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 .
15) The object of remand is to avoid possible abuse by police and to facilitate investigation and not to coerce the accused.
16) The Magistrate must ensure that the arrest is justified.
17) It has been normal allegations of accused that he is made to visit police station and police make him wait and register his arrest thereafter. Therefore, magistrate must be careful and keep check and balance.
18) In normal circumstances Magistrate must assist the production of accused.
19) The object of remand is to enable the Magistrate to see if remand is necessary and to enable the accused to make representation and Magistrate has to pass a judicial order.
20) If during the course of custody, commission of different crime is brought to light, accused can be detained for different offence.
21) Remand means sending the accused back.
22) Magistrate should check the time of arrest as required under article 22 (2) of the Constitution of India to ensure that accused is produced within 24 hours.
23) If accused makes an allegation of torture inquiry has to be conducted. Here the role of the Hon’ble Sessins Judge come into play.
24) In case Magistrate lacks jurisdiction over the matter, Magistrate has to forward the record to appropriate forum.
25) Total period of 60 days or 90 days has to be calculated from the date of remand and not arrest.
26) Magistrate must see its powers under special statute before granting remand.
27) It is duty of Magistrate to provide legal aid to accused even when accused is produced for first time before the Magistrate. Defacto Doctrine :
The de facto doctrine is postulated on the principle that the act of an officer holding a public office or of the holder of a judicial office would be regarded as being valid in law in certain circumstances though his own appointment is invalid and the officer or judge concerned has a strict legal sense no power. Explanation of the De facto doctrine in judicial precedents : Gokaraju Rangaraju v. State of Andhra Pradesh MANU/SC/0143/1981 : (1981) 3 SCC 132.
In Norton v. Shelby County [(1871) 38 Conn 449] Field, J., observed as follows:
"The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question."
In Cooley's Constitutional Limitations, 8th Edn., Vol. 2, p. 1355, it is said:
"An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is supposed to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."
In Black on Judgments it is said:
"A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed."
14. The de facto doctrine has been recognised by Indian courts also. In Pulin Behari v. King-Emperor [MANU/WB/0424/1911 : (1912) 15 Cal LJ 517, 574 : 16 IC 257 : 16 Cal WN 1105 : 13 Cri LJ 609] Sir Asutosh Mookerjee, J., after tracing the history of the doctrine in England observed as follows:
"The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence for defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined."
In P.S. Menon v. State of Kerala [MANU/KE/0027/1970 : AIR 1970 Ker 165, 170 (FB) : ILR (1969) 2 Ker 391 : 1970 Lab IC 967] a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishna-moorthy Iyer, JJ., said about the de facto doctrine:
"This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."
In the judgment under appeal Kuppuswami and Muktadar, JJ., observed:
"Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at the later date. Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity."
A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judged title to his office cannot be brought into jeopardy in that fashion. Hence the Rule against collateral attack on validity of judicial appointments. To question a judged appointment in an appeal against his judgment is, of course, such a collateral attack".
Delhi High Court
Dr. Shivinder Mohan Singh v. Directorate of Enforcement
"Accused Cannot Be Kept In Custody Only On A 'Hunch' That He Will Impede Trial Or To Send A Message To Society"
"Nowhere is it the law that an accused, yet to be tried, is to be kept in custody only on a hunch or a presumption that he will prejudice or impede trial; or to send any message to the society. If anything, the only message that goes-out to the society by keeping an accused in prison before finding him guilty, is that our system works only on impressions and conjectures and can keep an accused in custody even on presumption of guilt."
"An investigating agency must come to court with the confidence that they have arrested an accused based on credible material, and have filed a complaint or a chargesheet with the certainty that they will be able to bring home guilt, by satisfying a court beyond reasonable doubt. But when an investigating agency suggests that an accused be detained in custody as an undertrial for a prolonged period, even after the complaint or chargesheet has been filed, it appears that the investigating agency is not convinced of its case and so it fears that the accused may 'get-off' by discharge or acquittal; and that therefore the only way to 'punish the accused' is to let him remain in custody as an undertrial."
The remarks were made while allowing the bail plea of Fortis Healthcare promoter, Shivinder Mohan Singh, in a money laundering case.In the present case, Shivinder along with his brother Malvinder Singh, and Sunil Godhwani, were accused of committing financial fraud running into 3000 crores, which is dated to the period of their ownership of Religare Finvest.Enforcement Directorate, on the other hand, had opposed the bail plea on the ground that there's a possibility of the accused tampering with the evidence, he poses a flight risk, and that he can influence the witnesses.
COURTS CAN ORDER HOUSE ARREST :
Supreme Court of India
Gautam Navlakha vs National Investigation Agency on 12 May, 2021
135. Now, here, we are confronted with a clash between the two values. On the one hand, there is the deprivation, in law, of the liberty of the appellant, by way of house arrest for 34 days. On the other hand, it does not fall actually in the facts of this case within the ambit of Section 167 of the CrPC, for the reasons, which have been discussed earlier. While, the Right to Default Bail is a Fundamental Right, it is subject to the conditions, obtaining in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period.
136. On the other hand, Article 21 of the Constitution of India, provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure prescribed by law. This Article, creates a Fundamental Right, which cannot be waived. Moreover, unlike the persons, who apparently underwent house arrest on the basis of the offer made on their behalf, in the case of the appellant, even prior to the order dated 29.08.2018, the High Court had ordered house arrest, which constituted house arrest. The appellant was an accused in a FIR invoking cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand, which was a remand, under Section 167, was passed. Police custody followed. The High Court ordered that the appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police custody or the house arrest. We agree that illegality in order of the CMM, Saket, will not erase the deprivation of liberty. But other aspects already discussed militate against the order being treated as passed purportedly under Section 167. There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell under Section 167. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having being passed under Section 167.
137. There is one aspect which stands out. Custody under Section 167 has been understood hitherto as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily.
138. The concept of house arrest as part of custody under Section 167 has not engaged the courts including this Court. However, when the issue has come into focus, and noticing its ingredients we have formed the view that it involves custody which falls under Section 167.
139. We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. We would also indicate under Section 309 also that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases.
140. As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.
141. In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder, we dismiss the appeal.
NATURE OF ARTICLE 22 IN CONTEXT OF ARREST AND DETENTION :
In State of Punjab v. Ajaib Singh , the court had to deal with ambit of Article of 22(1) and also the scope of the expression “arrest” contained therein.
“16. Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a court and arrests otherwise than under such warrants. As to the first category of arrest, Sections 75 to 86 collected under sub-heading “B- Warrant of Arrest” in Chapter VI of the Code of Criminal Procedure deal with arrests in execution of warrants issued by a court under 4 AIR 1953 SC 10 that Code. Section 75 prescribes that such a warrant must be in writing signed by the presiding officer, or in the case of a Bench of Magistrates, by any Member of such Bench and bear the seal of the court. Form No. II of Schedule V to the Code is a form of warrant for the arrest of an accused person. The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No. VII of that Schedule is used to bring up a witness. The warrant itself recites that the court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The point to be noted is that in either case the warrant ex facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested. Section 80 requires that the police officer or other person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. Then comes Section 81 which runs thus:
“The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 76 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person.”
17. Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a warrant of arrest issued by a court. To take one example, Order 38 Rule 1 of the Code of Civil Procedure authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances. Form No. 1 in Appendix F sets out the terms of such a warrant. It clearly recites that it has been proved to the satisfaction of the court that there is probable cause for belief that the Defendant 1s about to do one or other of the things mentioned in Rule 1. The court may under Section 55 read with Order 21 Rule 38, issue a warrant for the arrest of the judgment-debtor in execution of the decree. Form 13 sets out the terms of such a warrant. The warrant recites the decree and the failure of the judgment-debtor to pay the decretal amount to the decree-
holder and directs the bailiff of the court to arrest the defaulting judgment-debtor, unless he pays up the decretal amount with costs and to bring him before the court with all convenient speed. The point to be noted is that, as in the case of a warrant of arrest issued by a court under the Code of Criminal Procedure, a warrant of arrest issued by a court under the Code of Civil Procedure quite plainly discloses the reason for the arrest in that it sets out an accusation of default, apprehended or actual, and that the person to be arrested is made acquainted with the reasons for his arrest before he is actually arrested.” Also in para 20, this Court laid down as follows:-
“20. Turning now to Article 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly plain that the language of Article 22(2) has been practically copied from Sections 60 and 61 of the Code of Criminal Procedure which admittedly prescribe the procedure to be followed after a person has been arrested without warrant. The requirement of Article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of court, for, as already noted, a person arrested under a court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Article 22(1) and (2) that it was designed to give protection against the act of the executive or other non-judicial authority. The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a court, but, by the Speaker of State Legislature and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the legislature. It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection.
Whatever else may come within the purview of Article 22(1) and (2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in charge of the nearest camp under Section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of Article 22(1) and (2). In our view, the learned Judges of the High Court over-simplified the matter while construing the article, possibly because the considerations hereinbefore adverted to were not pointedly brought to their attention.” [Emphasis supplied]
27. It will be noted that with the proviso in the Cr.P.C., 1973, in Section 76, in the case of arrest under a warrant, the person is to be produced before the Court within 24 hours with the exclusion of time taken for travelling. Such a proviso was absent in Section (81) of the Cr.P.C., 1898 which was considered by the Court.
28. In State of U.P. v. Abdul Samad5, the respondents who were husband and wife were arrested for non-compliance with the order of deportation passed against them. They were sent to Amritsar for being deported to Pakistan. They were produced before the Magistrate on 23rd July, 1960 at 10.00 A.M. who ordered them to be kept in the Civil Lines Police Station. They were brought back to Lucknow on the 25 th July 1960 based on a message from the High 5 AIR 1962 SC 1506 Court of Allahabad requiring their production and they were produced before the Deputy Registrar, High Court who directed them to be produced on the next day of the morning. The court which was dealing with the writ of Habeas Corpus by the respondents directed the respondents be produced the next day. On 28th July 1960, the High court focussing on the second period i.e. 25th July 1960 to 2.00 p.m. 27th July, 1960 found that during this period the respondents having not being produced before a Magistrate within 24 hours of the commencement of the custody the detention was found to be violative of Article 22(2). It is on these facts the majority (Justice K. Subba Roa -dissenting)held as follows:
“….It is very difficult to appreciate what exactly either of the learned Judges had in mind in making these observations holding that the guarantee under Article 22(2) had been violated. During the “second stage” at which the learned Judges held that the detention has been illegal because of a violation of Article 22(2), the facts were these: The respondents had been brought back to Lucknow on a message requiring their production before the High Court. They reached Lucknow on the 25th at 1 p.m. and were produced at 3 p.m. the same day i.e. within two hours of reaching Lucknow before the Deputy Registrar. The Deputy Registrar had directed their production the next day and they were accordingly so produced. Even taking it that the Deputy Registrar was not a judicial authority such as the learned Judges had in mind, the respondents had been produced on 26th morning at 10.15 a.m. before the learned Judges when they were at liberty to make any order regarding the custody which they considered proper and the time when they were produced before the Judges was admittedly not beyond 24 hours from the time the respondents reached Lucknow. On the 26th the learned Judges who took part in the final decision passed an order directing the production of the respondents on July 27, 1960 at 2 p.m. which obviously permitted the previous custody to be continued till further orders. They were produced accordingly at 2 p.m. on that day and by a further order of July 27, 1960 the learned Judges had directed the release of the respondents on bail and in pursuance of this order the respondents had been released on July 27, 1960 itself. In these circumstances we are at a loss to understand which is the period during “the second stage” or “on the 27th”, when the respondents could be said to have been illegally detained for more than 24 hours without production before a judicial authority as required by Article 22(2). We would add that even if Article 22(2) were construed to require that a person arrested and detained has to be produced before a Magistrate every 24 hours during his detention, a meaning which it assuredly cannot bear, though it is not clear to us whether the learned Judges did not understand the article to require this, even such a requirement was satisfied in this case as the respondents were during “the second stage” produced before the High Court itself “for suitable orders” on the 26th and again on the 27th. We have no desire to comment further on this judgment of the learned Judges except to say that there was no justification whatsoever for the finding on the basis of which the learned Judges directed the release of the respondents.” [Emphasis supplied]
WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER SECTION (167) OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT FOR THE PURPOSE OF DEFAULT BAIL? (vide gautam supra)
64. One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C., for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other than a Magistrate can order remand under Section 167. In the first place, going by the words used in Section 167, what is contemplated is that Magistrate orders remand under Section 167(2).
65. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand under Section 167 and at the same time, he also rejects the application for bail preferred by the accused. The accused approaches the High Court under Section 439 of the Cr.P.C. The court reverses the order and grants him bail. The accused who was sent to custody means police custody or judicial custody is brought out of his custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex Court. The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is apparent that the accused goes back to custody. Since assuming that the period of 15 days is over and police custody is not permissible, he is sent back to judicial custody. Equally if he was already in judicial custody, the order granting judicial custody is revived. Let us assume in the illustration that the accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the Magistrate. That is by piecing up these broken periods of custody, the statutory period of 90 days entitling the accused to default bail, is reached. Can it be said that the order of this Court granting custody should not be taken into consideration for calculating the period of 90 days, upon completion of which the accused can set up a case for default bail. We would think that the mere fact is that it is the Apex Court which exercised the power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the custody being authorized under Section 167.
66. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way of police custody and 5 days by way of judicial custody, the Magistrate enlarges an accused on bail. The High Court interferes with the order granting bail on the basis that the bail ought not to have been granted. Resultantly, the person who on the basis of the order of bail, has come out of jail custody, is put back into the judicial custody or jail custody. The order is one passed by the High Court. The order granting custody by the High Court cannot be treated as one which is not anchored in Section 167 of the Cr.P.C. Therefore, we would think that though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate.
67. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person.