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TITLE: POLICE CUSTODY: HUMAN RIGHTS PERSPECTIVE

BY

NAME OF THE STUDENT: P. RAJ KUMAR

ROLL NO.: 18LLB068

SEMESTER: IV

NAME OF THE PROGRAM: 5 YEAR (B.A., LL.B.)

NAME OF THE FACULTY MEMBER: MS. SOMA BHATTACHARJYA

DATE OF SUBMISSION:

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Prof. Soma

i i

Bhattacharjee, who gave me the golden opportunity to do this wonderful Research project on
i

the, POLICE CUSTODY HUMAN RIGHTS PERSPECTIVE which also helped me in doing
a lot of Research and I came to know about so many new things I am really thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this
Research paper within the limited time frame.
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TABLE OF CONTENTS

1. SYNOPSIS

2. INTRODUCTION

3. POLICE CUSTODY

4. JUDICIAL CUSTODY

5. DIFFRENCE BETWEEN JUDICIAL CUSTODY AND POLICE CUSTODY IN

CRPC

6. LAWS OF CUSTODY IN INDIA

7. POLICE CUSTODY REMAND AFTER 15 DAYS

8. POLICE CAN INTEROGATE WHEN HE IS IN MAGISTRATE CUSTODY

9. CUSTODIAL VIOLENCE

10. VIOLATION OF HUMAN RIGHTS

11. POWERS OF POLICE ABSOULTELY CORRUPTED

12. CASE ANALYSIS

13. BIBLOGRAPHY
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SYNOPSIS

INTRODUCTION: “The word 'custody' means apprehending someone for protective care. In
case, you are in charge of a room with some kids and you find acts of one of those kids
dangerous to other kids, you'll want to tie arms of that kid and make him sit away from other
kids. So, this is the principal behind arresting the suspect of a crime, to save other people in
the society. The words "custody" and "arrest" are not synonymous. It is true that in every
arrest there is custody but vice versa is not true. Mere utterance of words or gesture or
flickering of eyes does not amount to arrest.” Actual seizure or touch of a person's body with
a view to arresting is necessary. “And police custody defines When following to the receipt
of an information, complaint, report by police about a crime, an officer of police arrests the
suspect involved in the crime reported, to prevent him from committing the offensive acts
further, such officer brings that suspect to police station, it's called Police Custody.” “It is
actually the custody of a suspect with the police in a jail at the police station, to detain the
suspect. During this detention, the police officer in charge of the case, may interrogate the
suspect and this detention is not supposed to be longer than 24 hours.” “The officer in charge
of the case is required to produce the suspect before the appropriate judge within 24 hours,
these 24 hours exclude the time of necessary journey from the police station to the
court.When the police apprehend a person in suspicion of a crime, they are unable to to
complete the investigation in 24 hours, it is always the case.” At this juncture, when the
accused or suspect to is expected to be held away from society at large for the protection of
society, of the accused or for the purpose of ensuring his accessibility for investigation, they
can produce him to be a magistrate, who can allow for the suspect to be kept in the judiciary
custody of the police or. The provisions holding person in custody for the purpose of
furthering investigation, Section 167 Code of Criminal Procedure are governed in India.
Section 167 of the Code allows that in custody of the police for a period of 15 days on the
orders of a magistrate can hold a person. A judicial magistrate may order a person to form of
custody to 15 days and an executive magistrate may extend up to to 7 days by order for a
period of custody. A person in judicial custody can be held in the custody of the police or.
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Police custody may extend only up to to a period of 15 days from the date custody begins, but
judicial custody may extend to a period of 90 days for a crime that involves a death penalty of
death, life imprisonment or period of imprisonment greater than 10 years and 60 days for all
other crimes if the magistrate is convinced that there is enough realities, following that the
suspect accused or must be released The magistrate has

Only during period of detention, the detaining authority can alter the remand of the person in
judicial or police custody, provided that the total period of time does not last fifteen days.
When a person is transferred from police to judicial custody, the amount of days spent in
police custody is deducted from the total time remitted to judicial custody. Besides the
disparity of custodian power, the distinction between judicial and police custody is that the
prisoner can be questioned by the police within police custody but is not permitted under
judicial custody questioning, except in exceptional cases, police custody starts when an
individual is taken into custody by the police and his rights are called out to him along with
the clear privileges. The first thing that happens to an accused suspect is he's been taken into
state custody, after a judge is taken away, and he will either be transferred back to police
custody or to judicial custody. He can also win temporary relief by posting bail.

OBJECTIVE OF THE STUDY:

My purpose of the study is to carefully delving the topic of section 167 criminal procedure
code and rights of human in police custody.

1) To make a study on importance of police custody and what are the rights provided for
accused while he is in custody.

2) To find out the what are the rights Indian constitution provide for accused.

3) To understand the procedure when the investigation cannot be completed in first 24

hrs

RESEARCH QUESTIONS:

1) How much time the accused to be held in police custody on the orders of magistrate
and can accused be held in police custody more than 24hrs?
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LITERATURE REVIEW:

As part of this Research paper I referred to the following sources and books

1. Lexis Nexis Criminal Procedure Code

2. District e-courts

3. International journal law Rights of a accused in human Perspective by Dr. Anil

Kumar and Litesh Kumar

4. Indian kanoon

NATURE OF THE STUDY:

The nature of this socio-legal study includes:

1) Descriptive study

2) Explanatory study

RESEARCH METHODOLOGY:

1) Doctrinal

CASE LAWS:

1) Raj Pal Singh v. State of U.P (1983 Crl.L.J. 109)

2) Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam

J.Kulkarni (AIR 1992 SC 1768)
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3) Kami Sanyal v Dist. Magistrate (1990 Crl.L.J. 2685), Darjeeling

SCOPE OF THE RESEARCH STUDY:

My Research study is based on Police custody and right of an accused in custody and it
covers judicial custody and police custody and certain procedures.

SIGNIFICANCE OF THE STUDY:

Through this research:

1) one can easily understand the procedure of arrest in criminal procedure code and
difference between and judicial custody and police custody.

2) one can understand the powers of judicial magistrate and police officers in terms of
arrest.

3) This study explains about the rights of accused while he is in custody.

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INTRODUCTION:

The “word 'custody' means apprehending someone for protective care. In case, you are in
charge of a room with some kids and you find acts of one of those kids dangerous to other
kids, you'll want to tie arms of that kid and make him sit away from other kids. So, this is the
principal behind arresting the suspect of a crime, to save other people in the society. The
words custody as well as "arrest" “are not synonymous. It is true that in every arrest there is
custody but vice versa is not true. Mere utterance of words or gesture or flickering of eyes
does not amount to arrest. Actual seizure or touch of a person's body with a view to arresting
is necessary. Arrest, remand and bail are components related to investigation. They generally
come into play as an aid to investigation. Arrest directly curtails personal liberty of an
individual. It strikes at his freedom. Therefore, many a times unwarranted arrests have
reached the courts of law. There have been occasions when unlawful detention has been
considered as a violation of fundamental right and compensation thereof has been paid. There
are several provisions which incorporate safeguards for illegal arrest. If the method of arrest
is not performed as prescribed by Sec. 46, the arrest will be nugatory.

POLICE CUSTODY:

When following to the receipt of an information/complaint/report by police about a crime, an

officer of police arrests the suspect involved in the crime reported, to prevent him from
committing the offensive acts further, such officer brings that suspect to police station, it's
called Police Custody. It is actually the custody of a suspect with the police in a jail at the
police station, to detain the suspect. During this detention, the police officer in charge of the
case, may interrogate the suspect and this detention is not supposed to be longer than 24
hours. The officer in charge of the case is required to produce the suspect before the
appropriate judge within 24 hours, these 24 hours exclude the time of necessary journey from
the police station to the court.

JUDICIAL CUSTODY:
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Police Custody means that police have the physical custody of the accused while Judicial
Custody means an accused is in the custody of the concerned Magistrate. In former, the
accused is lodged in police station lockup while in latter, it is the jail. When Police takes a
person into custody, the Cr.P.C kicks-in and they were produced him/her before a Magistrate
within 24 hours of the arrest.”

Difference between Judicial Custody and Remand: Police Custody means that police have the
physical custody of the accused while Judicial Custody means an accused is in the custody of
the concerned Magistrate. In former, the accused is lodged in police station lockup while in
latter, it is the jail.

What happens after Judicial Cust ody: “Its first thing that's happening to an accused criminal is
that he is brought into custody, after which he is brought for a judge, and either he will be
transferred to court premises or returned to police custody. It is possible to hold an individual
in police custody or in judicial custody.”

DIFFERENCE BETWEEN JUDICIAL CUSTODY AND POLICE CUSTODY:

“When a person accused of a cognizable offence is arrested and detained by the police and
produced within 24 hours (excluding travelling time from the place of arrest), or he himself
surrenders before the nearest Magistrate. Then the Magistrate can either release him on bail
or he can either send him to judicial custody or to police custody. If the accused is juvenile,
his age is to be ascertained and if he finds that he is juvenile, then he be directed to be
produced before Juvenile Justice Board.”

1) “A suspect under Police Custody or Judicial Custody is assumed to be a suspect. A

suspect becomes a criminal only after the court finds him/her guilty and convicts
him/her for the crime reported of.”

2) “These types of custodies are preventive measures.”

3) “A police officer in charge of a suspect may treat the suspect arbitrarily. In case of
arrests by police and pending the investigation, the lawyer of a suspect generally
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prays for Bail or Judicial Custody. In Judicial Custody, suspect becomes

responsibility of Court.”

4) “Police Custody with permission to interrogate - During Judicial Custody, the police
officer in charge of the case is not allowed to interrogate the suspect. However, the
court may allow the interrogations to be conducted if it opines the interrogation being
necessary under the facts produced before the court.”

LAWS OF CUSTODY IN INDIA:

“The provisions for holding a person in custody for the purpose of furthering investigation, in
India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the
Code allows that a person may be held in custody of the police for a period of 15 days on the
orders of a Magistrate. A Judicial Magistrate May remand a person to any form of custody
extending up to 15 days and an executive magistrate may order for a period of custody
extending up to 7 days. A person may be held in custody of the police or in judicial custody.
Police custody may extend only up to a period of 15 days from date custody begins but
judicial custody may extend to a period of 90 days for a crime which entails a punishment of
death, life imprisonment or period of imprisonment exceeding 10 years and 60 days for all
other crimes if the Magistrate is convinced that sufficient reasons exists, following which the
accused or suspect must be released on bail.The Magistrate has the authority to remand the
person into judicial or police custody. The detaining authority may be changed during the
pendency of the detention, provided that the total time period does not extend 15 days. If a
person is transferred from police to judicial custody the number of days served in police
custody is deducted from the total time remanded to judicial custody.The most important
difference is of the fact that the accused can be sent to police custody within first fifteen days
of the presentation before the Magistrate after the arrest, as held by the supreme court in State
v. Dharampal, 19821, as mentioned in the proviso (a) to section 167(2). But in case of judicial
custody, such person can be sent to Prison, either within first fifteen days or even thereafter”.

“Such an accused can be kept in judicial custody if it’s a case of police investigation that is
police report or challan has not been filed to the magistrate, within 60 days (if offence is
punishable with 10 or less than years) or 90 days (if the offence is punishable with more than
10 years imprisonment ) and if even then the accused does not file bail bond ,then he would

1
1980 CriLJ 1394 nn
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continue with judicial custody.” “But if the police report is filed within aforementioned days
then then the accused won’t be released on default bail and thus will continue to be detained
under judicial custody because after investigation the process of enquiry has started.” “As per
Section 436A of the code of criminal procedure, If the accused is undertrial and has under
judicial custody, undergone half of the maximum punishment awardable for the offence, then
he can be released on default bail. So, the maximum period of judicial custody can be up to
half of the maximum period awardable for the offence.” “The rights of the accused begin
from the time of his arrest. The Constitution of India under Article 22 provides for the
protection of the arrested person to the extent that he has a right to be informed of the reason
for arrest and he must be near the magistrate . Article 22 (1) also provides that he shall be
entitled to consult and to be defended by a legal practitioner of his choice (Constitution of
India, Article 22 (i). Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5)
of the Constitution of India, enacts, that the persons arrested should be informed of the
ground of arrest, and of the right to bail. 2. 1983 Crl.L.J. 109 “After the legal arrest of a
person, his rights are protected through the time period for which he may be held in custody.
For custody to be a legal, a person may not be held in custody for more than 15 days. A
Magistrate must be convinced that there are exceptional circumstances present to extend this
custody for a maximum of 60-90 days depending on the nature of the crime being
investigated. A cautious reading of S.167(1) of the code of criminal procedure makes it clear
that the officer in charge of the police station or the investigating officer (if he is not below
the rank of sub-inspector) can ask for remand only when there are grounds to believe that the
accusation or information is well founded and it appears that the investigation cannot be
completed within the period of twenty-four hours as specified under Section 57. Hence,
Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if
Magistrate wants to exercise his power of remand. The same was held in Raj Pal Singh v.
State of U.P (1983 Crl.L.J. 109)2, the case also said that the remand order sheet need not look
like, a judgment delivered after full trial but application of main must be evident.

POLICE CUSTODY REMAND AFTER 15 DAYS:

“Cr.P.C. S.167(1), S.397(2) – Police Custody Remand (PCR) – Lapse of initial period of 15
days – Accused granted bail. If accused is not in jail for whole first 15 days then he can be
remanded in P.C.R. even after lapsed of first 15 days. Alim A. Patel Vs. State of Maharashtra
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2011 (2) AIR BoM R 2712 TRANSFER FRoM PCR To MCR AND MCR To PCR WITHIN
FIRST 15 DAYS FRoM THE DATE oF FIRST PRoDUCTIoN oF THE ACCUSED
BEFoRE THE MAGISTRATE – CAN BE DoNE.” “Cr.P.C. S.167(2), Terrorist and
Disruptive Activities (Prevention) Act (28 of 1987), S.20 – Change of custody – Validity –
Accused in judicial custody, if circumstances justify, can be remanded to police custody or
vice versa within time limit (15 days) as prescribed in S.167(2) Cr.P.C. Kosanapu Ramreddy
Vs. State of A.P. and others 1994 CRI.L.J. 2121 (SC)3.

POLICE CAN INTER0GATE WHEN HE IS IN MAGISTRATE CUSTODY:

Cr.P.C. S.167 – Criminal Procedure – Judicial custody – Interrogation by Police –

Permissible – Magistrate can direct the place and manner – Mere interrogation by Police,
during such custody by permission of the Magistrate, cannot change the nature of custody
Gian Singh Vs. State (Delhi Administration) 1981 In Nijamuddin Mohd. Bashir Khan...vs...
State of Maharashtra reported in 2006 (5) Mah. L.J. 690 4, it has been held that in every case
in which offence is punishable with imprisonment for a term which may extent to ten years,
provisions of section 167(2)(a)(ii) of Cr.P.C, will be attracted and if investigation in such
case is not completed within period of 60- days, no Magistrate shall authorise detention of
accused beyond the said period. Accused who has been granted bail cannot be taken into
police custody for further investigation unless bail is cancelled Mithabhai Pashabhai Patel
and others Vs. State of Gujarat (2009) 6 SCC 3325

CUSTODIAL VIOLENCE:

There are different types of violence taking place around us and one of them is
custodial violence. Custodial violence is the violence which takes place in the judicial
and police custody where an individual who has done a crime is tortured mentally as
well as physically. To an extent they are broken down by senior officials in order to
satisfy the hunger of power that they have. The human rights are at stake as custodial
violence is a crime which is the outburst against humanity and is a root obstacle in a
Democratic country. Especially in a country like India, custodial violence has become
arduous and tough to deal with as power plays a huge role which is in the hand of

2
2011 (2) AIR BoM R 271
3
1994 CRI.L.J. 2121 (SC)
4
2006 (5) Mah. L.J. 690
5
( 2009) 6 SCC 332
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the police officers who can either use the power to protect and enable laws for the
citizens or can even use the power they have for mere greed to fulfil their desires. The
cruelty done by police officers are increasing day by day as several cases are coming
up of police ferocity against the offenders and the reason behind this is not that these
police officers have any personal grudge against them but mainly because of systematic
compulsions. And custodial violence did not start today or tomorrow, it began during
the British days if there was no tactic support of bureaucrats, politicians and judiciary
but in the recent years a change can be seen, the public, the media, the human rights
commission are taking up initiatives to improve how the offenders are treated, they are
showing concerns through activisms, huge media coverage, making awareness and even
civil society intervention is taking place to combat the brutality of custodial violence
and uphold human dignity.

It is important to punish offenders for their mistakes and make them go through trial in
order to bring the truth out but it is also important to respect their boundaries and to
not cross the line only because you have the power to misuse it. No matter how
atrocious the crime is, the criminal has all the rights to be treated with dignity.
Custodial violence and abuse of police power have emerged a major issue of human
rights concern and one of the root obstacles to democracy and development of human
well-being in contemporary societies. The term ‘custodial violence’ includes all types of
physical and mental torture inflicted upon a person in police custody. It is a crime
against humanity and a naked violation of human rights. The practice of custodial
violence in the developing countries like India, is however, more difficult and complex. A
large number of cases of police brutality take place not because of individual
aberration, but because of systematic compulsions. The nature of custody may be
judicial, police or under any institution obliged to take care of the inmates like
hospitals, homes etc. or may be in the hands of terrorist organizations or armed groups
or insurgents etc. The practice is widespread and gone unchecked since British days if
there was no tacit support of senior police officials, bureaucrats, politicians and
judiciary. In recent years, custodial crimes have drawn attention of Public, Media,
Legislature, Judiciary and even Human Rights Commission. Nevertheless, judicial
activisms, widespread media coverage, initiatives taken by National Human Rights
Commission as well as Civil Society Intervention have shown their concern for
combating torture and upholding human dignity. “The term custodial violence has not
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been defined under any law.” It is a combination of two words custody and violence.The
word ‘custody’ implies guardianship and protective care. Even when applied to indicate
arrest or imprisonment, it does not carry any evil symptoms during custody. In a law
dictionary1 the word ‘custody’; has been defined as charge and with regard to a person in
imprisonment: judicial or penal safekeeping.“As Per Chamber Dictionary, the condition
of being held by the police, arrest or imprisonment is called ‘custody’ 2. As Per Legal
Glossary Dictionary3, custody is imprisonment, the detaining of a person by virtue of
lawful Power or authority.”
Two forms of detention, namely police custody and judicial custody, are referred to in
Section 167 of of the Code of Criminal Procedure. As per 167(1) of secti0n Cr. P.C.,' The
magistrate with whom an accused person is referred under such a section can from time to
time, allow the detention of the accused in such custody as he may think fit, whether or not
he has jurisdiction to try the case. Given that, rather than in the police custody, the
magistrate can allow the detention of the accused person beyond a period of 15 days if he
is convinced that sufficient grounds remain to do so. Thus in compliance with section 167
(1) of Cr. Uh. Pc. Police custody can only be given for a maximum duration of fifteen
days. Police custody simply means police imprisonment for questioning purposes.
Currently, in law, a police officer has two chances to first keep a suspect in his custody,
from the time that he arrests a person before he produces the person in court i.e. the first
24 hours after the arrest of the charge. Secondly, when police get detention from the court
after producing the indictment throughout the court that can be extended up to a maximum
duration of 15 days, a person is then sent to judicial detention that usually means probation
or jail, where an accusation stays in custody before he gets bail or whether he is convicted
and sentenced to jail until the completion of the punishment. As allowed by law,'
detention' of a person starts when he is arrested by the police.

other type of custody as mentioned earlier is ‘judicial custody’ which means sending a
person in jail or prison. As per section 3 (1) of ‘The Prison Act, 18946 ‘Prison’ means any
jail or place used permanently or temporarily under the general or special order of a State
Government for the detention of prisoners and include all land and building appurtenant
thereto, but does not include: -

(a) Any place for the confinement of prisoners who are exclusively in the custody of

6
P. Ramanatha Aiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992) : Wadhwa & Company
Nagpur, India
 P a g e | 15

police; or

(b) Any place specially appointed by State Government under section 541 of the old
Criminal Procedure Code, 1882,
(c) Any place, which has been declared by the State Government by general or special
order to be subsidiary jail.

The term ‘violence’ is the state or quality of being violent, excessive unrestraint or
unjustified force, outrage perforate injury. ‘Violence’ in its literal sense has been
defined as the use of force by one person over another so as to cause injury to him.
The injury may be physical, mental or otherwise. The simple definition of violence is
behaviour designed to inflict injury on a person or damage to property. Custodial
violence is a term, which is used for describing violence committed against a person
by a police authority. Thus, custodial violence can be defined as “an inhuman trait that
springs out of a perverse desire to cause suffering when there is no possibility of any
retaliation; a senseless exhibition of superiority and physical power over the one who
is overpowered.” According to Law Commission of India, crime by a public servant
against the arrested or detained person who is in custody amounts to custodial violence.
According to Dr. S. Subramaniam, “Any use of force threat psychological pressure is
termed as custodial violence. According to Justice B.P. Jeevan Reddy, “Custodial
violence includes torture, death, rape and excessive beating in police custody”.

While overcrowding, malnutrition, unhygienic conditions and lack of medical care are some
of the factors that cause death in police and judicial custody, the common cause of death in
prisons and lock-ups remains custodial abuse. Custodial violence is a general concept that
encompasses all types of torture, third degree, intimidation, abuse, use of force not justified
by law, etc. Custodial violence includes unlawful imprisonment, arrest of offenders,
humiliating them, using filthy language, not allowing them to sleep, e.g. arrest that is
wrongful or illegal or for inadequate reasons using the third degree method. However since
torture or third degree, custodial violence by the police is the most common and popular type
of violence.
 P a g e | 16

The police officials commit an act of violence upon the persons in their custody under the
guise of investigation and interrogation. The heinousness of this crime is that it is committed
upon the citizens by the very person who is considered to be the guardian of the
citizens. It is committed under the shield of uniform and authority within the four walls
of Police Station or lock up, the victim being totally helpless in these circumstances. The
protection of an individual from torture and abuse of power by police and other law
enforcing officers is a matter of deep concern in a free society.

The chances of violence committed by police on persons in its custody are much
greater than any other form of violence. The basic reason behind it is that the victims of
such violence are unable to protest against it. “To exploit facts against themselves, police
officers use their stated statement. In particular, mortality in detention is not shown on the
shut reports and any attempt is made by the police to dispose of the body or to make an
argument that the person arrested died after he was freed from jail.” Any complaint against
torture is not given attention because of ties of brotherhood. No direct evidence is available
to substantiate the charge of torture or causing hurt resulting into death, as the police lock-
up where generally torture or injury is caused is away from public gaze and the witnesses
are either policemen or co-prisoners who are highly reluctant to appear as prosecution
witness due to fear of retaliation by the superior officers of the police.

Although the severity of brutality including deaths of police custody has been troubling,
considering the constitutional and legislative safeguards found in the Criminal Procedure
Code and the Indian Penal Code aimed at protecting a civilian's individual liberty and life.
Experience shows that the worst violations of human rights take place during the course
of investigation when the police, with a view to securing evidence or confessions, often
resort to third-degree methods including torture and techniques of arrests by either not
recording them or describing the deprivation of liberty merely as "prolonged interrogations".
A reading of the morning newspapers carrying reports of dehumanising torture, assault,
rape and death in police custody or other governmental agencies almost every day is,
indeed, depressing. The increasing incidence of torture and death in custody has assumed
such alarming proportions that it is affecting the credibility of the rule of law and the
administration of the criminal justice system. As a result the society rightly feels
perturbed. The society’s cry for justice becomes louder. Any form of torture or cruel,
inhuman or degrading treatment, whether it occurs during investigation, interrogation or
 P a g e | 17

otherwise needs the severest condemnation. If the functionaries of the Government become
law-breakers, it is bound to breed contempt for the law and no civilised nation can permit
that to happen. Custodial violence may be both physical and or mental. It may also consist
of gross negligence or deliberate inaction. In a case, when a person was suffering from
high blood pressure or similar type of disease, almost for which continuous medicine is
essential, and he is not allowed to take medicines the men develop serious health problem
or dies. The Apex Court held it to be a case of custodial violence and the State was
made liable for damages for their gross negligence in protecting the person in custody.

VIOLATION OF HUMAN RIGHTS:

one of the most insidious evils in this modern age is the continued practice of inflecting
torture upon individual being amounting to inhuman degrading treatment. The investigative
agencies, in their anxiety to follow shortcut and to obtain a confession often resort to
inhuman treatment. Victims are forced to do things against their ideological or religious
convictions leaving them devoid of self-respect or self-esteem. At times victims are
interrogated in terrifying ways and the interrogators used inhuman treatment to elicit false
confessions from them. Supreme Court in Prem Shankar v. Delhi administration held
that the Punjab Police Rules were violating Arts. 14, 19 and 21 of the Constitution of
India and Krishna Iyer, J. delivered the majority judgement that rules providing that
every under trial who was accused of a non-bailable offence punishable with more than three
imprisonment would be handcuffed is violating the said Articles. It is a practice of
keeping under trails and convicts in correctional homes, which is inhuman and mental torture
to inmates. The Supreme Court gave directions to Central and State Governments and Jail
Authorities in the case of Sunil Batra v Delhi Administration. In Bhagalpur Blinding case
was a glaring example of cruel and inhuman treatment to the prisoners insolating the
spirit of constitution and human value as well as Art 21. Supreme Court in this case tackled
the blinding of under trail prisoners by the police by piercing their eye balls with
needle and pouring acid in them. This case illustrates key aspects of the pattern of
torture, sanction of torture by state and local judicial authorities, the routine concealment
of torture, failure to conduct proper inquiry and the inordinate length of judicial proceedings.
Court described the issues involved in this case to be of the greatest constitutional
importance as they exploit right to life and personal liberty. Ten years after the blinding of
under trails the court quashed the charge against the victims. There have been some
 P a g e | 18

instances where the over enthusiastic police officers physically tortured the accused in their
custody, but courts of our country have condemned their inhuman approach in their
judgments.

POWERS OF POLICE ABSOULTELY CORRUPTED:

Life and liberty are cherished freedoms which have been guaranteed under Article 21 of the
Constitution of India and. The role of police officers during investigation has always been a
matter of concern for all. Under the Code of Criminal Procedure, 1973 and others Acts, the
police officers have been given vast, unbridled and discretionary powers to police officers to
search, seize, arrest and investigate all criminal matters particularly cognizable offences.
Such discretionary powers conferred on the police officers are almost absolute powers and
are very often misused by the police for extraneous considerations like extortion, to get
gallantry awards, out of term promotions etc. or with malafide intention of increasing the rate
of conviction in their service record. The hon’ble Supreme Court of India in the case of R.P.
Kapur vs. State of Punjab14 held that “The duty of investigating officer is to bring out the
real unvarnished truth and not to bolster up a prosecution case with such false evidences as
may enable the court to record conviction.” The absolute discretion so conferred on police
officials and like officials is a double-edged sword in as much as while it is necessary for the
purpose full and proper investigation, at the same time it is being absolutely misused by the
police officials. As the popular adage goes, “Power corrupts and absolute power corrupts
absolutely” and the absolute discretion police officers enjoy give them an ample scope to
indulge in corruption.The Hon’ble Supreme Court in the case of Joginder Kumar v. State of
U.P. placed reliance on the aforesaid national police commission report and observed: “The
National Police Commission in its Third Report referring to the quality of arrests by the
police in India mentioned power of arrest as one of the chief sources of corruption in the
police. The report suggested that, by and large, nearly 60% of the arrests were either
unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the
expenditure of the jails. It is clear that third degree torture is usually assumed to be a short-cut
method of investigation by the police. Further majority of arrest are not necessary, and are
motivated for illegal motives like extortion. Munshi Singh Gautam and others vs the State of
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Madhya Pradesh, perhaps summarises the best how Courts have expressed concern about
violence in custody over the years: “The dehumanising torture, assault and death in custody
which have assumed alarming proportions raise serious questions about the credibility of the
rule of law and administration of the criminal justice system, the concern which was shown in
Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the
situation does not seem to be showing any noticeable change.

CASE ANALYSIS:

CASE NAME: Central Bureau of Investigation, Special Investigation Cell- I, New Delhi vs.
AnupamnJ. Kulkarni

CASE CITATION: AIR 1992 SC 1768 BENCH: K. Jayachandra Reddy, A.M. Ahmadi
CoUNSEL FoR APELLANT: K.T.S.Tulsi, Addl. Solicitor General, Kailash Vasdev and Ms.
Alpana Kirpal

COUNSEL FOR RESPONDENT: Ram Jethmalani, Dinesh Mathur and Ms. Binu Tamta
PRoCEDURAL HISToRY: “The matter was taken up the High Court which did not decide
on the issue of remand to police custody after the expiry of first 15 days as in the Section 167
of the CrPC, hence the case before supreme court.”

FACTS: “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 the
four diamond merchants but also Shri Kulkarni, who is the respondent before us and one
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 kidnaping of the diamond
merchants. on the basis of some available material Shri 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. 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 concerned Munsif Magistrate. on 11.10.91 an application was moved by the
investigating officer seeking police custody of Shri Kulkarni which was allowed. When he
was being taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the
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Hospital the same evening where he remained confined on the ground of illness up 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 Magistrate and
thereafter was sent to Jail. In view that Police could not take him into police custody all these
days the” Investigation officer “again applied to the court of Magistrate for police custody of
respondent. Magistrate refused police remand and revision was filed before HC. HC granted
him bail. Hence, the present appeal.””

Issues Involved: Whether a person arrested and produced before Magistrate as required u/s.
167(1) 1973 Act could still be remanded to police custody after the expiry of the initial period
of 15 days?

“Whether a person who has been 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 15 days of his arrest?”

SECTIONS INVOLVED: I. S. 167 of Criminal Procedure Code: “Procedure when

investigation cannot be completed in twenty-four hours” “Description”

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 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.”

2. “The Magistrate to whom an accused person is forwarded under this section may, whether
he has or has no jurisdiction to try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, 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
jurisdiction;
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” “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 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 of not less 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
under this Sub-Section shall be deemed to be to released under the provisions of Chapter
XXXIII for the purposes of that Chapter”;

B. “no Magistrate shall authorise 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 behalf by the High
Court, shall authorise detention in the custody of the police.”

“2A. Notwithstanding anything contained in Sub-Section (1) or 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 Magistrate is not available, 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 be recorded in
writing, authorise the detention of the accused person in such custody as he may think fit for
a term not exceeding seven days in the aggregate; and on the expiry of the period of detention
so authorised, the accused person shall be released on bail except where an order for further
detention of the accused person has been made by a Magistrate competent to make such
order; and, where an order for such further detention is made, the period during which the
accused person was detained in custody under the orders made by an Executive Magistrate
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under this Sub-Section, shall be taken into account in computing the period specified in
paragraph (a) of the proviso to SubSection (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
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 officer making the investigation, as the case may be.

” 3. “A Magistrate authorising under this section detention in the custody of the police shall
record his reasons for so doing.

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 in any case triable by a Magistrate as a summons-case, the investigation is not concluded

within a period of six months from the date 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
interests of justice the continuation of the investigation beyond the period of six months is
necessary.

6. Where any order stopping further investigation of an offence has been made under Sub-
Section (5), the Sessions Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation of 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.”

ARGUMENTS OF THE APELLANT: “The appellant’s contention was 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 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. ”Further, it was contended that further
evidence which is sometimes collected at the later stages of investigation require the accused
to remanded to police custody in some cases. The Court went through precedents and closely
looked into the case of State( Delhi Administration) v Dharam Pal and others, 1982 Cr.L.J.
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1103 and the judgment of Justice Hardy in State v Mehar Chand, 1969 Delhi Law Review
179 on which the Dharam Pal judgment relied. The cases ruled that the nature of custody
could be altered from judicial custody to police custody or vice versa during the first period
of 15 days as mentioned in Section 167(2) but after 15 days, the accused could only be
judicial custody”.”

ARGUMENTS OF THE RESPONDENT: “The respondent’s contention was that going by

the section after the expiry of the first fifteen days of custody there can be no police custody
and there can be only judicial custody.”

JUDGEMENT: “Rejecting the other contentions of the Appellants that Mehar Chand’s case
indicated that there should be no bar to turn an accused to police custody even after 15 days if
further charges are found against him, the court opinioned that the Mehar Chand case was
decided under the old CrPC and the intention of the new code is clear in itself that any kind
of custody should not exceed beyond the 15 days and further detention could only be Judicial.
Similarly, on the issue 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 remaining days during the rest of the periods of ninety days or sixty
days covered by the proviso”, “the Court looked into the plain text meaning of the provision
and held that the custody could be only judicial custody after the first 15 days. It laid
particular emphasis on the words in the law”- “otherwise than in custody of the police beyond
the period of 15 days.” “The Court however, was quick in adding that if further interrogation
is necessary after the expiry of the first period of 15 days, there is no bar for interrogating the
accused who is in judicial custody during the periods of 90 days or 60 days.” “The next major
issue was that of 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 the first 15 days of his arrest. Rejecting the point, the court was of the
opinion that if it is allowed, then the police would go on adding offences at various stages and
obtain police custody. This in Court’s view defeated the very object underlying the Section
167 of the CrPC. However, it ruled that for a different case coming out of a different
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transaction, the bar would not apply and it would be acceptable to arrest a person in custody
for a different case.” Therefore, the appeal was dismissed by the High Court.

BIBLIOGRAPHY:

1) Code of Criminal Procedure Bare Act 1973

2) R&D the code of criminal procedure

3) www.Live Law.in.

4) Academike (articles on legal issues).

5) www.Lawctopus.in.

6) Summary of papers written by Judicial officers on the subject “Law relating to

arrest, remand and bail” by T.K.Jagdale and group members Gadchiroli.

7) Essential Judicial Rulings for Police officers (Published by Maharashtra Police

Academy, Nasik).

8) Laws of Custody in India :- An analysis of Section 167 of Code of Criminal

Procedure by Hariharan Kumar.

CASE LAWS:

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

AnupamnJ. Kulkarni

2. Nijamuddin Mohd. Bashir Khan vs State of Maharashtra

3. Kosanapu Ramreddy Vs. State of A.P. and others

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