Definition of arrest and Section 167 of Cr.PC
Supreme Court of India
State Of Haryana & Ors vs Dinesh Kumar on 8 January, 2008
arrest when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. In this connection, a debatable question that arises for our consideration is whether the mere taking into custody of a person by an authority empowered to arrest would amount to arrest of that person and whether the terms arrest and custody are synonymous.
When is a person in custody, within the meaning of S. 439 Cr. P.C.? When he is, in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence.
Uttar Pradesh vs. Deomen (AIR 1960 SC 1125) wherein it was interalia observed as follows:-
Section 46, Cr.P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police Officer.
The fact that Section 46 Cr.P.C. uses both the expressions “custody” and “arrest” indicates the legislative intent that “custody” and “arrest” are not to be treated as synonymous terms. Following observations of the Supreme Court in the decision reported as Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440 make the position somewhat clear:-
“48...It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though „custody‟ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi”
Supreme Court, in Nirmal Jeet Kaur v. State of M.P.:(2004) 7 SCC 558 [at page 564], observed:-
No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.
(Authority on , when a person is arrested during further investigation , the court can even after taking cognizance of an offence , authorize detention in police custody . The words "accused if in custody" in S. 309 donot refer to a person who is arrested in course of further investigation)
What is the situation where cognizance of offence is taken , yet a co accused is caught later . Can he be remanded under 167 of the Cr.PC ? Even though cognizance of the offence has been taken?
State Through Cbi vs Dawood Ibrahim Kaskar & Ors on 7 May, 1997
While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who come to be later arrested by the police in course of such investigation. If section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri (supra) - to mean that after the Court takes cognizance of an offence it cannot exercises its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who come under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167.
DELHI HIGH COURT (for practice purpose , not at all for exam purpose) (if accused who was previously not arrested in relation to a case is later arrested after submission of police report , and police report does not reach the proper court qua the new accused who has been added , what will be his position for default bail ? if the file is transferred due to internal working mechanisms of judiciary?)
Yogesh Mittal vs State Of Nct Of Delhi on 9 January, 2018
The name of Petitioner, Yogesh Mittal, did not figure in Column 11 of the final report. However, in para 79 of the said report, it was stated as under:
"Further investigation is in progress. FSL Report is awaited. If more evidence comes on record against the above accused, same shall be filed before the Hon'ble court through supplementary charge sheet Investigation against Yogesh Mittal and/or his other associates is also in progress and a supplementary charge sheet will be filed against them."
It must also be noticed at this stage that, as noted in para 78 of the aforementioned final report, one of the accused in the aforementioned case, Rohit Tandon, was already in judicial custody in a case instituted against him by the Enforcement Directorate („ED‟) under the Prevention of Money Laundering Act, 2002 („PMLA‟).
At the outset, it requires to be noticed that a writ of habeas corpus is maintainable whenever it is alleged that the custody of the Petitioner is unlawful. Further, the Court has to examine the lawfulness of the custody on the date of filing of the reply by the Respondent and not with reference to the proceedings that may be instituted thereafter. In this context, reference may be made to the decision in Ram Narayan Singh v. State of DelhiAIR 1953 SC 277. The Supreme Court also referred to the earlier decisions in Darshan Singh Ram Krishan v. State of Maharashtra (1971) 2 SCC 654 and State of West Bengal v. Salap Service Station and others 1994 (3) Supp. SCC 318 and explained the law with respect to Section 173 (8) Cr PC as under:
"The above statement of law with particular reference to Section 173(8) Cr PC makes the position much more clear to the effect that the filing of the supplementary charge-sheet does not and will not amount to taking cognizance by the court afresh against whomsoever again with reference to the very same offence. What all it states is that by virtue of the supplementary charge-sheet further offence may also be alleged and charge to that effect may be filed. In fact, going by Section 173 (8) it can be stated like in our case by way of supplementary charge-sheet some more accused may also be added to the offence with reference to which cognizance is already taken by the Judicial Magistrate. While cognizance is already taken of the main offence against the accused already arrayed, the supplementary charge-sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek discharge after the filing of the supplementary charge-sheet against the said offender." (emphasis supplied)
. The supplementary charge sheet is qua the present Petitioner, Yogesh Mittal, whose name is now shown in Column 11. Further, while the supplementary charge sheet states in para 16.43 that "he is running in judicial custody" and that "cognizance be taken against him", the legal position is such that there was no need for the Court to specifically pass another order taking cognizance of the same offences qua the Petitioner. This is made explicit by the Supreme Court in Prasad Shrikant Purohit v. State of Maharashtra(supra). As explained therein, the option for such an accused person, who is included in the supplementary charge sheet for the same offences under the FIR, would be to seek discharge. The Court further notices that the Petitioner was himself aware of his inclusion in the supplementary charge sheet which is why he applied for statutory bail under Section 167 (2) Cr PC. He has been in custody in this case from 18th July 2017 onwards and therefore, was aware of developments at every stage. Therefore, the question of his being in continued detention without cognizance being taken of the offence qua him does not arise. This submission of the Petitioner is accordingly negated.
reasons for holding such view :-
the charge sheet qua the Petitioner had to be filed within 90 days from 18 th July 2017, i.e. on or before 16th October 2017 in the competent court, failing which, he would be entitled to statutory bail. In the present case, the „competent court‟ is that Court which could have taken cognizance of the offences qua the Petitioner.
The Special Judge (PC Act) did have the jurisdiction to take cognizance of the offences under thePC ActandIPC. However, once the case was transferred from that court on 10th October 2017 with a clear direction that the charge sheet was to be filed only in the court of the Special Judge (PMLA), the learned Special Judge (PC Act) could not have thereafter entertained any further request by the CBI. As far as the present case is concerned, after 10th October 2017, the Special Judge (PC Act) should be held to have become functus officio qua this case.
There was no question of the Special Judge (PC Act) taking on board, after 10th October 2017, any supplementary charge sheet with regard to FIR No.205/2016. For the purpose ofSection 167(2) Cr PC, the investigation qua the Petitioner was complete only when the supplementary charge sheet was filed in the jurisdictional court. The court of the Special Judge (PC Act) ceased to have jurisdiction qua the present case after 10th October 2017 and in any event, after 12th October 2017, when the file was received by the District Judge (HQ), Tis Hazari Courts with a clear direction that it should be transmitted forthwith to the Special Judge (PMLA) at Saket Court. The order dated 12th October 2017 of the District Judge (HQ), Tis Hazari Courts makes it abundantly clear that the Special Judge (PC Act), after that date, could not have accepted the supplementary charge sheet filed by the CBI. The problem of the file not reaching the Special Judge (PMLA) has to do with the internal administrative arrangements in the judiciary. While the CBI cannot be blamed for failing to file the charge sheet before the proper Court, since the file had not reached such Court, equally the accused cannot also be deprived of the right to statutory bail as a result thereof. It is only when the Court of the Special Judge (PMLA) received the supplementary charge sheet could it be said that the investigation qua the Petitioner was complete. That did not happen, for the reasons already noted, till 17th October 2017, by which time the 90 days period had elapsed.
Summary of conclusions of the judgment
To summarize the conclusions:
(i) The plea of the Petitioner that since no cognizance has yet been taken of the offence qua the Petitioner, the continued detention of the Petitioner in the judicial custody is illegal, is rejected.
(ii) The failure by the Investigating Agency to file a supplementary charge-sheet qua the Petitioner before the Court having jurisdiction i.e. the Court of the Special Judge, PMLA, before the expiry of 90 days i.e. on or before 16th October, 2017, would entitle the Petitioner to the relief of the statutory bail/default bail under Section 167(2) Cr PC.
State of Maharashtra v. Saeed sohail sheikh 2013 Cr LJ 214 (221) SC
Transfer of prisoner from one place of detention would be permissible only with the permission of the court under whose warrant under trial has been remanded to custody. ( Refer to section 267- 271 of Crpc)
Is remand order revisable ?
State v. NMT Joy Immaculate Air 2004 SC 2282
An Order of Remand of accused to police custody is interlocutory order and is not amenable to revision , in view of bar envisaged by section 397 (2) CrPC .
Supreme Court of India
Directorate Of Enforcement vs Deepak Mahajan on 31 January, 1994
word 'accused' or accused person' is used only in a generic sense in Section 167(1) and (2) denoting the'person' whose liberty is actually restrained on his arrest by a competent authority on well-founded information or formal accusation or indictment. Therefore, the word 'accused' limited to the scope of Section 167(1) and (2) particularly in the light of Explanation to Section 273 of the Code includes 'any person arrested'. The inevitable consequence that follows is that "any person is arrested" occurring in the first limb of Section 167(1) of the Code takes within its ambit "every person arrested" under Section 35 of FERA or Section 104 of the Customs Act also as the case may be and the 'person arrested' can be detained by the Magistrate in exercise of his power under Section 167(2) of the Code. In other words, the 'person arrested' under FERA or Customs Act is assimilated with the characteristics of an 'accused' within the range of Section 167(1) and as such liable to be detained under Section 167(2) by a Magistrate when produced before him. Supreme Court of India
Central Bureau Of Investigation, ... vs Anupam J. Kulkarni on 8 May, 1992 1. The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. 2. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the periodof investigation can only be in judicial custody. 3. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage 4. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days thereafter in accordance with the proviso.
(Remand order is a judicial order it has to be granted after application of mind and should have reasons for granting remand)
State of M.P. v. Rustam and others 1 feb 1995 (SC judgment) Supreme Court
has laid down the law that while computing period of ninety
days, the day on which the accused was remanded to the
judicial custody should be excluded, and the day on which
challan is filed in the court, should be included. (court referred the provisions of general clauses act for this purpose)
What are the dimensions of the term "if not already availed" of ?
Supreme Court of India
Uday Mohanlal Acharya vs State Of Maharashtra on 29 March, 2001
The expression `if not already availed of used by this Court in Sanjay Dutt vs. State through CBI Bombay(II), (1994) 5 SCC 410, must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
On a bare perusal of law enunciated above, it would be clear that the Constitution Bench considered (in Sanjay Dutt case supra) and in unequivocal terms disapproved the ratio of decision in the case of Hitendra Vishnu Thakur wherein it was laid down by a Division Bench of this Court that if for any reason the right of the accused to be released on bail under proviso to Section 167(2) of the Code has been denied then it can be exercised at a later stage even if challan is filed after expiry of the statutory period prescribed. The Constitution Bench in the aforesaid judgment has clearly laid down that the indefeasible right of the accused `is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if not already availed of .
Relationship between 167 and 309 of the Cr.PC :
Sunil Kumar Sharma vs State (Nct Of Delhi) on 27 June, 2005 (Delhi High Court)
It is well settled that no court has any inherent power of remand of an accused to any custody. Such power has to be conferred by law and must be traced to some provision of the statute. The relevant provisions of the statute are sections 167 and 309 CrPC. Remand during investigation is permissible under section 167(2) CrPC up to a prescribed maximum period. After the filing of the charge-sheet or the challan (which signals the completion of investigation) and after cognizance is taken, remand of on accused to custody can only be under section 309(2) CrPC2. A plain reading of section 309 CrPC would disclose that before an order of remand in respect of the accused can be passed there under, the Magistrate, in the least, must have taken cognizance of the alleged offence. Secondly, when the order of remand is passed the accused must already be "in custody".
Where filing of the charge-sheet is immediately followed by the Magistrate taking cognizance and just thereafter remanding the accused to judicial custody under section 309(2) CrPC, there is no problem. This is so because the lapse of one period [under section 167(2) CrPC] would "melt", as it were, into the period of remand under section 309 CrPC without a hiatus. However, where, upon the filing of the charge-sheet, while cognizance is taken, an order of remand under section 309(2) CrPC is not passed immediately but after a few days or so, there appears to be a chasm between a valid detention order under section 167 CrPC and a remand to custody order under section 309(2) CrPC. But, in reality there is no such "break". It only appears to be so because of the assumption that as soon as the Magistrate takes cognizance of the offences, the remand order passed under section 167 CrPC gets extinguished This assumption is faulty. Once the charge-sheet is filed and cognizance is taken, it is true, the investigation having come to an end, recourse to the power under section 167 cannot be taken. But, that does not mean that an order validly made under section 167(2) terminates the instant the charge-sheet is filed and cognizance is taken. Such an order would be valid till the duration for which it is made does not expire or till it is replaced by a remand order under section 309 CrPC, whatever's earlier in point of time. In the context of the facts of the present case, even if we assume that the remand order was made on 26.4.2005 and not on 25.4.2005 and that the petitioner's custody between 25.4.2005 and 26.4.2005 was unlawful, it would not militate against the Magistrate's power to pass a valid order of remand under section 309 CrPC on 26.4.2005 when the accused was produced before him. It is also not necessary to go into the second ground urged by the learned counsel for the petitioner with regard to the remand order of 26.4.2005 being ex facie illegal on account of it being allegedly for a period of 16 days (i.e., "exceeding fifteen days"). This is so because subsequent remand orders passed under section 309 CrPC have legitimized the custody of the petitioner as of today.
Supreme Court of India
Rakesh Kumar Paul vs State Of Assam on 16 August, 2017 (2:1 ratio)
Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years;
In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed.
(Justice Madan B Lokur speaking for the majority)
If the minimum period is laid down, the sentencing judge has no option but to give a sentence “not less than” that provided for. Therefore, the words “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years imprisonment.
(Justice Deepak Gupta separate but concurring judgment)
In all cases where the minimum is less than 10 years but the maximum the sentence is not death or life imprisonment, the section:167 (2) (a) (ii) will apply.
(Justice Prafulla C Pant dissented)
(this is the dissenting opinion not the law declared by SC)
"The intention of the legislature was that if an offence was punishable with imprisonment upto 10 years, then it falls within the provision of Section-167 (2) (a) (i)."
Supreme Court of India
Union of India through CBI v. Nirala Yadav (2014) 9 SCC 457
In Uday Mohanlal Acharya (supra) the majority, after referring to the Constitution Bench decision in Sanjay Dutt’s case, posed the question about the true meaning of the expression of the following lines:-
“the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed or” Answering the said question the court observed thus:- “Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail?
"In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail."
To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand.
When an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression “availed of” is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression “if not availed of” in a manner which is capable of being abused by the prosecution.
"if accused has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book".
(What if magistrate illegally refuses to grant bail or grants adjournment to give time to prosecution?)
In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused.”
The principles which can be gathered are : -
“1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.
2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression “if not already availed of” used by this Court in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub- section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.”
Elaborating further, the Court held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 CrPC, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge- sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. In Uday Mohanlal Acharya (supra) the principle has been further elaborated to hightlight the ratio laid down in Sanjay Dutt’s case. It has been clearly laid down that if a case is adjourned by the court granting time to the prosecution not adverting to the application filed on behalf of the accused, it would be a violation of the legislative mandate. The principle stated in Uday Mohanlal Acharya (supra) is a binding precedent on Supreme Court.
When the charge-sheet is not filed and the right has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the public prosecutor whether the time has expired and the charge- sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in the case of Sanjay Dutt (supra). That is the duty of the Court.
(If magistrate or trial judge erroneously , gives time to prosecution when accused has already availed of his indefeasible right , then a revision can be preferred under 397 r/w 401 of CrPC . However order of remand is not in light of the case laws. )
Arnesh Kumar Vs. State of Bihar and Anr., III (2014) CCR
In this case it was held that that Police Officer need not arrest accused
unnecessarily and Magistrate should not authorize detention casually and
mechanically. The checklist under Section 41(b)(d)(ii) must be provided to
Police Officer, which shall be regularly filled and furnished with reasons and
materials necessitating the arrest. The Police Officer shall furnish the same
before Magistrate authorizing the detention. Failure to comply these
directions and conditions shall be liable to punish or contempt of Court.
Authorizing detention without recording reasons shall also be liable for
departmental action. It was clarified that these directions were applicable to
the cases in which offences are punishable for imprisonment which may be
less than 7 years or which may to the extent to 7 years.
(Order under 167 as to default bail is not to be decided on merits)
Honourable Supreme Court has also held in, Sadhwi Pragya
Thakur Vs. State of Maharashtra, 2011 A.I.R. (S.C.W.) 5551 that Bail has
to be decided on merits, except default bail which is under Section 167(2).
Sadhwi was arrested on 23.10.2008. She has claimed that she was arrested on
10.10.2008. She was produced before Magistrate on 24.10.2008 and
remanded to Police custody till 3rd November. She has not made complaint
to the Magistrate that she was arrested on 10.10.2008 nor complained about ill-treatment by ATS. Complaint was made to Magistrate when she was produced before Magistrate on 3rd November. At no point of time she has challenged the order of remand dated 24.10.2008. Even assuming that
appellant was arrested on 10.10.2008, but she is not entitled for grant of
default bail, as charge-sheet was filed within 90 days from the date of first
remand and not from the date of arrest. Thus, there was no violation of Article 22(2) Constitution of India, 1950.
Baiil once granted not to be cancelled on filing of chargesheet :- Aslam Babalal Desai Vs. State of Maharashtra 1993 SC 1 Once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The language of the proviso of Sub-section (2) of Section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail 'shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of this Chapter'.
It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code.. Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code It will thus be seen that Supreme Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Sections 437(5) or 439(2).
(Position as to filing of incomplete chargesheet)
Rohini Mahavir Godse Vs. State of
Maharashtra and others, 1996(2) Mh. L.J. 492, in the case the learned Magistrate held
that the chargesheet was not accompanied with the documents and therefore it
was an incomplete chargesheet and hence he refused to accept it and this
resulted into granting bail to the accused. It was held that the chargesheet
which is as per Section 173(2) of Cr. P.C. is a complete chargesheet and if
such chargesheet comes before the Court the Magistrate ought to accept it.
What if the last day happens to be a holiday? (Actus Curai Neminem Gravabit)
Naresh @ Nana Vs. State of Maharashtra, 1999 (3) Mh. L. J 631
It is well settled that, even if 90th day is a Sunday, the Police must
arrange to see that the charge sheet is filed if not on 90th day but on 89th day.
If the last day, as the case may be happens to be holiday or non-working day,
then in that circumstances also Court is bound to accept the charge sheet. In
other words, presentation of such charge sheet cannot be refused.
Period of 90 or 60 days is to be counted from date of remand.
Period of 60 or 90 days to be counted from what date ? date of arrest or date of remand? Answer is it should be counted from date of remand. Keeping in mind the ratio of state of MP v. Rustam (Supra) for calculation purposes of 60 and 90 days.
RAJAB ALI KHAN vs THE STATE GOVT OF NCT OF DELHI on 30.09.2019 (Delhi High Court)
The High Court taken note of some earlier judgment of SC which holds "while computing period of ninety days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included".
What will happen if the order of remand is passed and investigation is stayed ?
Answer : The stay will not make order of remand unsustainable and detention pursuant thereto , illegal . Therefore a writ of habeas corpus cannot be issued for release of person detained. (Manubhai Ratilal Patel v. State of GUjrat AIR 2013 SC 313) (Order of remand being judicial in nature and other reasons are elaborated below)
"It was opined by the High Court that it was not possible to accept the stand that once the investigation was stayed, there could not have been exercise of jurisdiction under Section 167(2) of the Code, for stay of investigation would not eradicate the FIR or the investigation that had been already carried out pursuant to lodging of FIR. It was further opined that it was only an ad-interim order and if the stay order would eventually be vacated or the quashing petition would not be entertained, the investigation would be continued. The High Court further observed that solely because the investigation was stayed, it would not be apposite to say that there was no investigation and the order passed by the learned Magistrate was flawed."
"Eventually, the High Court opined that it could not be held that when the order was passed by the learned JMFC, there was no investigation and, therefore, there was no force in the argument that the learned JMFC could not have remanded the accused in such a situation in exercise of powers under Section 167 of the Code, and secondly, the act of the learned JMFC remanding the accused to custody is a judicial act which cannot be termed as part of the investigation and cannot be considered to have been covered under the stay granted by the High Court in CRMA No. 10303 of 2012. It was further held that illegal or unauthorised detention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and the custody of the petitioner being in pursuance of a judicial act, it could not be termed as illegal."
" Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have bearing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law." In this case however a situation arose which demanded release by a writ of habeas corpus (the judgment followed the principal laid down in Manubhai Ratilal case (supra) :- Supreme Court of India
Serious Fraud Investigation ... vs Rahul Modi on 27 March, 2019
Author: U U Lalit
Serious Fraud Investigation Office v. Rahul Modi and Another Etc.
that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal, the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law. It is, therefore, prima facie axiomatic that, when the applicants were arrested by the SFIO on 10.12.2018, the period specified in the said order dated 20.06.2018 for the submission of the report, post investigation, had already elapsed. It is further relevant to state that, at that juncture the SFIO had neither applied nor obtained the ex post facto extension of the period specified in the said order dated 20.06.2018.
It is, in these circumstances, read in conjunction with the norms set out by the SFIO itself, warranting investigation to be completed within the timeframe, stipulated by the Central Government, that we are of the considered view that the order of arrest suffers from the vice of lack of jurisdiction, unlawful and illegal.
A statutory body must be strictly held to the standards by which it professes its conduct to be judged.
Illegal detention of the applicants, in our considered view, cannot be sanctified by the subsequent remand orders, passed by the concerned Magistrate. The right of the applicants to insist upon the strict and scrupulous discharge of their duty by the SFIO and observe the forms and rules of law, is absolute. The arrest of the applicants on 10.12.2018 in the light of the circumstances antecedent and attendant was an absolute illegality and patently suffers from the vice of lack of legal sanction and jurisdiction.
This Court in a petition for habeas corpus cannot justify the continued illegal detention of the applicants; merely on account of the circumstance that the concerned Magistrate has rendered remand orders. The further custody of the applicants would, in our considered view, violate the principles of personal liberty, enshrined in Article 21 of the Constitution of India. The CRIMINAL APPEAL NOS. 538-539 .OF 2019 (@ SLP(Crl)Nos.94-95 OF 2019) Serious Fraud Investigation Office v. Rahul Modi and Another Etc.continued detention of the applicants does not admit of lawful sanction.”
In State of Bihar v. Rambalak Singh, (1966) 3 SCR 344 : (AIR 1966 SC 1441). In that case, the State of Bihar appealed to this Court against an order of interim bail passed by the Patna High Court in a Habeas Corpus petition which was filed by the respondent to challenge an order of detention issued under R. 30 of the Defence of India Rules, 1962, It was held by this Court that though the High Court has jurisdiction to grant bail in Habeas Corpus petitions filed against orders of detention passed under R. 30, the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the 'object which it intended to be served by orders of detention passed under the said Rule. If on proof of certain conditions or grounds it is open to the High Court to set aside the order of detention made under R. 30 and direct the release of the detenue, then it cannot be held that in a proper case the High Court has no jurisdiction to make an interim order giving the detenue the relief which the High Court would be entitled to give him at the end of the proceedings. The Court, however, hastened to emphasize (at p. 1443) :
"................though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenue who has been detained under R. 30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenue. There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not. The jurisdiction of the High Court to grant relief to the detenue in such proceedings is very narrow and very limited, That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenue, the wiser and 'the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where mala fides are alleged in respect of an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the mala fides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fides, it is also not unlikely that allegations of mala fides are made light heartedly or without justification and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed. mala fide, it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there my be some substance in the allegations; of mala fides. What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenue. That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules, inevitably introduces a corresponding limitation on the power of the Court to grant interim bail."
The Court, speaking through Gajendragadkar C. J. added (at p. 1444) :-
"It is no, doubt true that a detenue is detained without a trial; and so, the courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within, the limits of their jurisdiction. But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention are intended to serve. An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenue in such proceedings. We are free to confess that we have not come across cases where bail has been granted in habeas corpus proceedings directed against orders of detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to pass orders of bail in such proceedings is obviously based on the fact that they are fully conscious of the difficulties - legal and constitutional, and of the other risks involved in making such orders. Attempts are always made by the courts to deal with such applications expeditiously; and in actual practice, it would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenue, it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceedings.
If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character."
Supreme Court of India
Nirmal Kanti Roy, Ganesh Lal ... vs State Of West Bengal, S. Dasgupta ... on 23 April, 1998
"The order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in the sub-section. The succeeding words in the sub-section confer power on the Court to refrain from stopping such investigation if the Investigating Officer satisfies the Magistrate of the fusion of two premises (1) that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the sub-section and (2) that there are special reasons to do so."
A reading of sub-section (6) further shows that even in a case where the order stopping investigation and the consequent discharge of accused has been made that is not the last word on it because the sub-section opens another avenue for moving the Sessions Judge. If the Session Judge is satisfied that "further investigation into the offence ought to be made" he has the power to allow the investigation to proceed. Hence we take the view that the time schedule shown in Section 167(5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the magistrate shall consider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus for registered. If substantial part of investigation was by then over, the magistrate should seriously ponder over the question whether it would be conducive to the interest of justice to stop further investigation and discharge the accused.
Delhi High Court
The State vs Jai Bhagwan on 29 March, 1985
Summons case is defined in Section 2(w) to mean a case relating to an offence and not being a warrant case. Warrant case is defined by Section 2(x) to mean a case relating to an offence punishable with imprisonment for a term exceeding two years. The offences under Section 279, 338, 304A I.P.C. are all punishable with imprisonment with a term not exceeding two years. All these offences are thus triable as summons case.
We would expect the Magistrate to pass appropriate orders if investigation is still continuing beyond six months from the date of the arrest of the accused; we would also expect the prosecution to move the Magistrate to seek appropriate directions if it considers continuation of investigation beyond a period of six months to be necessary in the interest of justice. But that is in future. The question, however, is where as in the present case when no such permission was sought and no such permission was obviously given would it automatically lead to the result of the release of the accused and the stoppage of the trial notwithstanding that cognizance has already been taken by the Magistrate and in some cases even large number of witnesses had also been examined and in one case even the matter was fixed for arguments. In our opinion the view taken by the trial court in all these cases is fallacious in law for more reasons than one.
Of course, it is not as if the provision of Section 167(5) ought to be allowed to be ignored or are of no consequence. All that we say is that when the breach of section 167(5) is brought to the notice of the court though it may not result in automatic nullification of the trial, the trial court will have to take note of it and pass appropriate .
(A very simple principle is the essence , illegalities in investigation does not affect the power of cognizance or trial . True purpose of the procedural law is to do justice. proceedings are only vitiated when )
In that context there could be no automatic acquittal of the accused. As it is in the present case we curiously find that though this delay in investigation was brought to the notice of the Magistrate no attempt was made by the prosecution to seek permission from the Court for continuation of the investigation beyond a period of six months, as contemplated.
"Magistrate has jurisdiction under Section 167(5), Cr.P.C. to permit the investigation to continue beyond a period of six months even if an application for this purpose is moved by the prosecution beyond this period. It also shows that even if permission is not granted it is open to the prosecution to file a charge-sheet if the investigation conducted till then warrants such a course. This authoritative pronouncement clearly shows that the course adopted by the Magistrate in the present case in straightway acquitting the respondents because the investigation had continued beyond a period of six months is completely unsupportable in law and precedent"
These observations of the Court, however, clearly negative the argument of the counsel for the petitioner that the moment six months have expired no course is open to the Magistrate or to the police but to allow the accused to be released notwithstanding that the material collected already within a period of six months is sufficient to go for trial and notwithstanding that in law even an illegal investigation does not vitiate the trial unless it has occasioned prejudice. It must be recognised that two competing public interest are involved the liberty of the citizen and the mandate of law that normally investigation should be completed thin a period of six months. But equally public interest demands that violation of penal provision endangering the lives of ordinary citizen should not escape the arm of law on supposedly hypertechnical and also unsubstantial grounds. So, normally unless it is in the interest of justice and sufficient reasons are made out by the prosecution extension by the Magistrate will not be available but there is also another competing public interest to see that because of the negligence or apathy or collusion of the investigating agency the administration of criminal jurisprudence is not reduced to total ineffectiveness which will breed dissatisfaction amongst the public. In the present case even the trial court has accepted the serious consequences of the view that he was taking. Covid-19 pandemic , special directions relating to first remand via video link :- CJ & SVSJ: W.P.No.7338/2020 (Karnataka High Court) "Notwithstanding the clear provision of law under clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C that the order of first remand whether in respect of police custody or judicial custody and the subsequent extension of police custody remand can be made only by producing the accused in person before the learned Magistrate, some very exceptional cases where first remand is permitted through video conferencing will be covered by the directions issued by the Apex Court in clause (i) of paragraph 6 of the order dated 6th April, 2020. Therefore, the same shall be deemed to be lawful."
HIGH COURT OF DELHI: NEW DELHI
No. 325 /Rules/DHC Dated: 01.06.2020 It state that in exceptional circumstances, judicial remand in the first instance or police remand can be granted via video conferencing for reasons recorded in writing. Madras High Court Suo Motu W.P.(MD)No.6126 of 2020 a person involved in an offence in Tamil Nadu/Puducherry, but arrested in a place outside the region, shall be physically produced before a Judicial/Metropolitan Magistrate in the place of his arrest, though the said Magistrate may not have the jurisdiction.after such accused is remanded to judicial custody, he may be produced before the Jurisdictional Court in Tamil Nadu/Puducherry for the first time via video-conferencing. Can the court reject bail of undertrial accused to send message to society?
IN THE HIGH COURT OF DELHI
Firoz Khan Vs. State (NCT of Delhi)Bail Appl. 945/2020
Sending a message to the society cannot be a basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts; not for detaining undertrials in order to send any 'message' to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial.
Whether Session Judge can remand accused to custody prosecuted under UAPA if the central government has not entrusted the investigation to the National Investigation Agency? Answer is Yes. defacto doctrine was used to validate the order of the session judge, its explained below the decision of the High court.
IN THE HIGH COURT OF DELHI
Aqil Hussain Vs. State of NCT of Delhi and Ors.W.P. (Crl.) 824/2020
the NIA Act primarily is an Act to constitute the National Investigation Agency, and to provide for trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court. In the present case, it is not even the petitioner's submission that the Central Government has entrusted the investigation of the case registered against the detenue Gulfisha Fatima under UAPA to the NIA. The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA.
It is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA. This position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate.
The UAPA does not state that offences under the said Act can be tried only by a Special Court. Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court. Session judge was competent to deal with bail application, as well as the aspect of remand
when he passed the orders on the application moved by the State to seek extension of judicial remand of Gulfisha Fatima, and remanded her to judicial custody till 25.06.2020 vide his order dated 28.05.2020. Even if, for the sake of argument, it were to be assumed that for some reason sessions judge was not the competent Court to deal with the aspect of grant of bail/extension of remand of Gulfisha Fatima, it is clear to us that the de facto doctrine would save his order dated 28.05.2020, since he is an Additional District and Sessions Judge, and he acted under the colour of authority while exercising the jurisdiction vested in him by the order dated 22.05.2020 passed by the learned District and Sessions Judge, New Delhi District, Patiala House Court under Section 10(3) of the Code.
Hon’ble Supreme Court in Criminal Appeal Nos 1899-1900 of 2011 in case of :
Mohammed Ajamal Mohammed Amir Kasab alias Abu Mujahid v/s State of Maharashtra.
REMAND u/s 167 CrPC
1) Efforts must be made by the Investigating Officer to complete the investigation within 24hours as fixed by section 57 of the Said Code.
2) If such completion is not possible and there are grounds for believing that the accusation/information is well founded the officer must forthwith forward the accused to the nearest Judicial Magistrate with a copy of the relevant entries.
3) The Magistrate, who receives such information, may authorize the detention of the accused for a maximum period of 15 days whether or not he has jurisdiction to try the case.
4) Such detention during the initial period of 15 days may be either in judicial custody or in police custody is the discretion of the Magistrate. Magistrate having no jurisdiction must forward the accused to the .
5) Beyond the period of 15 days, there cannot be any remand to police custody.
6) Thereafter, if the Magistrate having jurisdiction is satisfied that adequate grounds exist for doing so, the Magistrate may authorize the detention of the accused otherwise than in police custody for a period of 15 days at a time. Such detention cannot exceed the total period of 90 days or 60 days as the case may be.
7) If within the said period of 90 days or 60 days the final report is not filed, the accused has an indefeasible right to be released form custody.
8) Thereafter he can be remanded to custody by the Magistrate only of he is not in a position to offer bail. 6
9) When the accused is so released under the proviso to Sec. 167(2) of the Said Code , it shall be deemed that such release is under Chapter 33 of the Code.
10) Such bail is also liable to be cancelled under Sec. 437(5) or Sec. 439(2) of the Said Code as the case may be.
11) If the final report was filed after 60 or 90 days as the case may and the accused has not availed such indefeasible right to be released on bail before the final report is filed, he cannot claim such right to be released on bail.
12) It is duty of Magistrate to inform accused his right of bail by default even in serious cases. i.e. when charge sheet is not filed within prescribed period.
13) The period of detention if ordered by the Executive Magistrate is to be counted.
14) The word custody includes surveillance, restriction and not necessarily in hand .