· According to S. 57, if a person is arrested and detained the investigation is to be completed in 24 hours. But, in a case where an investigation cannot be completed in this fixed time period and, there exists sufficient ground for believing that the information or accusation is sustainable, the police officer making the investigation or the officer-in-charge of the station ( not below the rank of SI), shall forward the copy of entries in the case diary and the accused to the nearest Judicial Magistrate.[1]
· This provision empowers any Magistrate, irrespective of jurisdiction over the case, to authorize the detention of the accused in a custody deemed fit by the Magistrate, not exceeding a period of 15 days.[2]If the Magistrate thinks that such a detention is unnecessary and has no jurisdiction to try the case, he may transfer the accused over to the Magistrate having jurisdiction over the case Power has been conferred on the Magistrate to extend the period of detention.
· Provisio, if the Judicial Magistrate is satisfied that there exist reasonable grounds for detention of accused, otherwise than in police custody, he may authorize a detention for more than 15 days.[3]
· This above mentioned granting of extension is subject to three restrictions-
(i) Custody should not be with the police
(ii) Cannot extend over 90 days, if the investigation is with regard to an offence which is punishable with death, imprisonment for life or imprisonment for a term not less than 10 years.[4]
(iii) Cannot extend over 60 days, if the it is any other offence.[5]
· If the accused if prepared and furnishes bail at the expiry of the said 60- or 90-day period, the accused is to be released on bail.
· This section makes the physical production of the accused before the Magistrate statutorily mandatory before the accused can be remanded to custody by the Magistrate. Further, a signature of the accused is to be affixed on the order of detention.
· Moreover, if the investigation is not completed within 6 months from the date of arrest of the accused and the case can be triable as a summons case, the Magistrate can order to stop the ongoing investigation and discharge the accused, unless the Magistrate is convinced of reasons furnished by the IO.
· Scope and Application: S. 167 can be considered to be auxiliary provision to S. 57. It is well founded u/ S. 57 that police is required to produce an arrested person before the Magistrate within 24 hours of the arrest, it is in fact a fundamental right. Failure to produce such an accused is wrongful detention.[6] The policy is that detention in police custody should be allowed only in special cases[7] and that the accused should be brought before the Magistrate for trial with as little delay as possible.
· S. 167 applies to arrests made under S. 151 or S. 41[8] If he has voluntarily surrendered, a remand to police custody under S. 167 cannot be made.[9]
· Application of Judicial Mind: Under S. 167 the Magistrate is required to use judicial application of his mind to determine whether the circumstances justify detention of the accused in police custody, or to move the accused to judicial custody. Also, the concerned Magistrate can refuse the remand to alter the offences charged on the accused. The order determining the remand of the accused in no way amounts to interference of investigation with the case.[10] As the remand order is a judicial order, it must contain the reasons for the extension of time.[11]
· S. 167 is the sole repository of the Magistrate’s Power of remand during investigation. Also, Once the accused is released on bail the Magistrate ceases to have jurisdiction to commit him to police custody again.[12]
· The power of the Magistrate under S. 167 cannot be exercised at the request of the Complainant.[13]Further, the initial stretch of remand under S. 167(1) is only 15 days. Once, this period is over, S. 167(2) is to be applied. In that case, special grounds for extending remand beyond 15 days must be recorded. If failed to do so, the extension has to be treated for 15 days only as contemplated by S. 167(1) and there is no scope for remanding the person for 15 days again as the total period would exceed the maximum number of days- 15 days.[14]
· Any Illegality in the remand order does not affect the progress of the trial or the court’s decision.[15]
· Moreover, the application for bail under S. 167 (2) is furnished by the accused and is has thus availed their right of bail, a subsequent filing of a Charge- Sheet or finding, would not negate this right of the accused to be released on bail.[16] The same is applied on the expiry of 90 days. The right given to the accused for being enlarged on bail as per S. 167(2)(a) is not an absolute right. It provides only for bail to be granted if Charge- Sheet is not filed within the specified period, but the detention however, continues to be authorized. The right can be exercised only before the charge sheet is filed. If he continues to be in custody, because no order granting him bail is passed under that proviso, the Magistrate’s power of granting bail once the charge sheet is filed, can be exercised only under S. 437. The right to bail cannot be thus, claimed under the proviso to S. 167(2).[17] S. 437- 439 is applied for the cancellation of bail which is granted under S. 167 of CrPC.[18]
· While calculating the total period of detention of 60/ 90 days, the period of detention under S. 57 has to be excluded. The date of remand is included in this process.[19]
· The case of State of W.B v. Dinesh Dalmia[20] - ‘Police Custody deliberated in S. 167 is custody in the particular case and deemed or notional surrender in another criminal case cannot be taken as the starting point for counting 15 days, 60/90 days of police custody. So, a person against whom two cases, one at Calcutta and one at Chennai were filed and was arrested and kept in CBI’s custody in furtherance of the Chennai case. When he came to know about the pending case at Calcutta, he voluntarily surrendered before the Chennai Court in respect of the other case. It was held that this notional surrender will not be treated as police custody for counting the days of custody.’
· A Remand Order of the accused to Police custody is of the nature of an interlocutory order and thus, no revision shall lie against it.[21]
Cases:
A) Uday Mohan Lal Acharya v, Maharashtra, 2001 SC.
The Appellant in this case ordered to be remanded to Judicial Custody. On 16.8.2000, the expiry of the 60-day period as per S. 167(2) was due. On the next day, an application for bail had been furnished by the appellants before the Special Judge claiming that as nothing had been filed in the last 60 days, as per right, the appellant was to be granted bail. This was rejected by the Judge stating that the Act in application in the case- MPID Act did not attract S. 167(2). The case was preferred to the Bombay High Court, meanwhile a challan was filed by the Special Judge.
The High Court in this case held that offences under the MPID Act also attracted S. 167(2). Further, placing reference on Sanjay Dutt’s.
case, further concluded that the prayer for bail cannot be considered.
“It is settled by series of judgments of this Court in the last 25 years that framers of the Code conceived and desired that after expiry of the period prescribed in proviso to S. 167(2) of the Code, an accused has to be released on bail if no challan is filed because after the expiry of the statutory period prescribed therein, there is no power in Magistrate to remand for further custody, but the same proviso prescribes in clause (a)(ii) that `the accused person shall be released on bail if he is prepared to and does furnish bail. To be released on bail because of the default of submission of challan within the statutory period is a valuable right of the accused, but the framers have prescribed a condition in that very proviso referred to above that this right to be released on bail can be exercised only on furnishing of bail. Clause (a)(ii) of proviso to S. 167(2) not only says that the accused `is prepared to, but also says that the `accused does furnish bail and Explanation I to S. 167(2) of the Code clearly mandates that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail".
B) SadhwiPragyna Singh Thakur v. State of Maharashtra[22]
This case was an appeal filed against the judgement of a Single Judge Bench of the Bombay High Court, which rejected her prayer to enlarge her bail as it violated Art. 22 of the Constitution, and also with regard to the non- filing of Charge- sheet within the stipulated 90 days as under S. 167(2). According to the appellant her formal arrest was made on October 23, 2008. The reasons for the same was not disclosed to her or her relatives (who later came to know about the same through media on the 25th of October). She was produced before the Magistrate on the October 23, 2008 and police custody was given till the 3rd of November, 2008. Post November 3, police custody was denied by the court and she was remanded to judicial custody.
It was argued by the appellant that she was kept in detention from 10th of October, 2008 to 9th January, 2009 – which was the 90th day of detention. The police filed the Charge- sheet only on the 20th of January. The appellant had thus, filed a bail application under S. 167(2) of CrPC on the plea of failure to file the charge-sheet within a period of 90 days as under S. 21(2)(b) of MCOCA and S. 167(2).
The court in this case disbelieved the appellants agruments of being arrested on the 10th of October due to factual inaccuracy and thus, the original arrest was on the 23rd of October, 2008. Thus, making the date of filing the Charge- sheet the 89th day. Therefore, there is no breach of A. 167(2) of the CrPC and thereby that also of Art. 22(1) and Art. 22(2). Thus, the appeal was dismissed and bail was not granted.
[1] S. 167(1), The Code of Criminal Procedure, 1973
[2] S.167(2), The Code of Criminal Procedure, 1973
[3] S. 167(2)(a), The Code of Criminal Procedure, 1973
[4] S. 167(2)(a)(i), The Code of Criminal Procedure, 1973
[5] S. 167(2)(a)(ii), The Code of Criminal Procedure, 1973
[6]SharifbaiMehmoob v. Abdul Razak., AIR 1961 Bom 42
[7] Jai Singh: (2001) I SCC 596
[8] A.K. Gopalan v. State of Kerala.,AIR 1962 Ker 215
[9] State of Gujarat v. Patel Gordhandas.,1975 CrLJ 324
[10]Sanaul Haque v. State of U.P., 2008 CrLJ 1998 (2002) All
[11] T. Jagdeeswar v. State of A.P., 2003 CrLJ 701
[12]ChadayamMakki v. State of Kerala., 1980 CrLJ 1195
[13] Jagat Narain Pandey v. State of U.P., 2002 CrLJ 120 (124)(All)
[14]G.K.Moopanar v. State of Tamil Nadu., 1990 CrLJ 2685
[15] State v. N. M.T. Jay Immaculate., AIR 2004 SC 2282
[16] Vishnu Soni v. State of Chattisgarh., 2007 CrLJ (NOC) 537 ( Chatt.)
[17] Abdul Wahid v. State of Maharashtra., 1992 CrLJ 1900
[18]Raghubhir v. State of Bihar., AIR 1987 SC 149, 161
[19] Binod Kumar Nanda v. State of Orissa., 2004 CrLJ (NOC) 126
[20] State of W.B v. Dinesh Dalmia., 2007 CrLJ 2757 (SC)
[21] State v. N.M.T. Jay Immacuate., AIR 2004 SC 2282
[22]SadhwiPragyna Singh Thakur v. State of Maharashtra., 2012 BomCR( Cri) 752
