The Judgment in V. Senthil Balaji v. State — On Remands to Custody and S. 167 of the Code (Part Two)

 (This is the second in a two-part post. For the first post, click here)

The previous post in this series began a discussion of the Supreme Court's judgment in V. Senthil Balaji v. State [Crl. Appeal Nos. 2284-85 of 2023 (Decided on 07.08.2023) ("Balaji")]. It looked at the reasoning adopted by the Supreme Court while concluding that procedures governing arrests under the general law — i.e., the Criminal Procedure Code 1973 ["Cr.P.C."] — did not apply to arrests under the Prevention of Money Laundering Act 2002 ["PMLA"] because this was not ordinary police but a 'sui generis' scheme, while at the same time concluding that officers of the Enforcement Directorate arresting persons under PMLA could be granted custody of the arrested person as provided under the Cr.P.C. even though the said provisions applied to police (which the Directorate officials were not).

This post turns to the Court's findings in Balaji on how should we interpret the legal provision pertaining to extended custodial detention of arrested persons during the pendency of an investigation — Section 167 of the Cr.P.C. Before turning to the Court's findings, it will be helpful to extract the relevant portions of the provision:

167. Procedure when investigation cannot be completed in twenty-four hours.—

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four 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, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and 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, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; 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 such jurisdiction: 

Provided that — (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— 

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence.

What Balaji says on Section 167

The discussion on Section 167 in Balaji takes place at two places — first at paras 50 to 66, and then from paras 73 to 79 of the judgment. The reason the Court wNIas called upon to interpret the provision may first be clarified. Here, the accused was arrested under PMLA, and the agency sought and obtained his custody from the concerned court, but before the agency could seek and actually take custody, the accused had been shifted to hospital for emergency procedures. The accused remained in hospital for the next two weeks. The agency renewed its request for taking custody of the accused upon his discharge. According to counsel for the accused, however, the agency was barred from taking custody now. It was argued that the 'fifteen days' referred to in Section 167(2) Cr.P.C. which spelt out the outer limit of custody possible for an investigative agency was a reference to the first fifteen days of custody, and not any point thereafter. Since the accused had already spent more than two weeks in custody, this period had lapsed, and the Directorate could not be helped. This was not a first principles pitch — it relied entirely upon a previous judgment of the Supreme Court in CBI v. Anupam J. Kulkarni [AIR 1992 SC 1768 ("Anupam Kulkarni")]. 

The Supreme Court in Anupam Kulkarni had explicitly and unequivocally held that the 'fifteen days' were the first fifteen days of custody, and did not refer to a period of fifteen days that applied across the broader time frame of 60 or 90 days. On this reading, the Court in Anupam Kulkarni dismissed applications of the CBI which sought to obtain physical custody of an accused outside of the first fifteen days, on grounds that the accused had been admitted to hospital for a few of those days and thus became unavailable to the CBI for questioning. 

There had been recent rumblings of discontent with the bright-line rule of Anupam Kulkarni emerging from the Supreme Court when in April a different bench agreed to create an exception and grant custody outside of fifteen days because it was of the view that the accused had acted in bad faith. In Balaji, not only does the Court reinforce this view that the fifteen days have to refer to a period when actual custody could be taken (para 60) but it gives the discontent with Anupam Kulkarni much firmer expression. The bench of Two Justices (same as the strength of the bench in Anupam Kulkarni) in Balaji has expressly voiced its disagreement with the view that custody with agencies must be limited to only the first fifteen days, and recommending that the matter be placed for consideration by a bench of larger strength. 

To understand why the Court in Balaji has concluded thus, we must turn to paras 50 to 66, and then paras 73 to 79. The main plank of the Court's reasoning is simple — nowhere does Section 167 itself state that police custody is limited to the first fifteen days. It says that the magistrate may authorise detention in custody from 'time to time', for a term not exceeding fifteen days 'in the whole'. This 'in the whole' cannot be read as the first fifteen days, but must refer to the outer limit of permissible detention in custody during an investigation which is either 90 days or 60 days (depending upon the offence). It acknowledges that the time limits have an Article 21 element and are a means to ensure speedy investigations, but it firmly holds that the Anupam Kulkarni view is principally wrong and this textual / plain / literal reading of Balaji ought to be favoured — "any other interpretation would seriously impair the power of investigation" (para 63). [Coincidentally, the Court was also not keen to provide any notice to prior to arrest on similar grounds of it seriously impairing investigations (para 33).]

Why Balaji is wrong in its reading of Section 167

There may or may not be a hearing on this issue of how to read Section 167 by a bench of larger strength — the Chief Justice may conclude that it is unnecessary, or perhaps the provision itself will be rendered a relic of the past with the new Sanhitas come into force. Nevertheless, it is important to understand why the view taken in Balaji is incorrect.

Let us take the statutory interpretation facets first. Balaji pens an ode to plain / literal / textual reading of a statute to convince us that such a reading ought to be followed in this case. But in tune with the double-speak found elsewhere in the judgment, we find that the Court abandons the statutory text when it suits the conclusions the Court wants to arrive it. In telling us that the limit of fifteen days can span across the overall period of 90 / 60 days, Balaji fails to pay heed to the phrase "the period of fifteen days" which the proviso refers to. This is not "a period" of fifteen days over which detention in custody of an agency can take place, but a definite, "the period" of fifteen days during which the detention can take place. It has to, therefore, be a continuous period, and not one that can be shaved off and broken up across a 90 / 60 day period. 

If the Court in Balaji had engaged more closely with the decision in Anupam Kulkarni, it would have realised that Anupam Kulkarni was not seemingly operating with the old Cr.P.C. in mind, but it was very much aware of the new law. This is where the history behind the provision becomes critical to understand, something which Balaji does a great disservice to, more so because what it offers to us is a half-baked historical approach with the comparison table (para 50) which merely presents the 1898 Code along side with the 1973 Code and plays spot the differences. 

A Short History of Section 167(2)

There is a journey from the old Code to the 1973 Code, a reason behind the choices made by Parliament when it enacted Section 167 and the other provisions of the 1973 Code. Without even attempting to delve into this history, the Court in Balaji could not have made assumptions about what might have been the legislative intent behind the phrasing of Section 167 as it was brought in the 1973 Code.

What is this history? Section 167 of the old 1898 Code permitted only fifteen days of custody during an investigation. This prompted a practice where police filed incomplete chargesheets only to make sure that the accused remained in custody while the investigation could continue, resulting in lengthy detentions at a stage even before the court was anywhere near starting proceedings. Parliament wanted to fix this aspect of the existing setup and speed up the process. 

This is the story that we find in different Law Commission Reports (repeated in judgments later), but none of these detail the drafting process of the new provisions, which is what we now turn to. The result of the initial discussions around a new Code was draft Section 170 in the Criminal Procedure Code Bill of 1970, the relevant portion of which read as follows:

(2) The magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in the whole ... 

Provided that — 

(a) the magistrate may extend the term beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so; 

 ...  

As can be seen, the idea of 60 / 90 day limits was absent in this first iteration of the new Code. As was the idea of default bail. Instead the idea was to stick to fifteen day periods, requiring constant monitoring by court. The time limits, and default bail, both came into the draft after the Joint Committee of Parliament considered the draft, which also recommended reworking the clauses to retain the old statutory scheme for ease of convenience (something the Sanhitas' drafters may have done well to remember). When the Bill was introduced in Parliament, it contained the time limit scheme and the relevant part read as follows:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ... 

Provided that — 

(a) the Magistrate may extend the term beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so; but no magistrate shall authorise the detention of the accused in custody for a total period exceeding ninety days ... 

... 

Again, there is another critical difference in how Section 167(2) was in the draft legislation as compared to what was finally enacted. There is no fifteen day limit on police custody in this draft whatsoever. There is a fifteen day period in which custody can be granted, following which there is the possibility of extension, up to ninety days, if deemed necessary by the court. 

In effect, then, the draft of the new law permitted much longer police custody than even the old Code. This problem was not lost on Parliament. When the clause was taken up for discussion on 09.05.1973, the issue was flagged by Dinesh Joarder and was reiterated by other members in their initial speeches. During the clause-by-clause discussions on 01.09.1973, the Government accepted the suggested amendments by B.R. Shukla to draft Section 167, which sought to make it clear that any extension of custody beyond the fifteen day period would be "otherwise than in the custody of the police". (Far more debate took place, and even led Section 167 to be reconsidered later, on account of the introduction of default bail).

Thus, what is clear is this. Parliament knew how the Old Code worked and saw the first fifteen days after an arrest as a period where detention in custody was somewhat permissible. It did not restrict these powers further. However, it sought to put an end to filing of incomplete chargesheets by police through explicitly permitting detention in custody during investigations up to a certain period. While doing so, it created a draft which made it ambiguous as to whether the extension outside the first fifteen days could contemplate detention in police custody. Members of Parliament flagged this ambiguity during debates, and the draft law was suitably amended to make it clear that extension of custody outside of that first fifteen day period could never contemplate detention in police custody.

This was the understanding followed by courts in the aftermath of the new code being brought into force. The Delhi High Court in Dharam Pal [1980 CriLJ 1394] dealt with a challenge by the state to orders of a magistrate refusing to grant police custody within the first fifteen days of arrest as judicial custody had been granted. The High Court held that altering the nature of custody was possible and arguably necessary, but was only possible within the first fifteen days from a plain reading of the law. In setting aside the order, even though the first fifteen days of custody had lapsed, the High Court directed the magistrate to consider the matter as on the date when police sought the remand. 

An even clearer exposition of how Section 167 was understood and applied was seen in the Kerala High Court's judgment of K.V. Sadanandan [1984 CriLJ 1823]. Applying Section 167 was a two-step exercise, as the Court explained. Section 167(2) explained that the first step was first deciding to decide the nature of detention in custody for fifteen days in the whole. Only if at the end of this period the Court remained of a view that further detention was necessary, it could resort to the proviso, and extend detention up to the 60 / 90 days, but the nature of such detention could only be "otherwise than in the custody of the police". 

Therefore, Anupam Kulkarni did not mistakenly apply the law thinking it was dealing with the 1898 Code as Balaji suggests, but it was following what had emerged as an established view across courts, and was also the correct view deciphered from a textual reading of Section 167 itself. 

The Promise of Liberty

In failing to consult the history behind Section 167, it is no wonder that the Court in Balaji commits such serious errors as to assuming the correct legislative intent behind the provision. At no point was it in the mind of Parliament to grant police the custody of persons in a manner even broader than the colonial 1898 Code. The very purpose behind the comprehensive restructuring of Section 167 by Parliament in 1973 was to send a clear signal to police that their languorous investigations spread over months if not years were antithetical to personal liberty that the Constitution respected and guaranteed through Article 21. If such kinds of investigations were in the minds of agencies, then it was precisely Parliament's intent to impair the power of police to continue with such practices. 

That Balaji found it difficult to accept this clear intention is not a unique feat. Similar difficulties were, in fact, experienced in the context of the other part of Section 167 i.e. the insertion of default bail provisions, when they came, which the Supreme Court had gone so far as to comment was Parliament's creation of a "paradise for criminals". Yet, no matter how unpalatable to its sensibilities Court must honour legislative intent, and not find ways to skirt around it as long as it remains palpable to the Constitution itself. And, by all accounts, Section 167 in prescribing a limit on police custody as being permissible only during the first fifteen days of arrest is certainly not contrary to the Constitution. 

The conclusions in Balaji on this aspect of reading Section 167(2) of the Cr.P.C. are, therefore, incorrect.

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.

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). 

Wither the Right against Self-Incrimination?

(An earlier version of this post first appeared on the Indian Constitutional Law & Philosophy Blog)   

Article 20(3) of the Constitution of India is extremely fascinating. Tersely worded, it can be quoted in full: No person accused of any offence shall be compelled to be a witness against himself. Three components can be identified: (i) the protection applies to a person accused of any offence, (ii) it prohibits said person being compelled to be a witness, and (iii) this prohibition applies only to the person concerned. It is the first of these three issues that occupies me for this post. 

M.P. Sharma and a Nascent Right 

M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] was the first decision to consider Article 20(3). The facts were simple. Investigations ordered by the Registrar of Joint Stock Companies revealed certain companies were engaging in fraudulent transactions. The Delhi Special Police Establishment (now CBI) required to seize their books and separate First Information Reports (FIR) were registered against the different companies. Search warrants under Section 96 of the Cr.P.C. 1898 were issued and the documents seized. The proprietors then filed petitions under Article 226 challenging the searches as violating their fundamental rights under Articles 20(3) and 19(1)(f) of the Constitution. Only the Article 20(3) question was considered important. Eight judges delivered a unanimous decision, rejecting the claim. The Court noted how self-incrimination required a careful balancing of the needs of investigation with individual protection. With this in mind, the Court explained all three of the facets identified above. I’ll restrict myself to the aspect of Article 20(3) being limited to a person accused of any offence. The Court held that the right extends to beyond the courtroom (yes, I’m cheating. This came in context of the ‘being a witness’ part), and then had to draw a line on how far did the right extend. In rather vague fashion, the Court said limited it to “a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution”. Importantly, the Court observed “whether it is available to other persons in other situations does not call for a decision in this case”.

The Court made an important choice in choosing to expand the scope of Article 20(3) beyond the courtroom despite it having a qualifier (accused of any offence). However, I argue that the Court got it slightly wrong. The problem lies in the vantage point the Court adopts while viewing Article 20(3). The Court decides against a narrow approach, yes, but it still bases its decision by looking at the protection from that standpoint of the eventual court proceedings. Compelled evidence is inherently unreliable for trial (for people lie when tortured), and such tainted evidence can arise through compulsion exercised beyond the courtroom, so we need this right to extend that far. This reasoning is commonly touted as the basis for the protection only for such claims to be convincingly rebuffed time and again [For instance, Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37(4) U. Cin. L.Rev. 671 (1968); Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995)]. Shorn of the academic discourse, the reason why focusing too much on eventual proceedings is practically a problem is not hard to fathom either. Imagine a situation where you are not named in the FIR as an accused but are picked up by the police, forced into writing a confession, but the matter ultimately never goes to trial and are thus released from custody. The detention is not unlawful – the police can arrest suspects – so no Article 21 violation occurs. You were forced to incriminate yourself. But, according to M.P. Sharma, it is difficult to claim this as a violation of the right under Article 20(3). Difficult and not impossible, only because of the caveat, which was to get forgotten soon after.

Socio-Economic Offences and a Withering Right 

The formal accusation referred to in M.P. Sharma must also be one that normally may result in prosecution (Thomas Dana v. State of Punjab, AIR 1959 SC 375). Prosecution refers to initiation of legal proceedings, i.e. a trial. A formal accusation appears to have been used with the intention to create different classes of accusations. Formal here would mean ‘official’ (the other definition of the word being based on etiquette must be excluded), and the Court perhaps wanted to separate official accusations from those by private individuals. The police registering an FIR is qualitatively different from me filing a complaint against you at the local police station. But now a gap emerges between the time when an accusation becomes a formal accusation. Here, remember, the Court issued a caveat – its judgment did not preclude an extension of the right under Article 20(3), but only provided some sort of minimum. This gap might yet be covered under Article 20(3), as the Court didn’t discuss such cases.

How did the Court look at it though? 5 judges in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29] had a case similar on facts to M.P. Sharma; the only difference being that here there was no FIR against the companies or proprietors. An Inspector appointed under the Companies Act, 1956, called upon the appellants to furnish certain information. The Appellant challenged this investigation as being inter alia, contrary to Article 20(3). While observing the earlier judgment of M.P. Sharma, the 5 judges concluded that “the effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Art. 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution.” Did the inquiry here amount to such an accusation? No, it was more like a fact-finding commission and “the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings”. The unanimous answer thus being, no violation of Article 20(3). The Court seems to have been referring to the caveat of M.P. Sharma at the end of its decision in Raja Narayanlal. It observed “even if the clause ‘accused of any offence’ is interpreted in a very broad and liberal way it is clear that at the relevant stage the appellant has not been, and cannot be, accused of any offence.” Only to then say that such a broad interpretation did not appear “consistent with the tenor and effect of the previous decisions of this Court”.

The 'gap' identified came sharply in focus with the socio-economic legislation introduced/modified in the 1960s. Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] was a case that arose out of the old Sea Customs Act, 1878 (replaced by the Customs Act, 1962). The Appellant had been searched at Dum Dum Airport, Calcutta, and this search lead to recoveries of jewels and currency worth several lakhs of rupees. He was questioned under Section 171-A of that Act (after possibly being arrested, which is not entirely clear from the judgment), where disclosures lead to further recoveries. These discoveries made pursuant to this inquiry were assailed as being the result of the Appellant being compelled to incriminate himself. 5 judges unanimously dismissed the claim finding no violation of the right. The Court’s reasoning while denying that Article 20(3) applied to the case is important: “a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act … he is not accusing the person of any offence punishable at a trial before a Magistrate”. With this it would appear that the Court has taken a clear and consistent view on how to consider that gap we identified. Anything prior to the formal accusation means no protection.

The Problem Laid Bare

Have a look at the procedure under the Customs Act 1962 and other socio-economic offences such as the Foreign Exchange Management Act 1999, and the Narcotics, Drugs and Psychotropic Substances Act 1985. The formal accusation in these cases is a Complaint filed by the authorised officer, which is the result of an investigation. Here, there is no pre-investigative accusation drawn up by the authority like an FIR required under the Cr.P.C. The reason for this is a ridiculous deeming fiction which requires that we don’t call these officers police officers and by extension call these investigations enquiries, despite the officers having the same powers of investigation as conferred under Chapter XII of the Cr.P.C. [on this, see Sekhri, Confessions, Police Officers and Section 25 of the Indian Evidence Act, 1872, 7 NUJS L. Rev. 1 (2014). The formulaic rather than functional approach of the Court adopted here is strikingly similar to its decisions on Section 25 of the Evidence Act].

These socio-economic offences have extensive pre-trial powers during the ill-phrased enquiry stage. The Customs Act 1962 (successor to the Sea Customs Act, 1871), allows customs officers powers of ‘searches, seizure and arrest’. A customs officer can summon any person [Section 108] and examine her during the course of an enquiry into the smuggling of goods [Section 107]. Persons summoned are “bound to state the truth upon any subject respecting which they are examined or make statements”, and these enquiry proceedings are deemed to be judicial proceedings for Section 193 and 228 of the Indian Penal Code. So if you lie, perjury charges can follow. On top of this, the customs officer can arrest [Section 104] upon having reasons to believe that the person committed an offence punishable under Section 132, or 133, or 135, or 135-A or 136 of that Act. Detention can and will follow, and could possibly extend to 60 days as specified under Section 167, Cr.P.C. What the Supreme Court has done, is to exclude the right of self-incrimination from this entire process because of its focus on the actual realisation of proceedings as first seen in M.P. Sharma.

The steady growth of powers during this enquiry stage under socio-economic offences supports the theory that the Legislature is not blind to the line-drawing adopted by the Supreme Court. So what do we draw from this? Today you can be questioned under the threat of prosecution to supply potentially incriminating information. You can be arrested and detained during this process, but still the right under Article 20(3) remains beyond reach. Why? Because the accuser might not have found all that was needed from you to incriminate yourself.

Custody and Section 167 Cr.P.C.

Section 167 of the Cr.P.C. has been subjected to a lot of interpretation over time due to the nature of the subject matter. The provision concerns remanding a person to custody by a court, when the police present said person before the court within 24 hours of an arrest. Nonetheless, two very interesting interpretive questions remain largely unexplored when you scan through Section 167 of the Cr.P.C. They are quite fascinating. I thought they merit some discussion.

Enter, the 'accused'

Our criminal law confers several rights upon an accused person. For instance, the accused has a constitutional right against self-incrimination [Article 20(3) of the Constitution]. But, nowhere do we have a definition of who is an 'accused'. The Supreme Court helped out by giving an explanation in 1954, when it held that one is an 'accused' when there is a formal accusation which may in the normal course result in prosecution [M.P. Sharma v Satish Chandra, AIR 1954 SC 300]. Later, though, it held that persons taken into custody and interrogated by customs officers are not 'accused' [Romesh Chandra Mehta v State of West Bengal, AIR 1970 SC 940]. The problems arising from this stand have been discussed here before. Suffice to say, that it remains unclear from the decisions who is an 'accused'. Which is why Section 167 assumes significance. This is the first time when the Cr.P.C. mentions an 'accused'. Section 167(1) says "whenever any person is arrested and detained in custody ... and there are grounds for believing that the accusation or information is well-founded ... shall at the same time forward the accused to such Magistrate" [Run a ctrl+f search to test me]. Before this, the Code speaks of arresting a person "accused of" a certain offence. Now, that person becomes the accused. 

Lets try line-drawing. Before this, what has happened? Arrest, and some (not more than 24) hours in custody. One conclusion which emerges is that only after the police seek formal custody from court does one become an accused. The first 24 hours are not included because they are needed to determine whether the accusation is well-founded. We can perhaps say that the test in M.P. Sharma could be modified to define the accused as a person against whom a well-founded accusation, as opposed to an accusation, has been made. This also invites a problematic reading of Article 20(3) which would then exclude the protection from persons for that initial 24 hour period and incentivise under-reporting of arrests. Before you disregard the idea, remember that the Court has already sanctified this exclusion for periods longer than 24 hours where the detaining authority is not wearing khaki but a better fabric [i.e., its a customs officer and not police officer]. Keeping that important development aside for a moment, what is important here is the possibility to use Section 167 for providing a clear, consistent idea of who is an accused.

Interpreting The Proviso 

The proviso to Section 167(2) creates 90 day and 60 day limits on detention in custody. 90 days where the offence is one punishable with death, imprisonment for life "or imprisonment for a term of not less than ten years". 60 days for "any other offence". Death and life imprisonment are clear enough, but how do we read "imprisonment for a term not less than ten years" in Proviso (a). Our drafting style for offences has been quite standard over time: there is always a maximum, there may be a minimum. The Proviso is based on the nature of offences, but no offence in the IPC is defined as having a punishment "not less than ten years". So why choose such perplexing language! The courts are left to make good of what they have. The Supreme Court has considered the proviso in detail twice to my knowledge; Rajeev Chaudhary v State [AIR 2001 SC 2369] and Bhupinder Singh v Jarnail Singh [(2006) 6 SCC 277]. Both decisions are problematic.

Rajeev Chaudhary required deciding whether Section 386 IPC fell in the 60 day or 90 day category. Section 386 is punishable up to ten years imprisonment. The Court held that in the Proviso "the expression not less than would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more." In Bhupinder Singh, the Court was faced with a resulting problem. Section 304-B IPC allowed a minimum imprisonment of seven years and a maximum of life. This meant imprisonment was not "for a clear period of 10 years or more". Justice Pasayat decided that custody could still be for 90 days by wisely noting that "merely because the minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence". The only way to arrive at this conclusion was to overrule the clear period test of Rajeev Chaudhary but this never happens.  

I would therefore regard Bhupinder Singh as per incuriam, and address the position as it remains from Rajeev Chaudhary. The position is unacceptable. Not only does it re-write the text, but (a) plainly illogical and (ii) contrary to how we read the Cr.P.C. elsewhere. On logic, this reading potentially excludes offences such as Section 307 IPC and a host of other grave offences under special laws [NDPS Act, for instance] by this clear period test. Surely, that could not have been the legislative intention. On interpreting the Cr.P.C., turn to the Part-II of the Schedule to the Cr.P.C. [its right at the end] which explains how offences under laws other than IPC are normally tried. Offences punishable for 3 years form one category of cognizable and non-bailable, and those for less than 3 years form a separate one of non-cognizable and bailable. Non-IPC offences punishable up to 3 years have been consistently treated as cognizable and bailable (unless specified otherwise) illustrating that courts include the maximum punishment while understanding the offence (see decisions on Section 63 of the Copyright Act 1957). Similarly, not less than ten years in the Proviso, must mean to include all offences punishable with up to ten years.