The Supreme Court opines that a 31-year-old judgment holding that no detention in police custody beyond 15 days' arrest is permissible requires reconsideration. No accused can be permitted to frustrate the judicial process by his conduct, the court said, adding that it cannot be disputed that the right of custodial interrogation-investigation is also a very important right in favour of the investigating agency to unearth the truth.
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ON Monday, a division Bench of the Supreme Court comprising Justices M.R. Shah and C.T. Ravikumar held that the law laid down by a coordinate Bench of the court three decades ago in Central Bureau of Investigation versus Anupam J. Kulkarni (1992), holding that there could not be any detention in police custody after the expiry of the first fifteen days from the date of arrest, required reconsideration.
The Bench reasoned so in the form of a question it put to the senior counsel appearing for the accused person, who could not, the Bench said, answer its query. As the Bench put it, in a given case, if a trial court or special court refuses to grant the police custody erroneously within 15 days and/or immediately on the date of arrest and thereafter, such an order is challenged by the investigating agency before the sessions court or the high court, and the higher court reverses the decision refusing to grant police custody, but by that time the period of 15 days is over, what would the legal position be?
The Bench opined to unsettle the three decades-old law while hearing an appeal filed by the Central Bureau of Investigation (CBI) seeking custody of the respondent-accused Vikash Mishra, who faces a first information report (FIR) for the commission of offences under Sections 120B (punishment of criminal conspiracy) and 409 (criminal breach of trust by public servant, or by banker, merchant or agent) of the Indian Penal Code, and the relevant provisions of the Prevention of Corruption Act. The CBI challenged an order passed by the Calcutta High Court on September 30, 2022, granting default bail to Mishra under Section 167(2) (procedure when investigation cannot be completed in twenty-four hours) of the Code of Criminal Procedure (CrPC).
On April 16, 2021, Mishra got arrested by the CBI and was remanded to CBI custody for a period of seven days, that is, till April 22, 2021. However, during the said period of remand to CBI, Mishra got himself admitted to a hospital and thus could not be interrogated by the CBI despite police custody remand.
On April 21, 2021, Mishra was granted interim bail by a special court, which went on to be periodically extended.
On December 8, 2021, the special court cancelled the interim bail on the ground that Mishra did not appear before it despite specific directions and also did not cooperate with the CBI investigation.
On December 11, 2021, Mishra was arrested again, and was remanded to judicial custody. Again, while in judicial custody, Mishra was hospitalised from December 12, 2021 to April 8, 2022, and then again from May 7, 2022 to September 8, 2022.
Mishra filed a petition seeking default bail on the ground of non-filing of the charge-sheet within 90 days. His petition was rejected by the special judge, among other reasons, on the ground that he was not remanded to custody under Section 167(2) of the CrPC after cancellation of his bail on the grounds that he was granted interim bail under the provisions of Chapter XXXIII (provisions as to bail and bonds) of the CrPC, and his detention pursuant to the cancellation of bail was on the strength of warrants issued by the court.
The CBI filed a charge sheet on July 19, 2022 against Mishra and cognisance was taken by the special court on the same date.
On appeal, the high court quashed the order of the special judge and directed Mishra's release on default bail, observing that even within 90 days from the date of rearrest, that is, on December 11, 2021, the chargesheet was not filed and the same was filed only on July 19, 2022.
It was this order which the CBI assailed before the Supreme Court.
Additional Solicitor General of India Aishwarya Bhati, for the CBI, argued that the agency got police custody of Mishra for a period of seven days from April 16, 2021 till April 22, 2021, but Mishra first got himself admitted to the hospital and thereafter got interim bail, which came to be subsequently cancelled on December 8, 2021. She submitted that the CBI could not interrogate Mishra for seven days as was allowed by the special judge. She contended that Mishra could not be permitted to frustrate the court's process.
Senior advocate Neeraj Kishan Kaul, for Mishra, relied upon the decision of the Supreme Court in Anupam J. Kulkarni which mandates that no police custody can be allowed beyond the first 15 days from the date of arrest. He argued that if police custody was granted now, it would be beyond the period of 15 days.
Kaul denied the allegations made by CBI that Mishra was hospitalised to evade his custody. He added that between April 8, 2022 and April 18, 2022, Mishra was remanded to police custody in another case, during which time he was extensively interrogated with regard to the present FIR as well. He also submitted that even while on interim bail, Mishra had been interrogated.
The Supreme Court's judgment, authored by Justice Shah, termed the facts case "very glaring". It noted, "Despite the fact that on April 16, 2021, the learned special judge allowed police custody of the respondent-accused for seven days i.e., up to April 22, 2021, the respondent-accused got himself admitted in the hospital during the period of police custody, i.e., on April 18, 2021 and obtained interim bail on April 21, 2021 which came to be extended till December 8, 2021 when his interim bail came to be cancelled by the learned special judge by observing that the accused has misused the liberty shown to him and during the interim bail he has not cooperated with the investigating agency."
It further added, "[The] initial order of grant of seven days police custody attained finality. However, due to the aforesaid reasons of having got the accused himself hospitalized on April 18, 2021 and thereafter obtaining the interim bail on April 21, 2021, the CBI could not interrogate the accused in the police custody though having a valid order in its favour. Thus, the respondent-accused has successfully avoided the full operation of the order of police custody granted by the learned special judge."
It thus formed the view that no accused could be permitted to play with the investigation or the court's process.
"No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation-investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process," the judgment observed.
The court thus allowed the CBI's appeal, allowing it four days' custody of Mishra, taking into consideration that pursuant to the order of the special judge on April 16, 2021, police custody remand of seven days had been granted, but the CBI had been able to interrogate Mishra for a period of two-and-half days only.
Click here to view the Supreme Court's full judgment in CBI versus Vikas Mishra @ Vikash Mishra.