Criminal Law

Custodial Interrogation in India

Custodial interrogation implies when an accused is in the custody of enforcement officials or police officers for interrogation. While in custody, several rights of the accused are on hold but some basic human and fundamental rights are nonetheless within his reach.

The conditions for grant of custodial interrogation: (section 167 Cr.P.C.)

Investigation not complete within 24 hours as under section 57 Cr.P.C.

The accused is required in custody for further investigation

The existence of grounds to believe that the information against the accused is well founded.

A copy of the diary entries as well as the accused shall be forwarded to the nearest judicial magistrate.

Duration of Custody

Not more than 15 days at a time

Police custody cannot be more than 15 days  in toto.

In case of offences punishable with death, life imprisonment, or 10 years imprisonment, custody for a maximum period of 90 days.

In case of any other offence for a maximum period 60 days.

Judicial Authorities

Elumalai v. State of Tamil Nadu, 1983 LW (Crl) 121

A few guidelines before granting custodial interrogation:

Section 167(2) Cr.P.C. applies to arrest u/s 41(1) Cr.P.C. and in exceptional circumstances, to arrest u/s 151(1) Cr.P.C.

The magistrate should be very watchful under this section that police does not violate liberty of citizens, arbitrarily and unreasonably.

Section 167 Cr.P.C. does not apply to arrest u/s 41 (2) Cr.P.C and court can order remand or extension of remand.

The courts cannot mechanically pass orders without verifying the entries in diary and satisfying themselves about the real necessity for granting remand or extension thereof.

The production of the accused before the court is mandatory, and no magistrate can order custody in the absence of the accused.

The jail authorities shall not withhold the accused even for a minute than the order of detention as detention without proper orders amounts to illegal detention

Gian Singh v. State (Delhi Administration) 1981 Cr L J 100

It is prudent for the police to allow a lawyer where the accused wants to have one at the time of interrogation if they want to escape the censure that police interrogation is carried on in secrecy by physical and psychic torture.

Hussainara Khatoon (IV) v. Home Sec., State of Bihar (1980) 1 SCC 98

In respect of remand of prisoners to judicial custody section 167 (1) Cr.P.C. must be strictly complied with.

Citizens for Democracy v. State of Assam (1995) 3 SCC 743 

A Remand by a magistrat – Judicial or non-judicial- the accused shall not be handcuffed unless there is a special order to that effect from the magistrate at the time of grant of remand.

Abdul Rehman Antulay v. R. S. Nayak (1992) 1 SCC 225

The court while issuing guidelines for speedy trial said that:

The period for remand and pre-conviction detention should be as short as possible. In short the accused not be subjected to unnecessary or unduly long incarceration prior to his conviction.

Khatri (II) v. State of Bihar (1981) 1 SCC 627

The provision helps a magistrate to keep a check on the police investigation and a magistrate should try to enforce this requirement and wherever it is not observed come down heavily on police.

Injury sustained by under trial prisoner – it has to be enquired by the magistrate and the magistrate should not mechanically sign the order.

Kehar Singh v. State (Delhi Admm.) 1988 3 SCC 609

The avertments in the application of remand are only self serving. The silence of the accused cannot be construed as his admission.

State of Maharashtra v. Ramesh Taurani (1998) 1 SCC 41

It was lain down that the remand applications should be filed by the investigating agency to satisfy the court that there are justifiable grounds to detain an accused in police custody. In other words the IA should bring to the notice of the court the materials collected against an arrested accused to persuade the court to grant remand. Negatively, the IA is not required to state in the application such material, if any, collected against a person yet to be arrested.

State of U P v, Ram Sagar Yadav (1985) 1 SSC 552

Remand orders should be passed by magistrate on proper application of mind and not mechanically.

Budh Singh v. State of Punjab (2000) 9 SCC 266

After the expiry of 15 days of police remand, order for police remand for a further period of 7 days violates S. 167 Cr.P.C.

Chaganti Satyanarayana v. State of A. P. (1986) 3 SCC 141

The period of 60 days or 90 days has to be compujted from the date of remand and not from the date of arrest under section 57 Cr.P.C.

Current Scenario

 In 2008, the Unlawful Activities (Prevention) Amendment Bill, 2008 was introduced for speedy investigation and it sought to extend the maximum number of days a suspect can be detained for interrogation to 180 days, if it is not possible to complete the investigation within 90 days.

Section 43D of Unlawful Activities (Prevention) Amendment Act, 2008 brings back the disputed Section 49(2) (a)-(b) of POTA. The section permitted the pre-trial imprisonment of the accused till 180 days.

The Lok Sabha on 30th November, 2012 passed the Unlawful Activities (Prevention) Amendment Bill by a voice vote. The Bill includes economic offences within the ambit of terror acts. The bill seeks to expand the definition of “terrorist act” to include offences that threaten the country’s economic security and also seek to include procurement of weapons, raising funds for terrorist activities and counterfeiting Indian currency under the definition of a “terrorist act”.

India’s 180-day period is much longer than the permitted maximum detention in other democratic states. In the United States no citizen could be detained for more than seven without being presented before the magistrate, while in Canada no person can be detained for more than one day without charges being framed. In Russia, the period is five days and in France six days.  In U.K., under the Terrorism Act, 2006, an accused could be detained for 28 days.

This clearly shows that such provisions under Unlawful Activities (Prevention) Amendment Act, 2008 for custodial interrogation is definitely beyond any logic and the longest period allowed for custody of detainees compared to most progressive countries.

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