Detention, Deepak Mahajan, and Self-Incrimination

(A previous version of this post appeared on the Indian Constitutional Law and Philosophy Blog. I am grateful to its resident editor and some close friends for comments)

Recap

Previously, we talked about how the “person accused of an offence” in Article 20(3) of the Indian Constitution have been interpreted by the Supreme Court. The Court had understood this phrase as describing a person who was the subject of a formal accusation, akin to a FIR. This created a gap between the time it takes for an informal accusation to become a formal one, which becomes a point where a person remains unprotected, and could be compelled to give evidence against himself. While investigations for IPC offences may confer little investigative mettle before a formal accusation, the same is not the case in statutes creating socio-economic offences. Statutes such as the Customs Act 1962, and NDPS Act 1988 vest officers with extensive powers before a formal accusation is levelled. The Supreme Court during the 1960s consistently held that Article 20(3) would not apply to persons compelled to give evidence against themselves at these stages.

I have expressed deep reservations about this approach, and in this part of my argument flesh out a possible alternative approach to answering the problem. The ideal situation would involve an amendment to the Cr.P.C. providing a definition of ‘Accused’. That is difficult for multifarious reasons and it is easier to fashion an approach from existing law (statutory and supreme court decision based). Accordingly, I argue that the phrase “person accused of an offence” should be read with the concept of detention in custody by any authority during an investigation. I draw the line this way: if an authority seeks your detention for more than the 24-hour minimum, you must be able to exercise your right against self-incrimination. Before moving on to this argument, I need to discuss one important decision.

Deepak Mahajan and Custodial Remand

Previously we ended our discussion with Romesh Chandra Mehta and the Sea Customs Act. We begin this post with the decision in Directorate of Enforcement v. Deepak Mahajan [AIR 1994 SC 1775]. All you need to know is that in the interregnum, the Supreme Court consistently built upon the foundations laid by Romesh Chandra Mehta, and by 1994 it was a nearly unassailable position that Article 20(3) didn’t extend to the questioning of persons before filing of formal complaints in socio-economic offences. It also consistently held that officers conducting the interrogation were not “police officers” and therefore confessions made to these officers would not be hit by Section 25 of the Indian Evidence Act.

Enter Deepak Mahajan. The Appellant DM was arrested for having allegedly committed offences under the erstwhile Foreign Exchange Regulation Act 1973 [FERA] and was taken for questioning. This power was available under  Section 35 FERA. A quandary arose soon after – if his detention is needed beyond the Constitutional maximum of 24 hours [Article 22], could further detention be granted by a Magistrate as in ordinary IPC cases? Section 167 of the Cr.P.C. is what allowed further detention. For clarity, I extract relevant parts here:

(1)   Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-hour hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation … shall at the same time forward the accused to such Magistrate

(2)   The Magistrate to whom an accused person is forwarded under this section may … authorise the detention of the accused in such custody as such Magistrate thinks fit … and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction

(Emphasis Supplied)

This provision thus, invokes both a “police officer” and an “accused person”. A reading of the provision makes it clear that only those persons are sent to the Magistrate by the police against whom “there are grounds for believing that the accusation or information is well-founded”. This is perhaps the closest to a definition for a formal accusation that we can find. Therefore, could this provision be made applicable to authorise detention during investigation in statutes like FERA? Remember, these laws were those where the Court had held the interrogating officers were not police officers [to prevent application of Section 25, IEA]. And persons questioned were not accused at this pre-formal accusation stage [to prevent application of Article 20(3)]. To extend Section 167 would mean either conceding one or both of these premises upon which the Court had built nearly 30 years of jurisprudence, let alone the dramatic impact it would have on the investigation and trial of the cases themselves. The Delhi High Court had held that Section 167 would not apply, which meant no further custody before filing a formal accusation.

Walking a Tightrope

You have to think that something had to give. If the Court applied Section 167 then it meant that the questioned persons get important legal protections. If it didn’t extend Section 167, this meant a limit to detention in custody for 24 hours before filing any formal accusation which curtailed the scope for coercive interrogation [note, however, that this didn’t mean Article 20(3) became applicable to the entire pre-complaint process. The FERA had interrogation provisions at this stage that worked completely independent of custodial detention, and thus would remain outside Article 20(3)]. Reading the decision, it is clear that the Court knew exactly how tricky the issue was. It reversed the conclusions of the High Court and held that Section 167 Cr.P.C. would apply to allow those arrested under Section 35 of FERA and other socio-economic offences to be remanded to judicial custody.

Crucially though, the Court did not extend Section 25, IEA or Article 20(3) to persons remanded to custody. Let’s leave aside the Section 25 issue and focus on what bothers us – the refusal to extend Article 20(3). The court engages in an interesting discussion on how the criminal law does not have a consistent description of the term accused. Perhaps there is merit in that claim – accused being a generic word can be coloured differently at different stages. But look above, to how the “accused person” sent to the Magistrate under Section 167 Cr.P.C. was someone against whom there were well well-founded accusations as determined by the police. Even after its deliberations on the meaning of ‘accused’, the Court went on to note that the word “‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on a well-founded information or formal accusation or indictment [emphasis supplied].” So why would it not result in these persons being conferred with the protection under Article 20(3)?

Conclusion

Deepak Mahajan remains seminal because this is the first time that the Supreme Court discusses the possibility of a link between the idea of custodial remand and self-incrimination. But the decision ultimately went the same way and compounded the earlier problems. Now, persons could be detained for up to 90 days without any protection from being compelled to incriminate themselves. In the next post, we’ll develop this argument to see whether Deepak Mahajan was in fact a lost opportunity that leads us to a better, more holistic, version of Article 20(3).