Maximum Period of Police Custody

                                    Maximum Period of Police Custody

Relevant Provisions of Law

1. Section 167 Cr.P.C.: Procedure when investigation cannot be completed in 24 hours.

Basic Principles of Law

1. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole.
2. 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.
3. If the arrested accused is produced before the Executive 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.
4. 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 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.
5. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody.
6. 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 serious or otherwise committed by him in the same transaction come to light at a later stage.
7. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction.
8. Even 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 the first period of fifteen days and thereafter in accordance with the proviso as discussed above.
9. The first period of fifteen days mentioned in Section 167(2) has to be computed from the date of detention as per orders of the Magistrate and after the expiry of the period of first fifteen days it should be only judicial custody.

 

Section 167 Cr.P.C. is supplementary to Section 57. It is clear 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 arrested person for more than 24 hours exclusive 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 entries in the diary 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.

Object and Scope of Section 167(2) Cr.P.C.

In case Central Bureau of Investigation, Special Investigating Cell-I, New Delhi Vs. Anupam Kulkarni, 1992 Cri.L.J.2768 (1), the Hon’ble Supreme Court described the object and scope of Section 167(2) Cr.P.C. as under:-

“It lays down that the magistrate to whom the accused person is thus forwarded may, whether he has or has not the 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 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 accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit.” 

Applicability of Section 167(2) Cr.P.C.

1st judgment of the Hon’ble Supreme Court on the subject

Central Bureau of Investigation, Special Investigating Cell-I, New Delhi Versus Anupam Kulkarni, 1992 Cri.L.J. 2768 (1) 

Brief Facts of the case

A case relating to abduction of four Bombay based diamond merchants and one 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 the four diamond merchants but also Kulkarni, and one driver Babulal were kidnapped between 14th and 15th September, 1991 from two Hotels at Delhi. It emerged during investigation that the said Kulkarni was one of the associates of the accused R.Chaudhary who was responsible for the kidnapping of the diamond merchants. On the basis of some available material Kulkarni was arrested on 4-10-91 and was produced before the Chief Metropolitan Magistrate, Delhi on 5-10-91. On the request of the C.B.I. Kulkarni was remanded to judicial custody till 11-10-91. On 10-10-91 a test identification parade was arranged but 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 Kulkarni which was allowed. When he was being taken, on the way Kulkarni pretended to be indisposed and he was taken to the Hospital the same evening where he remained confined on the ground of illness up to 21-10-91 and then he was referred to Cardic Out-patient Department of G.B. Pant Hospital. Kulkarni was again remanded to judicial custody by the Magistrate upto 29.10.1991 and thereafter was sent to Jail. In view of the fact that the Police could not take him into police custody all these days, the investigating officer again applied to the Court of Chief Metropolitan Magistrate for police custody of Kulkarni. The Chief Metropolitan Magistrate, relying on ajudgment of the Delhi High Court in State (Delhi Admn.) v. Dharam Pal, 1982 Cri LJ 1103 refused police remand. Questioning the same a revision was filed by the CBI before the High Court of Delhi.

Proceedings before the Hon’ble Delhi High Court

The accused filed bail application. The Hon’ble High Court granted bail to the accused on merits. The Hon’ble 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 remanded to police custody by the magistrate before whom he was produced. The said order was challenged by the CBI before the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the State Counsel

The State Counsel contended that Chief Metropolitan Magistrate erred in not granting police custody and that Dharam Pal’s case (1982 Cri LJ 1103) on which he placed reliance has been wrongly decided. He further contended that the High Court has erred in granting bail to Shri Kulkarni without deciding the question whether he can be remanded to police custody as prayed for by the CBI.

Plea of the respondent/accused

The Defence Counsel submitted that the language of S. 167, Cr.P.C. is clear 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 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.

Questions of Law

While this was the 1st case on the subject, the Hon’ble Supreme Court framed the following questions of law:-

1. Whether a person arrested and produced before the nearest Magistrate, as required under S. 167(1) Code of Criminal Procedure, can still be remanded to police custody after the expiry of the initial period of 15 days?
2. 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?
3. Whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso?
4. Whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence 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?

Answers to these questions

While answering these questions, the Hon’ble Supreme Court laid down the following principles:-

1. In case of production of accused before the Executive Magistrate

Section 167(2A) Cr.P.C. makes provision for the production of the accused before the Executive Magistrate.

(a) Powers of Executive Magistrate

Executive Magistrate has power order to detention only for 7 days in ‘such custody’ as he thinks fit.

Para “9. …. Section 167(2A) which has been introduced for pragmatic reasons states that if an arrested person is produced before an Executive Magistrate for remand the said Magistrate may authorise the detention of the accused 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 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 entries in the diary before the expiry of seven days.”

(b) Powers of Judicial Magistrate in such a situation

The Judicial Magistrate can order detention, in such custody as he deems fit, for the rest of the first 15 days, after deducting the period of detention ordered by the Executive Magistrate.

The section also lays down that the Judicial Magistrate who is competent to make further orders of detention, for the purposes of computing the period of detention has to take into consideration the period of detention ordered by the Executive Magistrate. Therefore on a combined reading of Section 167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under Section 167(2) for the rest of the first fifteen days after deducting the period of detention ordered by the Executive Magistrate. The detention thereafter could only be in judicial custody.

1. Production of accused directly before the Judicial Magistrate

When accused is directly produced before the Judicial Magistrate, the Magistrate has the following options/powers:-

(a) The Judicial Magistrate may grant police custody or judicial custody from time to time. But the total period of detention cannot exceed 15 days in whole.

Para “4. …. The Magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit.…..”

(b) There can be more than one order of police custody.

Para “6. …. The Division Bench in Dharam Pal’s case referring to these observations of Hardy, J. observed that “We completely agree with Hardy, J. in coming to the conclusion that the Magistrate has to find out whether there 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 S.167(2) of the 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. ……” 

It was further observed as under:-

Para “7. ….. In Chaganti Satyanarayana v. State of Andhra Pradesh, (1986) 3 SCC 141 : (AIR 1986 SC 2130), 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 not from the date of his arrest under Section 57 and that remand to police custody cannot be beyond the period of fifteen days and the further remand must be to judicial custody. Though the point that precisely arose before this Court was whether the period of remand prescribed should be computed from the date of remand or from the date of arrest under Section 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 (para 15, at p. 2135 of AIR):

“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 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 atime” 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. Where an accused is placed in police custody for the maximum period of 15 days allowed underlaw 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 the accused, if warranted, has to be necessarily to Judicial custody and not otherwise. The legislature having provided for an accused being placed under police custody under orders of remand for effective investigation 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.(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 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.”

1. After the expiry of ‘initial 15 days’, there can only be judicial custody

Para “6. The Division Bench in Dharam Pal’s case referring to these observations of Hardy, J. observed that “We completely agree with Hardy, J. in coming to the conclusion that the Magistrate has to find out whether there 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 S. 167(2) of the 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 Cri LJ 2366, where a single Judge after relying on the judgment of the Division Bench in Dharam Pal’s case, (1982 Cri LJ 1103), held that the language 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”. 

It was further observed as under:-

Para “8. …… Taking the plain language into consideration particularly the words

“otherwise than in the custody of the police beyond the period of 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 ninety 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 Dharam Pal’s case is correct.”

1. Duration of maximum period of police custody when during investigation, complicity of accused in more serious offences is disclosed

(a) If complicity relates to the offences committed during the same transaction, the maximum period of police custody will be 15 days.

Para “11. …. We are 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 connection 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 expiry of the first fifteen-days. If that is permitted then 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. ….”

(b) If complicity relates to the offences committed during different transactions, the maximum period of police custody will be 15 days.

Para “11. …. However, we must clarify that this 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 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 formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. ….”

Finding on Facts

While applying the above principles of law, the Hon’ble Supreme Court dismissed the appeals.

2. Computation of period of remand

(a) The first period of detention should be computed from the date of order of remand by the Magistrate.

In case Central Bureau of Investigation, Special Investigating Cell-I, New Delhi Vs. Anupam Kulkarni, 1992 Cri.L.J. 2768 (1), while reiterating the principle laid down it in case Chaganti Satyanarayana (AIR 1986 SC 2130), the Hon’ble Supreme Court observed as under:-

Para “9. 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 cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. In Chaganti Satyanarayana’s case, (AIR 1986 SC 2130), 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.……”

(b) Notional surrender of accused in another case when he is in custody in one case. Starting point for computation of period will start from the date of actual police custody and not from the date of surrender.

(c) The transit period will be excluded.

In case State of W.B. Vs. Dinesh Dalmia, 2007 Cri.L.J.2757

Brief Facts of the case

On 9th September, 2002, the Secretary of the Calcutta Stock Exchange Association Limited lodged a written complaint with the Hare Street Police Station alleging the commission of offences under Sections 120B/4 20/409/467/468/471/ 477A Indian Penal Code against Harish Chandra Biyani and others. The complaint was treated as First Information Report and case No. 476 dated 24.9.2002 was registered 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 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 and F C CBI. He was produced before the Additional Chief Judicial Magistrate, Tis Hazari. On transit remand, the respondent was produced before the Additional Chief Judicial Magistrate, Egmore, Chennai on 14th February, 2006. In the mean time, the Investigation Officer of this case also prayed for issuance of production warrant against the respondent before the Court of learned Chief Metropolitan Magistrate Calcutta, as the respondent was arrested and detained in 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 be produced 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 Metropolitan Magistrate, Egmore, Chennai by the CBI in their further remand application. The Addl. 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 this case filed an application before the Court of Chief Metropolitan Magistrate, Calcutta intimating that the accusedrespondent 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 Calcutta, he should not be released in the CBI cases at Chennai.

On 23rd February, 2006, the Investigating Officer of this case filed an application before the Magistrate at Egmore, Chennai regarding production of the accusedrespondent 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 the accused-respondent was in custody on 27th February, 2006 in connection with the CBI case pending before the Addl. Chief Metropolitan Magistrate, Egmore, Chennai, he voluntarily surrendered before the Magistrate, 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 surrendered on 27th February, 2006 and that was accepted by the Addl. Chief Metropolitan 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. Intimation in this regard was 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 Addl. Chief Metropolitan Magistrate, Egmore, Chennai for counter signature on the production warrant issued by the learned Chief Metropolitan Magistrate, Calcutta. The Addl. 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 Narco Analysis tests on the 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 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 respondent was produced in the Court of Chief Metropolitan Magistrate, Calcutta. The Investigating Officer of this case requested the Court of Chief Metropolitan Magistrate, Calcutta to hand over the accused for 15 days for police remand for investigation. An application was moved by the defence Counsel praying for bail on behalf of the accused-respondent before the Court of Addl. 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 challan, therefore accused be enlarged on bail. As against this, it was submitted that accused was arrested by CBI and 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 accused on the fixed date.

The 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 the production warrant issued by the learned Chief Metropolitan Magistrate Calcutta, the period of police custody was to be considered from the date of his physical production. The accused-respondent was remanded to the police custody till 28th March, 2006.

Aggrieved against this order, the accused approached the Calcutta High Court.

Order of Calcutta High Court

The Hon’ble Calcutta High Court took the view that the detention of the accused should be counted w.e.f. 27th February, 2006, when the accused surrendered him in this case.

Feeling aggrieved, the State filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the State

The State Counsel submitted that, under sub-section (2) of Section 167 of Criminal Procedure Code, the period should only be counted when the accused is arrested/ taken in custody by the police and not from the date when he surrendered before the Magistrate.

It was further submitted that in this case the accused was taken in custody by the police on 13th March, 2006 and was produced before the Magistrate on the same day. Therefore, the period commences from 13th March, 2006 and not from 27th February, 2006.

Question of Law

Whether the detention period should be counted from the day the police took the accused in custody or the period should be counted from the day when the accused surrendered?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that starting point for computation of period will start from the actual police custody and not from the date of surrender. It was further held that transit period will also be excluded.

While holding so, the Hon’ble Surpeme Court observed as under:-

Para “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 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 custody of the accused in the cases pending before the Calcutta. In fact the accused was detained in CBI case pending in Egmore, Chennai. The CBI 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 11th 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 11th March, 2006 Police took physical custody of the accused under the order of the Metropolitan 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 and 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 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.476/2002. Though knowing well that a 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 investigation for a case registered against the accused at Calcutta….”

While holding that transit period will not be treated as the period in police custody, the Hon’ble Supreme Court further observed as under:-

Para “14 …. 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 10th of March, 2006 and on 11th March, the Calcutta police was given a custody of the accused by the Egmore Court, Chennai to be produced before the Magistrate 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 background, 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.” 

Cases Referred:

1. Central Bureau of Investigation, Special Investigating Cell-I, New Delhi

Vs. Anupam Kulkarni, 1992 Cr.L.J.2768

2. State of W.B. Vs.Dinesh Dalmia, 2007 Cri.L.J.2757