Holding

Police custody for the purposes of Section 167(2) commences only when the accused is physically taken into police custody for investigation, not when he voluntarily surrenders before a magistrate while in judicial custody.

Summary

Dinesh Dalmia was arrested in a CBI case and placed in judicial custody in Chennai. He voluntarily surrendered before the Additional Chief Judicial Magistrate, Egmore, on 27 February 2006, seeking production before the Calcutta court where two other cases (Nos. 300/2002 and 476/2002) were pending. He was produced before the Calcutta magistrate on 13 March 2006, after which the Calcutta police took him into police custody for investigation and sought a 15‑day police remand. The accused applied for bail, arguing that the 90‑day limit under Section 167(2) of the Cr.P.C. had expired because the period should be counted from his voluntary surrender on 27 February. The Calcutta High Court accepted this view and granted bail. The State of West Bengal appealed. The Supreme Court held that "custody of the police" under Section 167(2) commences only when the accused is physically in police custody for investigation; a voluntary surrender while already in judicial custody does not count. Consequently, the period of police custody began on 13 March 2006, and the 90‑day limit had not expired. The appeal was allowed and the High Court order set aside.

Issues considered

The meaning of "custody of the police" under Section 167(2) of the Criminal Procedure Code.
Whether the period of police custody for the purpose of Section 167(2) begins from a voluntary surrender before a magistrate or from the date of actual physical police custody.
Whether the 90‑day limit for police remand had expired in the present case.

Legislation cited

Code of Criminal Procedure, 1973s. 167(1), s. 167(2)

Subjects

Section 167police custodyvoluntary surrenderbailremandcriminal proceduredetention periodmultiple casesjudicial custody

Judgment

""'-
STATE OF WEST BENGAL A
v.
DINESH DALMIA

APRIL 25, 2007

[A.K. MATHURANDTARUN CHATTERJEE,JJ.] B

j
Code of Criminal Procedure, 1973:
°'
S. 167(1) and (2), Proviso-Authorisation of accused in custody of the
police-"Custody of the police"-Connotation of-Accused in custody of c
police in a different case at Chennai-On coming to know that he is required
in other cases also at Calcutta, voluntarily surrendering before Magistrate
at Chennai-Later, accused produced in connection with Calcutta case
before Magistrate at Calcutta and remanded to custody of police for
investigation in Calcutta case-Plea of accused for bail on the ground that D
counted from the date of his surrender; the police failed to file the challan
\ within the prescribed period-Held, voluntary surrender cannot be conceived
to be detention under the case registered at Calcutta-Judicial custody/
dP-tention in another case cannot be treated as custody of police for
investigation purpose in instant case.
E
Words and Phrases:

"Custody of the police" as occurring in s. 167 Cr. PC-Meaning of

.,. Respondent was required by Calcutta Police in connection with Crime
Case No. 300/2002 and 476/2002. The Judicial Magistrate, Calcutta by order F
dated 13.2.2006 directed that respondent-accused be produced before him on
22.2.2006. Meanwhile, the respondent was arrested and produced before
Additional Chief Judicial Magistrate, Egmore, Chennai on 14.2.2006 in
connection with a CBI case and the order of Chief Judicial Magistrate, Calcutta
was brought to the notice of Addi. Chief Judicial Magistrate, Egmore,
- .,
. Chennai, who observed that matter of Calcutta Police would be considered
G
after the period of CBI custody was over, the respondent was to remain in
CBI Custody till 24.2.2006. When the respondent came to know that Calcutta
Police required him in two more cases, he voluntarily surrendered before
the Magistrate at Chennai on 27.2.2006. The ACJM Egmore, Chennai
561 H
562 SUPREME COURT REPORTS

A remanded the accused to judicial custody till 13.3.2006 and directed
[2007] 5 S.C.R.
/
-
production of accused before the Court at Calcutta. On 13.3.2006 respondent
was produced before CJM, Calcutta. The Investigating Officer required 15
days police remand of the respondent. An application for respondent's bail
was filed before the ACJM, Calcutta contending that he had surrendered on
27.2.2006 before the Magistrate at Chennai and as the period of 15 days was
B over and the police did not file the challan, he was entitled to be enlarged on
bail. The prosecution case was that he was arrested by CBI in different case
and in the instant case he was produced before Calcutta High Court on I
~
13.3.2006, so the period of 15 days was not over. The bail application was
rejected and respondent was remanded to police custody upto 28.3.2006. Later,
c on another application for bail filed on behalf of the respondent, when the matter
was taken to High Court in revision, the High Court held that detention of
respondent in Case No. 476/2002 should be counted from 27.2.2006, i.e. the
date he surrendered himself before ACJM, Egmore, Chennai and directed the
Metropolitan Magistrate to consider the matter in that light. Aggrieved, the
State filed the present appeal.
D
On the question: Whether the detention period in case No. 476/2002
should be counted from 13.3.2006 when the police took the accused in custody
or the period should be counted from 27.2.2006 when the accused surrendered '
before the Magistrate at Chennai.
E Allowing the appeal of the State, the Court

HELD: I. In connection with Case No. 476/2002 of Calcutta, the accused
was produced before the Calcutta Court on 13th March, 2006 and the Court
directed the custody of the accused to the police on the same day for
investigation in the criminal case registered against him in Calcutta. _,
F Therefore, the police custody will be treated from 13th March, 2006 and not
from 27th February, 2006. The accused was very well aware that there were
two cases registered against him in Calcutta for which he was required by
the Police, so he voluntarily surrendered before the Magistrate on 27th
February, 2006 when he was already in custody in relation to the CBI case.
G Therefore, this voluntary surrender cannot be conceived to be detention under
a case registered at Calcutta i.e. Case No. 476/2002. In this back-ground, r--. .
the view taken by the single Judge that since he voluntarily surrendered on
27th February, 2006, therefore, he shall be deemed to be under the police
custody w.e.f. 27th February, 2006 is not correct and 90 days shall be counted
from 13.3.2006. [Para 14) [569-B, D, F, G)
H
STATE OF WEST BENGAL v. DINESH DALMIA 563

2. Sub-Sections (1) and (2) ofs. 167 Cr.PC with proviso clearly indicate A
that the incumbent should be in fact under detention of the police for
investigation. In the present case, the accused was not arrested by the police
nor was he in the police custody before 13.3.2006. He voluntarily surrendered
before a Magistrate and no physical custody of the accused was given to the
police for investigation. The whole purpose is that the accused should not be B
detained more than 24 hours and subject to 15 days police remand and it can
further be extended up to 90/60 days, as the case may be. But judicial custody/
detention in another case cannot be treated the custody of police for
' investigation purpose. The police custody here means the custody of the police
in a particular case for investigation and not judicial custody in another case.
This notional surrender cannot be treated as police custody so as to count 90 C
days from that notional surrender. [Para 16) [571-G; 572-A, BJ

State ofMaharashtra v. Bharati Chandmal Varma (Mrs.), [2002) 2 SCC
121 and Central Bureau of Investigation, Special Investigation Cell-I, New
Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141, relied on.
D
Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors., (1980) 2
sec 359, held not applicable.
Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440,
referred to.
E
Uday Mohan/al Acharya v. State of Maharashtra, [2001) 5 SCC 453;
Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC
559; Central Bureau of Investigation, Special Investigation Cell, New Delhi
v. Anupam J. Kulkarni, [1992) 3 SCC 141 and Directorate of Enforcement v.
Deepak Mahajan and Anr., [1994) 3 SCC 440, cited.
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 623 of
2007.

From the Judgment and Order dated 27.09.2006 of the High Court of
Calcutta in A.S.T. No. 570 of2006.
G
Altaf Ahmed, Tara Chandra Sharma, Neelam Sharma and Rajeev Sharma
for the Appellant.

K. Parasaran and Mukul Rohatgi, Shekhar Basu, Umapathi Ganeshan,
Rajendra Singhvi, Anuj Singh, Madhurima Tatia, Madhur Dadlani, Anirudh
H
564 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Shanna, Tirthan Kar Ghosh and Ashok Kumar Singh for the Respondent.
../
-....
The Judgment of the Court was delivered by

A.K. MATHUR, J. 1. Leave granted.

B 2. This appeal is directed against the order dated 27.9.2006 passed in
A.S.T. No.570 of2006 by the Calcutta High Court whereby the learned single
Judge of the High Court has set aside the order dated 16.6.2006 passed by
the learned Chief Metropolitan Magistrate, Calcutta and directed the 5th ,,
Court of Metropolitan Magistrate, Calcutta to consider the matter afresh and
pass necessary order in the light of observation made by the Court.
c
3. Aggrieved against this order dated 27.9.2006 passed by learned
Single Judge, the present S.L.P. was preferred by the State of West Bengal.

4. Brief facts giving rise to this appeal are that the Respondent, Dinesh
Dalmia filed a petition under Section 397/482 of the Code of Criminal Procedure,
D 1973 in the High Court of Calcutta for setting aside the order of 27th May,
2006 and 16th June, 2006 passed by the learned Chief Metropolitan Magistrate,
Calcutta and the learned 5th Court of Metropolitan Magistrate, Calcutta t
respectively in connection with GDD 476 dated 24.9.2002 corresponding to
G.R.No. 2001 of2002 being investigated by Detective Department (Special
E Cell) Lalbazar pending before the 5th Court of Metropolitan Magistrate,
Calcutta.

5. The Secretary of the Calcutta Stock Exchange Association Limited
lodged a written complaint with the Hare Street Police Station on 9th September,
2002 alleging a commission of offences under Sections 120B/4 20/409/467/468/
F 471/477A of the Indian Penal Code against Harish Chandra Biyani and others.
The complaint was treated as First Infonnation Report and was registered at
Park Street P.S. case No. 476 dated 24.9.2002 under the aforesaid Sections of
the I.P.C .. Thereafter, the investigation of the case was taken up by the
Detective Department. During the course of the investigation, Investigating
Officer prayed for issuance of warrant of arrest against the respondent on
G 12th February, 2006. Prior to that the respondent was arrested in New Delhi
by the Central Bureau of Investigation, Bank Securities and Fraud Cell, New ..' . -
Delhi in connection with CBI Case No. RC 4(E)/200 3-BS &F C CBI. He was
produced before the learned Additional Chief Judicial Magistrate, Tis Hazari.
On transit remand, the respondent was produced before the learned Court of
Additional Chief Judicial Magistrate, Egmore, Chennai on 14th February, 2006.
H
.. ...
STATE OF WEST BENGAL v. DINESH DAL MIA [A.K. MATHUR, J.] 565

In the mean time, the Investigation Officer of the present case also prayed A
for issuance of production warrant against the respondent before the Court
of learned Chief Metropolitan Magistrate Calcutta, as the respon_dent was
arrested and detained ii} the aforesaid CBI case pending before the Chief
Metropolitan Magistrate, Egmore, Chennai. The Chief Metropolitan Magistrate,
Calcutta by order dated 13th February, 2006 allowed such prayer of the
Investigating Officer and directed that the accused-respondent b~ produced B
before the the Learned Chief Metropolitan Magistrate, Calcutta on or before
22nd February, 2006. A copy of the said order was sent to the Court of
~
Additional Chief Metropolitan Magistrate, Egmore, Chennai. On 14th February,
2006, the order dated 13th February, 2006 passed by the Chief Metropolitan
Magistrate, Calcutta was brought to the notice of the Additional Chief c
Metropolitan Magistrate, Egmore, Chennai by the CBI in their further remand
application. The Addi. Chief Metropolitan Magistrate, Egmore, Chennai
observed that the matter of Calcutta Police would be considered after the
period of CBI custody was over. On 17th February, 2006 the Investigating
Officer of the present case filed an application before the learned Court of
Chief Metropolitan Magistrate, Calcutta intimating that the accused-respondent D
was in the custody of CBI till 24th February, 2006 in connection with the
aforesaid CBI cases and sought direction for production of the accused-
respondent in Calcutta on or by 8th March, 2006. The Court at Calcutta by
order dated 17th February, 2006 observed that looking to the gravity of the
offences complained against the accused-respondent in the cases pending in E
Calcutta, he should not be released in the CBI cases at Chennai. On 23rd
February, 2006, the Investigating Officer in the present case filed an application
before the Magistrate at Egmore, Chennai regarding production of the accused-
respondent being in the present case before the Court of Chief Metropolitan
; Magistrate at Calcutta. By that time, the accused-respondent came to know
that he was wanted in two more cases pending against him in Calcutta. When F
the accused-respondent was in custody on 27th February, 2006 in connection
with the CBI case pending before the Addi. Chief Metropolitan Magistrate,
Egmore, Chennai, he voluntarily surrendered before the learned Magistrate,

...
---do
Chennai as he was wanted in connection with the two cases of Calcutta
Police. i.e_ Case No. 300/2002 and 476/2002. The accused respondent G
surrendered on 27th February, 2006 and that was accepted by the Addi. Chief
Meti:opolitan Magistrate, Egmore, Chennai on the same date. But the Learned
Additional Chief Metropolitan Magistrate Egmore, Chennai remanded the
accused respondent to the judicial custody till 13th March, 2006. The learned
Additional Chief Metropolitan Magistrate, Chennai further directed production
of the accused before the Court at Calcutta. An intimation in this regard was H
566 SUPREME COURT REPORTS (2007] 5 S.C.R.

A also forwarded to the Chief Metropolitan Magistrate, Calcutta along with
surrender papers of both the cases. An intimation dated 28th February, 2006
was also forwarded to the Hare Street Police Station and Park Street Police
Station where those two cases were pending. The Investigation Officer
requested the learned Addi. Chief Metropolitan Magistrate, Egmore, Chennai
for counter signature on the production warrant issued by the learned Chief
B Metropolitan Magistrate, Calcutta. The Addi. Chief Metropolitan magistrate,
Chennai counter signed the production warrant and served upon the Jail
Superintendent, Egmore, Chennai. On 3rd March, 2006 in response to the
prayer made by the CBI, the learned Magistrate at Chennai directed for
conducting of Polygraph, Brain Mapping and Nacro Analysis tests on the
C accused-respondent. The learned Magistrate directed the Superintendent,
Central Jail, Chennai to hand over the accused for the aforesaid test to
Inspector, CBI and produce him before the Court on 9.3.2006. Thereafter on
11.3.2006 on the request of Calcutta Police accused was handed over to
Calcutta Police to be escorted to Calcutta for production before the Magistrate
at Calcutta. Therefore, on the request made by the CBI, the accused respondent
D was handed over to the CBI team for the above tests. On 13th March, 2006
pursuant to the order of the learned Magistrate at Calcutta the accused 1
respondent was produced in the Court of Chief Metropolitan Magistrate,
Calcutta. The Investigating Officer of the instant case requested the Court of
Chief Metropolitan Magistrate, Calcutta to hand over the accused for 15 days
E for police remand for investigation. An application was moved by the defence
praying for bail on behalf of the accused-respondent before the Court of
Addi. Chief Metropolitan Magistrate, Calcutta. It was contended that the
accused-respondent had surrendered on 27th February, 2006 before the
Magistrate at Chennai and the period of 15 days was over and Police had not
filed the cha!lan, therefore accused be enlarged on bail. As against this, it was
F submitted that he was arrested by CBI and the accused was produced before
the Calcutta Court in this case on 13th March, 2006 so the period of 15 days
was not over. The case was fixed for 16th March, 2006 for further hearing and
on that date the bail application was rejected and the accused was remanded
to police custody up to 24.3.2006 and the Court directed to produce the
G accused on the fixed date.

6. The learned Chief Metropolitan Magistrate, Calcutta after considering
the submission took the view that the custody of the petitioner cannot be
considered unless and until he is physically produced before the Court and
since in the present case it was done on March 13, 2006 on the strength of
H the production warrant issued by the learned Chief Metropolitan Magistrate,
STATE OF WEST BENGAL v. DINESH DALMIA (A.K. MATHUR, J.] 567
~
Calcutta, the period of police custody was to be considered from the date of A
- his physical production. The accused-respondent was remanded to the police
custody till 28th March, 2006. Hence aggrieved against this ord~r the
respondent approached the Calcutta High Court in revision. The learned
Single Judge has taken the view that the Chief Metropolitan Magistrate has
not correctly approached the matter and has wrongly taken the view that the
accused did not surrender before the Metropolitan Magistrate, Egmore,
B
Chennai on 24.2.2006. However, the accused was given liberty to file application
before the said Court afresh and the Magistrate was directed to consider the
' same in the light of the aforesaid judgment. It was also mentioned that still
8 more days from 19.5.2005 to 27.5.2006 were left to the Police to file final
c
-
report. The Police still did not file the final report.

7. Then again accused moved the bail application before the Chief
Metropolitan Magistrate, Calcutta. The Chief Metropolitan Magistrate, Calcutta
rejected the bail application holding that statutory period of 90 days has not
expired by his order dated 27.5.2006.
D
8. The final report under Section 173(2) of the Code of Criminal Procedure
t was submitted before the Chief Metropolitan Magistrate, Calcutta and the
case .\ras transferred to Vth Court of Metropolitan Magistrate, Calcutta. Then
again on 12.6.2006 a bail application was filed before the Vth Metropolitan
Magistrate, Calcutta. Learned Metropolitan Magistrate rejected the bail
application holding that this bail application amounted to review of the order E
and he has no power of review, therefore, the same was rejected by order
dated 16.6.2006.

9. Aggrieved against that order the present revision petition was filed
f before the High Court.
F
IO. The Calcutta High Court took the view that the detention of the
accused should be counted w.e.f. 27th February, 2006 when the accused
alleged to have surrendered himself in the case of 476/2002 before the Additional
Chief Metropolitan Magistrate, Egmore, Chennai and accordingly held that
• more than 90 days period has expired. Therefore, the matter should be G
- ~- considered by the Metropolitan Magistrate again in the light of observation
made by the Court, by order dated 27.9.2006. The revision petition of the
accused was allowed.

11. Aggrieved against the order of the Calcutta High Court, dated
27 .9 .2006 the present appeal was filed. H
568 SUPREME COURT REPORTS [2007] 5 S.C.R.
.;/
A 12. We heard learned counsel for both the parties and perused the
record. The crucial question before us is whether the detention period should
be counted from 13th March, 2006 when the police took the accused in
custody or the period should be counted from 27th February, 2006 when the
accused surrendered in the case of 476/2002 before the Metropolitan
Magistrate, Egmore, Chennai. Learned counsel for the State submitted that
B under Sub-Section 2 of Section 167 of Criminal Procedure Code the period
should only be counted when he is arrested/ taken in custody by the police
not before the date when he surrendered before the Magistrate on 27th ,
February, 2006. Learned counsel submitted that in fact the accused was taken
in custody by the police on 13th March, 2006 and was produced before the
c Magistrate on 13th March, 2006 and on that date the police sought the
custody of accused for completion of the investigation. Therefore, the period
commences from 13th March, 2006. In respect thereof, learned counsel invited
our attention to a case of Uday Mohan/al Acharya v. State of Maharashtra,
reported in [200 l] 5 SCC 453 as against this Learned counsel for the respondent
submitted that the period should be counted from the date when the accused-
D respondent surrendered in case No. 476/2002 before the Metropolitan
Magistrate, Egmore, Chennai. The challan has not been filed within the period
of 90 days. Therefore, the accused-respondent is entitled to bail as per sub-
section (2) of Section 167 of the Cr.P.C. In respect thereof, learned counsel
invited our attention to cases of Niranjan Singh & Anr. v. Prabhakar Rajaram
E Kharote & Ors., reported in [1980] 2 SCC 559, Central Bureau ofInvestigation,
Special Investigation Cell, New Delhi v. Anupam J Kulkarni, reported in
[1992] 3 SCC 141 and learned counsel also invited our attention to the case
Directorate of Enforcement v. Deepak Mahajan and Anr., reported in [1994]
3 sec 440 (para 44).
i
F 13. We have considered the rival submissions of the parties and perused
the record.

14. The admitted position is that there were two cases pending in the
Calcutta Court against the accused and the accused-respondent was arrested
at Delhi in CBI case and he was produced before the Additional Chief
G Metropolitan Magistrate Egmore, Chennai under the investigation of CBI. The
accused was remanded for the investigation before the CBI after that the
accused was sent for judicial custody in the CBI case. The Calcutta Court
directed the production of the accused-respondent and a request was made
before the Additional Chief Metropolitan Magistrate, Egmore, Chennai for the
H custody of the accused in the cases pending before the Calcutta. In fact the
~
STATE OF WEST BENGAL v. DINESH DALMIA [A.K. MATHUR, J.] 569

~- accused was detained in CBI case pending in Egmore, Chennai. The CBI A
sought the police remand of accused for some scientific test and the accused
was sent for the test and after that the accused was sent back by the CBI
to the Egmore, Court. Then an order dated I Ith March, 2006 was passed for
handing over of the accused to the Calcutta Police for being produced before
the Magistrate on 13th March, 2006 and on I Ith March, 2006 Police took
physical custody of the accused under the order of the Metropolitan B
Magistrate, Egmore, Chennai and on the basis of the transit warrant, the
accused was taken over on 11th March, 2006 and was produced before the
• ., Calcutta court on 13th March, 2006 an<i from there the accused was sent to
the custody of the police for investigation. Therefore, in the sequence of
event, physical custody of the accused was taken over for investigation by c
the Calcutta Police on 13.3.2006. The accused was very well aware that there
,._ were two cases registered against him in Calcutta for which he was required
by the Police, so he voluntarily surrendered before the Magistrate on 27th
February, 2006 when he was already in custody in relation to the CBI case.
Therefore, this voluntary surrender cannot be conceived to be detention
under a case registered at Calcutta i.e.4 76/2002. Though knowing well that a D
requisition was sent by the Metropolitan Magistrate, Calcutta but in fact the
!. physical custody of the accused was given by the Calcutta Police for
investigation by the order of the Metropolitan Magistrate on 13th March,
2006. Therefore, so called notional surrender of the accused in the case No.
476/02 of Calcutta cannot be deemed to be a custody of the police for E
investigation for a case registered against the accused at Calcutta.. In fact the
accused continued to be under the judicial custody in relation to the CBI
case. It may be relevant to mention here that the CBI again took the accused
in custody for scientific test and he was surrendered back on I 0th of March,
2006 and on 11th March, the Calcutta police was given a custody of the
f accused by the Egmore Court, Chennai to be produced before the Magistrate F
in Calcutta on 13th March, 2006 and he was produced before the Calcutta
Court on 13th March, 2006 and the Court directed the custody of the accused
to the police on 13th March, 2006 for investigation in the criminal case
registered against him in Calcutta. Therefore, the police custody will be
treated from 13th March, 2006 and not from 27th February, 2006. In this back- G
ground, the view taken by the learned single Judge that since he voluntarily
- •• surrendered on 27th February, 2006, therefore, he shall be deemed to be under
the police custody w.e.f. 27th February, 2006 is far from correct and 90 days
shall be counted from that date only i.e. 13.3.2006.

15. Section 167 of the CR.P.C. clearly lays down that where investigation H
570 SUPREME COURT REPORTS (2007] 5 S.C.R.
-
A cannot be completed within twenty four hours and accused is under arrest
with Police, he has to be produced before Magistrate for further detention if
necessary. This is a salutary provision to safeguard the citizen's liberty so
that Police cannot illegally detain any citizen. Sub-sections (I) & (2) of
Section 167 which are relevant for our purposes read as under:

B "167 Procedure when investigation cannot be completed in twenty-
/our hours.

(!) 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
c believing that the accusation or information is well-founded, the officer
in charge of the police station or the police officer making the
investigation, if he 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.
D
(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, authorize the detention of the accused in such
custody as such Magistrate thinks fit, a term not exceeding fifteen
E 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
jurisdiction: Provided that.

{(a) the Magistrate may authorize the detention of the accused person,
F 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 authorize the detention of the accused
person in custody under this paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term ofnot less
G than ten years;
.. - -
(ii) sixty days, where the investigation relates to any other offence,
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 person released on bail
H
STATE OF WESTBENGALv. DINESH DALMIA [A.K. MATHUR, J.) 571

"" under this sub-section shall be deemed to be released under the A
provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorize detention in any custody under this
section unless the accused is produced before him;

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

~
•. 16. Sub-section (I) says that when a person is arrested and detained in
custody and it appears that investigation cannot be completed within 24
hours fixed under Section 57 and there are grounds of believing that accusation c
or information is well-founded, the officer in charge of the Police Station or
_,,.: the Police Officer making the investigation not below the rank of sub-inspector
shall produce the accused before the nearest judicial magistrate. The mandate
of sub-section (I) of Section 167, Cr.P.C. is that when it is not possible to
complete investigation within 24 hours then it is the duty of the Police to
produce the accused before the Magistrate. Police cannot detain any person D
in their custody beyond that period. Therefore, Sub-Section (I) pre-supposes
that the police should have custody of an accused in relation to certain
accusation for which the cognizance has been taken and the matter is under
investigation. This check is on police for detention of any citizen . Sub-
Section (2) says that if the accused is produced before the Magistrate and E
if the Magistrate is satisfied looking to accusation then he can give a remand
to the police for investigation not exceeding I 5 days in the whole. But the
proviso further gives a discretion to the Magistrate that he can authorize
detention of the accused otherwise then the police custody beyond the
period of 15 days but no Magistrate shall authorize detention of the accused
in police custody for a total period of 90 days for the offences punishable F
with death, imprisonment for life or imprisonment for a term of not less than
ten years and no magistrate shall authorize the detention of the accused
person in custody for a total period of 60 days when the investigation relates
to any other offence. and on expiry of the period of 90 days or 60 days as
the case may be. He shall be released ifhe is willing to furnish bail. Therefore,
G
~
-- .... the reading of sub-Sections (I) & (2) with proviso clearly transpires that the
incumbent should be in fact under the detention of police for investigation.
In the present case, the accused was not arrested by the police nor was he
in the police custody before 13.3.2006. He voluntarily surrendered before a
Magistrate and no physical custody of the accused was given to the police
for investigation. The whole purpose is that the accused should not be H
572 SUPREME COURT REPORTS (2007) 5 S.C.R.

A detained more than 24 hours and subject to 15 days police remand and it can
further be extended up to 90/60 as the case may be. But the custody of police
for investigation purpose cannot be treated judicial custody/ detention in
another case. The police custody here means the Police custody in a particular
case for investigation and not judicial custody in another case. This notional
B surrender cannot be treated as Police custody so as to count 90 days from
that notional surrender. A notorious criminal may have number of cases
pending in various police station in city or outside city, a notional surrender
in pending case for another FIR outside city or of another police-station in
same city, if the notional surrender is counted then the police will not get the ..
opportunity to get custodial investigation. The period of detention before a
C Magistrate can be treated as device to avoid physical custody of the police
and claim the benefit of proviso to Sub-Section 1 and can be released on bail.
This kind of device cannot be permitted under Section 167 of the Cr.P.C. The
condition is that the accused must be in the custody of the police and so
called deemed surrender in another criminal case cannot be taken as starting
D point for counting 15 days police remand or 90 days or 60 days as the case
may be. Therefore, this kind of surrender by the accused cannot be deemed
to be in the Police custody in the case of 476/02 in Calcutta. The Magistrate
at Egmore, Chennai could not have released the accused on bail as there was
already cases pending against him in Calcutta for which a production warrant
had already been issued by the Calcutta Court. In this connection in the case
E of State of Maharashtra v. Bharati Chandmal Varma (Mrs.) reported in
(2002] 2 SCC 121 their Lordships has very clearly mentioned that:

"For the application of the proviso to Section 167(2) of the Code,
there is no necessity to consider when the investigation could legally
have commenced. That proviso is intended only for keeping an arrested
F person under detention for the purpose of investigation and the
legislature has provided a maximum period for such detention .. On the
expiry of the said period the further custody becomes unauthorized
and hence it is mandated that the arrested person shall be released
on bail if he is prepared to and does furnish bail. It may be a different
position if the same accused was found to have been involved in
G some other offence disconnected from the offence for which he is
arrested. In such an eventuality the .officer investigating such second
... - .
offence can exercise the power of arresting him in connection with the
second case. But if the investigation into the offence for which he
was arrested initially had revealed other ramifications associated
H therewith, any further investigation would continue to relate to the
STATE OF WESTBENGALv. DINESHDALMIA [A.K. MATHUR,J.] 573

same arrest and hence the period envisaged in the proviso to Section A
167(2) would remain unextendable."

Therefore, it is very clearly mentioned that the accused must be in
custody of the police for the investigation. But if the investigation into the
offence for which he is arrested initially revealed other ramifications associated
therewith, any further investigation would continue to relate to the same B
arrest and hence the period envisaged in the proviso to Section 167(2) would
remain unextendable. Meaning thereby that during the course of the
investigation any further ramification comes to the notice of the Police then
the period will not be extendable. But it clearly lays down that the accused
must be in custody of police. In the case of Directoate of Enforcement v. C
Deepak Mahajan and Anr., reported in [1994] 3 SCC 440 their Lordships
observed that Section 167 is one of the provisions falling under Chapter XII
of the Code commencing from Section 154 and ending with Section 176 under
the caption "Information to the police and other powers to investigate". Their
Lordships also observed that main object of Section 167 is the production of .
an arrestee before a Magistrate within twenty four hours as fixed by Section D
57 when investigation cannot be completed within that period so that the
Magistrate can take further course of action as contemplated under sub-
section (2) of section 167. In para 54 their Lordships have also observed with
regard to the pre-requisite condition which reads as under:

"54. The above deliberation leads to a derivation that to invoke E
Section 167(1 ), it is not an indispensable pre-requisite condition that
in all circumstances, the arrest should have been effected only by a
police officer and none else and that there must necessarily be records
of entries of a case diary. Therefore, it necessarily follows that a mere
production of an arrestee before a competent Magistrate by an F
authorized officer or an officer empowered to arrest (notwithstanding
the fact that he is not a police officer in its stricto sensu) on a
reasonable belief that the arrestee " has been guilty of an offence
punishable" under the provisions of the Special Act is sufficient for
the. Magistrate to take that person into his custody on his being
satisfied of the three preliminary conditions, namely (I) the arresting G
officer is legally competent to make the arrest; (2) that the particulars
of the offence or the accusation for which the person is arrested or
other grounds for such arrest do exist and are well-founded; and (3)
that the provisions of the special Act in regard to the arrest of the
persons and the productions of the arrestee serve the purpose of H
574 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Section 167(1) of the Code."

As against this learned counsel for the accused respondent has invited our
attention to the case of Niranjan Singh & Anr. v. Prabhakar Rajaram
Kharote & Ors., (1980] 2 SCC 359. This case only relates to 'custody' under
section 439 Cr.P.C. Therefore, this case does not provide us any assistance
B whatsoever. In another case, Central Bureau of Investigation, Special
Investigation Cell-/, New Delhi v. Anupam J. Kulkarni [1992] 3 SCC 141 their
Lordships observed in paragraph 11 as follows :

"In one occurrence it might so happen that the accused might have
committed several offences and the police may arrest him in connection
c 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 authorize the police to ask for police custody for a further
period after the expiry of the first fifteen days. If that is permitted then
D the police can go on adding some offence or the other of a serious
nature at various stages and seek further detention in police custody
repeatedly, this would defeat the very object underlying Section 167.
But their Lordships put an occasion and added that limitation shall
not apply to a different occurrence in which complicity of the arrested
accused is disclosed. That would be a different transaction and if an
E 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 in other case. In such a situation
he must be formally arrested in connection with other case and then
obtain the order of the Magistrate for detention in police custody."
F

Their Lordships have clarified that if one case is registered against the
accused in which during the course of investigation it is found that he has
committed more than one offence then it will be treated to be one investigation
G and for each offence a separate police remand cannot be sought. But in case
it is a different offence which has been committed by him then it will be a
separate case registered and separate investigation will be taken up and for
that the detention by the accused in the previous case cannot be counted
towards a new case or different case registered against the accused. In fact,
the observation in this case answers the question raised in this petition.
H

>
STATE OF WEST BENGAL v. DINESH DALMIA (A.K. MA THUR, J.] 575

Therefore, their Lordships observed; A
"the occurrence constituting to different transactions give rise to two
different cases and the exercise of power under Sections 167( I) and
(2) should be in consonance with the object underlying the said
provision in respect of each of those occurrences which constitute
two difference cases. Arrest and detention in custody in the context B
of Section 167( I) &(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.

17. Therefore, for the separate offenc~ the accused has to be tried
separately and for that the proceedings will be initiated separately and C
independent remand can be sought by the accused.

18. In view of the above discussion, we are of the opinion that the view
taken by the learned Single Judge of the Calcutta High Court is not correct
and we accordingly set side the order of the Calcutta High Court dated D
27 .9.2006 and allow the appeal filed by the State of West Bengal and direct
}. the Metropolitan Magistrate to proceed in the matter in accordance with law.

RP. Appeal allowed.