RECENT TRENDS ON JUDICIAL CUSTODY AND POLICE CUSTODY :

The nomenclature of the said topic reflects the contents to be

discussed in this presentation in cut short we can the say the topic succinctly as Law of
custody in Criminal Law rather Law of Remand .
The dictionary meaning of “Remand” is to send back into custody. Here, we send back the
accused into the custody of police or that of the magistrate ie., Judicial Custody .
In Ajith Singh Vs State 1975 CRLJ 1075 (1078) FB held
that , The word Remand is not defined in the code further the word Remand as such is not
used in Section 167 of CRPC and what is authorized by the magistrate for making an order
under that section is the detention of the Accused in police or Judicial Custody .
II: Object of Remand Provisions :
In SP Chand Vs Chaganti Satyanarayana 1986 (CRLJ)1134(para 13)
it is opined that , The object of remand proceedings as enumerated in section 57(1) and 167
CRPC is to see that a person arrested by the police be brought before a magistrate with the
least possible delay in order to enable the latter to Judge if such person has to be further kept
in custody and also to enable such person to make any representation if he may wish to make
in the matter . By these provisions it is also intended to prevent the possible abuse by the
police of their powers in trying to make discoveries of crimes by means of duress , terrorism
and wrongful confinement .
III: THE WORD CUSTODY ITS MEANING :
The origin of the word 'custody' is from custodie, custodia, custos, which means a guard,
keeper and the word Custody as per Blacks’ Law Dictionary is “ The care and keeping of
anything “.
Relating to the topic related here the custody means Police Custody as well
as Judicial Custody ( Praveen Kumar Chandra Kant Vyas Vs State of Gujarath .2002 (1)
CRIMES 277 (GUJ) . In Roshan Beevi Vs Joint Secretary Government of TN 1984 CRLJ
134 (149-150) FB , It is held that , The terms custody and arrest are not synonymous terms,
It is true that in every arrest there is a custody , but not viceversa . A custody may amount to
an arrest in certain cases but not in all cases . The interpretation that the two terms custody
and arrest are synonymous is an ultralegalist interpretation . Which if accepted and adopted
would lead to a startling anomaly resulting in a serious consequences .
IV : PROVISIONS OF REMAND :
The scheme of the provisions contained in Section’s 167, 209 , 309,390 of CRPC
Rules 25 to 28 of the Criminal Rules of Practice and
AP Police Manual Police Standing Orders 468-1 and 469 speaks about Remand of
Arrested person and Police custody.
Section 167 Crpc provides for detention of an accused during the pendency of the
investigation .Section 209 Crpc provides for detention of an accused person during the
pendency of the commitment proceedings and section 309(2) crpc provides for detention of
an accused person during the pendency of trail or inquiry .
 In the case of D.K.Basu V/s State of West Bengal AIR 1997 SC610, the Honorable Apex
court has issued the following 11 procedural Guidelines in the case of arrest, detention and
interrogation of any person.
1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designation. The particulars of all such police personnel who handle interrogation of the arrestee
must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness. Who may
be member of the family of the arrestee or a the locality from where the arrest is made. Counter
signed by the arrestee and either a respectable person of It shall also be shall contain the time
and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation center or other lock-up, shall be entitled to have one friend or relative or
other person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town through
the Legal Aid Organization in the District and police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of
his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody the
arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any present on his/her body, must be recorded at that time. The
“Inspector Memo” must be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors appointed by
the Director, Health Services of the concerned State or Union Territory Director, Health Services
should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be
sent to the Jurisdictional Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
V: REMAND TO JUDICIAL CUSTODY :
Section 41 of Cr.P.C empowers the police officer to arrest a person without order of
Magistrate Arrest of a person is an encroachment over his liberty guaranteed by fundamental
rights and it also adversely affects his reputation and status. Hence, it is expected that the
police officer shall exercise the powers cautiously.
If a person is arrested without warrant, the police officer has to
complete the investigation within 24 hours and till the, he can keep the accused with him. He
has no power to detain the person arrested exceeding that period without authorization by
nearest Magistrate. This is the mandate prescribed by section 57 of Cr. P. Code. Here the
provisions of section 167 of Cr. P. C., which authorizes a Magistrate to direct further
detention of accused comes into play.
Before a Magistrate authorizes detention under section 167, Cr. P. C., he
has to be first satisfied that the arrest made is legal and in accordance with law arrested are
satisfied. And all the constitutional rights of the person If the arrest effected by the police
officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound
not to authorize his further detention and release the accused.
A careful reading of S. 167(1), Cr. P. C. would show that an investigating
officer can ask for remand only when there are grounds for believing that the accusation or
information is well founded and it appears that the investigation cannot be completed within
the period of 24 hours fixed by S. 57. Therefore, it follows that a remand by a Magistrate is
not an automatic one and sufficient grounds must exist for the Magistrate to exercise their
powers of remand.That is the reason why it is required that a copy of the entries in the diary
should be forwarded to the Magistrate along with the arrested persons. If the prima facie
accusation or information is not well founded and sufficient grounds do not exist for the
Magistrate to exercise his power of remand, in such cases, remand of accused can be
refused. A fortiori, a remand by a Magistrate is not an automatic one and sufficient grounds
must exist for the Magistrate to exercise their powers of remand. “Judicial remands should not
be passed in a routine manner”.
Article 22(1) of Indian Constitution given a twofold protection, viz.
(1) of the Constitution gives a person that an arrested person arrested shall not a be detained
in custody without being told the grounds of such an arrest and (2) that he shall be entitled to
consult and to be defended by a legal practitioner of his choice.
Article 22(2) gives yet another protection stating that every person who is
arrested and detained in custody must be produced before the nearest Magistrate within 24
hours excluding the time necessary for the journey from the place of arrest to the Court of
Magistrate and that no such person shall be detained in custody beyond the said period
without the authority of a Magistrate.
Section 50, Cr. P. C. which is a corollary to Article 22, Clause (1) and
(5) of the Constitution of India, enacts, that the persons arrested should be informed of the
ground of arrest, and of right to bail.
Section 57 Cr. P.C. which is also in consonance with Article 22(2) of the
Constitution of India, provides that no police officer shall detain, in custody a person arrested
without warrant for a longer period that under all circumstances is reasonable and such period
shall not in the absence of a special order of a Magistrate under Section 167 exceed 24 hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
Court.
In the case of Ram Doss..V/s... State of Tamilnadu, 1993 Cr.L.J. 2147 Hon’ble Madras High
Court has held that while granting remand U/sec. 167 Cr.P.C. a Magistrate has to see :
(i) The grounds why detention beyond 24 hours is sought for.
(ii) If there is a report disclosing cognizable offence.
(iii) If case has been registered for investigation. But a Magistrate cannot question
why such case has been entertained in absence of material therefor.
Section167 (2) of the Code gives power to the Magistrate to detain
the accused after satisfying himself that there are grounds for detaining the accused. The
magistrate can pass an order of detention for a maximum period of 15 days in police custody
and thereafter in magisterial custody. It is clear that the satisfaction of the magistrate as
regards existence of adequate grounds for detention is necessary. This cannot depend upon
the application which is presented to him but the material regarding investigation which is
produced application before him which is contained in the case diary. Therefore, presented on
behalf of the the investigation officer must mention the name of the officer who is presenting
the same and the said application is required to be considered by the Magistrate as
contemplated by Section 167 of the Code. (Shrawan Waman Nade vs. State of
Maharashtra. 1994 (1) MAH.L.J. 220)
Taking into consideration these aspects Hon'ble Apex Court in the
case of Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, has held that ordinarily arrest
is the part of the process of investigation intended to secure several purposes. The accused
may have to be questioned in detail regarding various facets of motive, preparation,
commission and aftermath of the crime and the connection of other person, if any, in the
crime. There may be circumstances in which the accused may provide information leading to
discovery of material facts. It may be necessary to curtail his freedom in order to enable
investigation to proceed without hindrance and to protect witness and persons connected with
the victim of the crime, to prevent his disappearance, to maintain law and order in the locality.
For these or other reasons, arrest may become an inevitable part of the process of
investigation.
In the case of Manubhail Ratilal Patel v. State of Gujrat and others
(2013)1SCC 314, Hon'ble Apex Court observed that, remand is a fundamental judicial
function of the Magistrate. While performing this judicial function, Magistrate has to satisfy
himself that there are reasonable grounds therefor and that materials placed before him justify
remand of accused. While remanding accused it is obligatory on part of Magistrate to apply
his mind to facts and not to pass remand order automatically or in a mechanical manner.
The Hon'ble Supreme Court, has in the case of ARNESH KUMAR VS
STATE OF BIHAR AND ANOTHER (2014) 8 SCC 273, held as follows: “ Our endeavor in this
judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate
do not authorize detention casually and mechanically ”. In that case the Honourable Supreme
court has issued following directions in respect of all offences which are punishable with
 imprisonment for a term which may be less than 7 years or which may extend to 7 years;
whether with or without fine.
1. All the State Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A of the I.P.C is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C;
2. All police officers be provided with a check list containing specified sub-clauses under
Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filed and furnish the reasons and material
which necessitated the arrest, while forwarding/producing the accused before the Magistrate
for further detention;
4. The Magistrate while authorizing detention of the accused shall peruse the report furnished
by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate
will authorize detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks
from the date of the institution of the case with a copy to the Magistrate which may be
extended by the Superintendent of police of the district for the reasons to be recorded in
writing;
6. Notice of appearance in terms of Section 41(A) of Cr.P.C be served on the accused within
two weeks from the date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be punished for contempt
of court to be instituted before High Court having territorial jurisdiction;
8.Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the appropriate High Court.
VI: Cr.P.C- INBUILT SAFEGUARDS:-

The Criminal Procedure Code contains inbuilt provisions to safeguard the rights of accused.
In this connection the attention of the Magistrates is drawn to Sections 41, 50, 54, 167, 304
and 437 (6) of the Criminal Procedure Code. The question of effectively enforcing these
provisions even in respect of indigent and poor persons has been considered in several
cases by the Supreme Court. Attention is also drawn to the amendment in Sec. 176 Cr.P.C.
wherein provision has been made that in the case of death or disappearance of a person, or
rape of a woman while in the custody of the police, there shall be a mandatory judicial inquiry
and in case of death, examination of the dead body shall be conducted within twenty-four
hours.

VII: PERIOD OF DETENTION:Issues arises are :

1. What is the maximum period of Judicial remand during investigation ?

2. Nature and Legality of Detention beyond statutory period of detention when Accused is not
prepared to furnish bail .
A judicial custody may extend up to the period of 90 days if the person is arrested in
connection to a crime which is punishable by an imprisonment of 10 years or more, life
imprisonment, and capital sentence. In any other case, the judicial custody of such person
may extend up to the period of 60 days Section 167 (2) (a) (i) and (ii) .After the period of 60 or
90 days, the person is entitled to bail, till the time police have not filed the charge sheet. Once
the police files the charge sheet, the person cannot claim bail as a matter of right. Every
person released under section 167(2) of code shall be deemed to be released under chapter
XXXIII which includes 437 also.

In Manchumarri Chinna Venkata Reddy Vs State of AP reported in 1993(2) Crime 438

discussed the interlink between 167(2) and 173 of the code :

1. That the charge-sheet U/Sec173(2) Crpc is not complete unless it is accompanied by

the material papers as contemplated U/sec173(5) CRPC.

2. That the perusal of a police report as to whether the same is in consonance with
sections 173(2) and 173(5) Crpc is only an administrative act and not a Judicial act.

3. That the judicial act commences when the police report is filed in complete form both
complying with the provisions contained under section 173(2) and (5) of the code and it
is taken on the file of the court and perused by the court for taking a decision under
section 190(1)(b) of the code.

4. That if investigation is not contemplated within 90 or 60 days, as the case may be , and
if the police report is not filed in complete form as mentioned supra with in stipulated
time , the accused shall have absolute right for being released on bail subject to their
readiness for furnishing sureties ; and

5. As the provisions of section 167(2) crpc have not been complied within the instant
cases , the petitioners in both criminal petitions shall be relied on bail .

VIII: PROCEDURE FOR COMPUTATION OF PERIOD OF 90/60 DAYS :

Rule 28 of CR.R.P.: Computing period of remand :- In computing the period of fifteen days
mentioned in sub – section (2) of Section 167, or the proviso to Section 309 of the code, both
the day on which the remand order was made and the day on which the accused is ordered to
be produced before the Court shall be included.

The period of detention as prescribed in the proviso to sub-section (2) of Section 167 of the
Code or any period of detention prescribed by any other law shall be a computed from the
date of actual production of the accused before the Magistrate or the Judge, as the case may
be.

Total period of 90 days or 60 days under proviso (A) to section 167 (2) has to be
calculated from the date of remand and not from the date of arrest.

The words used in proviso (a) to Section 167 are “ no Magistrate shall authorize the
detention of the accused person in the custody”. Detention can be authorized by the
Magistrate only from the time the order of order is passed. The earlier period when the
accused is in the custody of the public officer in exercise of his powers under Section 57
cannot constitute detention pursuant to an authorization issued by the Magistrate. In other
words, when sub-section (1) of Section 167 is read with Section 57 the resultant position is
that the initial period of custody of an arrested person till he is produced before a Magistrate
is neither referable to nor is in pursuance of an order of remand passed by a Magistrate; such
period is, therefore, to be excluded for computing the period of 60 or 90 days under Proviso
(a) to Section 167 (2). in fact the powers of remand given to a magistrate become excisable
only after an accused is produced before him in terms of sub-section 1 of Section 167.
[ C.Satyanarayana v. State of Andhra Pradesh, AIR 1986 SC 2130, Affirming 1986 Cri LJ
1134 (AP): 1986 (1) APLJ 310: 1986 (1) ALT 150 (Public Prosecutor V.
Ch.Satyanarayana)].
Rule 28 of the Criminal Practice also favours the exclusion of the date of the
arrest of the accused for the purpose of the computation of the period of authorized detention
of the accused for 90 days or 60 days, as the case may be, mentioned in the Proviso (a) to
sub-section (2) of Section 167 of the Criminal Procedure Code.
IX: PLACE AND TIME FOR PASSING REMAND ORDER :
A Magistrate does not lose his Magisterial Powers as soon as he leaves the court , he retains
jurisdiction to pass orders U/Sec 144, 167 of code ,even after court hours or at home
Refer : Brij Kishore Vs G.P. Srivastava AIR 1956 ALL 417 (P 421)

Also see Guidelines given by our own High Court in ROC NO 856 /SO/2005 DATED
21.07.2005 (enclosed herewith )

X:Guidelines succinctly while receiving remands :

1. Investigation shall be pending :The period of 24 hours commences from the time the
person is arrested by the police I,e
2.Physical Presence of Accused :The arrest of person is a condition precedent for taking
the arrested person in judicial custody.
3.Transmission of Case Diary : Section 167(1) Crpc clearly indicates that the magistrate is
under a obligation to see entries in the case diary for the purpose of seeing , if only prima-
facie , whether (or) not the accusation made against the prisoner is sustainable . Fifteen days’
time for remand is to be counted from the date of production of the said person before the
court not from the date and time of arrest by police.
Rule 25 :Magistrate to insist on production of the accused and copies of documents :-
Rules 25 of the Criminal Rules of Practice amplifies the provisions under section 167 of the
Code and lays down that no order under Section 167 of the Criminal Procedure Code for
remand of an accused should be made unless -
The accused is produced before the Magistrate; and, has been heard.
And further requires the Magistrate to insist on the production of copies of the entries in the
Case diary peruse and initial those documents before passing orders and also indicate in the
orders, that the documents are perused. Production of the accused before the Magistrate
At the time of seeking his remand and extension of remand:
Under section 167(2) as amplified by Rule 25 of the Criminal Rules of Practice and Circular
Orders, 1990, for remanding an accused to custody the police officer has to transmit to the
Judicial Magistrate a copy of the entries in the diary relating to the case and also produce the
accused before the Magistrate [either in person or through the medium of electronic video
linkage(Vide, A.P. Act 31 of 2001, S. 2 w.e.f. 6-12-2000 amending section 167 (2) of the
code in its application to the State of Andhra Pradesh)].

1. Non-Production of Accused will not, however, vitiate an order extending remand

2. Production of Accused before the Magistrate could be dispensed with in special
circumstances
3. Plea of non-availability of escorts for non-production of accused
4. Statutory obligation of Magistrate to record satisfaction for non-production Order
should be well-considered and reasoned one.
As said points 1 to 4 are interlinked is discussed at one stretch .
When issue of Non-Production of Accused came before of our own High court In re T.
Jagadeeswar Vs State of AP reported in 2003 CRILJ 701 (AP) : The court held that , When
accused not produced before the court but through an electronic video linkage he was shown
to the court in view of the recent amendment got made facilitating the electronic video linkage
to avoid mischief U/Sec 167(2) crpc . Extension of remand held to be legal .
Production of copies of Police Diaries and perusal thereof.
As aforesaid, order of remand ought not to be passed mechanically. Remand order is
not an administrative order but a judicial one. In order to enable the Magistrate of pass an
order under section 167 of the Criminal Procedure code for remand, not only the accused but
also copies of the Police diary should be before him and the Magistrate should peruse and
initial those documents before passing orders and also indicate in the order, that the
documents are perused. Magistrate has to apply his mind and get himself satisfied regarding
adequacy of ground for the said purpose and pass reasoned order for extending remand. It
must have reference to the entries made in the remand report.
The Apex court in C.B.I. v. Anupam, J. Kulkarni, 1992 (3) SCC 141 : 1992 Cri LJ
2768 held that Section 167 is supplementary to section 57. The investigation should be
completed in the first instance within 24 hours; if not, the arrested person should be brought
by the police before the Magistrate as provided under section 167. While doing so, the police
should also transmit a copy of the entries in the case diary relating to the case which is meant
to afford to the Magistrate the necessary information upon which he can take the decision
whether the accused should be detained in custody further or not.

 Police Diary is required to be maintained under section 172(1) of the Code, by

the Investigation Officer. It is obligatory upon every Investigation Officer to
maintain the said Diary, which contains various details regarding the progress of
the investigation. It is a chart or graph of the investigation, which is carried out
by the said officer as day to day progress of the investigation, is required to be
recorded in it.
 The said extract of the diary must be produced before the Magistrate when any
remand or detention of the accused is claimed.
 It is the practice in vogue to submit a report under the name “remand report”
containing such particulars and necessary information apart from furnishing
entries in case diary or copies thereof, on perusal and examination of which the
Magistrate should get himself satisfied regarding the adequacy of the grounds
and take a decision whether or not the accused has to be detained in custody or
 continued to be kept in remand (judicial remand) as the case may be.
 Without the extracts of the said diary of investigation or case papers it is not
possible for the Magistrate to find out the adequacy of grounds and to get
himself satisfied.
 The Magistrate must indicate, however, succinctly it may be, his satisfaction for
detention or remand of the accused.
 Since the order passed by the Magistrate is having the effect of taking away the
liberty of a person, which is a fundamental right guaranteed to every citizen under constitution
of India, it must be scrupulously followed. [See, Shravan Waman Nade v. State of
Maharashtra, 1994 Cri LJ 780 (Supra)].

4. Information as to grounds of Arrest and detention: A person arrested without warrant

must be immediately informed the grounds of his arrest and in case of every arrest it must be
immediately be made known to the arrested person that he/she is entitled to apply for bail.
5.Judicial Remand of First Fifteen Days : A magistrate passing an order of remand of first
15 days under 167 of the code need not always be the magistrate who has jurisdiction to try
the case . But if any detention beyond the period of 15 days from the date of arrest is sought
that can be ordered only by the magistrate having jurisdiction to try the case .
6.Subsequent Judicial Remand of the period other than first fifteen days :
The remand of accused as to Judicial custody after the period of first 15 days can only be
granted by a magistrate who has jurisdiction to try the case of such accused .
In Kali Charan Vs state 1955 CRLJ 1146 (ALL) It is held that : Remand of Accused after
expiry of first 15 days by a magistrate who has no jurisdiction to try or commit the case is
illegal .
7. Informing about Free Legal Aid :The arrested person is entitled to get legal aid on
his arrest from the nearest Legal Aid Committee, and such committee has to provide legal
assistance to the arrested person as per rules.

XI: SCOPE OF SECTION 167(5) CRPC :

When it is a summons case and investigation not completed within 6 months from that date,
section 167(5) crpc gives a mandate to magistrate to make an order stopping further
investigation into the offence until police officer gave sufficient explanation and if investigation
beyond period is necessary under special circumstances .Section 167(6) crpc empowers
sessions judge to extend the period of investigation beyond six months.

XII: Remand under section 390 of the Code :

From the language of Section 390 of the Code, it can be seen that whenever an appeal
under Section 378 of the Criminal Procedure Code is presented against an order of acquittal,
the High Court may issued a warrant directing the accused to be arrested and brought before
it or any other sub-ordinate Court, and the Court before which the accused is brought, may
either commit him to prison or admit him to bail till the disposal of the appeal. The purpose
behind issuing warrant as per provisions of Section 390 appears to be that in the event of the
High Court reversing the order of the acquittal in appeal, steps are necessarily required to be
taken to apprehend the accused for serving the sentence. In order to facilitate the execution
of the sentence the procedure under section 390 of the Code is designed, as otherwise, the
accused might or might not be available for serving the sentence in view of the fact that the
accused is already acquitted and there are no fetters placed on the movement of the accused
either within the country or outside. The issuance of the warrant appears to be discretionary
from the language of Section 390 of the code. As a matter of consistent practice, the A.P. High
Court while admitting the appeals filed against orders of acquittals, has been directing
issuance of warrant to the accused who are to be produced before the Court which tried them
for the offence for which they were charged.
The language used in Section 390 of the code is not express about the nature of
warrant to be issued. But the scheme of the section is suggestive of the fact that the warrant
to be issued by the High Court is a non-bailable warrant as the section requires the accused
to be brought before the Court, on execution of the warrant and further rests the discretion
either to commit the accused to prison or admit him to bail.
Orders of remand should not be made mechanically and as a matter of rules.
Once the accused are produced before the Trial Court, discretion is vested in the Trial
Jude before whom such production is made either to remand the accused to judicial custody
or admit them to bail. The language of Section 390 of Code is very explicit and clear in this
regard. But it must also be remembered that such discretion is required to be exercised in
accordance with the established principles of law.
The basic principle that is always to be required to be kept in mind in such cases is that
the accused were already subjected to trial and were found not guilty, and therefore, until the
finding is reversed the accused are entitled for their liberty which is a constitutionally
guaranteed right under Article 21 of the Constitution. But there may be cases where such
constitutionally guaranteed right of liberty is required to be deprived, but it can be only in
exceptional cases, where the Court comes to the conclusion that the accused are required to
be remanded and not released on bail. Only in such cases, order of remand should be
passed and such order of remand should be supported by reasons, clear and cogent. Since
such an order takes away liberty of an accused, who was found by one court not guilty of the
offence alleged against him, the orders of remand should not be made mechanically and as a
matter of routine. [ Shaik Mullapalli shamshad Begum v. Public Prosecutor, High Court
of A.P., 2004 (1) ALD (Cri) 378: 2004 (1) ALT (Cri) 337: 2004 (2) APLJ 317 (DB) (AP)].
Accused voluntarily surrendering before Trial Court.
Court has necessarily to consider their case for enlarging them on bail.
In Shaik Mullapalli Shamshad Begum v. Public Prosecutor, High Court of A.P.
2004 (1) ALD (Cri) 378: 2004 (1) ALT (Cri) 337: 2004 (2) APLJ 317 (DB) (AP), it was
brought to the notice of the High Court that in some cases where on information of the
admission of the appeal against acquittal when the accused appeared voluntarily before the
concerned Trial Court before whom they are otherwise required to be produced if the warrant
under section 390 of the Code were to be executed, the trail Courts were declining to
consider the possibility of enlarging such accused on bail on the ground that the warrant has
not yet been executed.
Deprecating the said practice, the High Court observed, “... in any case
where an order under section 390 of the Code directing the issuance of warrant is made,
there is nothing in law, which prevents the accused to voluntarily appear and surrender before
the Court. In the event of such voluntarily surrender or appearance before the concerned
Trail Court, that court shall consider enlarging such surrendered accused on bail in
accordance with law.”
Conviction by Session Court act aside on appeal to High Court – Special leave
to appeal against acquittal granted by Supreme Court and Sessions Judge directed to issue
non-bailable warrant – High Court has no power to release such accused on bail – when the
matter is before the Supreme Court which has admitted the appeal and issued an order as
state earlier, the Criminal Procedure Code is not applicable. Section 482 of the Code relates
to exercise of the powers of the High Court, to give effect to orders under the Criminal
Procedure code. There is no section corresponding to Section 390 of the code, which
enables the Court before which the accused is committed in an appeal against the acquittal
by the orders of the High court to release the accused on bail – there is therefore, no power
confessed by the Code to the High Court or by any other enactment. [Gopalkrishna Naidu,
In re, 1977 Cri LG 50 (Mad)]

XIII:Transit remand :A transit remand is not specifically defined under the Code. However,
when a warrant of arrest is executed outside the district in which it was issued, and the court
which issued the warrant is not within 30 km of the place of arrest, then the person arrested
may be produced before Executive Magistrate, District Superintendent of Police or
Commissioner of Police who shall direct his removal in custody to such court. In case of
bailable offence such Magistrate/ DSP/ CP shall release the accused on bail, and if the
offence is non-bailable it shall be lawful for Chief Judicial Magistrate or Session Judge to
release accused on bail, by invoking powers under Section 81 proviso II, subject to the
provision of Section 437 of Cr. P.c

In this regard judgment of Malti Ravindra Shah V/s. State of Maharashtra may be
referred regarding powers of granting transit remand.
Transfer of the prisoner from any place of detention can be permitted only by court under
whose warrant the under-trial has been remanded to judicial custody -State of Maharastra
Vs Saeed Sohail Sheik -2013 AIR SCW 6048 =2013 CRLJ 214 (SC)

XIV: APPLICABILITY OF SECTION 167(2) CRPC TO SPECIAL AND LOCAL ACTS :

On combined reading of sections 3 and 4 of the code it can be laid down that all offences
under Indian Penal Code as well as any other special or local laws shall be investigated ,
enquired into, tried and otherwise dealt with according to provisions contained the above said
code unless such special or local law contains any special or specific provisions for the
offences contained in such other laws .
The essence of sections 4(2) and 5 of the code is that remand proceedings in respect of
special and local laws shall be dealt within accordance with general provisions contained in
section 167(2) of code unless special or local laws contains special remand provisions
otherwise.
Special Statute : If a special statute lays down procedures , the ones laid down under the
general statutes shall not be followed Jeewan Kumar Routh Vs CBI:AIR 2009 SC 2763
1. Customs Act: Section167(1) (2) applies to person arrested U/S 104(1) of the Act and
 accused shall be produced before court U/S 104(2) of the Act and benefit of default bail
applies to him.
2. Security Proceedings U/CRPC : Section 167 applicable to person even arrest is
made U/S 151 of CRPC . (Refer: Radhey Syam Barathi Vs State 1963 All LJ 744 ).
Sections 167 and 309 applies to proceedings U/Chapter VIII of the code .( Refer
Vasudev Vs State of UP AIR 1958 All.578)
3. Remand under Narcotic Drugs and PsychotropicThe Substances Act, 1985
The N. D. P . S. Act, as it stands after the amendment of 2001 (w.e. f. 2/10/2001), provides for
constitution of Special Court, for trying all offences under the Act which are punishable with
imprisonment for a term of more than three years. Provisions of remand under the General 22
Of 27 Code are modified by virtue of Section 36A (1) (b) of this Act, which provides that a
person accused of or suspected of the commission of an offence under the Act be forwarded
to a Magistrate under sub Section 2 or sub Section 2A of Section 167 of the Code.
Whereupon, Magistrate may authorize the detention of such person in such custody as he
thinks fit for a period not exceeding 15 days and 7days in a whole where such Magistrate is
an Executive Magistrate. In case of offences triable by the Special Court, the proviso to the
said sub section provides that when such person forwarded to him; or upon or at any time
before the expiry of the period of detention authorized by him,the Magistrate considers the
detention of such person is unnecessary, he shall order such person to be forwarded to the
Special Court having jurisdiction. When such person is so forwarded to the Special Court, the
Special Court exercises all the powers of remand conferred on Magistrate under Section 167
of the Code. Thus, under N. D. P. S. Act, for the offences triable by the Special Court, first
remand is done by the Magistrate and subsequent orders of remand are passed by the
Special Court. The offences for small quantity of contraband are punishable with rigorous
imprisonment up to six months or a fine of Rs. 10,000/ or both, which offences are triable by
the Magistrate and hence Magistrate exercises powers of remand under Section 167 and 309
(2) of the Code. The period of remand of 90 days under Section 167 of the Code is modified
with a period of 180 days, only for the offences under Section 19 or Section 24 or Section 27A
or for offences involving commercial quantity.
4.Remand under The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act 1989 :
The controversy as to whether a Special Court designated under Section 14 of this Act could
take cognizance of an offence, was set at rest by the Hon'ble Apex Court in case of Gangula
Ashok Vs. State of Andhra Pradesh reported in AIR 2000 Supreme Court 740. It has
been held that Special Court designated under Section of the Act is essentially a Sessions
Court and hence it cannot take cognizance of the offences under the Act as a Court of original
jurisdiction without the case being committed to it by a Magistrate. The reason assigned is
that neither in the Code nor in the Act, is there any provision to the effect that Special Court
would take cognizance of the offence as a Court of original jurisdiction.
Special Court can take cognizance only
After it is committed to it by Magistrate Refer : Vidyadharan Vs. state of Kerala reported in
2004(2) MhLj 596..
5. Remand under The Prevention of Corruption Act, 1988 :Sub Section 1 of Section
5 of this Act makes provision for taking cognizance of the offences under the Act by Special
Judge without the accused being committed to him for trial. Hence, the Special Judge
exercises powers of remand under Section 167 of the Code.
6. Electricity Act 2003 -= Under section 154 of the said act the Judicial Magistrate First
Class shall not commit the charge- sheet and also he will not entertain the remand.
Only Special Court to do remand.
7. Transplantation of Human Organs Act, 1994 =As per Section 22 of
Transplantation of Human Organs Act, 1994 ( T.O.H.O.), cognizance for the
offences punishable under the provision of said Act can only be taken up on a
complaint filed by the prescribed authority or by the person duly authorized by
competent authority. Hence sub-section 2 of section 167 is not applicable. Jeewan
kumar Raut and Ano. Vs. Central Bureau of Investigation reported in AIR 2009
SC 2763.
8. Remand under The Protection of Children from Sexual Offences Act, 2012 :
Power of Protection remand under of this Children Act vest From Sexual with Special Judge
appointed under Section 28 of the Act. It is imperative for all police officers to produce the
accused for remand before the special Court and not before the court of the magistrate. In
view of Judgment of Kum. Shraddha Meghshyam VelhalVs- State of Maharashtra, in Cr.
W. P. No.354/2013, the Judicial Magistrate First Class has not empowered to entertain the
remand. Only special court will entertain the remand under this Act. And recently in 2017-1-
L.W. (Crl) 813 In-Re The Registrar (Judicial), High Court, Madras Date of Judgment:
28.04.2017 Protection of Children form Sexual Offences, POCSO Act(2012), Sections 28, 33,
42-A, Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act(1989),
Sections 2(d), 14, 20, Criminal Procedure Code, Sections 6,7,9,156,157,
167,190,193,366,395,439, General Clause Act(1897) Section 24, Schedule Tribes(Prevention
of Atrocities)Amendement Act(2015), Act 1 of 2016. Power of Judicial Magistrates to remand
an accused involved in cases relating to offences under POCSO Act, SC & ST Act, - scope of
– High Court circular issued regarding, whether correct, cases arising under POCSO Act, SC
& ST Act how to be dealt with stated – Whether an additional sessions judge exercises all
powers of a sessions judge presiding a court of session. A court of session is established and
a sessions judge presides over the said court and an additional sessions judge exercises
jurisdiction in the said sessions court – term “a court of Session” as employed in Section 28
of the POCSO Act, would mean either the presiding sessions judge of a court of a session or
an additional sessions judge exercising jurisdiction in the said sessions court. Held: orders
specifying additional sessions judges (Fast Track Mahila Sessions Judges) as special courts
are perfectly in tune with Section 28 of the POCSO Act. Power of the Special court to take
cognizance of any offence under the POCSO Act – what is – scope – when special court
exclusive power not only to try case under the POCSO Act but also to take cognizance of
offences under the Act without the case being committed to the said court – though special
court under the POCSO Act is a Court of session, said court has the power to remand an
accused during investigation as provided in Section 167 as the court having jurisdiction to try
the case “Magistrate” in Section 156(3) of the Code should be read as “the special court” in
the context of the POCSO Act – “Magistrate” in Sections 156, 157 of the Code includes a
Special court under the POCSO Act also – term “Magistrate” employed in section 167 should
be read to include the special court under the POCSO Act – No magistrate can take
cognizance or try any offence under the POCSO Act - special court under the POCSO Act
exercises original jurisdiction exclusively to take cognizance of any offence under the act not
being hundred by Section 193 – Special court has power to pass initial remand of an accused
for a period not exceeding 15 days as provided in Section 167(2) Cr.P.C., - Power of the
nearest magistrate before whom the accused is produced to remand the accused for a period
not exceeding 15 days has not been excluded – whether notifications specifying additional
sessions judges as special courts under SC & ST Act are valid – Additional sessions judge
exercising jurisdiction in a Court of Session may also be notified as a Special court under
Section 14 of the SC & ST Act as it stood before the amendment – Sessions Judge presiding
over a court of session may also be notified as a special court under section 14 of the Act –
notifications specifying these courts as special courts are valid – Section 24 of the General
Clauses Act, effect – Intention of the Legislature to give overriding effect to the POCSO
Act over the SC & ST Act.

9. Provisions of Remand U/FERA :In the matter of Directorate of Enforcement Vs

Deepak Mahajan reported in 1994 CRLJ 2269 (SC) : Held that , Section167 applies to
FERA when a person is arrested U/Sec35 of the FERA Act and Section 104 of Customs Act .

XV:REMAND OF JUDICIAL CUSTODY UNDER INQUIRY :

Section 209 of the code provides to commit the case to Sessions court in the matters
exclusively triable by Sessions Judge . The words “ Subject to th provisions of this code
relating to bail refer to sections 436, 437, 438 and 439 of Crpc
Difference between Sections 167 & 309 of Cr.P.C.
In case of State through C.B.I. -v- Dawood Ibrahim Kaskar and others
reported in 1997 Cri.L.J. 2989 - The Hon'ble Apex Court held that there cannot be any
manner of doubt that the remand and the custody referred to in the first proviso to S. 309(2)
are different from detention in custody under Section 167. 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, there is no reason whatsoever why the provisions of Section 167 thereof would not apply
to a person who comes to be later arrested by the police in course of such investigation. If
Section 309 (2) is interpreted - to mean that after the Court takes cognizance of an offence it
cannot exercise its power of detention in police custody under
Section 167, 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.
Therefore 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 investigation. So far as the accused in the first category is concerned he
can be remanded to judicial custody only in view of Section 309 (2), but he who comes 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.
XIII: MAGISTERIAL POWER OF REVIEW OF REMAND ORDER OR TO TAKE REMAND
UNDER DIFFERENT SECTION :

In Muneshwar Vs State of UP (1984 (ACC 368 )(FB)) Held that, A magistrate cannot review
his own order of remand once the remand is made the remand matter comes to an end .

When the investigation officer has asked remand for an offence U/Sec 307 Indian Penal Code
then the magistrate cannot remand the accused for lesser offence I.e ., section 324 Indian
Penal Code .At the time of granting remand magistrate need to go through entire documents
annexed to remand report for an assumed lesser offence , The purpose of granting remand
would vanish in as much as the distinction of bailable and non-bailable offence and cases
where the magistrate could or could not grant bail as delineated in CRPC would also
vanish .This would lead to gradual Judicial anarchy obtainable through lawful means .Such an
attempt must be resisted at the outset .
Anil Kumar Vs State of UP 1992 A.Cri R 520

XVI: REMAND TO POLICE CUSTODY

The Phrase Police Custody for the purpose of this context means custody by police for
further investigation and interrogation of an accused for detection of crime and recovery of
material objects connected with such crime and to found out whether there are also other
conspirators along with accused who have taken part in the crime .

Along with Section 167(2) of CRPC /Rule 26 of CR.R.P and Police Standing Order 469 of
AP Police Manual laid down procedure to be followed while granting Remand to police
custody :- A Magistrate shall not grant remand to police custody unless he is satisfied that
there is good ground for doing so and shall not accept a general statement made by the
investigating or other police officer to the effect that the accused may be able to give further
information. In all cases, where the Magistrate authorizes the detention of the accused in the
custody of the police, he shall record his reasons for so doing.
Section 167 of the Criminal Procedure code empowers a magistrate to whom and
accused person in forwarded under this section to make an order of detention of the accused
to such custody, viz., whether Judicial custody or police custody, as the Magistrate thinks fit,
for a term not exceeding 15 days as a whole, as per sub-section (3) the Magistrate
authorizing the detention of the accused to the police custody should record his reasons for
so doing. The present rule 26 amplifies / supplements the provisions as to remand of an
accused person to custody under Section 167 of the code and lays down that a magistrate
shall not, –
 grant remand to police custody “unless he is satisfied that there is good ground
for doing so”
 accept a “general statement” made by the investigating or other police officer to
the effect that the accused may be able to give further information [See,
Proviso to Section 167(2), Cr.P.C.]
 and further requires that where the Magistrate authorized the detention of the
accused in custody of the Police, he shall –
 “record his reasons for so doing” [See, Sub-Section (3) of Section 167, Cr.P.C.]
Rule 27 further lays down that whenever a Magistrate remands an accused
person to the custody of police under section 167 of the Code, a copy of the order of remand
with the reasons recorded therefor, shall be forwarded within 24 hours to the sessions Judge,
[ Cf., Sub-Section (4) of Section 167].
The Object of this provision of law [Remand] evidently is to ensure that
persons arrested by the police are brought before a Magistrate with the least possible delay. It
is in order to enable the Magistrate to judge if such person has to be further kept in police
custody (or) judicial custody and also to enable the person arrested to make any
representation he may wish to make in the matter. The provision inhibiting detention remand
is a very healthy provision, which enables the Magistrate to keep check over the police
investigation.
“UNLESS HE IS SATISFIED THAT THERE IS GOOD GROUND FOR DOING SO”
The words “If he is satisfied that adequate ground exists” appearing in Proviso (a) to
Section 167 (2) of the Criminal Procedure code [read with Rule 26 of the Criminal Rules of
Practice] indicate that remand can be permitted when the Magistrate is satisfied that
adequate grounds exist for doing so. There can be no doubt that remand to custody pending
investigation is not a mechanical order and cannot be granted as a matter of course or merely
because the Investigating Officer or the Police Officer in charge desires that the accused be
remanded. This power has to be exercised by the Magistrate in accordance with the well-
settled norms of making a judicial order. The statute castes a heavy duty on the Magistrate
and requires judicial discretion to be exercised and an order of remand is conditioned upon
satisfaction of the Magistrate. He has for said reason to see that there is a report of a
cognizable offence and the case has been registered by the police for investigation and that
there are allegations constituting the offence which is cognizable. The police should satisfy
the Magistrate from the case diary and day-to-day report of his investigation that there is
prima facie material against the accused and that it requires further investigation.
Remand not be granted accepting a “general statement” made by the Investigating
Officer or other Police Officer to their effect that the accused may be able to give
further information.
The Magistrates shall not grant remand to the police custody unless they are satisfied
that there is good ground for doing so and shall not accept a general statement made by the
investigating or other Police Officer to the effect that the accused may be liable to give further
information. A request for remand to Police custody should be accompanied by an affidavit
setting out briefly the prior history of the investigation and the likelihood of further clues which
the police expects to derive by having the accused in custody, sworn by the investigating or
other police officer, not below the rank of a sub-Inspector of Police and the Magistrate after
perusing the affidavit and satisfying himself about the request of the police officer, shall
entrust the accused to police custody, the Magistrate shall question the accused whether he
has in any way been interfered with during the period of custody. [ Selvanathan alials
Raghavan v. State, 1990 MLJ (Cri) 1 (Mad): 1989 (1) Mad WN (Cri) 117 (Mad)].
Sub-Section (2) of Section 167 of the criminal Procedure Code does not
specify the nature of the detention. Hence, the initial custody up to 15 days may be either
police custody or judicial custody. But police custody is not renewable once the 15 days'
period has elapsed, because the Proviso, which relates to further custody beyond 15 days,
says that such custody must be judicial custody.
Granting police custody after the expiry of 15 days prescribed in Section 167 is
illegal. [Shaik Basha V. State of A.P., 2002 (1) ALD (Cri) 116 (AP): 2002 (1) ALT (Cri) 99].
Reasons for Remand.
The second part of the Rule 26 lays down that, “In all cases, where the
Magistrate authorizes the detention of the accused in the custody of the Police, he shall
record his reasons for so doing”. This amplifies sub-section (3) OF Section 167, which
required that; “A magistrate authorizing under this section detention in the custody of the
police shall record his reasons for so doing.” sub-section (3) of Section 167 of the Code [read
with Rule 26] expressly requires the Magistrate to record proper reasons where he remands
the accused to Police Custody. [See, In re Hanumantha Rao, AIR 1957 AP 456]. it does not
expressly provide that for refusing such custody, reasons shall be recorded. Tis is an
indication that though investigating agency is to investigate into cognizable offence without
any interference from judiciary it does not mean that whenever request for police remand is
made, it is to be granted. The police have to make out a case that the custody of the accused
with the police is necessary for further investigation.
Rule 27 :Order of remand by a Magistrate to be forwarded to Sessions Judge :-
Whenever a Magistrate remands and accused person to the custody of police under Section
167 of the Code, a copy of the order of remand with the reasons recorded therefor, shall be
forwarded within 24 hours to the Sessions Judge.

Before making an order of remand to Police custody under section 167 of the code of
Criminal Procedure the Magistrate should satisfy himself that -
(1) there are grounds for believing that the accusation against the person sent up by the
Police is well founded:
(2) There are good and sufficient reasons for remanding the accused to Police custody
instead of detaining him in magisterial custody.
(3) In order to form an opinion as to the necessity or otherwise of the remand applied for
by the Police, the Magistrate should examine the copies of the diaries submitted under
section 167 and ascertain what previous orders (if any), have been made in the case, and the
longer the accused person has been in custody the stronger should be the grounds required
for a further remand to police custody. The person must always be produced before the
Magistrate when a remand is asked for.
The following principles are laid down for the guidance of Magistrates in the matter of
granting remands and District Magistrates (or in the districts in which the experiment
of separation of the Executive from the Judiciary is being tried the Additional District
Magistrates) are required to see that they are carefully applied :—
(i) Under no circumstances should an accused person be remanded to Police custody unless
it is made clear that his presence is actually needed in order to serve some important and
specific purpose connected with the completion of the investigation. A general statement by
the officer applying for the remand that the accused may be able to give further information
should not be accepted.
(ii) When an accused person is remanded to Police custody the period of the remand
should be as short as possible.
(iii) In all ordinary cases in which time is required by the Police to complete the
investigation, the accused person should be detained in magisterial custody.
(iv) An accused person who has made a confession before a Magistrate should be
sent to the Judicial lock-up and not made over to the Police after the confession has
been recorded. If the Police subsequently require the accused person for the
investigation, a written application should be made giving reasons in detail why he is
required and an order obtained from the Magistrate for his delivery to them for the
specific purposes named in the application. If an accused person, who has been
produced for the purpose of making a confession has declined to make a confession or
has made a statement which is unsatisfactory from the point of the prosecution, he
should not be remanded to Police custody.
(iv) It is clear that 15 days being to run immediately after the accused is produced
before the Magistrate in accordance with sub-section (1). Police custody, therefore,
can't be granted of the accused after the lapse of the first 15 days.
(v) When a Magistrate remands a person to police custody, he has to confirm to
three conditions:
(i) such custody should not be made of more than 15 days on the whole;
(ii) reasons should be recorded at the time of remanding accused in police custody.
(iii) A copy of the order and the reasons should be sent to the Chief Judicial Magistrate.

(vi) The police custody after first 15 days is not permissible. However, if complicity
of accused is found in some other transaction while in judicial custody, then aforesaid
limitation will not apply. C.B.I. -Vs-Anupam Kulkarni reported in AIR 1992 S.C. 1768
(vii) The Period of 15 days shall be counted from date of accused surrenders in
court or produced before court for remand U/Sec 167(2) crpc .(Refer:NarenderMann
Vs State(NCT) Delhi-2002 CRLJ 823).
(viii) Period of police custody granted U/Sec 167(2) shall be counted while
calculating 90/60 days (Refer: Gurubaksh Singh Vs State of Punjab
(ix) After expiry of the 15 days period if further police custody remand is granted, it
would be violation of Sec. 167 of the Code of the Criminal Procedure. In the case of
C.B.I. V/s Anupam Kumar (2000) 9 Supreme Court Cases page 266, the
Honorable Apex Court has observed that Sec. 167 (2) provides that at a time
 accused can be remanded for 15 days. If further detention of accused is necessary on
satisfaction of the Magistrate further detention in Magisterial custody can be allowed.
Magistrate may authorize detention of the accused beyond the period of 15 days if he
is satisfied that adequate grounds exist. However, there is further limitation for
detention of accused persons in such custody. Accused can be so detained for the
period of 90 days where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term not less than 10 years. The detention
can be authorized for 60 days where the investigation relates to any other offense.
(x) As per Sec. 167 (2) if the investigation in respect of the offenses
punishable with imprisonment up to 10 years is not completed within 60 days or if the
investigation in respect of offense punishable with imprisonment for a period 10 years
or more is not completed within 90 days, then the accused shall be released on bail if
he is ready and willing to furnish bail and if he furnishes bail. For counting the said
period of 60/90 days, the first date of remand is to be considered, and not the date of
the arrest, as held in the case of Changati Satyanarayana and Ors Vs State of
Andhra Pradesh (1986 ) 3 SCC 141.
(xi) Police custody shall be given in first 15 days only .
(xii) After expiry of police remand period accused shall be reproduced before
Magistrate with medical certificate .
(xiii) Under AP Control of Organized Crimes Act 2001 and Prevention of
Terrorism Act 2002 , the remand may be for 30 days .

XV: Default Bail Under Section167(2)(a)(ii):

In the case of Uday Mohanlal Acharya V/s. State of Maharashtra AIR

2001 SC 1010, the Honourable Apex court has held that where a charge-sheet is not filed
within requisite period of 60 days the accused is entitled to indefeasible right to be released
on bail.
In Nijamuddin Mohd. Bashir Khan VS State of Maharashtra reported
in 2006 (5) Mah. L.J. 690 , it has been held that in every case in which offence is punishable
with imprisonment for a term which may extent to ten years, provisions of section 167(2)(a)(ii)
of Cr.P.C, will be attracted and if investigation in such case is not completed within period of
60-days, no Magistrate shall authorize detention of accused beyond the said period.
In case of CBI Vs. Nirala Yadav reported in 2014 Cr.L.J. 3952 the
Hon'ble Apex Court has held: When the chargesheet is not filed within statutory remand
period by police the right of default bail ripens to accused and it cannot be frustated by the
prosecution on one or other pretext and accused can avail his liberty by filing application
stating that the statutory period for filing challan has expired and 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 chargesheet was filed . Once charge-sheet is filed benefit U/Sec 167(2) crpc
ceases and it does not revive solely because the further investigation remains pending
 In Union of India and Ors. v. Arviva Industries India Limited and
Ors. (2014) 3 SCC 159”. The Hon'ble Apex Court ultimately held that the if after filing of
application by the accused the prosecution files application for extension of time, the right of
default bail can not be defeated.
Supreme Court Clarifies Default Bail and Section 167 Cr.P.C:
If criminal procedure is an exercise of the law regulating how power (the State) can take away
an individual's liberty to compel her to participate in the criminal process (as Foucault
suggests), then Section 167 perhaps is the most important provision in the Indian Criminal
Procedure Code of 1973 [Cr.P.C.]. In a country rampant for high rates of pre-trial detention,
this provision limits how long such detention can (ordinarily) last during an investigation after
arrest. The primary limit of 24 hours is honoured only in breach, and from there we move to
steep cliffs: limits are placed at sixty days and ninety days depending on the kind of
allegations initially levelled. If the police do not complete an investigation within this time by
filing a Final Report / Charge-sheet, then the accused is entitled to bail. This is popularly
called Default bail/ Statutory Bail/Compulsive Bail .
Now, how do we construe the phrase "imprisonment for a term not less than ten
years"? Does it include offences punishable with a term from zero to a maximum of ten years
as well, or does it only cover offences with at least a ten year prison term?
Rajeev Choudhary V. State AIR 2001 SC 2369 the Supreme court has made it very clear
that under section 386 of the Indian Penal Code punishment provided is imprisonment of
either description for a term which may extend to 10 years and also fine. That means,
imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that
minimum sentence would be 10 years or more.

Hon’ble Apex Court in the case of that the expression ‘not less than’ would mean
imprisonment should be 10 year or more and would cover only those offences for which
punishment could be imprisonment for a clear period of 10 years or more for the purpose of
clause (i) of proviso (a) of Section 167 (2) Cr.P.C 1973. This view also relied in the case of
Bhupinder Singh & others V Jarnail singh & another 2006 Cr.LJ 3621.
The issue was taken up by a three judges bench of the Supreme Court in Rakesh Kumar
Paul v. State of Assam [SLP (Crl.) 2009 of 2017, hereafter Rakesh Kumar Paul]. A two
judge majority held that only offences punishable with at least a term of ten years
imprisonment could lead to detention for up to ninety days. The majority also held that it is not
really necessary to file a specific application under Section 167 Cr.P.C. for being released on
default bail, oral arguments could cover it too without specific written averments. In fact, the
majority suggested that a court was required to assess the circumstances and apprise an
accused if she was entitled to default bail and grant bail if an accused could furnish sureties.
2014 STPL(Crimes) 54140 AP[2014(2) Crimes 354] ANDHRA PRADESH HIGH COURT
BYAGAR MALLESH VERSUS THE STATE OF A.P.Indian Penal Code, 1860 – Sections
498,366,342,506 – Criminal Procedure Code, 1973 – Section 167(2)(a)(ii) – Statutory Bail –
Imprisonment for a term of not less than ten years – Punishment under section 366 IPC is
“which may extend to 10 years and also fine” but it is not “Imprisonment for a term of not less
than ten years”. Punishment for section 366 IPC can very from minimum to maximum of 10
years and it cannot be said that the imprisonment prescribed is not less than 10 years. Matter
falls under section 167(2)(a)(ii) of CrPC – Held: Statutory bail in offence under section 366
IPC is to be granted after 60 days of custody and not after 90 days.
XVI: Law relating to police remand in case of absconding accused :
Law relating to police remand in case of absconding accused,
clarified: Supreme Court: In the case where the Court was called upon to decide as to
whether no remand in police custody can be given to the investigating agency in respect of
the absconding accused who is arrested only after filing of the charge sheet, the Court,
relying upon State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438, held that police remand
can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of
further investigation, if the interrogation is needed by the investigating agency. Considering
the relevant provisions of law under Proviso to Section 167 (2) CrPC, which empowers a
Magistrate to authorize detention of an accused in the custody of police, Section 173 (8),
under which investigating agency has power to further investigate the matter in which the
report/charge sheet has already been filed and Section 309 (2) CrPC which empowers
remand of an accused, the bench of Dipak Misra and P.C. Pant, JJ further clarified that that
expression ‘accused if in custody’ in Section 309(2) CrPC does not include the accused
who is arrested on further investigation before supplementary charge sheet is filed. In the
present case which relates to killing of nine persons and injuring large number of villagers in a
village of West Bengal, the High Court had refused the police remand. The Court, hence, set
aside the impugned order and held that the said refusal was against the settled principle of
law. [Central Bureau of Investigation v. Rathin Dandapat, 2015 SCC Online SC 743
decided on 21.08.2015]

XIX Judicial Pronouncements on Section 167 CRPC :

1.In the case of K Sanyal v District Magistrate, Darjeeling 1990 CriLJ 2685, the Apex
Court was of the view that when a person has been sent to police custody, and such
order of sending the person does not prima-facie looks illegal, or for that matter without
jurisdiction, the writ of habeas corpus cannot be granted.

2.In the case of K v State of Rajasthan,1980 Cri LJ 344 the Supreme Court also opined
that if the detention of the accused is done legally, and a bail application has been moved
by the accused, any previous illegality in detentions should not be considered and bail
should be given only on the merits of the present case.

3.Cr.P.C. S.167(2): For the purpose of counting the 15 days, 60 days and 90 days
custody, the date of suo motu surrender of the accused, is not material. Because, it
is not preceded by arrest without warrant. Hence, it is not equivalent to production under
S.167.
State of West Bengal Vs. Dinesh Dalmia, (2007) 5 SCC 773.

4.Cr.P.C. S.167(5) and S.12-AA(1)(f), Essential Commodities Act: Section 167(5),

Cr.P.C. is applicable to a summarily triable warrant case. Hence, investigation may be
directed to be stopped if not completed in 6 months from arrest of accused. But, the I.O.
is not absovled from filing final report on the basis of the investigation done within 6
months and the Court is competent to accept such police report. - State of W.B. Vs.
Falguni Dutta, (1993) 3 SCC 288.

5.Cr.P.C. S.167 and S.309: Police Custody of post-charge sheet arrested accused is
permissible: It is permissible to grant police custody of an accused who is arrested
subsequest to the charge-sheet when he was shown as absconding previously-Central
Bureau of Investigation Vs. Rathin Dandapath and others, 2015 Cri.L.J. 4488

6.Cr.P.C. S.167 Magistrate has to look into facts before granting remand: The act of
directing remand of an accused is fundamentally a judicial function. The Magistrate does
not act in executive capacity while ordering the detention of an accused. While exercising
this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the
materials placed before him justify such a remand or, to put it differently, whether there
exist reasonable grounds to commit the accused to custody and extend his remand. The
purpose of remand as postulated Under Section 167 is that investigation cannot be
completed within 24 hours. It enables the Magistrate to see that the remand is really
necessary. This requires the investigating agency to send the case diary along with the
remand report so that the Magistrate can appreciate the factual scenario and apply his
mind whether there is a warrant for police remand or justification for judicial remand or
there is no need for any remand at all. It is obligatory on the part of the Magistrate to
apply his mind and not to pass an order of remand automatically or in a mechanical
manner. It is apt to note that in Madhu Limaye, it has been stated that once it is shown
that the arrests made by the police officers were illegal, it was necessary for the State to
establish that at the stage of remand, the Magistrate directed detention in jail custody
after applying his mind to all relevant matters.-Manubhai Ratilal Patel Tr. Ushaben Vs.
State of Gujarat and ors., AIR 2013 SC 313

7.Cr.P.C. S.167: The Special Judge under S.8 of the Criminal Law (Amendment) Act,
1952 is a Magistrate for the purpose of S.167. Because, Section 3 of the Code
suggests that if the context otherwise required, the term "Magistrate" may include the
Magistrate who are not specified in the Section. - State of T.N. Vs. V. Krishnaswami
Naidu, (1979) 4 SCC 5

8.Cr.P.C. S.167(2) Proper Order: An order for release on bail under proviso (a) to
Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release
on bail on the default of the prosecution in filing charge-sheet within the prescribed
period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a
legislative command and not court's discretion. If the investigating agency fails to file
charge-sheet before the expiry of 90/60 days, as the case may be the accused in custody
should be released on bail. But at that stage, merits of the case are not to be examined.
Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated
period of 90/60 days. He must pass an order of bail and communicate the same to the
accused to furnish the requisite bail bonds.”-Rajnikant Jivanlal v. Intelligence Officer,
Narcotic Control Bureau, (1989) 3 SCC 532

9.S.167 and 309: Police Custody of Absconded Accused: If the accused was not
arrested by the time of taking cognizance by the Court, during the further investigation,
remand of such accused can be granted under section 167 after his arrest and
production.-State through C.B.I. Vs. Dawood Ibrahim Kaskar and others AIR 1997 SC
2494

10.Cr.P.C. S.167: Private Counsel in State Case? No vested right is granted to a

complainant or informant or aggrieved party to directly conduct a prosecution. So far as
the Magistrate is concerned, comparative latitude is given to him but he must always bear
in mind that while the prosecution must remain robust and comprehensive and effective it
should not abandon the need to be free, fair and diligent. So far as the Sessions Court is
concerned, it is the Public Prosecutor who must at all times remain in control of the
prosecution and a counsel of a private party can only assist the public prosecutor in
discharging its responsibility. The complainant or informant or aggrieved party may,
however, be heard at a crucial and critical juncture of the Trial so that his interests in the
prosecution are not prejudiced or jeopardized. Constant or even frequent interference in
the prosecution should not be encouraged as it will have a deleterious impact on its
impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution
is likely to fail, prudence would prompt that the complainant or informant or aggrieved
party be given an informal hearing-Sundeep Kumar Bafna Vs. State of Maharashtra,
AIR 2014 SC 1745.

11.Cr.P.C. S.169 Mere report under S.169 without final report under S.173 is not
tenable Maroti Vs. The State of Maharashtra and Ors. 2015 (4) Bom.C.R. (Cri) 504

12.Allowing Home Food is in discretion of Magistrate -Asgar Yusuf Mukadam And ors.
Vs. State of Maharashtra and another, 2004(2) Bom.C.R. (Cri) 515.

13. Magistrate and Judges shall inform accused about free legal aid -Khatri And Others
Vs. State of Bihar 1981 SCC (1) 627.

14.Syed Mohd Kazmi vs State 2013 AIR SC 152, 2013 CrLJ 200
Bail on default in filing charge sheet–Prior to the date of expiry of 90 days which is
the initial period for filing the charge-sheet,prosecution had neither filed the
charge-sheet nor filed an application for extension–Prosecution submitting an
application seeking extension of time for filing charge-sheet after filing application
by accused/respondent. Bail granted.
We are unable to appreciate the procedure adopted by the Chief Metropolitan
Magistrate, which has been endorsed by the High Court and we are of the view that
the Appellant acquired the right for grant of statutory bail on 17th July, 2012, when
his custody was held to be illegal by the Additional Sessions Judge since his
application for statutory bail was pending at the time when the application for
extension of time for continuing the investigation was filed by the prosecution. In
our view, the right of the Appellant to grant of statutory bail remained unaffected by
the subsequent application and both the Chief Metropolitan Magistrate and the
High Court erred in holding otherwise.

15.SURESH KUMAR BHIKAMCHAND JAIN V/S STATE OF MAHARASHTRA AND

ANR 2013 (4) AD(SC) 317, 2013 AIR(SCW) 1271, 2013 (1) SCR 1037

Code of Criminal Procedure, 1973 – Sec 167(2)(a)(ii), 309 – power of Magistrate to

pass orders of remand even beyond period envisaged u/s. 167(2) – statutory bail –
when could be claimed – right of an accused to be released on bail under Sec
167(2) on ground that despite charge sheet having been filed, no cognizance has
been taken on basis thereof – if charge sheet is filed statutory bail cannot be
claimed – if accused could not be prosecuted for want of sanction and charge
sheet is not filed in time, accused cannot claim statutory bail – evidence on record
showed that both charge-sheet as also supplementary charge-sheet were filed
within 90 days from date of petitioner’s arrest and remand to police custody – filing
of charge-sheet is sufficient compliance with provisions of Sec 167(2)(a)(ii) and
whether cognizance is taken or not is not material as far as Sec 167 is concerned.

Code of Criminal Procedure, 1973 – Sec 156, 197 – statutory bail – investigation
and sanction to prosecute – distinction – concept of investigation is quite distinct
from concept of sanction for prosecution – both stand on different footings –
sanction is an enabling provision to prosecute, which is totally separate from
concept of investigation which is concluded by filing of charge-sheet – merely
because sanction had not been obtained to prosecute accused and to proceed to
stage of Sec 309 CrPC, it cannot be said that accused is entitled to grant of
statutory bail, as envisaged in Sec 167 CrPC – petition dismissed.

16.Aslam Babalal Desai vs State Of Maharashtra AIR 1993 SC 1 Bail granted under
section 167(2) cannot be cancelled on the ground that chargesheet has been filed
subsequently.

17.KAMAL NARAYAN VS CHATTISGARH 2011(1) BCrC 788Narcotic Drugs and

Psychotropic Substances Act,1985,Section 36-A(4) Proviso–Criminal Procedure
Code,1973, Section 167(2)–Bail in default of filing of charge sheet–Seeking extension of
time for filing charge sheet is mandatory and justification provided by prosecution in
opposition of grant of bail would not be a substitute for report of Public Prosecutor–
Accused would be entitled to bail in default of filing of charge sheet within 180 days if
there is no extension by Court on a report of Public Prosecutor.

18.BUDH SINGH VERSUS STATE OF PUNJAB2000 STPL(LE) 28324 SC [(2000) 9

SCC 266 = JT 2000 (8) SC 511 = 2001 AIR(SCW) 2270 = 2001 CRI. L. J. 2942]Criminal
Procedure Code, 1973 Sections 167 and 482 – Police remand refused – First 15 days
expired – High Court in exercise of powers under Section 482 CrPC directing the
magistrate to grant police remand. Held that order was in violation of Section 167 and
cannot be sustained.

19.Computing Period of detention: In the case of State of M.P V.Rustam 1995 SCC
Supp (3) 221 examine the issue by the Hon’ble Supreme Court that while calculating the
period of limitation the day accused was remanded to judicial custody should be
excluded and the day on which charge-sheet was filed in the Court should be included.
This principle was also relied in the case of Ravi Prakash Singh @ Arvind Sing Vs.
State of Bihar AIR 2015 SC 1294

20.In Mohd. Ajmal Mohd. Amir Kasab alias Abu

Mujahid Vs. State of Maharashtra AIR 2012 SC 3565 the

Supreme

Court

held

that

during

first

production,

the

Magistrate is under duty and obligation to make the accused

fully aware about is his right to consult and to be defended by

a legal practitioner and, in case he has no means to engage a

lawyer of his choice, that one would be provided to him from

legal aid at the expense of the state. Even if the accused does

not ask for a lawyer or remains silent, it is the Constitutional

duty of the court to provide him with a lawyer and any failure

to fully discharge the duty would amount to dereliction of duty

and

would

make

the

magistrate

departmental proceedings.

21.Remand of
accused during further investigation after
filing of charge-sheet:
The accused who would be arrested during the
further investigation after filing of the charge-sheet
and
taking cognizance of case, would be governed by section 167
of Cr.P.C and the accused can be remanded to police custody.
[ State Trough
CBI Vs. Dawood Ibrahim and others
(2000) 10 SCC 438 :
Ambrish Rangshabi Patnigere and
others Vs. State of Maharashtra 2011 Cri L J 515 ]

22.If a person surrendering before session court or

High Court, he is in custody of Court. So he can be released
on bail or if court finds that he is not entitled to bail, Court
could pass necessary order for police or judicial custody.
Sandeep Kumar Bafana vs.
St of Maharashtra 2014
Cr.L.J. 2245 SC

23.In an authority

Union

of

India...vs...Nirala

Yadav 2014 Cril. L.J.3952 S.C. it was held that Magistrate

should decide application for statutory bail on the same day it

 is filed.

24. Recently our own Hon’ble High Court in Yerragudi Suryanarayana Reddy Vs
Senior Intelligence Officer , Directorate of Revenue Intelligence NDPS , Hyderabad
reported in 2017 (2) ALD (CRL) 346 : Where in it is held that , The trite expounded by
Hon’ble Apex Court is that when once the accused failed to avail indefeasible right
accrued to him U/Sec167 CRPC on failure of prosecution agency to file charge-sheet on
the appointed day and subsequently when the charge-sheet was filed though belatedly ,
the accused cannot claim indefeasible right .

VII: Practical Problem: When UT applies for bail before statutory period and
chargesheet is submitted after expiry of said period but before disposal of said bail
application :

On this point there is a cleavage of Judicial Opinion amongst various High Courts . The
reason for this cleavage is that the stage of section 167 crpc comes to an end with the
completion of investigation and submission of charge-sheet .After submission of charge-sheet
and taking of cognizance of the offence section 309 crpc comes into force .
Reviewing of entire case-law as to the right of Accused to be released on bail U/sec 167(2)(a)
(1) of CRPC on failure of investigating agency to submit charge-sheet on expiry of statutory
period of 60/90 days , the apex court has recorded its conclusions in Uday Mohan Lal
Acharya Vs State of Maharashtra 2001(3)Supreme 142 = AIR 2001 SC 1910 : It is
fortified that “ The expression “ AVAILED OF “ does not mean mere filing of application for
bail expressing there under willingness to furnish bail bond , but the stage for actual furnishing
of bail -bond must reach . If the challan is filed before that, then there is no question of
enforcing the right howsoever valuable or indefeasible it may be , after filing of challan
because thereafter the right under default clause cannot be entertained .
In the case court concerned has adopted any dilatory tactics (or) an attitude to defeat the right
of accused to be released on bail on the ground of default , the accused should immediately
move to superior court for appropriate direction . But if the delay is bonafide and unintentional
and in meantime challan is filed then in view of principles held in Sanjay Dutta’s case(1994)5
SCC 410 , Md Iqbal Vs State of Maharastra (1996) 1 SCC 722 shall be followed and such
bail petition shall be dismissed .
If because of any bonafides and in meantime challan is filed the court has no power to direct
release under proviso to section 167(2) of code .
Later in Sayed Mohammad Ahmed Kazmi Vs State GNCTD AIR 2013 SC 152 =2013
CRI.L.J 200 Where Charge-sheet was filed during pendency of statutory bail application
U/Sec167(2) CRPC it did not affect the right of the accused to be released on bail . The
accused released on bail .

XVII: MISCELLANEOUS :

Both judicial custody and police custody limit the liberty and range of movement of a
person. The law and its agents (specifically, the police and the courts) employ a protective
and preventive method by taking an individual who is suspected of a crime away from the
public. This allows law enforcement to properly investigate the accusation of a crime and
have the suspect stand trial for the crimes accused to him.

Both kinds of custody are often extended to people who are suspected of committing a crime.
The protection is awarded in order for the suspect to be in the range or jurisdiction of the
agents of the law and not in the open public. Police custody is defined as the immediate
physical custody by the police of a person who has committed a crime. The person is arrested
and brought to the police station for processing. The person is then confined to the police
station’s jail. The jail detention is usually a short duration because the custody can be revoked
if the person is presented before a judge (within 24 hours of the arrest) and is granted bail by
the judge.

The suspect can be interrogated by the police while in this type of custody, assuming that that
the suspect is read his Miranda rights before actually sending him to the police station. Legal
counsel is usually present in an interrogation to ensure that the suspect’s rights are being
respected and that no physical harm or brutality of any kind will occur. Also, police custody is
often the type of custody for suspects with non-bailable offenses.

Judicial custody differs from police custody in many aspects. Judicial custody is ascribed by a
judge or the court itself. This custody is ordered by the judge, depending on the
circumstances of the case. The custody can be awarded because the judge refused bail, the
suspect earned the contempt of the court, or for many other circumstances.

Depending on the situation, the judge may order the suspect back into police custody or into
judicial custody. This type of custody is often given if the suspect manifests risks to his rights
while in police custody. There is no interrogation done during a judicial custody, unless the
situation calls for the action and with the permission of the judge.

The process regarding detention of a criminal follows like this:

The suspect is arrested by the police after following a report or a lead. Another instance
would be the suspect being arrested after being caught in the act of the crime.
The suspect is detained for questioning and partial investigation.
The suspect is presented to the court with three options: the judge can post bail and the
suspect has temporary freedom, the suspect is sent back to police custody, or the suspect
stays under the protection of judicial custody.

Summary

1.Police custody is the protection and care provided by the police. A person under the judicial
custody is under the protection and safety of a judge.
2.Police custody starts when a police officer arrests a suspect and reads him his Miranda
rights. Judicial custody happens when the judge orders a suspect be put under this type of
custody.
3.A suspect under police custody can be interrogated about the specifics of the crime, while
this action is void under the judicial custody. Judicial custody can only be revoked when the
judge orders the void to be broken.

Police custody is the initial custody of a suspect. After a judges evaluates the case, the
suspect can either have temporary freedom (by posting bail), judicial custody, or be taken
again into police custody.
What are the differences between police custody and judicial custody?

Police Custody:
a. Physical custody of accused is with police.
b. Accused is housed in the lock up in the police station.
c. Police custody is for maximum up to 15 days.
d. Police custody is possible only till charge sheet is filed.
e. No permission is required from magistrate for interrogation of the accused.
f. Police custody is often for non-bailable crimes.

Judicial custody:
a. Physical custody of accused is with magistrate.
b. Accused is housed in jail.
c. Judicial custody may extend to a period of 90 days for certain crimes and upto 60 days for
other crimes.
d. Police cannot interrogate the suspect without permission of concerned judge.
e. Is provided when accused expresses risks to his rights while in police custody
It may be noted that the police custody/ judicial custody is examined only when the magistrate
finds sufficient reasons to deny bail. Also, in certain crimes like terrorism, the period of
custody may vary depending on the special act under which the crime is dealt with. Judicial
custody may extend to a period of 90 days for certain crimes and upto 60 days for other
crimes.
XVIII: Rights of the Person in Custody: Rights of a person start as soon as the person is
arrested. Under Article 22[3]of the Indian Constitution provides for protection of the arrested
person. He has to be informed about the reason for his arrest. Article 22 (1) states that the
person should be allowed to consult a lawyer of his own choice. Section 50[4] of the CRPC is
a supplementary to Article 22 (1) and (5) which states that the person should be given the
reason for his arrest and has the right to bail. A deep reading of Section 167 (1) states that
the officer in charge of a police station or the investigation officer dealing with the case can
only ask for police custody only when there are reasonable grounds, and there is no chance
that the investigation can be finished within 24 hours as mentioned under Section 57 of the
CRPC. Hence, the power to grant police custody is not mechanically give to the magistrate.
He should ensure that there is sufficient cause to grant police custody. This was also stated in
the case of Raj Pal Singh vs the State of UP 1983 CriLJ 1009
The accused has the right to be brought before the magistrate within 24 hours of his arrest.
This period of 24 hours is calculated excluding the time taken for transportation of the
accused from one place to the other. If no Judicial Magistrate is available, the accused has to
be taken to Executive Magistrate, who may, if he thinks fit, grant police custody to the extent
of 7 days.

There are other rights also if the arrested person become ill or is medically unfit. They
shouldn’t be moved until they are fit enough. Also, in the case of women accused, who is to
be arrested in connection with any crime, she has the right not to be taken in custody until she
has recovered and there is no personal risk to her health. In such circumstances the accused
person should be sent to the nearest dispensary and shouldn’t be taken in custody until and
unless a medical practitioner certifies that they have recovered and can be moved or taken
into custody. The police have to take the permission of the Magistrate to place the accused
under detention at their homes or the place where the accused has been taken for treatment.
This kind of detention which beyond the period of 24 hours can be allowed under Section
57[8] of the CRPC, subject to special order given by the Magistrate under Section 167 of the
CRPC.

The basic principles of natural justice also have to be followed. The accused has the right to
get over with his case as soon as possible. In the judicial pronouncement of Elumalai v State
of TN ]1983 Mad LW (Cri) 121, the Court held that speedy trial is right of the accused also,
and the prosecution should complete the investigation and file their reports as quickly as
possible to ensure a speedy trial.

Remedies :First of all, if a person has been arrested and the custody has extended up to the
period of 90/60 days, the person can give an application for bail. The bail will be valid only till
the charge sheet is filed. The person who has been arrested and kept in custody can file the
writ of habeas corpus if he feels that the proper procedure hadn’t been followed while taking
him into custody, or no reason for the arrest was given, or the custody wasn’t granted by the
proper authority, or if it did not pass through the proper structure and framework of the law.
The Writ can be filed either under Article 32[10] or Article 226[11] of the Constitution. The
point here to be noted here is that the writ wouldn’t provide relief to the person in custody, if
the custody is done in a valid way, no matter how many rights of the person has been
violated.

RIGHTS OF ACCUSED PERSONS:-

An accused person shall have the following rights, namely

(i) Right to be informed of the grounds immediately after the arrest.

(ii) Right for medical examination

(iii) Right to be produced before a Magistrate within 24 hours of his arrest

(iv) Right to consult a lawyer of his choice

(v) Right to be tried

(vi) Duty of the investigating authority to complete investigation and submit report under
Section 173 CrPC

(vii) Right to get copies of the documents and statements of witnesses relied on by the
prosecution

(viii) Right to have notice of the charges

(ix) Right to insist that evidence be recorded in his presence except in special circumstances

(x) Right for his request for exemption of personal attendance to be considered on its own
merits
(xi) Right to test the evidence by cross examination

(xii) Right to produce defence witnesses

(xiii) Right to not to be compelled to be a witness against himself

(xiv) Right to be given an opportunity to explain circumstances appearing in evidence against

him

(xv) Right to be heard about his sentence upon conviction protection against double jeopardy

(xvi) Right to get copy of the judgment when sentenced to imprisonment

(xvii) Right to appeal in case of conviction

(xviii) Right not to be imprisoned upon conviction in certain circumstances (Probation of

Offenders Act)

(xix) Right to education.

Recent Circular:

CONCLUSION: