Custody under Section 167(2): Magistrate may change between judicial and police custody within the first fifteen days.

A petition on custody under Section 167(2) of the Code of Criminal Procedure, 1973 addressed two issues: authorisation and the Magistrate's power to change custody within the first fifteen days. The authorisation objection was not accepted because a notification appointing a Special Public Prosecutor was produced and any initial defect was treated as cured when the Delhi Administration supported the petition. On custody, the provision was read as allowing the Magistrate to authorise detention in such custody as he thinks fit from time to time during the initial fifteen-day period, including a change between judicial custody and police custody. Police custody, however, cannot be authorised after that statutory period.

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Issues: (i) whether the petition was liable to be rejected for want of proper authorisation; and (ii) whether, under Section 167(2) of the Code of Criminal Procedure, 1973, a Magistrate can alter the nature of custody between judicial custody and police custody during the initial fifteen-day period.

Issue (i): whether the petition was liable to be rejected for want of proper authorisation

Analysis: A notification appointing a Special Public Prosecutor for the case was produced. Any initial defect in institution was treated as cured when the Delhi Administration supported the petition. The objection was therefore not accepted.

Conclusion: The objection regarding authorisation was overruled.

Issue (ii): whether, under Section 167(2) of the Code of Criminal Procedure, 1973, a Magistrate can alter the nature of custody between judicial custody and police custody during the initial fifteen-day period

Analysis: Section 167(2) empowers the Magistrate to authorise detention in such custody as he thinks fit from time to time during the first fifteen days. The provision contains no bar against changing custody from judicial custody to police custody or vice versa within that period. The purpose of the provision is to facilitate investigation, while preserving judicial control over detention and limiting police custody to fifteen days in the whole. Once the fifteen-day period expires, police custody cannot be ordered.

Conclusion: The Magistrate may alter the nature of custody during the first fifteen days, but cannot authorise police custody after that period.

Final Conclusion: The petition succeeded, the magistrate's contrary order was set aside, and the matter was directed to be considered afresh in light of the ruling on Section 167(2).

Ratio Decidendi: Under Section 167(2) of the Code of Criminal Procedure, 1973, the Magistrate has continuing discretion during the initial fifteen days to determine and change the form of custody as investigation requires, but police custody cannot extend beyond that statutory limit.

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