Report No. 154
Custody, Remand and Changes in Section 167(2)
1. In the Central Bureau of Investigation, Special Investigation Cell-1, New Delhi v. Anupam J. Kulkarm, (1992) 3 SCC 141, the Supreme Court held that under the proviso to section 167(2) of the Code, the police custody can be only during the first 15 days of the remand and not later. It was generally felt in all the Workshops that such limitation would cause practical difficulties in carrying out investigation in some cases. In view of this, we suggest that it should be permissible for the prosecution to seek police custody during the period of remand at any time if a need arises. However, the total remand of police custody should not exceed 15 days.
2. Of late, it has been a matter of common knowledge that investigation of many important cases is entrusted to CBI by the appropriate Government after great delay. Consequently, the CBI has been experiencing considerable difficulties in obtaining the police custody even if it became absolutely necessary. There may be cases where the original investigating agency might have obtained police custody upto 15 days or considerable part of the period. In such a situation, the CBI is very much handicapped.
After having considered the various views and keeping in view the present scenario and the types of offences coming to light, it is necessary to see that the investigation by CBI is effective and meaningful. For this purpose, obtaining of the fresh police custody by CBI becomes absolutely necessary. Therefore, we are of the view that a provision should be made for a fresh police custody if sought by the CBI but it should not exceed 15 days on the whole. Accordingly, section 167(2) be amended in the following manner:
"(2(a) 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 accused for a term not exceeding fifteen days at a time but the total period shall not exceed (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years, (ii) sixty days, where the investigation relates to any other offence.
2(b) During such custody the Magistrate if he thinks fit, may authorise the detention of the accused person in custody of the police for a total number of 15 days on the whole:
Provided that if the investigation is transferred to Delhi Special Police Establishment, a Magistrate may also authorise detention of accused for another 15 days on the whole irrespective of the earlier period of police custody, on being satisfied with the reasons necessitating such custody mentioned by investigating officer of Delhi Special Police Establishment, after recording reasons.
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 under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
2(c) No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him.
2(d) No Magistrate of the second class, not specially empowered in the behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (c), the production of the accused person may be proved by his signature on the order authorising detention."