Crpc sec 167

Lecture 15

1. MLC My Law Corner CRIMINAL PROCEDURE CODE, 1973 CHAPTER XII SECTION 167:- Procedure when investigation cannot be completed in twenty four hours BY ARUNDHATI BANERJEE

2. MLC My Law Corner BARE ACT LANGUAGE EXPLANIED (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 57 and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. FLOW CHART FOR EASY EXPLANATION ANY PERSON ARRESTED AND DETAINED INVESTIGATION NOT COMPLETE WITHIN 24 HOURS UNDER SEC 57 BELIEVED TO HAVE FULL INFORMATION POLICE OFFICER OR I.O NOT BELOW THE RANK OF SUB-INSPECTOR TRANSMIT TO JUDICIAL MAGISTRATE COPY OF ENTRIES ALONG WITH THE ACCUSED

3. MLC My Law Corner SECTION 167 CONTINUED… (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. IN EASY WORDS Maximum 15 days police custody as a whole if the Magistrate has no jurisdiction and then he has to transfer the accused to the Magistrate who has jurisdiction.

4. MLC My Law Corner SECTION 167 CONTINUED… Provided that,- The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,- Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, Sixty days, where the investigation relates to any other offence And, on the expiry of the said period of ninety days or sixty days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released, on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. IN EASY WORDS After police custody the Magistrate can give judicial custody for 90 and 60 days but not beyond that. This exceeding of days can only be done after the investigation and bail is not furnished.

5. MLC My Law Corner SECTION 167 CONTINUED… (b) No Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till they accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage. IN EASY WORDS If the Magistrate wants to extend the judicial custody the accused shall be present in person or through video conference. But in police custody the accused should be presented before the Magistrate in person every time.

6. MLC My Law Corner SECTION 167 CONTINUED… (c) No Magistrate of the second class, not specifically empowered in this behalf by the High Court, shall authorize detention in the custody of the police. Explanation 1 – for the avoidance of doubts, it is hereby declared 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. Explanation 2 – if any question arises whether an accused person was produced before the magistrate IN EASY WORDS No Magistrate of second class is allowed to give police custody but he can give judicial custody as this section is silent on this matter.

7. MLC My Law Corner POINTS TO REMEMBER When an under trial prisoner is produced before the Magistrate after the maximum period of 90 or 60 days, it is the duty of the Magistrate to inform him that he is entitled to be released on bail. The Magistrate or the sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage a lawyer on account of poverty he is entitled to obtain free legal service at the cost of the State. During police custody signature of accused is mandatory. But in video conference the magistrate himself will certify the presence of the accused. The word ‘remand’ has not been defined in the Code. However, it is used in Section 209 & 309 of the Code. Generally when a prisoner is sent back to custody by a Court/Magistrate after a preliminary or partial hearing to be reproduced on the next date fixed, the prisoner is said to have been remanded to custody. For invoking Section 167(1) it is necessary that the arrest should have been made only by a police officer and no one else and there need not necessarily be the records of entries in a case diary.

8. MLC My Law Corner POINTS TO REMEMBER CONTINUED… The Judicial Magistrate whom the accused is so forwarded may (whether he has or has not jurisdiction, to try the case.) from time to time, authorize the detention of the accused in such custody as he thinks fit a term not exceeding 15 days in the whole. First 7 days will also be included in 90 & 60 days of remand. When any investigation cannot be completed within 24 hours and the accusation is well founded, the police officer is required to send a copy of the entries in the diary relating to the case along with the accused to the nearest Magistrate. The object is to enable the Magistrate to see that if the remand is necessary. The object of requiring the presence of the accused before the Magistrate for the purpose of remand is only to enable him to make representation he wishes to make in the matter. The entire object of Section 167 is to facilitate investigation and not detention without trial. The idea is to prevent disappearance of material evidence and to prevent vexatious and belated prosecutions, clearly in consonance with the concept of fairness of the trial enshrined in Article 21 of the Constitution.

9. MLC My Law Corner CASES RELATED TO THIS SECTION MANOJ vs. STATE OF M.P. AIR 1999 It was held by the Court that there are two obligations of the police officer, one is that if he knows that investigation cannot be completed within 24 hrs. after the arrest of the accused, he must transmit a copy of the case diary to the nearest Magistrate and secondly, he must forward the accused to such magistrate simultaneously. If he fails to do so, the detention of the accused in the police custody would become unlawful. CHAGANTI SATYANARAYANA vs. STATE OF ANDHRA PRADESH AIR 1986 It has been held by the Court that the period of 90 days under section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest under section 57 of the Code. UDAY MOHAN LAL vs. STATE OF MAHARASTRA AIR 2001 The Supreme Court has held that an order in necessary to give effect to the mandate of the proviso and the bail is to be furnished in accordance with such order. STATE OF M.P. vs. RUSTAM AIR 1995 The Supreme Court held that while computing the period of 90 days the day on which the accused was remanded to the judicial custody should be excluded and the day on which the challan is filed in the Court should be included.

10. CASES CONTINUED… MLC My Law Corner WEST BENGAL vs. DINESH DALMIA AIR 2007 It was held that Section 167 is not applicable on surrender and 60 or 90 days to be counted from production warrant. Every 15 days in a Judicial Custody, the accused will be produced before the Magistrate to such further custody. (Periodic revival) There may be a case where full 15 days police custody may be granted by the Judicial Magistrate. There may be a case where no police custody and only judicial custody would be granted by the Judicial magistrate. Multiple FIR’s may prompt the Judicial Magistrate to award police custody for more than 15 days. Same thing applies for multiple offences or separate offences. MANUBHAI RATILAL vs. STATE OF GUJRAT AIR 2013 It was held that an order of remand is a judicial order passed in exercise of the judicial function. Such function cannot be passed mechanically.

11. CASES CONTINUED… MLC My Law Corner ABDUL BASIT vs. MOHD ABDUL KHADER AIR 2014 It was held that an order for release on bail under section 167 (2)(a) is not an order on merits but an order on the default of the prosecution agency. Such an order could be nullified for special reasons after the default have been cured. The accused therefore cannot claim any special right to remain on bail. If the investigation reveals that the accused had committed a serious offence and the charge sheet is filed, the bail granted under section 167(2)(a) could be cancelled on an application by the prosecuting agency.

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