Supreme Court: Disclosure Statements Made U/S 27 Evidence Act outside Police Custody Not Admissible

 Now we come to the recovery allegedly made Under Section 27, which is also fraught with inconsistencies as we would presently indicate. The memorandum Under Section 27 of the Evidence Act produced as Ex. P4 indicates the same having been drawn up on 13.10.2018 at 10.30 A.M. The only admissible portion in the said memorandum is: 'I will show you the place... where her bones and ashes are and the place where her skull and bones were..'(sic). The police were led by the Accused first to a field from where bones with ashes were recovered at 10.55 A.M evidenced by Property Seizure Memo Ex.P5. The canal was searched by three fishermen PW 3 to PW 5 who recovered the skull with 8 numbers of tooth of the upper jaw and a piece of bone wrapped in a green color saree, all of which showed evidence of burning as indicated in Ex.P3 Property Seizure Memo at 13.00 on 13.10.2018. Though the recoveries as per Exts. P3 & P5 Memos were made, in accordance with the confession statement of the Accused, Ext. P4 at 10.30 on 13.10.2018, the Arrest/Court Surrender Memo produced at Ex.P27, indicates the arrest of the Accused having been made on 13.10.2018 at 22.00 hrs. Section 27 of the Evidence Act clearly speaks of information received from a person Accused of any offence while in the custody of the police leading to a discovery of a fact being enabled of proof in the trial. The Accused at the time of the statement was not in the custody of the police and hence it is removed from the ambit of Section 27. {Para 10}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 689 of 2026 

Decided On: 17.02.2026

Rohit Jangde Vs. The State of Chhattisgarh

Hon'ble Judges/Coram:

P.V. Sanjay Kumar and K. Vinod Chandran, JJ.

Author: K. Vinod Chandran, J.

Citation:  MANU/SC/0159/2026.

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Karnataka HC: As per S.187 of BNSS ,Police Custody Must Be Within First Forty Days For Offences Punishable Upto 10 Years Imprisonment

SUMMARY OF FINDINGS:

(i) A slight tweak in the new regime qua 187(3) of BNSS in juxtaposition to Section 167(2) of the earlier regime - the Cr.P.C. has not changed the purpose of the provision.

(ii) The phraseology of the words 'ten years or more' found in sub-clause (i) of Section 187(3) of the BNSS would mean, the minimum threshold punishment imposable on an offence under the BNS should be ten years.

(iii) The offence in the case at hand, does not bear a minimum threshold sentence of ten years, but is extendable or to an extent of ten years, which would mean, discretion available to the concerned Court to impose punishment up to ten years. Therefore, the minimum threshold is not ten years.

(iv) Completion of investigation in a punishment which is up to ten years is undoubtedly 60 days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.

(v) If the investigation is to complete within 60 days, the period of police custody would run from day one day forty of registration of the crime. If it is 90 days, it would run from day one to day 60, maximum period in both the cases is 15 days of police custody.

(vi) In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.

15. For the aforesaid reasons, finding no warrant to interfere with the order passed by the concerned Court, the petitions deserve to be rejected and are accordingly, rejected.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 13459 of 2024 and Writ Petition No. 33526 of 2024 (GM - RES)

Decided On: 13.12.2024

State of Karnataka Vs. Kalandar Shafi and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4163/2024.

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LLM Notes: Custodial violence & torture in Police Custody

 Custodial torture is the infliction of physical or mental pain or suffering on a person who is in the custody of the police or other authorities. It is a grave violation of human rights and dignity and often leads to custodial deaths, which are deaths that occur while a person is in custody. Death in police custody is perhaps one of the worst kind of crimes in a civilized society and poses a serious threat to an orderly civilized society.

• Types of Custodial Death:

• Death in Police Custody: Death in police custody can result from excessive force, torture, denial of medical care, or other forms of abuse.

• Death in Judicial Custody: Death in judicial custody may occur due to overcrowding, poor hygiene, lack of medical facilities, inmate violence, or suicide.

• Death in the Custody of Army or Paramilitary Forces: Can happen through torture, extra-judicial killings, encounters, or crossfire incidents.

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Supreme Court: Statement To ED By Accused Under PMLA Custody Incriminating Oneself In Another PMLA Case Inadmissible

 The question that arises is when a person is in judicial custody/custody in another case investigated by the same Investigating Agency, whether the statements recorded (in this case the statements dated 03.08.2023, 04.08.2023, 11.08.2023) for a new case in which his arrest is not yet shown, and which are claimed to contain incriminating material against the maker, would be admissible Under Section 50? {Para 22}

23. In Vijay Madanlal Choudhary (supra), addressing the scope of Section 50, following has been held:

159....However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him.

The three-judge Bench in Vijay Madanlal Choudhary (supra) has apart from Article 20(3) also adverted to Section 25 of the Evidence Act. Section 25 of the Evidence Act reads as under:

25. Confession to police officer not to be proved.- No confession made to a police officer shall be proved as against a person Accused of any offence.

24. Vijay Madanlal Choudhary (supra) though held that the authorities under the PMLA are not police officers, did anticipate a scenario where in a given case, the protection of Section 25 of the Evidence Act may have to be made available to the Accused. The Court observed that such situations will have to be examined on a case-to-case basis. We deem it appropriate to extract Para 172 of Vijay Madanlal Choudhary (supra).

172. In other words, there is stark distinction between the scheme of the NDPS Act dealt with by this Court in Tofan Singh (supra) and that in the provisions of the 2002 Act under consideration. Thus, it must follow that the authorities under the 2002 Act are not police officers. Ex-consequenti, the statements recorded by the authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by the vice of Article 20(3) of the Constitution or for that matter, Article 21 being procedure established by law. In a given case, whether the protection given to the Accused who is being prosecuted for the offence of money-laundering, of Section 25 of the Evidence Act is available or not, may have to be considered on case-to-case basis being Rule of evidence.

25. This Court in Vijay Madanlal Choudhary (supra) anticipated the myriad situations that may arise in the recording of the Section 50 statement and discussed the parameters for dealing with them. In Rajaram Jaiswal v. State of Bihar   MANU/SC/0065/1963 : 1963:INSC:84 : AIR 1964 SC 828, a judgment quoted in extenso in Vijay Madanlal Choudhary (supra), this Court observed that the expression "police officer " in Section 25 of the Evidence Act is not confined to persons who are members of the regularly constituted police force. Further, setting out the test for determining whether an officer is a "police officer " for the purpose of Section 25 of the Evidence Act, this Court in Rajaram Jaiswal (supra) held (quoted from para 165 of Vijay Madanlal Choudhary (supra)

165(ii) It may well be that a statute confers powers and imposes duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform he may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere conferral of some only of the powers of a police officer on such a person would not make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The contention thus is that when an officer has to perform a wide range of duties and exercise correspondingly a wide range of powers, the mere fact that some of the powers which the statute confers upon him are analogous to or even identical with those of a police officer would not make him a police officer and, therefore, if such an officer records a confession it would not be hit by Section 25 of the Evidence Act. In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a 'police officer' for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a "police officer" for the purpose of Section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of the police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession.

26. Four decades ago, V.R. Krishna Iyer, J. in his inimitable style, speaking for this Court in Nandini Satpathy v. P.L. Dani and Anr.,   MANU/SC/0139/1978 : 1978:INSC:80 : (1978) 2 SCC 424 observed as under:

50. We, however, underscore the importance of the specific setting of a given case for judging the tendency towards guilt. Equally emphatically, we stress the need for regard to the impact of the plurality of other investigations in the offing or prosecutions pending on the amplitude of the immunity. "To be witness against oneself" is not confined to particular offence regarding which the questioning is made but extends to other offences about which the Accused has reasonable apprehension of implication from his answer. This conclusion also flows from "tendency to be exposed to a criminal charge". "A criminal charge" covers any criminal charge then under investigation or trial or which imminently threatens the Accused.

57. We hold that Section 161 enables the police to examine the Accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation- not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the Accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an Accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3).

27. In the facts of the present case, we hold that the statement of the Appellant if to be considered as incriminating against the maker, will be hit by Section 25 of the Evidence Act since he has given the statement whilst in judicial custody, pursuant to another proceeding instituted by the same Investigating Agency. Taken as he was from the judicial custody to record the statement, it will be a travesty of justice to render the statement admissible against the Appellant.

29. A complete reading of Vijay Madanlal Chaudhary (supra), particularly, paragraphs 159, 165 and 172 mandate us to ask ourselves the query: Is a reasonable inference legitimately possible that, due to the vulnerable position in which the Appellant was placed and the dominating position in which the Investigating Agency was situated, in view of the arrest in the other proceeding that, there obtained a conducive atmosphere to obtain a confession? We certainly think so. The question is not whether it actually happened. The question is could it have been possible.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3572 of 2024.

Decided On: 28.08.2024

Prem Prakash Vs. Union of India (UOI) through the Directorate of Enforcement

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: 2024 INSC 637, MANU/SC/0943/2024.

Read full Judgment here: Click here.

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Supreme Court upheld Karnataka High court judgment on police custody remand under S 187 of BNSS(Old S 167 of CRPC)

 The concerned Court itself came to the conclusion that police custody is not required and has dismissed the application(s) of the prosecution as well as the Complainant. We see no reason to interfere with the order of the High Court, in exercise of our jurisdiction under Article 136 of the Constitution of India.

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 18063/2024

[Arising out of impugned final judgment and order dated 13-12-2024

in WP No. 33526/2024 (GM-RES) passed by the High Court of Karnataka  at Bengaluru]

HYDER ALI Vs STATE OF KARNATAKA & ORS.

Date : 08-01-2025 This petition was called on for hearing today.

CORAM :

 HON'BLE MR. JUSTICE SUDHANSHU DHULIA

 HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

Read Karanataka HC Judgment here: Click here.

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Karnataka HC laid down the principles for grant of police custody under S 187 of BNSS(Old S 167 of CRPC)

 SUMMARY OF FINDINGS:

(i) A slight tweak in the new regime qua 187(3) of BNSS in juxtaposition to Section 167(2) of the earlier regime - the Cr.P.C. has not changed the purpose of the provision.

(ii) The phraseology of the words 'ten years or more' found in sub-clause (i) of Section 187(3) of the BNSS would mean, the minimum threshold punishment imposable on an offence under the BNS should be ten years.

(iii) The offence in the case at hand, does not bear a minimum threshold sentence of ten years, but is extendable or to an extent of ten years, which would mean, discretion available to the concerned Court to impose punishment up to ten years. Therefore, the minimum threshold is not ten years.

(iv) Completion of investigation in a punishment which is up to ten years is undoubtedly 60 days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.

(v) If the investigation is to complete within 60 days, the period of police custody would run from day one day forty of registration of the crime. If it is 90 days, it would run from day one to day 60, maximum period in both the cases is 15 days of police custody.

(vi) In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.

Summary of Judgment

The High Court of Karnataka addressed the issue of whether police custody could be extended beyond 40 days for accused Kalandar Shafi and others, charged with offenses under the BNS, which carry a maximum punishment of up to ten years. The State of Karnataka and the complainant argued for a 90-day investigation period, claiming the offenses warranted it. However, the court interpreted Section 187 of the BNSS, akin to Section 167 of the Cr.P.C., to mean that only offenses with a minimum threshold punishment of ten years qualify for a 90-day period. Since the alleged offenses were punishable up to ten years, the court upheld the Magistrate's decision to deny extended police custody, affirming that the investigation should be completed within 60 days, with police custody permissible only within the first 40 days. 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 13459 of 2024 and Writ Petition No. 33526 of 2024 (GM - RES)

Decided On: 13.12.2024

State of Karnataka Vs. Kalandar Shafi and Ors.

and

Hyder Ali Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4163/2024.

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Supreme Court: Investigating Officers can not seek police custody remand of accused after competent Court has granted anticipatory bail

 The arguments advanced by learned senior counsel appearing for the Additional Chief Secretary, Government of Gujarat as well as the High Court of Gujarat about the long-standing practice prevailing in the State, that the Investigating Officer(s) are given liberty to seek police custody remand of the accused after competent Court has granted anticipatory bail does not appeal to us for a moment. Such an interpretation does not appear to be in consonance with the unambiguous position of law. The provisions of anticipatory bail enumerated under Section 438 CrPC or the newly enacted Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023(hereinafter being referred to as ‘BNSS’), which has come into force with effect from 1st July, 2024, do not contemplate any such liberty to the Investigating Officer. However, the Court adjudicating an application for anticipatory bail may, in a given case, restrict the tenure of anticipatory bail in view of the law laid down by this Court in the case of Sushila Agarwal(supra) and may also impose suitable conditions in light thereof. However, it does not stand to reason that as a matter of course, the High Court or the Court of Sessions, as the case may be, while exercising anticipatory bail jurisdiction, grants pre-arrest bail to the accused and yet, invariably the Investigating Officer is given blanket liberty to keep the accused in custody for prolonged periods in a routine manner. This would virtually frustrate the very purpose and intent behind the grant of anticipatory bail to an accused. The relevant excerpts in this regard from the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra) are reproduced below for the sake of ready reference: -

“85.3. Section 438 CrPC does not compel or oblige courts to

impose conditions limiting relief in terms of time, or upon filing

of FIR, or recording of statement of any witness, by the police,

during investigation or inquiry, etc. While weighing and

considering an application (for grant of anticipatory bail) the

court has to consider the nature of the offence, the role of the

person, the likelihood of his influencing the course of

investigation, or tampering with evidence (including

intimidating witnesses), likelihood of fleeing justice (such as

leaving the country), etc. The courts would be justified — and

ought to impose conditions spelt out in Section 437(3) CrPC [by

virtue of Section 438(2)]. The necessity to impose other

restrictive conditions, would have to be weighed on a case-bycase basis, and depending upon the materials produced by the

State or the investigating agency. Such special or other

restrictive conditions may be imposed if the case or cases

warrant, but should not be imposed in a routine manner, in

all cases. Likewise, conditions which limit the grant of

anticipatory bail may be granted, if they are required in the

facts of any case or cases; however, such limiting conditions

may not be invariably imposed.

85.4-85.7.…..

85.8. It is open to the police or the investigating agency to

move the court concerned, which granted anticipatory bail,

in the first instance, for a direction under Section 439(2)

to arrest the accused, in the event of violation of any term,

such as absconding, non-cooperating during investigation,

evasion, intimidation or inducement to witnesses with a

view to influence outcome of the investigation or trial, etc.

The court, in this context, is the court which grants anticipatory

bail, in the first instance, according to prevailing authorities.”

 (emphasis supplied). {Para 55}

56. The ratio of the above judgment makes it clear that Section

438 CrPC does not compel or oblige courts to impose conditions

limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The necessity to impose restrictive conditions other than those spelt out in Section 437(3) CrPC would have to be weighed on a case-by-case basis and depending upon the materials produced by the State or the Investigating Agency. Such special or other restrictive conditions may be imposed if the factual context of the case warrants but should not be imposed in a routine manner and the Court would have to act with circumspection depending on the particular facts of each case before endeavouring to impose such conditions.

57. This Court has time and again held that the discretion to

grant pre-arrest bail should be exercised with great degree of

circumspection. Reference in this regard may be made to P.

Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24.

58. Thus, the power to grant anticipatory bail is not to be

exercised in a routine manner and the Courts are expected to use

this provision with a great degree of circumspection. Once, a Court bearing in mind the strict parameters applicable to grant of anticipatory bail exercises such power, then in such a situation, giving a handle to the Investigating Officer to seek police custody remand of the accused, would virtually negate and frustrate the very purpose behind the order of anticipatory bail. Hence, we have no hesitation in holding that the practice prevalent in the State of Gujarat that the Courts while dealing with the anticipatory bail application routinely impose the restrictive condition whereby, the Investigating Officers are granted blanket permission to seek police custody remand of the accused, in whose favour the order of anticipatory bail is passed, is in direct contravention to the ratio of the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra). The Division Bench judgment of the Gujarat High Court in the case of Sunilbhai Sudhirbhai Kothari(supra) does not hold good in law as the same runs contrary to the ratio of Sushila Agarwal(supra) and thus, the same stands impliedly overruled.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/CRIMINAL APPELLATE JURISDICTION

CONTEMPT PETITION(CIVIL) NO(S). OF 2024 (D. No. 1106 OF 2024) IN SPECIAL LEAVE PETITION(CRL.) NO(S). 14489 OF 2023

TUSHARBHAI RAJNIKANTBHAI SHAH  Vs

KAMAL DAYANI & ORS. 

Dated: August 07, 2024.

Citation: 2024 INSC 588.

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Bombay HC: Order rejecting police custody remand is not interlocutory and revision is maintainable against said order

The learned Judge of this Court in R. Shakuntala, finally came to conclusion that an order rejecting application for remand of the accused to judicial custody is a final order and not an interlocutory order. This will be applicable with equal force to the refusal of request for police custody also. As such, the order passed by the Magistrate rejecting request for police custody cannot be treated as interlocutory order because the police cannot repeat and make applications again and again for police custody after the application for police custody had been rejected once and particularly in view of the limitation under Section 167 Cr.P.C. that the police custody may be granted only during first 15 days after the arrest or detention and not thereafter. If such application for police custody is rejected, that order becomes final and the Investigating Officer is permanently deprived of seeking police custody of that accused for the purpose o further investigation, discovery, etc. even though the offence may be very serious.

By granting bail and refusing police custody of the accused, who were not in police custody even for a day, the learned Magistrate practically prohibited the investigating agency from making proper investigation to the case which, in fact, required in-depth investigation and which could not be possible without the police custody. Therefore, while the order refusing the police custody could be challenged under revisional jurisdiction under Section 397, the order granting bail could be cancelled by the superior courts, including the Sessions Court, by virtue of the powers under Section 439(2) Cr.P.C.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 2785 of 2009 and Criminal Application No. 425 of 2010

Decided On: 22.07.2010

Ambarish Rangshahi Patnigere and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2011 Cri L J 515, MANU/MH/0806/2010.

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Whether the court can rely on call details of mobile used in crime if prosecution fails to prove connection between owner of that Sim and custody of accused of that SIM?

  As regards the call data and the ransom calls, we may note that Santosh Jadhav, Assistant Nodal Officer, Reliance Communication, was examined as PW-17 and spoke of the call data of mobile number 8305620342 from which the ransom calls were made. According to him, the SIM card with the said mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay Gandhi Ward, Tehsil Jabalpur. He produced Bhuraji's 'Customer Application Form' along with his attached Election ID card. These documents were marked as Ex. D6. The call data of 28.03.2013 showed that this SIM card was used on the mobile handset with IMEI No. 358327028551270. He marked in evidence Ex. P35 in that regard. Therefore, the mobile number from which ransom calls were made was in the name of one Bhuraji, s/o. Deepu, and his address was available. However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls. Even more startling is the fact that, though PW-17 placed on record actual proof of the allotment of this mobile number to Bhuraji (Ex. D6), no such steps were taken by the police to establish the link between Om Prakash Yadav and mobile number 9993135127, which was attributed to him. PW-15 baldly stated that the said mobile number was allotted to Om Prakash Yadav but did not mark in evidence any document in proof thereof. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Ex. P31) and the contents thereof are practically useless in establishing the prosecution's case that the ransom calls were made from Om Prakash Yadav's mobile phone handset by inserting Bhuraji's SIM card, with mobile number 8305620342, therein.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Supreme court lays down requirements of valid panchnama as per S 100 of CRPC

  In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay MANU/SC/0268/2013 : (2013) 13 SCC 1, this Court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when the respectable person who is a witness thereto gives evidence in the Court of law Under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Code of Criminal Procedure stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Code of Criminal Procedure for the purposes of a valid panchnama:

(a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.

(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.

(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.

(d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.

(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.

(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.

(g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.

(h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Whether Panchnama is admissible In Court Where Witnesses Merely Acted As Attestors And Did Not Disclose How Objects Were Discovered?

  Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Whether the court can rely on discovery at the instance of accused if it was done when he was not accused of any offence and he was not in police custody?

 In the case on hand, though Rajesh Yadav was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in 'police custody' till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an 'Accused' in the FIR and was not 'Accused of any offence' till his arrest. Therefore, it was his arrest which resulted in actual 'police custody', and the confession made by him, before such arrest and prior to his being 'Accused of any offence', would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception Under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not 'Accused of any offence' and was not in 'police custody' at the point of time he allegedly made a confession. {Para 27}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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Should the court send the accused to police custody remand in the same crime after completion of fifteen days if subsequently a serious offence is made out against him?

  A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more sessions offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused in disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. The learned Additional Solicitor General however strongly relied on some of the observations made by Hardy, J. in Mehar Chand's case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same-transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. 

 After the expiry of the first period of fifteen days the further remand during the period of investigation - can only be in judicial custody. There can not be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier - case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation,  Vs. Anupam J. Kulkarni

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Whether Magistrate can seek production of accused who is in prison for another offence for investigation of crime?

However, in State of Maharashtra v. Yadav Kohachade (supra), the learned Single Judge of this Court dealt with the relevant provisions of Section 267 and came to conclusion that the Magistrate was competent to issue warrant of production of accused confined in prison for the purpose of considering the request of the investigating officer for police custody in another case. The learned Single Judge observed as follows in para 24:

Proceedings" would mean and include an action or prosecution and sometimes as meaning a step in an action and, therefore, it includes all steps taken in furtherance of prosecution, i.e., arrest, remand, interrogation and investigation. The judicial Magistrate, First Class, 2nd Court, was, therefore, justified in passing an order under Section 267 of the Criminal Procedure Code and issuing warrant as per Form No. 36 of Second schedule addressed to the officer-in-charge of Central Prison, Nagpur, to produce before him the non-applicant accused for the purpose of proceedings, i.e., remand. The legislature has used the words "other proceedings and any proceedings under the Code" in Section 267 of the Criminal Procedure Code and not judicial proceedings and, therefore, seeking production of the accused for remand under Section 267 of the Criminal Procedure Code cannot be faulted. There can be no quarrel over the decision in B.S. Rawat's case (cited supra) relied upon by Mr. Manohar, as what the Court observed was that the order under Section 267 of the Criminal Procedure Code cannot be passed to produce a person for the purpose of investigation before the agency which is engaged in the investigation; as in the said case, the warrant was sought or production of the accused before the Custom Officer for the purposes of investigation. Therefore, it cannot be said that the Magistrate was not competent to issue such a warrant of production of the accused confined or detained in a prison, before him, for the purposes of considering the request of the Investigating Officer to order his detention is police custody.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition Nos. 1951 of 2007, 57 and 108 of 2008

Decided On: 20.01.2010

Susan Abraham Vs.  State of Maharahtra 

Hon'ble Judges/Coram:

F.I. Rebello and J.H. Bhatia, JJ.

Citation: 2010 (2) MHLJ 560

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Delhi HC: First 15 days of PCR has to be counted from the date of first remand and not from the date of arrest.

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.

IN THE HIGH COURT OF DELHI

Criminal Revn. No. 74 of 1982 

Decided On: 16.03.1982

State (Delhi Administration) Vs.  Ravinder Kumar Bhatnagar

Hon'ble Judges/Coram:

T.P.S. Chawla, J.

 Citations: 21 (1982) DLT 442, 1982 (3) DRJ 205

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Supreme Court: Accused can be remanded to police custody from Judicial custody within 15 days from the date of first remand on sufficient ground

We have considered the submissions of learned Counsel on both sides. That a person held in judicial custody could, if circumstances justify, be transferred to police custody or vice versa within a period of 15 days referred to in Section 167(2) of the Criminal Procedure Code, 1973 - which by virtue of Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, is to be read as 60 days in this case cannot be disputed. There must, of course, be sufficient grounds for such a change of custody. In the present case, having regard to the nature of offence and the stage of the investigations it cannot be said that grounds for such custody do not exist.

IN THE SUPREME COURT OF INDIA

Writ Petn. (Cri.) No. 203 of 1992

Decided On: 28.07.1992

Kosanapu Ramreddy  Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

M.N. Venkatachaliah, P.B. Sawant and N.P. Singh, JJ.

 Citations: AIR 1994 SC 1447, 1994 CriLJ 2121

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FIR For Facebook post : Karnataka HC Orders enquiry Against Magistrate Who Remanded Accused In Violation Of SC Guidelines

There is yet another important aspect which

requires consideration namely, the order passed by the

learned Magistrate granting police custody. To a specific

query made by this Court during the course of hearing to

the learned advocate for petitioner, whether registration

of FIR No.91/2019 and the grant of anticipatory bail by

the learned Sessions Judge was brought to the notice of

learned Magistrate, it was asserted by Shri.Aruna Shyam,

that the same was brought to the notice of learned

Magistrate. This submission was not disputed by the

prosecution. In Arnesh Kumar’s case, Hon'ble Supreme

Court of India has issued directions to ensure that the

Police Officers do not arrest the accused unnecessarily

and Magistrates do not authorize detention casually and

mechanically. The said directions read as follows:

“11. Our endeavour in this judgment is to ensure

that police officers do not arrest the accused

unnecessarily and Magistrate do not authorize detention

casually and mechanically. In order to ensure what we

have observed above, we give the following directions:

11.1. All the State Governments to instruct its

police officers not to automatically arrest when a case

under Section 498-A IPC is registered but to satisfy

themselves about the necessity for arrest under the

parameters laid down above flowing from Section 41

CrPC;

11.2. All police officers be provided with a check

list containing specified sub-clause under section

41(1)(b)(ii);

11.3. The police officer shall forward the check list

duly filled and furnish the reasons and materials which

necessitated the arrest, while forwarding/producing the

accused before the Magistrate for further detention;

11.4. The Magistrate while authorizing detention of

the accused shall peruse the report furnished by the

police officer in terms aforesaid and only after recording

its satisfaction, the Magistrate will authorize detention;

11.5. The decision not to arrest an accused, be

forwarded to the Magistrate within two weeks from the

date of the institution of the case with a copy to the

Magistrate which may be extended by the Superintendent

of Police of the district for the reasons to be recorded in

writing;

11.6. Notice of appearance in terms of Section 41-

A CrPC be served on the accused within two weeks from

the date of institution of the case, which may be

extended by the Superintendent of Police of the district

for the reasons to be recorded in writing;

11.7. Failure to comply with the directions

aforesaid shall apart from rendering the police officers

concerned liable for departmental action, they shall also

be liable to be punished for contempt of court to be

instituted before the High Court having territorial

jurisdiction.

11.8. Authorising detention without recording

reasons as aforesaid by the Judicial Magistrate concerned

shall be liable for departmental action by the appropriate

High Court.”

(Emphasis Supplied)

27. It was incumbent upon the learned Magistrate

to carefully scrutinize the papers and bestow his

attention to the submissions of the learned Advocate for

the petitioner before granting police custody. A special

care was required in the instant case because petitioner

was granted anticipatory bail by the learned Sessions

Judge, who is superior to him in hierarchy. It is

unfortunate that despite binding directions by the Apex

Court in various judgments including Arnesh Kumar, the

learned Magistrate has granted police custody. By this

act of the learned Magistrate, petitioner remained in

police custody in spite of an anticipatory bail order in his

favour. This is a serious matter and requires correction.

Further, the directions contained in paragraph No.11.8 of

Arnesh Kumar require initiation of departmental enquiry.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF OCTOBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

CRIMINAL PETITION No.4306 OF 2019

SRI. JAIKANTH S  SEKAR K Vs THE STATE OF KARNATAKA

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Whether writ of habeas corpus can be issued if the magistrate has given police custody of accused?

 The question as to whether a writ of habeas corpus could
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314

filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1124 OF 2018

The State of Maharashtra & Ors. Vs Tasneem Rizwan Siddiquee 
Dated:September 05, 2018.
A.M. Khanwilkar, J.

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Leading Supreme Court judgment on issue of production warrant by magistrate

A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more sessions offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused in disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. The learned Additional Solicitor General however strongly relied on some of the observations made by Hardy, J. in Mehar Chand's case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same-transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. Investigation in one specific case cannot be the same as in the other. Arrest and detention in custody in the context of Sections 167(1) and (2) of the Code has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. In S. Harsimran Singh v. State of Punjab MANU/PH/0290/1983 a Division Bench of the Punjab and Haryana High Court considered the question whether the limit of police custody exceeding fifteen days as prescribed by Section 167(2) is applicable only to a single case or is attracted to a series of different cases requiring investigation against the same accused and held thus:

We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under Section 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law.

This view of the Division Bench of the Punjab & Haryana High Court appears to be practicable and also conforms to Section 167. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation  Vs.  Anupam J. Kulkarni

Hon'ble Judges/Coram: 

A.M. Ahmadi and K. Jayachandra Reddy, JJ.

Citation: 1992 CRLJ 2768,AIR 1992 SC 1768

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Whether accused can be remanded to police custody from judicial custody within fifteen days of his arrest?

 Whenever any person is arrested under Section 57 Cr. PC he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e., either police or judicial from time time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate alongwith the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation - can only be in judicial custody.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation,  Vs. Anupam J. Kulkarni

Hon'ble Judges/Coram: 

A.M. Ahmadi and K. Jayachandra Reddy, JJ.

Citation: 1992 CRLJ 2768,AIR 1992 SC 1768

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