Why in News?

• A Delhi court has sent a businessman to judicial custody for 14 days in connection with the Delhi excise policy case.
• The accused was represented in the court at the end of his remand period by the Enforcement Directorate (ED).

Background

• The accused was arrested by the ED on 6th July 2023.
• The counsel for the accused argued that since the accused was an approver in the CBI case, he should not be kept in a jail cell housing the other co-accused.
• The ED's representatives submitted to the court that during custody, he was interrogated.
• It was further revealed by the agency representative that some crucial facts were disclosed by the accused on which operations are being carried out in NCR (National Capital Region) and that he was not required for further interrogation, but claimed that if released, he may tamper with the evidence, influence the witnesses, or flee from justice.

Court’s Observations

• The court, while directing jail authorities to keep the accused in a separate jail where other accused are not present has kept the next day of hearing as 25th July 2023.

Legal Provisions

• Custody – It means apprehending someone for protective care.
• Police Custody - It is the custody of a suspect with the police in a jail at the police station, to detain the suspect. The officer in charge of the case is required to produce the suspect before the appropriate judge within 24 hours, this time duration excludes the time necessary for journey from the police station to the court.
• Judicial Custody – Under this the accused is in the custody of the Magistrate concerned and is lodged in jail.

Criminal Law Aspect

• The Concept of Police Remand is provided under Section 167 of the Code of Criminal Procedure, 1973 (CrPC).

Section 167 - Procedure when investigation cannot be completed in twenty-four hours

(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.

• Remand application under S.167(1) is made by the officer in charge of the police station or the person making the investigation, if he is not below the rank of the sub inspector.
• The maximum duration for which police custody can be granted by a Judicial Magistrate is 15 days in aggregate according to Section 167(2).
• The object behind remand is to shift the accused from such a place where an arrest has been made to the place where he is to be tried.
• In Ram Doss v. State of Tamil Nadu (1992), it was held by the court that before granting remand under Section 167, the Magistrate must keep in mind:
• The reason for detaining the accused even after 24 hours and on what basis of material the accused is to be kept in police custody.
• Whether there exists cognizable offence in the report.
• Whether the registration of the case has been done for the investigation.
• The presence of accused either physically or virtually is a sine qua non (indispensable requirement) at the time of remand of the accused u/s 167 of CrPC.
• In Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat (2022) the Supreme Court has held that failure to produce accused before Court while considering application for extension of time to investigate amounts to violation of his fundamental rights.
• Judicial Custody according to Section 167(2) of CrPC can be granted for:
• 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;
• Sixty days, where the investigation relates to any other offence.
• 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.
• Detention by Executive Magistrate - According to Section 167(2A) if the accused is forwarded to Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorize the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate.

Constitutional Law Aspect

Article 22 of the Constitution of India, 1950 gives the person arrested a twofold protection:

1. That an arrested person shall not be detained in custody without being told the grounds of such an arrest and that he shall be entitled to consult and to be defended by a legal practitioner of his choice.
2. Article 22 (2) provides that every person who is arrested and detained in custody must be produced before the nearest Magistrate within 24 hours excluding the time necessary for the journey from the place of arrest to the Court of Magistrate and that no such person shall be detained in custody beyond the said period without the authority of a Magistrate.