The provisions of this section are attracted under the following conditions—
1. When the accused is arrested without warrant and is detained by a police officer in his custody;
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2. It appears that more than 24 hours will be needed for his investigation;
3. There are grounds to believe that tne accusation or information against him is well founded.
4. The officer-in-charge of the police station or the investigating officer not below the rank of a sub-inspector forwards the accused for remand before a Magistrate.
The Judicial Magistrate may either refuse to detain him or he may direct his detention in police custody or judicial custody. The police can interrogate the accused even after his remand to judicial custody.
A new sub-section (2-A) has been inserted in this section by the Cr.P.C. Amendment Act of 1978 which provides that where a Judicial Magistrate is not available, the accused along with the copy of the entries in case diary should be sent to the nearest Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred.
However, the provisions of Section 167 are not to be invoked where the accusation or information is not well founded, or where the investigation can be completed within 24 hours. The Executive Magistrate may authorise detention of the accused in custody for not more than 7 days.
The Judicial Magistrate to whom the accused person is so forwarded, whether he has or has not the jurisdiction to try the case, may authorise the detention of the accused in police custody for a term not exceeding 15 days in the whole. He may order the accused to be forwarded to a judicial Magistrate having jurisdiction to try the case, if he consider detention of the accused beyond 15 days necessary for completion of investigation.
The nature of custody may be altered from police custody to judicial custody and vice versa during the first 15 days period [7 days in case of Executive Magistrate vide subsection (2-A)]. But on expiry of 15 days period, the accused can be ordered to be kept in judicial custody and not in the custody of the police.
The Supreme Court in CBI Special Investigation Cell v. Atiupam Kulkarni, has reiterated that the custody after the expiry of first 15 days can only be judicial custody for the rest of the period of 90 days or 60 days as the case may be.
Thus police custody if found necessary can be ordered only during the first 15 days. However, if the accused is involved in another case he can be re-arrested and remanded to police custody with the permission of the Magistrate.
Where police is not readily available for escort duty, it would be a valid ground for extending the period of remand of an accused under Section 167 (2) of the Code.
The Magistrate is expected to apply his judicial mind while deciding the matter of remand taking into consideration all the available materials including the copy of case diary, and the order of police remand should not be passed in a routine manner merely because the police has so requested.
The Magistrate has the discretion to order detention of the accused in police custody cr judicial custody as he thinks fit. He may also remand the accused to Army, Navy or Air Force custody if the accused person is subject to that law. In case of remand by Executive Magistrate under sub-section (2A) the reasons for authorising the detention of accused have to be recorded in writing.
The maximum period of remand in case of offences punishable with death, imprisonment for life or imprisonment for a term not less than ten years is 90 days and for any other offence it is 60 days. If the investigation is not completed within this period the accused person has got to be released on bail without any further detention.
The prescribed statutory period of 90 days or 60 days as mentioned in Proviso (a) to Section 167 (2) is to be computed from the date on which the Magistrate authorises the detention of the accused person.
The Court cannot refuse to pass an order directing the release of accused on bail on the ground that no such written application has been given by the accused. However, after filing charge-sheet the Magistrate is not competent to grant bail under this Proviso to Section 167 (2).
The Supreme Court in State of West Bengal v. Dinesh Dalmia observed that “the whole purpose of Section 167, Cr. P.C. is that the accused should not be detained for more than 24 hours and subject to 15 days’ police remand and it can further be extended upto 90/60 days, as the case may be.” The Court made it clear- that police custody means the police custody in a particular case for investigation and not judicial custody in another case.
Thus, where two F.I.Rs were lodged against the accused at Calcutta and Chennai and the accused who was arrested and in CBI custody in the case pending before the Court at Chennai, on receiving information that he was also required in case at Calcutta, voluntarily surrenders before the Magistrate of Chennai in case relating to F.I.R. in Calcutta, such notional surrender cannot be treated as police custody so far as counting 90 days, from that surrender as regards case pending in Calcutta.
Explaining the reason, the Court held that a notorious criminal may have number of cases pending against him in various police stations in city or outside city, a notional surrender in pending case for another F.I.R. outside city or of another police-station in same city, if counted for the purpose of 90/60 days, as the case may be, police will not get an opportunity to get custodial investigation. Therefore, the surrender by the accused in the instant case cannot be deemed to be in the police custody in the case pending in Calcutta.
In State of Rajasthan v. Ravishankar Shrivastaya, it was held that release on bail is not allowed for an accused of corruption charges. In the instant case the accused was not arrested in the F.I.R. filed against him, but was arrested on second F.I.R. being filed against him the next day.
Application for bail was filed by the accused under Section 167 on the ground of his continued detention beyond 24 hours without proper remand in the first F.I.R. (in which he was not arrested). The High Court of Rajasthan held that the arrest of accused on the basis of second F.I.R. could not be treated as deemed custody in first F.I.R. also.
Therefore, failure of filing of charge-sheet in first F.I.R. within stipulated period from the date of so called deemed custody does not entitle the accused to be released on bail under proviso (a) of Section 167 (2) of the Code of Criminal Procedure.
In Jagdeeswar v. State of Andhra Pradesh, the High Court of Andhra Pradesh, inter alia, has observed, that, “remand order to be passed in accordance with the provisions of Section 167 of the Code of Criminal Procedure, is certainly not an administrative order to be passed by the Magistrate. It is a judicial order to be passed on application of mind to the contents of the remand report submitted by the Investigating Officer.
The order should reflect the necessary application of mind on the part of the Magistrate and the extension of remand in consequence thereof. It is not an empty formality or a routine course to extend remand time and again as and when sought for by the police. The order, therefore, should contain the reason to extend remand further.
The authorisation of the detention of the accused in custody must be with reference to entries made in the remand report that the investigation could not be completed within a period of 24 hours as fixed under Section 57 of Cr PC and that there are grounds for believing that the information is well founded. This is the reason why the Investigating Officer is obliged under law to forward the entries in the case diary while seeking remand to custody. The necessary satisfaction of the Magistrate in regard thereto should reflect in the remand order.”
Where the accused was not produced before the Magistrate and without seeing him, the Magistrate went on remanding him to custody, the action was held illegal because of the contravention of the provisions of Section 167 (2) of the Code.
However, the High Court of Karnataka in Sajjad v. State of Karnataka, held that presence of accused at the time of passing a remand order may be dispensed with by the Magistrate only on special reasons. The Court observed that fundamental rights of a person cannot be trampled. Even the accused also enjoys fundamental rights which have to be safeguarded.
Therefore, it is necessary on the part of the police to produce the accused in the Court before seeking an order of remand. But if under any circumstances, the accused cannot be produced, the Court should insist the police officer seeking the remand order to file an affidavit stating the reasons for not producing the accused and also as to the state of health of the accused.
While remanding the accused without he being produced in Court, the Court shall give reasons for not getting the accused produced before the Court. Thus the Court can dispense with the presence of the accused only on special reasons.
While computing the total period of 60 days referred to in Proviso to Section 167 (2), the period of detention under Section 57 (which must not be more than 24 hours) should be excluded. Where it has been filed consequent to the completion of investigation, the remand comes to an end and the provisions of Section 167 (2) cease to operate.
Then the question of release of the accused on bail depends on the judicial discretion of the Magistrate. The Magistrate will cease to have any jurisdiction to commit the accused to police custody after he has been granted bail.
Where the charge sheet was filed within 90 days, but the Magistrate had not passed an order taking cognizance within the period, it was held that the accused was not entitled to seek bail under Proviso to Section 167(2) of the Code.
Where the petitioner was arrested for allegedly having committed attempt to murder. As no hurt was caused to any person in or during attempt to murder, the case was covered under first part of Section 307 of IPC prescribing imprisonment which may extend to ten years. As charge-sheet was filed within the statutory period of sixty days of the date of detention of the petitioner, he was entitled to be released on bail under Proviso to Section 167(2) of the Code.
Where there was failure to submit charge-sheet even after the expiry of statutory period of 60 days from the date of detention, in case of an accused charged with offence under Section 304-B, I.P.C. which is punishable with imprisonment for life, the rejection of bail application was held proper. The reason being that the statutory period for this case was 90 days and not 60 days.
The Supreme Court in Bhupinder Singh v. Jarnail Singh reiterated that permissible limit for filing challan for offence under Section 304-B IPC is 90 days and if the challan is filed within this statutory period, the accused will be entitled to be released on bail under Section 167 of Cr. P.C.
Explaining the meaning and significance the expression ‘punishment’ used in Section 167 (2) of Proviso, the Apex Court observed that what should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case.
The stage of punishment comes only after recording the order of conviction of the accused person. The word ‘punishable’ appearing in the Proviso denotes liable to be punished and not ‘must be punished’.
Where minimum and maximum sentences are prescribed both are imposable depending in facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. Therefore, it does not mean that where the minimum sentence is provided, the sentence imperable can only be the minimum sentence.
In Gayasuddin v. State of Jharkhand, application was filed for release on bail under Section 167 (2). The charge-sheet was filed by police after the order of release was passed but before filing of bail bond by the accused. It was held that the accused was not entitled for grant of bail. More so, because it was shown by the material on record that complicity of accused in alleged offence and allegations were serious in nature.
In a case, under Section 18 of the NDPS Act, 1985, the charge-sheet was submitted after 90 days but the full Bench of High Court of Madhya Pradesh refused the release of accused on bail under Section 167 (2), Proviso as Cr. P.C. is not applicable to proceedings under NDPS Act. However, his prayer for bail could be considered under Section 37 of the NDPS Act
The Supreme Court in Hussainara Khatoon v. State of Bihar, has emphasised that it is the duty of the Magistrate to inform the accused that he has a right to be released on bail under Proviso to Section 167 (2) and also the State is under a constitutional obligation to provide free legal services to an indigent accused not only during trial but when he is remanded from time to time.
Failure on the part of the Magistrate to inform the accused of this precious right to free legal aid in case of his being indigent, would vitiate the trial and result in the acquittal of the accused person.
The bail granted to the accused under this section has the same incidents as the bail granted under Chapter XXXIII of the Code and it shall remain valid till it is cancelled as per the provisions of Section 437 (5) of the Code. The Supreme Court in Bashir v. State of Haryana,11 has ruled that receipt of the charge-sheet in Court by itself is no ground for cancellation of bail which was granted under Section 167 (2) of the Code.
It has been made clear in Explanation I to Section 167 (2), that mere lapse of statutory period of 90 days or 60 days, as the case may be, shall not entitle the accused to be released on bail forthwith unless he furnishes bail. In other words, he shall remain in custody until he furnishes bail.
Where the accused has voluntarily surrendered to judicial custody, the provisions of this section authorising his detention in police custody or other custody within the prescribed statutory time limit will not be applicable because in such a case, the accused is not “forwarded” by the police to the Magistrate as required under Section 167 (2) of the Code.
In summons cases, the investigation has to be concluded within a period of six months from the date of arrest of the accused. This period may be extended by the Judicial Magistrate where the officer making investigation satisfies him that continuation of investigation period beyond six months is necessary in the interest of justice.
The continuation of investigation beyond 6 months period without Magistrate’s permission will be illegal and the subsequent taking cognizance of the offence by the Magistrate and initiating proceedings thereon will also be without jurisdiction.
Sub-section (6) empowers the Sessions Judge to direct further investigation, on an application made to him or otherwise, on his own satisfaction that such investigation is necessary and he should record reasons for doing so. Thus he may vacate the order made by the Magistrate under which the investigation was stopped due to expiry of six months period.
In Jayanta Borbora v. State of Assam the order of remand of accused who was a terrorist, to Army custody on prayer by investigation officer was held to be illegal and ultra vires the Constitution, as the Armed Forces have no powers of investigation or interrogation while coming to the help of civil authorities.
Quite often it happens a person commits a crime in one State and is caught or apprehended by the police of another State. In such a case the police of the other State by which the offender has been arrested produces him before the Magistrate. The Magistrate thereupon issues an arrest warrant against the accused and orders the police to take (transfer) the accused to the State in which he has committed the offence.
For this transit of the accused the Magistrate has to pass an order for his transit remand. For example, in a crusade against the Naxalites, the CRPF made recruitment of some constables in its special Anti-Naxalite Wing ‘KOBRA’. There were allegations of bribery and corruption against the CRPF Commander Yadvendra Singh and two collegues Pargat Singh and Pappu Singh and these officers were arrested by the CBI in Delhi.
But since the alleged offences had been committed in Begusarai (Bihar) the accused persons had to be taken to Patna to be produced before the Special Court, Patna in Bihar. Therefore, they were taken on transit remand by the CBI, Delhi to be taken to Patna and the Delhi Chief Metropolitan Magistrate, Kaveri Baveja, ordered their transit remand on May 6, 2009 to be produced in Patna Court on May 7, 2009.
In the instant case, FIR was filed against the accused persons on May 1, 2009 in which it was alleged that Commandant of the CRPF Group Centre, Tata Nagar, Shri Yadvendra Singh, in collusion with Pargat Singh, the brother-in-law (Bahnoi) of the Chairman, Police Recruitment Board, Begusarai, Shri B. S. Sindhu corruptly earned illegal money to the tune of crores of rupees in recruiting constables in its special force KOBRA which was a special Anti-Naxalite Wing.
Four days later, the CBI arrested Shri Yadvendra Singh from his residence located in Delhi and recovered several incriminating documents from him. His collegue Pappu Yadav was arrested at Delhi Railway Station with Six lakh rupees in his possession which he allegedly was going to give to Pargat Singh.
Since the accused persons were to be tried in the Special Court at Patna, their transit from Delhi to Patna was necessary therefore, the Delhi Police moved the Court of Chief Metropolitan Magistrate, Delhi for a Transit Remand which the Court granted by its order dated May 6,2009.