SECTION 167 – TRANSFER TO JUDICIAL CUSTODY
Under sub-section (1) of Section 167 of the CrPC, 1973, a competent officer shall forward the accused to the Magistrate when it appears that the investigation cannot be completed within 24 hours. Two factors are important as envisaged under sub-section (1). They are, it must be a case where investigation cannot be completed within 24 hours of arrest of an accused and that he has to be forwarded to the Magistrate, meaning thereby he comes into the judicial custody from that of the investigating agency. The object and rationale behind this provision is rather clear. By restricting the custody to 24 hours, the liberty of the accused is meant to be considered and taken note of by an independent authority in the form a Magistrate. It is also an act of confirmation by the Magistrate on the arrest, followed by grant of custody of an accused person.
SECTION 167 – JURISDITION NOT NECESSARY
Sub-section (2) of Section 167 of the CrPC, 1973 deals with the power of the Magistrate. Such a Magistrate may or may not have the jurisdiction to try a case. There is no question of jurisdiction in any form that would stand in the way of the Magistrate from exercising the said power. By a mere designation he assumes such power. This is for the reason that liberty is paramount and any delay would amount to its curtailment. It may also delay further investigation.
SECTION 167 – SUCH CUDTODY MEANS
The words “such custody as such Magistrate thinks fit” would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, either be it judicial or to an investigating agency or to any other entity in a given case.
PRINCIPLES GOVERNING THE INTERPRETATION OF STATUTES
SECTION 167 – DIFFERENCE BETWEEN DETENTION and CUSTODY
Section 167(2) of the CrPC, 1973 authorises the detention of the accused in custody by an order of the Magistrate. It does consciously treat a detention different from custody. Custody will be either to the court or an investigating agency. Detention is normally made only by an investigating agency prior to the production before the learned Magistrate. A custody from being judicial may turn into police through an order passed by the learned Magistrate. Detention may at best be a facet of custody. However, they are not synonymous with each other. When detention is authorised, it would become custody. Custody does not mean a formal one. Rather, it can only be construed when an arrestee is given in physical custody. We make it clear that our interpretation of physical custody is meant to be applied to Section 167(2) of the CrPC, 1973 alone.
SECTION 167 – POLICE CUSTODY – MAY BE GIVEN BEYOND 15 DAYS
Having discussed the scope and ambit of Section 167 of the CrPC, 1973, we believe that it being a penal statute, a literal, natural and simple interpretation is to be given. When there is no need for a purposive interpretation and the statute clearly expresses its intendment, an act of judicial surgery is best avoided. Nowhere in the provision, it is stated that there cannot be any custody in favour of an investigating agency beyond the first 15 days of the remand, as against the express provision discussed in detail. Similarly, while understanding the intendment of Section 167 of the CrPC, 1973, the provision has to be read along with the proviso.
OPERATIVE PORTION – SPANNING OVER THE WHOLE PERIOD
79.Even assuming that the rationale behind Anupam J. Kulkarni (supra) is correct, the legal maxim actus curiae neminem gravabit would certainly apply. This aspect has not been taken note of in the said judgment, followed by the others. The larger Bench of this Court in Budh Singh v. State of Punjab (2009) 9 SCC 266, mainly gave its imprimatur to the findings rendered in Anupam J. Kulkarni (supra). Allowing the said interpretation which in our respectful view is contrary to the very mandate of Section 167(2) of the CrPC, 1973 would cause serious prejudice to the investigation. While agreeing with the views expressed by this Court in Vikas Mishra (supra) which actually dealt with the issue of counting the days, we are inclined to refer the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole. This issue needs to be put to rest as a legal proposition on an authoritative pronouncement by a larger Bench, though it does not alter our consideration herein in the facts and circumstances arising in this case. Notwithstanding the same, we proceed further to discuss and conclude to decide these petitions since a conclusion can be reached in the facts of this case guided by the law as it exists and noticed herein.
SECTION 167 – SUMMARIZE LAW
i. When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.
ii. Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002.
iii. An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.
iv. Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.
v. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.
vi. The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies.
vii. The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.
viii. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction.
ix. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.
x. The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench.
PARTY: Senthil Balaji vs The State Represented by Deputy Director and others – Criminal Appeal Nos. 2284-2285 Of 2023 – 07-08-2023 – 2023 INSC 677.
https://main.sci.gov.in/supremecourt/2023/28176/28176_2023_7_1501_45841_Judgement_07-Aug-2023.pdf
