The respondent was arrested on 30th December, 1981 in connection with the kidnapping of a young boy. The dead body of the boy was found on 1st January 1982. In the first instance, the Magistrate authorised the detention of the respondent in police custody till 6th January, 1982. By a further order, that period was extended up to 8th January, 1982. After that date the respondent has been held in judicial custody.
2. On 23rd February 1982, the police again applied to the Chief Metropolitan Magistrate for custody of the respondent.
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They said they needed him to recover certain articles and, also, to find out who were the other participants in the crime. By an order dated 25th February, 1982 the Magistrate declined to grant custody to the police. Against that order the State has now come in revision.
3. It is manifest from the order of the Magistrate that he refused to give custody to the police because more than fifteen days had passed since the respondent's arrest. Counsel for the State said that this view was based on some erroneous observations which had 'crept into' the judgment of the Division Bench of this court in Criminal Misc. (Main) No. 427 of 1981 entitled State (Delhi Administration) v. Dharma Pal, decided on 4th November, 1981 : (1982 Cri LJ 1103). In that case, it was held that under Section 167(2) of the Cr.P.C. 1973, the Magistrate can alter the nature of the custody of an accused from time to time, and, in particular grant custody to the police even after the accused has been held in judicial custody. Two judgments of a single judge of this court, holding otherwise, were overruled. There are passages in the judgment of the Division Bench which clearly indicate that custody to the police can be granted only within the 'first' fifteen days after arrest. The following sentence occurs on page 11 of the judgment.
"There is nothing at all in the Section to show that the nature of the custody cannot be changed from police custody to judicial custody or vice versa during the first period of 15 days".
According to counsel for the State, the words 'the first period of 15 days' were not warranted on a true construction of S. 167(2) of the Cr.P.C.
4. After hearing counsel for the State I was not at all convinced that there was any error in the judgment of the Division Bench. However, he maintained that the matter was of very great importance to the State and required reconsideration, if necessary, by a larger Bench. I therefore, issued notice to the accused who is now represented by counsel and also, requested Bawa Gurcharan Singh, Advocate to act as amicus, curiae which he has been good enough to do. After hearing all these counsel, I feel completely reinforced in the view which I had originally taken.
5. The point is really quite simple. Sub-section (1) of S. 167 of the Cr.P.C. 1973 requires that a person arrested must be produced before Magistrate within twenty four hours. Sub-section (2) empowers the Magistrate to authorise, from time to time the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days 'in the whole'. It is plain that those fifteen days begin to run immediately after the accused is produced before the Magistrate in accordance with sub-section (1). Therefore they are, and have to be the 'first' fifteen days after day of arrest.
6. Counsel for the State laid great emphasis on the words 'in the whole' following the words 'fifteen days'. He said 'in the whole' meant 'total' and not 'maximum' and therefore, the fifteen days could comprise broken periods spread over a larger space of time. This is an impossible construction of the sub-section because there are no words to indicate that the fifteen days may be broken and need not be continuous. Now, obviously, the fifteen days have to be counted from some starting point. The only possible starting points is the one I have already indicated. As the days have to be counted consecutively without a gap, it follows that after the lapse of the next succeeding fifteen days the whole period of detention allowed by sub-section (2) is over. Detention after that period is not authorised by the main part of the sub-section at all, but only by proviso (a). The proviso, however, expressly prohibits custody to the police 'beyond the period of fifteen days'. The definite article 'the' in this phrase leads one back to the fifteen days mentioned earlier. Those, fifteen days, as I have tried to show, have to mean 'the first fifteen days' after arrest. It thus emerges from a conjoint reading of the main part of the sub-section with proviso (a) that police custody cannot be granted after the lapse of the 'first fifteen days'.
7. Hence, I find no scope for the argument that there has been an inadvertent error in the judgment of the Division Bench which necessitates reconsideration. Bawa Gurcharan Singh has drawn my attention to the Full Bench judgment of this court in Ajit Singh v. The State, AIR 1970 Delhi 154 : (1970 Cri LJ 1075), which deals with the position under the earlier Cr.P.C. It contains observations in accord with the view which I have stated.
8. For these reasons, I think, the Magistrate was perfectly right in refusing to give custody of the respondent to the police and accordingly, this petition is dismissed.