Source: Supreme Court

Why in News?

A bench comprising of Justice A S Bopanna and M M Sundresh dismissed the plea of Tamil Nadu Minister Senthil Balaji challenging his custody by Enforcement Directorate in the money laundering case.

• The Supreme Court gave the observation in the matter of V. Senthil Balaji v. The State Represented by Deputy Director and Ors.

Background

• A case was registered in 2021 against the appellant and others.
• Finding that the appellant was not extending adequate cooperation, the Authority invoked Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA) by way of an arrest in June 2023.
• The respondents filed an application before the learned Principal Sessions Judge seeking judicial custody for 15 days.
  • An order of remand was passed sending him to judicial custody till 28.06.2023.
• The appellant thereafter filed an appeal arising out of a special leave petition contending that:
  • There is no power vested under the PMLA, 2002 to seek custody in favour of an authorized officer.
  • Such an authorized officer is not a police officer and therefore, Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), with particular reference to a remand in his favour, is not available.
  • Custody under Section 167(2) of the CrPC, 1973 can only be in favour of a police officer and not any other agency.

Court’s Observations

The court gave the below mentioned observations in this matter:

• The words “such custody as such Magistrate thinks fit” under Section 167 CrPC 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.

Facets of Section 167 CrPC

• The term ‘custody’ refers to keeping someone in protective surveillance.
• Custody in the form of judicial custody and police custody is covered under Section 167 which is enshrined under Chapter XII of the CrPC.
• Section 167 of CrPC covers:
  • Procedure when the investigation is not completed within twenty-four hours
  • Powers of the magistrate
  • Limitations on the powers of magistrate
• The provision encircles a timeline for both police custody and judicial custody.
• Section 167 is invoked when the accused has not been presented before a magistrate within 24 hours of his detention, and his fundamental right as provided by Article 22(2) of the Constitution of India, 1950 is violated.
• The Magistrate of second class is not empowered by the High Court to pass an order for the detention of the accused in the custody of the police.

Police Custody

• Police custody refers to custody of a suspect with the police in a lock-up at the police station, to detain the suspect.
• When police take a suspect into physical custody, he has to be presented before the magistrate within 24 hours of that arrest.
• The magistrate may allow the police custody under this section for not more than fifteen days.
  • If the magistrate has no jurisdiction for the trial of the case and considers that further detention is irrelevant, he may order the trial of the accused to be forwarded to a magistrate of higher rank who is authorized to hold the trial of the case under this section.

Judicial Custody

Under, Section 167(2)(a) CrPC, the magistrate may authorize 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:

• Ninety days, if the accused is charged with a punishable offence that is death, life imprisonment or imprisonment for a term that is not less than ten years.
• Sixty days, if the investigation is related to any other offence.
  • After the completion of the time period of 60 days or 90 days, the accused shall be released on bail if he is able to furnish sureties. This period is calculated from the day he was detained and not from the date of arrest.

Landmark Cases

• Gian Singh v. State (Delhi Administration) (1981):
  • Mere interrogation by Police, during judicial custody by permission of the Magistrate, cannot change the nature of custody.
• Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni (1992):
  • It was held that the Magistrate under Section 167(2) can authorize 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 whether police custody or judicial custody.
• Kosanapu Ramreddy v. State of A.P. and others (1994):
  • The Supreme Court held that accused in judicial custody, if circumstances justify, can be remanded to police custody or vice versa within time limit (15 days) as prescribed in Section 167(2) CrPC.
• Gautam Navlakha v. National Investigation Agency (2021):
  • The Supreme Court widened the scope of the provision by including ‘house arrest’ and ‘transit remand’.
  • The court stated that house arrest can be ordered by the lower courts in appropriate cases instead of judicial or police custody.