis. The procedural law is meant to further the ends
of justice and not to frustrate the same. It is an accepted rule that an H
178 SUPREME COURT REPORTS [1992) 3 S.C.R.

A interpretation which furthers the ends of justice should be preferred. It is
true that the police custody is not the be-all and end-all of the whole
investigation but yet it is one of its primary requisites particularly in the
investigation of serious and henious crimes. The legislature also noticed
this and permitted limited police custody. The period of first fifteen days
should naturally apply in respect of the investigation of that specific case
B for which the accused is held in custody. But such custody cannot further
held to be a bar for invoking a fresh remand to such custody like police
custody in respect of an altogether different case involving the same
accused.

C As the points considered above have an important bearing in dis-
charge of the day-to-day magisterial powers contemplated under Section
167(2), we think it appropriate to sum up briefly our condusions as under:

Whenever any person is arrested under Section 57 Cr.P.C. he should
D be produced before the nearest Magistrate within 24 hours as mentioned
therein. Such Magistrate may or may not have jurisdiction to try the case.
If Judicial Magistrate is not available, the police officer may transmit the
arrested accused to the nearest Executive Magistrate on whom the judicial
powers have been conferred. The Judicial Magistrate can in the first
instance authorise the detention of the accused in such custody i.e. either
E 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. If rhe arrested accused is produced
before the Executive Magistrate he is empowered to authorise the deten-
F lion in such custody either police or judicial only for a week, in the same
manner namely by one or more orders but after o:ne week he should
transmit him to the nearest Judicial Magistrate along with the records.
When the arrested accused is so transmitted the Judicial Magistrate, for
the remaining period, that is to say excluding one week or the number of
G days of detention orderd by the Executive Magistrate, may authorise
further detention within that period of first fifteen days to such custody
either police or judicial. After the expiry of the first period of fifteen days
the further remand during the period of invest~gation can only be in judicial
custody. There cannot be any detention in the police custody after the
expiry of first fifteen days even in a case where some more offences either
H serious or otherwise conimitted by him in the same transaction come to
C.B.l. v. AJ. KULKARNI [REDDY, J.) 179

light at a later stage. But this bar does not apply if the same arrested A
accused is involved in a different case arising out of a different transaction.·
Event if he is in judicial custody in connection with the investigation of the
earlier case he can formally be arrested regarding his involvement in the
different case and associate him with the investigation of that other case
and the Magistrate can act as provided under Section 167(2) and the
proviso and can remand him to such custody as mentioned therein during B
the first period of fifteen days and thereafter in accordance with t:
proviso as discussed above. If the investigation is not completed within i:h
period of ninety days or sixty days then the accused has to be released on.
bail as provided under the proviso to Section 167(2). The period of ninety
days or sixty days has to be computed from the date of detention as per C

- the orders of the Magistrate and not from the date of arrest by the polK:e.
Consequently the first period of fifteen days mentioned in Section 167(2)
has to be computed from the date of such detention and after the expiry
of the period of first fifteen days it should be only judicial custody.

We may, however, in the end clarify that the position of law stated D
above applies to Section 167 as it stands in the Code. If there are any State
amendments enlarging the periods of detention, different considerations
may arise on the basis of the language employed in those amendments.

The appeals are accordingly dismissed.

V.P.R. Appeals dismissed.