Case Note:

Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141

Submitted by:
Mohit Kumar Manderna

Student ID Number: 22011424

This case originated from the incident of the abduction of four diamond merchants and their
driver.1 After registration of the case, the investigation was entrusted to the Central Bureau of
Investigation (CBI), which, during its investigation, arrested Anupam J. Kulkarni (the
respondent) on October 4, 1991. After being produced before the Chief Metropolitan
Magistrate on October 5, he was remanded to judicial custody until October 11, 1991.

On October 11, 1991, an application for police custody was moved by the investigation
officer (IO), which was allowed by the magistrate, and Kulkarni was sent for police custody
remand. However, during his transfer of custody, Kulkarni pretended to be ill, and
consequently, he was taken to the hospital, where he remained until October 21, 1991. After
getting discharged from the hospital, he was again sent for judicial custody until October 29,
and then he was sent to jail.

As the police could not take the custody of Kulkarni due to his illness, the IO again applied
for police custody with the magistrate. However, the magistrate, relying on a previous Delhi
High Court judgement on Section 167 of the Code of Criminal Procedure (CrPC), declined
the application.

Aggrieved by this, the CBI filed a revision petition before the Delhi High Court, wherein,
without answering the question of custody, Kulkarni was granted bail on the grounds of
insufficient evidence. The CBI then, in the present petition, has approached the Supreme
Court, challenging the orders of the lower courts.

2. Provisions involved

This case concerns the provisions of the Code of Criminal Procedure regarding the detention
of a person arrested in a criminal case. First, Section 57 of the Code lays down the general
rule of detention, guarded by Article 22(2) of the Constitution, that, when a person is arrested,
the police have to complete the investigation within 24 hours of the arrest, and the arrested
person cannot be detained in police custody beyond 24 hours.2

In extension to that, Section 167 of the Code lays down the exception to the general rule of
24 hours, wherein, if police cannot complete their investigation within the limit of 24 hours,
the police while forwarding the accused to the Judicial Magistrate along with the diary entries
of the concerned case, can ask for the Magistrate’s authorization of additional time. 3 Under
Section 167(2), it is given that the Magistrate, with their discretion, has the power to
authorise the detention of an accused in police or judicial custody from time to time, for a
term not exceeding 15 days in total. Furthermore, the proviso (a) to Section 167(2) gives a
magistrate the power to authorise the detention of an accused in judicial custody even beyond
the period of 15 days if he is satisfied that adequate grounds exist. According to the proviso,
beyond the 15 days, the accused can be detained in judicial custody for a total of 90 days or
60 days. 90 days is the limit for serious offences punishable with death, life imprisonment, or
imprisonment for more than ten years, whereas the 60-day limit is for less serious offences.

1
Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141.
2
The Code of Criminal Procedure 1973, s 57; The Constitution of India 1950, art 22(2).
3
The Code of Criminal Procedure 1973, s 167.
Thus, the final position, according to Sections 57 and 167 of the Code, is that, if the
investigation is not completed within 24 hours, the detention of an accused can be authorised
for 15 days in total, whether in police custody or judicial custody. However, if extended
beyond 15 days, then the accused can only be detained in judicial custody for a total of 90 or
60 days.

3. Issues raised

The main issue, discussed in this case is regarding the calculation of the period of 15 days
given under Section 167(2) of the Code. The question of law is whether the detention period
of 15 days, which a magistrate can authorize for police custody, is calculated from the date of
the order of detention i.e. the first 15 days or is it the total period of 15 days, spread
throughout the investigation, that can be allotted to the police custody.

4. Contentions of the parties

The present petition before the Supreme Court has been filed by the CBI, where Anupam J.
Kulkarni is the respondent.

4.1. Contentions of the petitioner

The petitioner contended that both the lower courts had erred in their judgments. The Chief
Metropolitan Magistrate, basing its decision on a wrong precedent, erroneously denied the
application for police custody. Additionally, the High Court granted bail to the respondent
without addressing the issue of police custody.

Concerning the main issue of the case, the petitioner contended that a combined reading of
Section 167(2) with its proviso warrants that, there is no bar on granting remand to police
custody even after the initial 15 days have elapsed. The only requirement is that the total
duration of custody with the police must not exceed 15 days in total. Additionally, it is
contended that the case of State (Delhi Administration) v. Dharam Pal,4 on which the
Magistrate relied in rejecting the custody, wrongly interpreted the phrase “not exceeding
fifteen days in the whole” to mean the initial 15 days from the date of the order of detention.
The petitioner argued that there may be circumstances where police custody becomes
imperative even at a later stage in the case, such as holding an identification parade or
conducting interrogation based on significant evidence uncovered during the investigation.
Denying police custody in such instances would impede the investigation and result in a
miscarriage of justice.

To support this assertion, the petitioner mentions the case of State v. Mehar Chand,5 where
the issue answered by the High Court was, whether the accused who is in judicial custody,
after the expiry of the first 15 days, should be sent to the police custody based on the
discovery of his involvement in more serious offences related to the same case. The High
Court allowed the transfer of custody to the police, stating that if in the opinion of the
magistrate, a good case is made out for the investigation in police custody, then the custody
can be given to police for 15 days in whole, even if the first 15 days have elapsed.

4.2. Contentions of the respondent

4
State (Delhi Administration) v. Dharam Pal & Ors, 1981 SCC OnLine Del 368.
5
State v. Mehar Chand, 5(1969)DLT179.
The respondent is unilateral of the view that as decided in the case of State (Delhi
Administration) v. Dharam Pal,6 the magistrate can only grant police custody under Section
167(2) in the first 15 days from the date of production of the accused and once it elapses, the
only recourse for detention is the judicial custody, where the question of police custody does
not arise.

5. Judgment of the court

With several differing judgments of the lower courts, the present case is the first time when
the Supreme Court has addressed this specific issue of Section 167(2) of the Code. Justice
A.M. Ahmadi and Justice K. J. Reddy, in their decision on this case, have dismissed the
appeal of the CBI. The judges, with their judgment, have mentioned their interpretation of the
legislative intent behind Section 167(2) and have affirmed the precedent of the Dharam Pal
case.

The court upheld the stance established in the Dharam Pal case, asserting its correctness in
law by rejecting the request for police custody once the initial 15 days had passed. The court
held that the phrase “fifteen days in the whole” under Section 167(2) means the period of the
first 15 days, computed from the date of detention, and after the expiry of this period, the
only option is judicial custody. To support this judgment, the court relied on the legislative
intent behind the contested provision. It emphasized that the purpose of Section 167 of the
Code is to protect the arrested individual from “overzealous and unscrupulous police
officers.”7 Additionally, the court highlighted that the combined examination of the 24-hour
limitation period in Section 57 of the Code and Article 22(2) of the Constitution reflects the
legislature’s intent to restrict the duration of police custody, thus necessitating such an
interpretation of the clause.

Moreover, the court dismissed the petitioner’s argument regarding the granting of police
custody after the initial 15 days in instances where new evidence emerges, necessitating
police custody to uphold fairness in justice. The court clarified that firstly, the case of Mehar
Chand referred by the petitioner was adjudicated under the old 1898 code, and secondly, the
notion that denying police custody following new discoveries in subsequent investigations
would compromise justice is wrong. This is because even after being placed in judicial
custody, there are no restrictions on interrogating the accused during the 90-day or 60-day
periods. Hence, even if some serious offence or new discovery is made, related to the same
transaction, after the expiry of the first 15 days, police custody cannot be granted. However,
if such discovery is related to some other transaction and an altogether different case, then
police custody may be allowed by the magistrate.

6. Analysis

Interrogation in police custody is a very important right of the investigating agency to unearth
the truth. However, the ratio laid down in the present case appears to provide support to the
accused persons who, with malicious intent, try to obstruct the judicial process. By
interpreting Section 167(2) to refer only to the initial 15 days, accused persons manage to
evade police interrogation by feigning health issues and exploiting the opportunity to secure
judicial custody, thereby undermining the integrity of the justice system.

6
Dharam Pal & Ors (n 4).
7
Anupam Kulkarni (n 1), para 10.
A similar viewpoint was expressed by the Supreme Court in the case of CBI v. Vikas Mishra,8
where the court reconsidered the interpretation of the 15-day period under Section 167(2).
The court expressed that the ruling in the Anupam Kulkarni case was incorrect and should be
re-examined to permit police custody after the initial 15 days of arrest. However, the court
did not refer the matter to a larger bench, and the stance taken in Anupam Kulkarni persisted.

Following the decision in Vikas Mishra, ambiguity in the interpretation of the provision
resurfaced in 2023 with the V. Senthil Balaji case.9 The Supreme Court in this case held that
the prescribed 15-day period of police custody can be an aggregate of shorter periods sought
over the entire investigation lasting 60 or 90 days. The court said that the interpretation as
done in the Anupam Kulkarni case is such that it “would seriously impair the power of
investigation.”

Moreover, the court noted that to grasp the true meaning of the section, the proviso must be
understood in conjunction with the language used in the main provision. The use of phrases
like “from time to time,” “magistrate thinks fit,” and “not exceeding fifteen days in the
whole” in Section 167(2) indicates the discretion granted by the legislature to the Magistrate
to order police custody as needed, rather than from one fixed day to another. Consequently,
the two-bench ruling in Senthil Balaji referred the Anupam Kulkarni case to a larger bench of
the Supreme Court for reconsideration. However, since it has not been overruled, the current
position of Section 167(2) remains as laid down in the Anupam Kulkarni case.

7. Conclusion

This case involved the interpretation of the 15-day period specified in Section 167(2) of the
Code. The position taken in the Anupam Kulkarni case, which interprets it as the initial 15
days from the order of detention, after which police custody cannot be granted, may impede
the investigative authority and, thus, judicial proceedings. This interpretation has been
challenged in several Supreme Court judgments and warrants reconsideration by a larger
bench.

8
CBI v. Vikas Mishra, (2023) 6 SCC 49.
9
V. Senthil Balaji v. State represented by Deputy Director & Ors., 2023 SCC Online SC 934.