Confused which one to apply.
Querist :
Anonymous
(Querist) 05 July 2011
This query is : Resolved
Crpc , 1973 Section 167 [(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Section 167 (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
What is the meaning of Executive Magistrate & Chief Judicial Magistrate. As I known Judicial Magistrate First Class & Second Class. Can we say that Chief Judicial Magistrate is over & above Judicial Magistrate First Class & Second Class.
Section 167 (2) (a) (ii) Sixty days, where the investigation relates to any other offence,
Section 167 (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
But as per section 2 (w) "Summons - case" means relating to an offence, and not being a warrant-case;
(x) "Warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
Query: Section 167 speaks about the time limit to detain a accused under the police custody but my question is section 167 (2) (a) (ii) says for 60 days means 2 months & section 167 (5) says not more than 6 months in case the case is of summons case. Because in direct is section 167 (2) (a) (ii) it is applicable to summons case as we read clearly section 167 (2) (a) (i) because it tells about the warrant case of course is section 167 (2) (a) (ii) says about the summons case so why section 167 (5) should be implemented. Which one to follow whether section 167(5) or is section 167 (2) (a) (ii) in case of summon case because words used under is section 167 (2) (a) (ii) is any other offence because is section 167 (2) (a) (ii) has already said that it is applicable only for warrant case so is section 167 (2) (a) (ii) is applicable for summons case then again section 167 (5) says for 6 months so both the section makes it more confusing which one to apply in summons case whether is section 167 (2) (a) (ii) or section 167 (5)?
Ravikant Soni
(Expert) 06 July 2011
What is the meaning of Executive Magistrate & Chief Judicial Magistrate. As I known Judicial Magistrate First Class & Second Class. Can we say that Chief Judicial Magistrate is over & above Judicial Magistrate First Class & Second Class.
Answer:
Go thru sec11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area), there shall be established as many, Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:
1[Provided that the State Government may, after consultation with the High Court, establish, for any, local area, one or more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.]
(2) The presiding officers of such Courts shall be appointed by the High Courts.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.
and section 12. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.
(1) In every district (not being a metropolitan area), the High Court shall appoint Judicial Magistrate of the first class to the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.
(3)
(a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work or the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf.
Ravikant Soni
(Expert) 06 July 2011
167 (2) (a) (ii) Speaks about the tatal period of custody if investigation not completed.
and 167 (5) says maximum period for investigation in summon case.
