K. Jayachandra Reddy, J. - (1.) Leave granted.
(2.) An important question that arises for consideration is whether a person arrested and produced before the nearest Magistrate as required under S. 167(1) Code of Criminal Procedure can still be remanded to police custody after the expiry of the initial period of 15 days. We propose to consider the issue elaborately as there is no judgment of this Court on this point. The facts giving rise to this question may briefly be stated. A case relating to abduction of four Bombay based diamond merchants and one Shri Kulkarni was registered at Police Station Tughlak Road New Delhi on 16-9-91 and the investigation was entrusted to C.B.I. During investigation it was disclosed that not only the four diamond merchants but also Shri Kulkarni, who is the respondent before us and one driver Babulal were kidnapped between 14th and 15th September, 1991 from two Hotels at Delhi. It emerged during investigation that the said Shri Kulkarni was one of the associates of the accused one Shri R. Chaudhary responsible for the kidnapping of the diamond merchants. On the basis of some available material Shri Kulkarni was arrested on 4.-10-91 and was produced before the Chief Metropolitan Magistrate, Delhi on 5-10-91. On the request of the C.B.I. Shri Kulkarni was remanded to judicial custody till 11-10-91. On 10-10-91 a test identification parade was arranged but Shri Kulkarni refused to cooperate and his refusal was recorded by the concerned Munsif Magistrate. On 11-10-91 an application was moved by the investigating officer seeking police custody of Shri Kulkarni which was allowed. When he was being taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the Hospital the same evening where he remained confined on the ground of illness up to 21-10-91 and then he was referred to Cardic Out-patient Department of G.B. Pant Hospital. Up to 29-10-91 Shri Kulkarni was again remanded to judicial custody by the Magistrate and thereafter was sent to Jail. In view of the fact that the Police could not take him into police custody all these days the investigating officer Again applied to the Court of Chief Metropolitan Magistrate for police custody of Shri Kulkarni. The Chief Metropolitan Magistrate relying on ajudgment of the Delhi High Court in State (Delhi Admn.) v. Dharam Pal, 1982 Cri LJ 1103 refused police remand. Questioning the same a revision was filed before the High Court of Delhi. The learned single Judge in the first instance considered whether there was material to make out a case of kidnapping or abduction against Shri Kulkarni and observed that even the abducted persons namely the four diamond merchants do not point an accusing finger against Shri Kulkarni and that at any rate Shri Kulkarni himself has been interrogated in jail for almost seven days by the C.B.I and nothing has been divulged by him, therefore it is not desirable to confine him in jail and in that view of the matter he granted him ball. The High Court, however, did not decide the question whether or not after the expiry of the initial period of 15 days a person can still be remanded to police custody by the magistrate before whom he was produced. The said order is challenged in these appeals.
(3.) The learned Additional Solicitor General appearing for the C.B.I. the appellant contended that the Chief Metropolitan Magistrate erred in not granting police custody and that Dharam Pal' s case (supra) on which he placed reliance has been wrongly decided. The further contention is that the High Court has erred in granting bail to Shri Kulkarni without deciding the question whether he can be remanded to police custody as prayed for by the C. B. I. Shri Ram Jethmalani, learned counsel for the respondent accused submitted that the language of S. 167, Cr.P.C. is clear and that the police custody if at all be granted by the Magistrate should be only during the period of first 15 days from the date of production of the accused before the magistrate and not later and that subsequent custody if any should only be judicial custody and the question of granting police custody after the expiry of first 15 days remand does not arise.;