Source: Supreme Court

Why in News?

A bench of Justice BR Gavai and Justice Sandeep Mehta held that before exercising the power to grant police custody remand, the Courts must apply judicial mind.

• The Supreme Court held this in the case held that in the case of Tusharbhai Rajnikantbhai Shah v. State of Gujarat.

What is the Background of Tusharbhai Rajnikantbhai Shah v. State of Gujarat Case?

• The petitioner was made the accused in First Information Report where the allegation made against the petitioner was that he received a sum of Rs. 1.65 crores in cash towards the sale of 15 shops but the possession of the same was not handed over to the complainant.
• The petitioner apprehending his arrest sought anticipatory bail and the application was filed before the High Court.
• The Court granted interim anticipatory bail to the petitioner.
• Thereafter notice of appearance was issued to the petitioner and in compliance to that he appeared before the 6^th Additional Chief Judicial Magistrate Surat on which date the police officer filed an application seeking his police custody remand for seven days.
• Despite the fervent submission made by the counsel of the petitioner that the Supreme Court while providing interim protection to the petitioner did not grant any liberty to the investigating officer to seek police custody remand, the 6th ACJM (Respondent contemner No 7) remanded the petitioner to police custody.
• Thus, a petition was filed under Section 12 of Contempt of Courts Act, 1971 read with Article 129 of the Constitution of India, 1950 (COI) against:
  • The Investigating Officer who filed an application for remand.
  • The 6^th ACJM who granted the police custody

What were the Court’s Observations?

• The Court held that in the light of the order passed by the Court if the investigating officer felt that there were genuine grounds to seek police custody the proper course would have been to approach this Court and not approach the Magistrate.
• The Court observed that the criminal jurisprudence requires that before exercising the power to grant police custody remand the Courts must apply judicial mind so as to arrive at satisfaction as to whether the police custody remand is genuinely required.
• Thus, the Court in this case held that the following are liable for contempt of Court:
  • The Investigating officer who applied for police custody
  • The Magistrate who granted the police custody in derision of the orders of the Supreme Court.

What are the Kinds of Custody?

• Police Custody:
  • When the police officer brings the accused to the police station it is called police custody.
  • In case of police custody, the police have the physical custody of the accused.
  • Here the accused is lodged in the police station lock up.
  • The purpose of police custody is to give the police means to gather evidence through custodial interrogation.
• Judicial Custody:
  • It means the accused is in the custody of the concerned Magistrate.
  • Here the accused is lodged in jail.
  • The purpose of permitting judicial custody is to ensure that the accused does not tamper with the evidence, threaten the witnesses or flee.

What is the Provision for Custody under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?

• Section 187 (1) provides that:
  • Whenever any person is arrested and detained in custody
  • It appears that the investigation cannot be completed within 24 hours fixed by Section 58
  • And there are grounds for believing that the information or accusation is well founded
  • The officer in charge of police station (not below the rank of sub-inspector) shall forthwith transmit to the nearest Magistrate
  • A copy of entries in the diary and shall at the same time forward the accused to such Magistrate.
• Section 187 (2) provides:
  • The Magistrate to whom the accused is forwarded under this Section
  • Irrespective of whether he has jurisdiction or not
  • After taking into consideration whether such person has not been released on bail or his bail has been cancelled
  • Authorize from time-to-time detention in such custody as such Magistrate thinks fit
  • For a term not exceeding fifteen days in whole, or in parts
  • At any time during the initial 40 days or 60 days out of detention period of 60 days or 90 days as the case may be as provided in sub-section (3)
  • 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.
• Section 187 (3) provides:
  • The Magistrate may authorize the detention of the accused person, beyond the period of fifteen days,
  • if he is satisfied that adequate grounds exist for doing so
  • but no Magistrate shall authorize the detention of the accused person in custody under this sub-section for a total period exceeding:
    • ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;
    • sixty days, where the investigation relates to any other offence
  • And on expiry of the said period of 90 days or 60 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 XXXV for the purposes of that Chapter.

What are the Similarities and Differences between Section 167 of Code of Criminal Procedure, 1973 (CrPC) and Section 187 of BNSS?

What are the Case Laws Regarding Police Custody?

• Central Bureau of Investigation, Special Investigation Cell- I, New Delhi v. Anupam J. Kulkarni (1992)
  • The scheme of Section 167 of CrPC is intended to protect the accused from methods which may be adopted by “some overzealous and unscrupulous police officers”.
  • In this case it was held that the police custody shall be limited to only first 15 days.
  • It is to be noted that this position was later doubted by the Court in the case of V. Senthil Balaji v. State (2023). Infact the BNSS has done away with this position. There is yet some ambiguity regarding this point even with the coming into force of the BNSS. (Read more: Problems with Section 187 of BNSS)
• Directorate of Enforcement v. Deepak Mahajan (1994)
  • The Court held that the word “remand” used in Section 167 (2) is a misnomer as remand can only be to the very same custody from where the arrestee was released.
  • However, under Section 167 (2) the first order if custody can either be “police custody” or “judicial custody” depending on the requirement of the case.