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The Concept Of "Detention" Under Section 167 (2) Cr.P.C. And Its Scope, Range And Legality – Part IV [Webinar Video And Notes]

Justice V Ramkumar
3 Nov 2021 3:57 AM GMT
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45. As per Section 37(1)(b)(ii) of the NDPS Act, if the offence involved is "commercial quantity" of a narcotic drug and if the public prosecutor opposes the bail application, then the Court can grant bail only if – (i) there are reasonable grounds for believing that the accused is not guilty...

45. As per Section 37(1)(b)(ii) of the NDPS Act, if the offence involved is "commercial quantity" of a narcotic drug and if the public prosecutor opposes the bail application, then the Court can grant bail only if –

(i) there are reasonable grounds for believing that the accused is not guilty of the offence,

AND

(ii) the accused is not likely to commit any offence while on bail.

In a case involving commercial quantity of a narcotic drug, whether default bail under Section 167 (2) Cr.P.C. can be granted ignoring Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short).

  • Yes. Section 37 of the N.D.P.S. Act will be applicable only when the question of granting bail on merits arises for consideration. But the provision for compulsive bail under the proviso to Sec. 167 (2) Cr.P.C. when attracted renders the grant of bail automatic on account of the default in filing the "police report" or "complaint" within the maximum period permitted therein. The purpose of the non-obstante clause in Sec. 37 of the N.D.P.S. Act is for indicating that the limitations on granting bail contained therein are in addition to the limitations in Section 437 Cr.P.C. and not for overriding the mandate under the proviso to Sec. 167 (2) Cr.P.C. In the matter of "default bail", Section 167 (2) Cr.P.C. is a "Special Law" which overrides Section 37 of the NDPS Act which is to be treated as a "general law". When the conditions laid down under the proviso to Section 167 (2) Cr.P.C. read with Section 36 A (1) (c) of NDPS Act are satisfied, i.e. if no "charge sheet" or "complaint" is filed even within the extended time limited by law, the Court is obliged to grant default bail to the accused without examination of the case on the merits.

(Vide Union of India v. Thamisharasi - (1995) 4 SCC 190 (J. S. Verma – J ); Manoj v. State of M.P. - (1999) 3 SCC 715 = AIR 1999 SC 1403. (K. T. Thomas - J)

NOTES by the author: One interesting aspect about Section 37 of the NDPS Act is that "regular bail" in an NDPS offence involving commercial quantity of narcotic drug or psychotropic substance, can be granted only if both the difficult grounds stipulated under Section 37 (1) (b) (ii) of the Act are satisfied. But, those grounds virtually depriving the Court of its authority to grant bail would become applicable only if the Public Prosecutor opposes the bail application. In other words, in a case covered by Section 37 (1) (b), if the Public Prosecutor does not oppose the bail application, the Court can grant bail. There were Judges in our State and elsewhere, who very well knew some of their Public Prosecutors. If the Public Prosecutor vehemently opposed the bail application, the Judge would grant bail. Conversely, if the Public Prosecutor did not oppose the bail application, the Judge would dismiss the bail application. It is well known in the legal circles that a Public Prosecutor in the Sessions Courts and Special Courts are appointed by the Government and their tenure is co-terminus with the Ministry in power. It is for the Legislature to reconsider whether a Public Prosecutor should be clothed with such a decisive role which is powerful enough to take away the jurisdiction of the Court to grant or refuse bail.

46. Is the above decision in Union of India v. Thamisharasi reported in (1995) 4 SCC 190 applicable to offences under the Kerala Abkari Act.

  • Yes. Section 37 of the NDPS Act is pari materia with Section 41(A) of the Kerala Abkari Act. (See Muraleedharanv. State of Kerala (2001) 4 SCC 638 = AIR 2001 SC 1699. (K. T. Thomas - J)

47. Is it not illegal for a Magistrate to authorize detention in judicial custody of an accused person under the proviso to Section 167 (2) Cr.P.C. for a period of 30 days at a stretch after the initial remand for 15 days.

  • No. The proviso to Section 167 (2) Cr.P.C. is not controlled by the stipulation of the period "of not exceeding 15 days" occurring in the main part of Section 167 (2) Cr.P.C. (Vide 2001 Judicial Vision – Judgment and Orders – Page 2 – Crl.Reference No. 6 of 1999 – High Court of Kerala – Arijit Pasayat - CJ).

However, a learned Single Judge in Tenny Joppen V. State of Kerala 2013 (3) KLT 819 has cautioned that remand extension for 30 days at a stretch can be resorted to only in rare situations like prolonged hospitalization of the accused beyond 15 days or where continuous presence of the accused in a distant Court beyond the State etc is warranted.

48. Evading his arrest by the Police, the accused in a murder case "surrenders" before the Magistrate to whom copy of the FIR under Section 157 (1) Cr.P.C. and copies of the entries in the case diary as stipulated under Section 167 (1) Cr.P.C., have already been forwarded. The accused then applies for bail. The Magistrate is of the view that bail cannot be granted and that having regard to the nascent stage of investigation the accused should be detained in judicial custody, but he was not arrested and forwarded within the meaning of Section 167 (1) Cr.P.C. Whether the Magistrate can order detention of the accused in judicial custody ?

  • Yes. Voluntary submission to custody by the accused can be treated as "custody" sufficient for the Magistrate to exercise his power under Sec. 167 (2) Cr.P.C. (Vide Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559 = AIR 1980 SC 785 (V.R. Krishna Iyer – J ); State of Haryana v. Dinesh Kumar (2008) 3 SCC 222 = AIR 2008 SC 1083 (Altamas Kabir – J ). Here the Magistrate has the advantage of the FIR and the entries in the case diary.

49. The absconding accused in a sensational murder which took place at Kannur in Kerala, surrenders before a Magistrate in New Delhi. Since the gory details of the gruesome murder and the particulars of the suspects were widely published in the print and electronic media, the Magistrate (at New Delhi) who had been watching the media reports, remands the accused to judicial custody for 15 days. The Magistrate is of opinion that under Section 167 (2) Cr.P.C. even if the Magistrate has no jurisdiction to try the case, the Magistrate can remand the accused to custody since the accused had voluntarily submitted himself to custody. Whether there is any illegality on the part of the New Delhi Magistrate.

  • Yes. This is a strategy very often resorted to by fugitives and absconding culprits. The New Delhi Magistrate before whom the accused has surrendered, though not the Jurisdictional Magistrate is not also the Magistrate to whom a report under

Section 157 (1) Cr.P.C. regarding the information received with respect to the commission of a cognizable offence or the entries in the Police diary as stipulated under Section 167 (1) Cr.P.C., have been forwarded. For exercising the power under Section 167 (2) Cr.P.C, the accused should be arrested and forwarded to the Magistrate together with a copy of the entries in the police diary as enjoined by Section 167(1) Cr.P.C. (Vide- para 8 of Manoj V. State of M.P (1999) 3 SCC 715 = AIR 1999 SC 1403 (K. T. Thomas – J ). It is only on perusal of the same can the Magistrate arrive at the satisfaction that it is a fit case to authorize the detention of the accused to "Police custody" (during the first 15 days) or "judicial custody". It was not proper for the New Delhi Magistrate to merely act upon media reports.

The view taken by the Kerala High Court in re Rajan Pillai 1995 (2) KLT 439 (K. T. Thomas – J ) that a fugitive criminal cannot resort to forum shopping by approaching any Magistrate other than the Magistrate who issued the order for his arrest under the Extradition Act, 1962, is in accord with the above answer.

Voluntary submission to custody as was envisaged in Niranjan Singh's case (1980) 2 SCC 559, was for the purpose of entertaining a bail application.

But a Division Bench of the Madras High Court has taken a view that the accused can surrender before any Magistrate and such Magistrate will have to follow certain procedure as stipulated in the verdict. (Vide Ayyappan v. State Represented by Inspector of Police 2016 (1) MLJ (Crl.) 641 (DB-Madras). Incase such Magistrate were to remand the accused to judicial custody, the fact remains that the liberty of the accused is curtailed by the remand order. It could be a fit case where the accused could be granted bail. Even if the SHO having jurisdiction is not aware of the surrender by the accused and remand by the Magistrate, that will not absolve the police from not completing the investigation and filing the final report within the time allowed by law which is 24 hours as indicated by Section 57 read with Section 167 (1) Cr.P.C. and which can go up to 60 days or 90 days, as the case may be, depending on the punishment prescribed for the offence. There can also be situations where the Police can proceed further with the investigation only after questioning the accused, particularly in cases where there are no eye-witnesses or requisite circumstantial evidence available. By the time the SHO concerned becomes aware of the remand order, the statutory interdict of 15 days may have elapsed. Even if the remand is after informing the SHO concerned, why should such additional burden be imposed on the Magistrate who is neither the nearest Magistrate nor the jurisdictional Magistrate. The New Delhi Magistrate cannot give police custody of the accused to Delhi Police which has no jurisdiction under Section 156 (1) Cr.P.C. to investigate the case.

50. If it is illegal for the aforesaid Magistrate to remand the surrendering accused to custody, whether there is any other alternative way open to the Magistrate to deal with the surrendered accused.

  • Either inform the Police Station concerned about the surrender of the accused person if it is a nearby Police Station or direct the local police to produce the accused before the appropriate police for necessary steps. In the alternative, the Magistrate can send him to the jurisdictional Magistrate under Section 187 Cr.P.C although Section 187 Cr.P.C strictly does not apply to a case of surrender because the said provision does not envisage the voluntary presence of the offender before the Magistrate who can send the accused to the jurisdictional Magistrate under Section 187 (1) Cr.P.C. only after securing the presence of such accused before him.

51. In a POCSO Act case, the default period of 90 days expires on 11-07-2020. The investigating officer filed a "defective charge-sheet" on 08-07-2020. The accused filed an application for regular bail on 17-07-2020. On 17-07-2020 the Special Court returned the charge- sheet for curing the defect. 18-07-2020 to 20-07-2020 were holidays. On 21-07-2020, i.e, on the next working day, the charge-sheet, after curing the defect, was submitted before the Special Court. The Special Court treating the regular bail application as a request for default bail (statutory bail), granted default bail to the accused. Can it be sustained.

  • According to the decision of the Kerala High Court in State of Kerala v. Muneer 2021 (1) KHC 697, the Special Court was not justified in granting default bail due to the following reasons:-
  • The Court should have returned the defective charge-sheet either on the same day or soon thereafter so that the investigating officer could have filed the charge-sheet soon after curing the defect.
  • In a case where the defective charge-sheet is filed within the default period or immediately thereafter but before the filing of the application for default bail, the accused cannot take advantage of the defect in the charge-sheet.
  • Where the defects in the charge-sheet are minor and there has been failure on the part of the Court in not promptly returning the defective charge-sheet for curing the defect, the accused cannot take advantage of the omission on the part of the investigating officer or the Court, for claiming default bail.
  • If the charge-sheet, after curing the defect was submitted on the next working day excluding the intervening holidays, it is proper.

The order for default bail was set aside and certain directions were issued both to the Government as well as to the Registry of the High Court.

MY OPINION

This decision was selected by me to give emphasis to certain important legal aspects. In a situation of the nature which the High Court was confronted with, the case has to be approached differently –

  • If the Police Report or charge-sheet as originally filed, contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that it is an incomplete charge-sheet or that there is failure to comply with Section 173 (5) Cr.P.C. and consequently that the charge-sheet filed by the Police Officer will have to be treated as a complete charge-sheet. (Vide Swami Premananda @ Prem Kumar @ Ravi v. Inspector of Police XXXIX MLJ (Crl) 702). Even in a case where the investigating officer has chosen to term the police report as 'incomplete', the power of the Magistrate to take cognizance of the offence is not lost if the police report and the materials produced along with it are sufficient for the Magistrate to take cognizance of the offence. In other words, the power of the Magistrate is not fettered by the label which the investigating agency chooses to give to the report submitted under S.173(2) Cr.P.C. (See State of Maharashtra v. S. V. Dongre, 1995 (1) SCC 42 : AIR 1995 SC 231; Kamalaksha v. S.I. of Police 2007 (1) KLT 299 = 2007 (1) KHC 122).
  • The duty of the Investigating Officer is to conduct a proper investigation of the case and submit a police report before the Court under Section 173 (2) Cr.P.C. The said report is an intimation to the Magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173 (2) Cr.P.C. purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he incorporates in the report not only the names of the accused but also the names of the witnesses, the nature of the offence and makes a request that the case be tried, there is compliance with Section 173 (2) Cr.P.C. (Vide para 10 of Satya Narain Musadi v. State of Bihar (1980) 3 SCC 152 = AIR 1980 SC 506 – D. A. Desai & O. Chinnappa Reddy – JJ ).
  • In a case where the Investigating Officer or the Magistrate considers the police report to be "incomplete", it has to be examined as to in what way the police report is incomplete. If the police report is deficient in the sense that the report of the serologist or the sketch of the scene of occurrence etc. did not accompany the police report, that by itself will not make the police report incomplete. It is always permissible for the Magistrate to call for additional evidence not set out in the police report. (Vide Tara Singh v.State AIR 1951 SC 441 = 1951 (52) Cri.L.J. 1491 – 4 Judges (Saiyid Fazl Ali – J; Kamalaksha v. Sub Inspector of Police 2007 (1) KLT 299 = 2009 (1) KHC 122 (VRK - J ).
  • The Magistrate is not to bound by the label given by the Investigating Officer to the report or to the charge-sheet as "incomplete". It is for the Magistrate to decide whether police report and the materials on which it is based, are sufficient for him to take cognizance of the offence or not. (Vide para 8 of State of Maharashtra v. Sharadchandra Vinayak Dongre (1995) 1 SCC 42 = AIR 1995 SC 231 – 3 Judges – Dr. A. S. Anand – J ). In the same paragraph 8 the Apex Court has observed as follows :-

"We cannot persuade ourselves to accept the view of the High Court that if the Investigating Officer terms the police report as "incomplete", it takes away the jurisdiction of the Magistrate to take cognizance of the offence even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence."

  • In paragraphs 7 of S. V. Dongre (Supra. – AIR 1995 SC 231) the Apex Court has held that the power of the Magistrate to take cognizance of the offence cannot be controlled by the Investigating Agency whose duty is only to investigate the case and place the facts and the evidence before the Magistrate.
  • Normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. But at the same time, as there is no prohibition it is always permissible for the Magistrate to call for additional evidence not set out in the police report. (Vide para 14 of Tara Singh v. State AIR 1951 SC 441 – 4 Judges.) If there is some omission in producing the remaining documents, the same can be produced subsequently. The word "shall" occurring in Section 173 (5) Cr.P.C. cannot be interpreted as mandatory but it is only directory. (Vide para 7 of CBI v. R. S. Pai (2002) 5 SCC 82 = AIR 2002 SC 1644 – 3 Judges (M. B. Shah – J ); Para 16 of Narendra Kumar Amin v. CBI (2015) 5 SCC 82 = AIR 2015 SC 1002 – relies on para 10 of Narayan Rao v. State of A.P. AIR 1957 SC 737.
  • Investigation of a case cannot be split up in such a way as to file piecemeal reports before Court since Section 173 (2) Cr.P.C. does not contemplate any such piecemeal reports or incomplete charge-sheet. (Vide Furtado v. CBI 1996 (2) KLT 1 (Kerala - DB).
  • If a charge-sheet which was filed within the default period was returned for curing the defects and is re-presented after curing the defects, but after the expiry of the default period, the accused will not be entitled to contend that the charge-sheet was not filed before the default period and consequently he will not be entitled to default bail. (Vide Prasanth Kumar v. CI of Police, Hill Palace Circle 2009 (3) KLT 494 = 2009 Cri.L.J. 4793 – K. T. Sankaran – J ). But, if the initial charge-sheet filed, though termed as "incomplete", was one in which cognizance could be taken on the same but was nevertheless returned for curing the defects, then it cannot be held that the charge-sheet was not filed within the default period. In such a case, the initial date of filing the charge-sheet will have to be reckoned and the date on which it is re-filled after curing the defect, has to be ignored.
  • Matters relating to liberty and questions as to whether the person accused of a charge, ought to be detained in custody or not, must be decided by the Magistrate and not by the police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or should not be to facilitate pending investigation. (Vide para 17 of Achpal @ Ramswaroop v. State of Rajasthan AIR 2018 SC 4647).
  • The period of 60 days or 90 days covered by Section 167 (2) Cr.P.C. is not a period of limitation.

The investigating agency is not entitled to take advantage of intervening holidays for filing the charge-sheet after excluding such intervening holidays. (Vide para 10 of Antony v. State of Kerala 1986 KLT 86 = ILR 1987 (1) Ker. 1 – S. Padmanaban – J ).

  • As in the case of a report under Section 157 (1) Cr.P.C. regarding the registration of the FIR, a "police report" under Section 173 (2) Cr.P.C. is also to be submitted before the Magistrate empowered to take cognizance of the offence on a police report, and not before the Court of the Magistrate concerned. With regard to a report filed under Section 157 (1) Cr.P.C.,(where also the wording employed is "the Magistrate" and not "the Court of the Magistrate") the Apex Court has already held in Arjun Marik v. State of Bihar 1994 Supp. (2) SCC 372 = 1994 SCC (Crl.) 1551- Dr. A. S. Anand & Faizan Uddin – JJ that such report under Section 157 (1) Cr.P.C. must be sent to the Magistrate on Sundays and holidays and even to his residence. Reiterating the same view, the Supreme Court in State of Rajasthan v. Teja Singh (2001) 3 SCC 147 = AIR 2001 SC 990 held that the explanation offered for not sending the FIR promptly as it was holiday for the Court which was closed, was not acceptable. Hence, a police report also will have to be submitted on Sundays and holidays in the residence of the Magistrate.

It has not been found in the reported case in what way the final report filed in the case was "incomplete" or "defective" so as to return the same to make it a complete report after curing the defects. Without a finding in that regard, it was not fair to criticize the Special Judge for not promptly returning the final report for curing the defect, if any. It should not be forgotten that any matter submitted before a Court is ordinarily filed in the registry of the Court and it takes considerable time for the matter to reach the hands of the Magistrate or the Judge who is even otherwise, working under great pressure due to the docket explosion. In my humble view, the High Court ought to have taken these aspects into consideration before finding fault with the Special Judge. When as per the law laid down in Hussainara Khatoon and Rakesh Kumar Paul the Court has the duty to inform the accused about his right to default bail, in my humble view, there was nothing wrong in the Special Judge treating the regular bail application as a request for default bail.

52. For the alleged commission of certain non-bailable offences under the Customs Act, 1962, the offender is arrested by a Customs officer and produced before the Magistrate. The offender is remanded to judicial custody. After the first spell of 15 days of remanded custody, the Customs officer files an application before the Magistrate for custody of the offender for 4 days for the purpose of investigation. Can the application be allowed, if the purpose for seeking custody is justifiable.

  • Yes. The custody which is barred under clause (a) of the proviso to Section 167 (2) Cr.P.C. beyond the first remand of 15 days, is police custody. Since here the custody sought is not police custody, the interdict under the above provision does not apply.

But, if a Customs Officer is to be treated as a "Police Officer" within the meaning of Section 25 of the Indian Evidence Act by adopting the reasoning in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, it may be impermissible to give custody of the accused to the Customs Officer beyond the first fifteen days of remand.

53. The accused is in judicial custody pursuant to a remand under Section 167 (2) Cr.P.C. in relation to an offence for which the upper limit under the proviso to Section 167 (2) Cr.P.C. is 60 days. Even though the final report has not been filed, the Magistrate, on the 58th day, during crime stage, grants him regular bail on merits and subject to certain conditions. Three weeks after his release on bail, his bail is cancelled due to non-compliance of a bail condition. He is thereupon arrested and remanded to judicial custody. During his second spell of detention beyond two days also, no charge sheet is filed by the police. Whether the accused is not entitled to tack on the 2nd spell of judicial custody and a claim the indefeasible right to default bail under the proviso to Section 167 (2) Cr.P.C.

  • No. Since the accused had misused his liberty once, he cannot contend that he has an indefeasible right to default bail. In the case of a bailable offence falling under Section 436 Cr.P.C. where the accused is entitled to bail as of right, sub-section (2) of Section 436 empowers the Court to refuse bail to an accused person who has failed to comply with the conditions of the bail bond regarding the time and place of attendance.

The decision in Nishil V. Station House Officer 2007 (4) KLT 870, supports this view.

54. Accused is in remanded custody. The default period is 90 days. The charge sheet is filed on the 80th day of custody. On the 89th day the Court orders further investigation under Section 173(8) Cr.P.C. No final report is filed even after 10 days. Is not the accused entitled to claim default bail after 10 days of further investigation.

  • No. Once charge-sheet is filed the right under the proviso to Section 167(2) Cr.P.C. ceases and does not get revived merely because further investigation ordered is pending (See Dinesh Dalmia v. CBI – (2007) 8 SCC 770 = AIR 2008 SC 78 (S. B. Sinha – J ).

55. The accused in a murder case is granted bail by the Sessions Court after 42 days of judicial custody. The State approaches the High Court under Section 439 (2) read with Section 482 Cr.P.C for cancellation of the bail. In the meanwhile, in a writ petition, the High Court orders that the investigation of the case shall be taken over by the CBI. The CBI registers a fresh FIR against the accused after 35 days of his obtaining bail. The order of bail granted by the Sessions Court is set aside by the High Court (after 40 days of granting bail) for the reason that the accused was granted bail too early. The accused is re-arrested after 42 days of his obtaining bail and is remanded to judicial custody. The CBI then obtains police custody of the accused for 3 days. After further remanded custody for 48 days the accused files an application before the Sessions Court for default bail contending that no "police report" has been filed after 90 days of his remand. His application is opposed by the Public Prosecutor contending inter alia that the period has to be reckoned from the date of the custody of the accused after the CBI registered the FIR and not from the date of the first remand and that the accused is not entitled to tack on the two broken periods of custody for the purpose of default bail. Whether the accused is entitled to default bail.

  • Yes. (Vide K.V. Sabu v. CBI 2020 (2) KHC 601). The accused is entitled to default bail. The period for default bail has to be reckoned from the date of the first remand. Here the order granting bail of the accused was set aside by the Supreme Court after 40 days of the accused enjoying the benefit of bail. The cancellation of his bail order was not attributable to any "post-bail conduct" of the accused so as to confer discretion in the High Court as to whether to grant default bail or not, as was done in Nishil v. Station House Officer 2007 (4) KLT 870. Broken periods of pre-conviction custody can be tacked on for the purpose of default bail. (Vide Para 67 of the judgment dated 12-05-2021 Gautam Navlakha v. National Investigation Agency (Criminal Appeal No: 510 of 2021 before the Supreme Court of India = 2021 KHC 6278). The following legal principles apply to the facts of the present case:-
  • Police custody can be given only during the first 15 days of remand under Section 167(2) C.r.P.C
  • Chaganti Satyanaryana v. State of AP ( 1986) 3 SCC 141= AIR 1986 SC 2130
  • CBIv. Anupam J Kulkarni ( 1992) 3 SCC 141= AIR 1992 SC 1768
  • Kosanappu Ramreddy v. State of AP AIR 1994 SC 1447 = 1994 Cri.LJ 2121.
  • Budh Singh v. State of Punjab (2000) 9 SCC 266- 3 Judges.
  • Paras 11 and 15 of Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434.

b) The object of the proviso to Section 167(2) C.r.P.C is to speed up the investigation.

1. Gurucharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 = AIR 1978 SC 179.

c) Investigation is to be completed within 24 hours fixed by Section 57 C.r.P.C, and if not, within 15 days, and if not, within 60 or 90 days.

1. Aslam Babalal Desai v. State of Maharashtra (1992)4 SCC 272 = AIR 1993 SC 1- 3 Judges.

d) The relevant date for counting 60 days or 90 days, as the case may be, under the proviso to Section 167(2) C.r.P.C is not the date of arrest, but the date of the first order of remand.

1. Pragyana Singh Thakur v. State of Maharashtra (2011) 10 SCC 445- paras 49, 54 to 56 = AIR 2011 SC Supp 755= 2011 (4 KLT 321); Harish Babu Maddineni v. State of Kerala – 2012 (1) KLT 235).

e) Before remanding the accused to further detention the Magistrate has to inform him regarding his right to default bail due to the efflux of the statutory period under the proviso to Section 167(2) C.r.P.C and the State is bound to provide free legal aid to the accused so as to enable him to exercise his right to default bail and the Magistrate must ensure that he is so provided

1. Hussainara Khatoon (V) v. State of Bihar (1980) 1 SCC 108 = AIR 1979 SC 1377-3 Judges; Rakesh Kumar Paul v. State of Assam AIR 2017 SC 3948 – 3 Judges.

f) Where the accused was arrested for offences under the IPC and was remanded to custody but later approval was accorded under Section 23 of the Maharashtra Control of Organized Crime Act (MCOCA) for conducting investigation into offences under the said Act also but arising out of the same transaction, it was held that the period of 90 days does not commence from the date of grant of approval for investigation under the MCOCA, but the period of 90 days has to be reckoned from the date of his remand at the first instance. (Vide paras 11 and 12 of State of Maharashtra v. Bharati Chandmal Varma (2002) 2 SCC 121 = AIR 2002 SC 285

g) There is nothing in the proviso to Section 167 (2) Cr.P.C which suggests that the remanded period should be a continuous one to become eligible for default bail. If the broken periods of custody cannot be tacked on for the purpose of reckoning the default period, it will amount to a long arm being given to the investigating agency to remain inert and take a lackadaisical attitude in the completion of investigation. Moreover, if the broken period cannot be taken into account, it could also be argued that the broken period cannot be availed of by the accused for the purpose of set off under Section 428 Cr.P.C. In a recent order dated 05-05-2020 in B.A (TMP) No. 122 of 2020 K.A.Sabu v. CBI 2020 (2) KHC 601, a learned Single Judge of the High Court of Kerala in a similar case has held that such broken periods can be taken into account for computation of the default period for the purpose of compulsive bail.

56. Consequent on the expiry of 90 days of remanded custody as on 20-05-2020 in a POCSO case, the accused files an application for default bail as no final report has been filed by the Investigating Officer. The Public Prosecutor submits that as per the order dated 23-03-2020 passed by the Supreme Court of India in Suo Motu Writ Petition Civil No. 3/2020 the period of limitation under the general law of limitation and under Special Laws (both Central and all States) has been extended with effect from 15-03-2020. On that premise the Public Prosecutor argues that the accused cannot claim default bail especially when the allegation against him is that he impregnated his own daughter. Whether the Court overlooking the general direction issued by the Supreme Court of India, grant bail to the accused.

  • Yes. The default period prescribed under the proviso to Section 167 (2) Cr.P.C. is not a period of limitation. If the Investigating Agency is unable to file the final report within the time stipulated under Section 167 (2) Cr.P.C., the penalty which the prosecution will have to suffer is the default bail which the accused can claim as of right. An identical situation arose before the High Court of Kerala in Mohammed Ali v State of Kerala (Bail Application No. 2856/2020) disposed of on 20-05-2020. Relying on Achpal @ Ramaswaroop and Another v. State of Rajasthan (2019) 14 SCC 599 and earlier decisions it has been held that the order of the Supreme Court does not extend the period mentioned under Section 167 (2) Cr.P.C. and that the accused is entitled to default bail.

Read Part I Here: The Concept Of 'Detention' Under Section 167 (2) Cr.P.C. And Its Scope, Range And Legality – Part - I [Webinar Video And Notes]

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