Supreme Court questions 1992 ruling which set limit on police custody for accused

The Supreme Court has questioned the interpretation given by the 1992 judgment in CBI vs Anupam J. Kulkarni that the police or investigating agency can't seek custody of an accused after the first 15 days of the arrest. The matter came up while considering the custody of Tamil Nadu minister Senthil Balaji, who was arrested on June 14 in connection with a money laundering case.

Senthil Balaji was arrested by the ED based on the cash for job case registered by the Central Crime Branch police, Chennai, when he was the transport minister during the previous AIADMK regime.

On Monday, the top court sent the DMK minister to Enforcement Directorate (ED) custody till August 12. Dismissing Balaji's plea against ED custody, a bench of Justices AS Bopanna and MM Sundresh commented on the aspect of the legality of his arrest and custodial interrogation. The court referred to a larger bench the issue that police custody is not permissible beyond the first 15 days of remand.

The court said that any custody under Section 167 of the Code of Criminal Procedure (CrPC) would not only include police custody but also of other investigating agencies. Section 167 (2) of the CrPC states that a "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."

The Supreme Court said the section "is a bridge between liberty and investigation performing a fine balancing act". The verdict authored by Justice Sundresh said that "curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of an investigating agency would not act as a restriction".

The court remarked that no writ of habeas corpus would apply after forwarding an arrestee to the jurisdictional Magistrate under Section 19(3) of PMLA.

The court further said, “A writ of habeas corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function, cannot be challenged by way of a writ of habeas corpus, while it is open to the person aggrieved to seek other statutory remedies. We find adequate compliance of Section 19 of the PMLA, 2002 which contemplates a rigorous procedure before making an arrest.

The learned Principal Sessions Judge did take note of the said fact by passing a reasoned order. The appellant was accordingly produced before the court and while he was in its custody, a judicial remand was made. As it is a reasoned and speaking order, the appellant ought to have questioned it before the appropriate forum. We are only concerned with the remand in favour of the respondents. Therefore, even on that ground we do hold that a writ of Habeas Corpus is not maintainable as the arrest and custody have already been upheld by way of rejection of the bail application,”

Additionally, the court also ruled that section 41A of CrPC, which mandates police officers to issue notice of appearance to a person against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, does not apply to an arrest made under the Prevention of Money Laundering Act (PMLA), 2002.

The court held that the maximum period of 15 days of police custody is meant to be applied to the entire period of investigation - 60 or 90 days, as a whole. It directed the registry to place the issue before the Chief Justice of India for appropriate orders to decide whether the 15-day period of custody should be only within the first 15 days of remand or spanning the entire period of investigation -- 60 or 90 days -- as the case may be, as a whole.