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

Justice V Ramkumar
23 Oct 2021 5:50 AM GMT
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28. Whether the diary referred to in Sec. 167 (1) Cr.P.C. is the "case diary" or the "General Diary (G.D.)" and whether it should contain full and unabridged statements of persons examined by the police. "The diary referred to in Section 167 (1) Cr.P.C. is the "case diary" prescribed under Section 172 (1) Cr.P.C. (Vide Para 5 of In Re Raman Velu 1972 KLT 922 = ILR 1973 (1)...

28. Whether the diary referred to in Sec. 167 (1) Cr.P.C. is the "case diary" or the "General Diary (G.D.)" and whether it should contain full and unabridged statements of persons examined by the police.

  • "The diary referred to in Section 167 (1) Cr.P.C. is the "case diary" prescribed under Section 172 (1) Cr.P.C. (Vide Para 5 of In Re Raman Velu 1972 KLT 922 = ILR 1973 (1) Ker. 50 (DB). The purpose of obligating the Investigating Officer under Section 167 (1) Cr.P.C. to forthwith transmit to the nearest Magistrate a copy of the entries in the said diary is to enable the Magistrate to peruse the same along with other records including the FIR, if any, as a satisfactory and complete source of information to facilitate the Magistrate to decide whether or not the accused person produced before him should be remanded to custody. This "case diary" prescribed under Section 172 (1) Cr.P.C. is different from the "General Diary" ("GD" for short) which is maintained as enjoined by Section 44 of the Police Act, 1861. (Vide Para 111 of Directorate of Enforcement v.Deepak Mahajan – (1994) 3 SCC 440 = AIR 1994 SC 1775; This General Diary is also called "Daily Diary" or "Station Diary" in some States. (Vide para 48 of LalitaKumari v. Govt. of U. P. (2014) 2 SCC 1 = AIR 2014 SC 187 – 5 Judges).

29. A police officer along with his police party has arrested an accused person. The police officer, however, fails to produce the accused before the nearest Magistrate within 24 hours as provided by Sec. 167 (1) read with Sec. 57 Cr.P.C. The reason given for his inability to comply with the above provisions, is that while on the way to the Court of the Magistrate, the officer had to suddenly go home on getting information about the death of his mother. The accused is thereafter produced before the Magistrate after one more day. Whether the detention of the accused is unlawful.

  • Yes. The detention of the accused in custody being beyond the period of 24 hours envisaged by Sec. 57 Cr.P.C. and Article 22 (2) of the Constitution of India is opposed to Articles 21 and 22 (2) of the Constitution of India is unlawful. Whatever may be the reason for the inability put forward by the Police Officer, it cannot be recognized by law. (Vide Manoj v. State of M.P. - (1999) 3 SCC 715 = AIR 1999 SC 1403).

30. In execution of an order for "preventive detention", the officer-in-charge of the police station ("SHO" for short) arrests the person concerned. After detaining the arrestee for more than 30 hours in the Police Station, the SHO produces him in the prison. The arrested person was not produced before any Magistrate within 24 hours of arrest. Has not the SHO violated the Constitutional mandate under Article 22 (2) of the Constitution of India and also the statutory mandate under Section 57 Cr.P.C?

  • No. Article 22 (2) of the Constitution of India is not applicable to a person arrested or detained under a law providing for "preventive detention" in view of the exemption under Article 22 (3) (b) of the Constitution of India. Section 57 Cr.P.C. will apply only if a person who has been arrested without a warrant is being detained in custody. The word "warrant" means an order issued by some authority empowering an officer to make an arrest. In the case of "preventive detention" the order passed by the Detaining Authority itself is the warrant for arresting the person and putting him in the prison. If so, an order for preventive detention does not involve arrest of the person without a warrant so as to attract Section 57 Cr.P.C. Consequently, Section 57 has no application in such a case. Hence, the SHO has not committed any illegality.

31. During the first phase of detention (remand) for 15 days, the accused took ill and is hospitalized. On the expiry of 15 days, the Investigating Officer seek extension of the remand of the accused who is still in the hospital. The I.O. produces in Court records showing that the accused is a deadly criminal and habitual offender and that the investigation is still at the preliminary stage and also that if the detention of the accused is not extended, he will flee from justice. After perusing those records the Magistrate extends the remand for further 15 days. Whether there is any illegality in the proceedings.

  • Yes. This is a case where Rule 21 of the Criminal Rules of Practice, Kerala, 1982, has been blatantly violated. The said Rule reads as follows:-

"Where an accused detained in a hospital is not in a position to be moved and produced before the Magistrate concerned, the Magistrate shall –

  • proceed to the hospital,
  • see the accused person, and
  • order remand, or
  • an extension of the remand, as the case may be."

  • Moreover, the intendment of Clause (b) of the Proviso to Section 167 (2) Cr.P.C. has also been violated. As per the said Clause, a Magistrate shall not authorise detention or extension of the detention of an accused person who is in the custody of the Police, unless the accused is produced in person before the Magistrate. Now, after the amendment of the Cr.P.C. with effect from 31-12-2009 such production can also be through video linkage.

Let us now examine the case-law on this aspect:-

  1. Raj Narain v. Superintendent,Central Jail, New Delhi (1970) 2 SCC 750 = AIR 1971 SC 178 – 7 Judges (M. Hidayatullah – CJI ).

Raj Narain M. P. was arrested by the Lucknow Police on 20-08-1970 on the strength of an arrest warrant issued by the City Magistrate of first class, Lucknow in security proceedings under Sections 106/ 116 of the old Code (corresponding to Ss. 107/ 116 of Cr.P.C.). On production before the said Magistrate on 21-08-1970 Raj Narain was remanded to District Jail, Lucknow under Section 344 of the old Code (corresponding to Section 309 Cr.P.C.) for 7 days till 28-08-1970. In a petition for a writ of Habeas Corpus filed by Raj Narain before the Supreme Court, as per interim order passed by Supreme Court Raj Narain was transferred from the Lucknow jail to Tihar Central Jail, Delhi. He was produced before the Supreme Court on 3 days and the case stood posted to 28-08-1970. The Supreme Court, however, ordered that he need not be produced on 28-08-1970 and that he may be kept in Delhi. Since the remand order passed by the Executive Magistrate at Lucknow would expire by the midnight of 28-08-1970, the Lucknow Magistrate at 4 pm on 28-08-1970 extended the remand till 01-09-1970 and on 01-09-1970 further extended the remand till 10-09-1970, without notice to and in the absence of Raj Narain on both occasions. Raj Narain filed a petition for Habeas Corpus stating that his remand was extended behind his back and that he was informed of the same only on 01-09-1970 and, therefore, his custody from the midnight of 28-08-1970 was illegal.

The majority speaking through Hidayatullah – CJI held in paragraph 7 that personal presence of the accused before the Magistrate for granting remand at the instance of the Police under Section 344 of the old Code, may not be necessary, however, even if it is desirable for the Magistrate to have the prisoner produced before him when he recommits him to further custody, the Magistrate can act only as the circumstances permit. Here, since Raj Narain M. P. had been transferred from the Lucknow Jail to the Tihar Jail as per the orders of the Supreme Court and the Executive Magistrate at Lucknow was waiting for some orders from the Supreme Court till the fag end of the original remand period, he could extend the remand only after 4 pm on 28-08-1970. in such circumstances, it was an impossibility to produce before the Lucknow Magistrate, Raj Narain who was in Tihar jail. Moreover, it was not a remand under Section 167 (2) Cr.P.C. Justice C. A. Vaidialingam gave a dissenting view on behalf of another Judge as well.

Justice C. A. Vaidialingam, however, gave a dissenting opinion on his own behalf and on behalf of another Judge. In paragraphs 24 to 29 the minority Judges held that an order of remand as well as extension of remand even under the first proviso to Section 344 of the old Code (corresponding to Section 309 Cr.P.C.) should be passed in the presence of the accused and since the orders passed by the Lucknow Magistrate were in flagrant variation of the Cr.P.C. as well as the Constitution of India, the petition for Habeas Corpus filed by Raj Narain was liable to be allowed.

  1. In Lakshmanrao v. JudicialMagistrate, First Class, Parvatipuram (1970) 3 SCC 501 = AIR 1971 SC 186 – (3 Judges), Justice I. D. Dua speaking for the Bench held that personal presence of the accused before the Magistrate is not necessary for the purpose of his remand under Section 344 of the old Code. In paragraph 7, the Bench, however, observed that in Raj Narain's case AIR 1971 SC 178 although the majority also took the same view, it was added that as a rule of caution it is highly desirable that the accused should be personally produced before the Magistrate so that he may, if he so chooses, make a representation against his remand and for his release on bail.

In this case the non-production of the accused at the time of extension of remand was due to non-availability of the escort police.

NOTE by VRK: In both AIR 1971 SC 178 and AIR 1971 SC 186, the extension of the remand without production of the accused was under Section 344 of the old Code (Section 309 of the present Code). Under Section 344 of the old Code an accused could be remanded for the purpose of investigation also, unlike present Section 309 Cr.P.C.

  1. Gauri Shankar Jha v. State of Bihar (1972) 1 SCC 564 = AIR 1972 SC 711. Here also the remand was under Section 344 of the old Code and the remand order was passed in the absence of the accused. The said absence was actually attributable to the accused himself who had refused to appear before the Magistrate for the reason that his going to Court would expose him to the possible witnesses who might participate in the Test Identification Parade to be conducted shortly thereafter. It was held that the remand of the accused in his absence could not be stated to be illegal.

  1. Sandip Kumar Dey v.Officer-In-Charge of Sakchi P.S, Jamshedpur (1974) 4 SCC 273 = AIR 1974 SC 871. Here also it was a petition for habeas corpus. Even though the remand extension orders were passed by the Sub-Divisional Magistrate, Jamshedpur without actual production of the accused before him, it was held that the remand orders were not vitiated because the accused had been transferred to the jail at Gaya. Raj Narain's case AIR 1971 SC 178 was relied on. However, the Supreme Court deprecated the manner in which remand extension orders were passed and directed that remand orders should not be passed mechanically and Magistrates should ensure that as far as possible remand orders are passed by Magistrates only when the accused is actually produced before them.

  1. Khatri v. State of Bihar (1981) 1 SCC 627 = AIR 1981 SC 928. Here non-production of some of the accused persons before the Magistrate within 24 hours of their arrest was held to the violative of Article 22 (2) of the Constitution of India which was to be scrupulously observed. The Supreme Court noted with anguish that some of the prisoners were never produced before the Magistrate for remand extension and were continuously detained in jail without any remand orders. (vide para 6).

In para 7 the Supreme Court observed –

This case gives rise only to two inferences:-

  • either the blinded prisoners were physically produced before the Judicial Magistrates who mechanically signs the orders of remand, or
  • the Magistrates did not bother to enquire even if they found that the prisoners before them had received injuries in their eyes.

  1. Bhim Singh, MLA v. State of J& K (1985) 4 SCC 677 = AIR 1986 SC 494. End of para 2 it was noted by the Supreme Court that orders of remand were surreptitiously obtained from the residence of the Executive Magistrate of First Class and of the Sub-Judge without actual production of the accused (Bhim Singh) before them. The authoritarian acts of the police were condemned by the Supreme Court. Even though the accused had already been set free, the Supreme court following the decisions reported in AIR 1983 SC 1086 and AIR 1984 SC 1026, awarded compensation of Rs.50000/- to Bhim Singh.

32. If an offence is punishable with imprisonment for a term "of not less than 10 years", then the maximum period of detention under clause (a) (i) of the proviso to Sec. 167 (2) Cr.P.C. is 90 days. In the rest of the cases falling under clause (a) (ii) of the proviso to Section 167 (2) Cr.P.C., the maximum period of detention is 60 days. An offence under Sec. 386 of I.P.C. is punishable with imprisonment for a term which may extend to 10 years. This means that, in an appropriate case punishable under Section 386 IPC, the Court can impose a sentence of imprisonment for 10 years. Whether that offence falls under clause (a) (i) of the proviso to Sec. 167 (2) Cr.P.C. which prescribes 90 days or whether it falls under clause (a) (ii) which prescribes 60 days.

  • No. For Clause (a) (i) of the proviso to Section 167(2) Cr.P.C. to be attracted, 10 year's imprisonment should be the minimum i.e. the offence should be punishable with imprisonment for "10 years or more". If the offence, as in the case of Section 386 IPC is punishable with imprisonment for "10 years or less", it will fall under Section 167 (2) proviso (a) (ii) Cr.P.C where the default period is 60 days. (Vide Rajeev Chaudhary v. State (NCT of Delhi (2001) 5 SCC 34 = AIR 2001 2001 SC 2369; Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 – 3 Judges)

(Note: The above interpretation does not appear to be legally and grammatically correct. (vide My Article titled "TEN IS NOT, AND CAN NEVER BE, LESS THAN TEN").

There is some confusion regarding the verdict in Rajeev Chaudhary's case. Going by paragraph 6 of the verdict, the discussion proceeds to hold that the expression not less than 10 years in para (i) of Clause (a) of the proviso to Section 167 (2) Cr.P.C., would mean imprisonment for a clear period of "10 years or more" and not "10 years or less". If so, Section 386 IPC which prescribes a maximum period of imprisonment for 10 years, would fall only under para (ii) of the aforesaid clause under Section 167 (2) Cr.P.C. where the maximum period is 60 days. But then, the Supreme Court was dismissing the appeal preferred by the accused Rajeev Chaudhary against the verdict of the Bombay High Court which had held that the period applicable was 90 days as prescribed under para (i) of Clause (a) of Section 167 (2) Cr.P.C.

(The framers of the Code could have avoided any ambiguity by adopting the wording in Part II of the First Schedule to Cr.P.C. in the case of offences under other laws, like 3 years and upwards or less than 3 years etc.).

33. Whether the period of 90 days or 60 days, as the case may be, should be computed from the date of arrest or from the date of detention (remand). What is the mode of computation of the said period ?

  • From the date of detention (remand) and not from the date of arrest. For the computation of the period for default bail under the proviso to Section 167 (2) Cr.P.C. time starts from the date of remand. (See Antony v. State of Kerala 1986 KLT 86 and C.B.I. Special Investigation Cell-I, NewDelhi v. Anupam J Kulkarni = AIR 1992 SC 1768; Harish Babu Maddineni v. State of Kerala – 2012 (1) KLT 235).

The day on which the accused was remanded to custody is to be excluded and the day on which the challan was filed is to be included. (Vide Chaganti Satyanarayana v. State of A.P. (1986) 3 SCC 141 = AIR 1996 SC 2130).

Sections 9 and 10 of the General Clauses Act , 1897 to be applied for computing the period. (Vide State of M.P. v. Rustam 1995 Supp. (3) SCC 221).

Rule 22 of the Criminal Rules of Practice, Kerala which directs that both the date of remand as well as the date of production of the accused should be counted for the purpose of computation of the period, does not reflect the correct legal position.

34. Whether the accused has an indefeasible right to "compulsive bail" i.e. "default bail" under the proviso to Section 167 (2) Cr.P.C. on the expiry of the period of 90 days or 60 days as the case may be.

  • Yes. See Uday Mohanlal Acharya v. State of Maharashtra – (2001) 5 SCC 453 = AIR 2001 SC 1910 (3 Judges); Sanjay Dutt v. State through CBI (1994) 5 SCC 410.

35. Whether the Court is entitled to impose a condition for deposit of amounts while releasing the accused on default bail under Section 167 (2) Cr.P.C.

  • No. Imposing such a condition while releasing the accused on default bail/ statutory bail will frustrate the very object and purpose of default bail under Section 167 (2) Cr.P.C. (Vide para 9 of Saravanan v. State rep. by Inspector of Police (2020) 9 SCC 101 = 2020 KHC 6595 – 3 Judges).

36. In a case where the accused has been released on compulsive bail under the proviso to Sec. 167 (2) Cr.P.C. during the crime stage, whether it is not permissible for the Court to cancel the bail by examining the case on merit upon the filing of the charge sheet.

  • No. An order of release on bail under the proviso to Sec. 167 (2) Cr.P.C. is, by virtue of the deeming fiction provided therein, an order passed under Sec. 437 (1) or (2) or Sec. 439 (1) (a) Cr.P.C., as the case may be. Hence when once the accused is released on bail under the proviso to /Sec. 167 (2) Cr.P.C., he cannot be taken back to custody merely on the filing of the charge sheet. There should exist independent grounds for cancellation of the compulsive bail. (Vide para 14 of Aslam Babalal Desai v. State of Maharashtra – (1992)4 SCC 272 = AIR 1993 SC 1 (3 Judges) RajanikantJiranlal Patel v. NCB, New Delhi (1989) 3 SCC 532 = AIR 1990 SC 71– overruled); See also end of para 10 of Mohd. Iqbal Sheikh v. State of Maharashtra – (1996) 1 SCC 722 (3 Judges); End of para 4 of Bipin Shantialal Panchal v. State of Gujrat (1996) 1 SCC 718 = AIR 1996 SCC 2897 – says that the accused cannot be re-arrested on the mere filing of the charge sheet). Cancellation of bail already granted can be ordered only on the judicially settled grounds attributable to the post-bail conduct of the accused.

37. After the accused has been released on compulsive bail under the proviso to Sec. 167 (2) Cr.P.C, one of the sureties applies for discharge and he is discharged during the crime stage. The accused is unable to furnish fresh surety immediately. Should not the accused be remanded to custody by invoking Sec. 209 (a) or Sec. 309 (2) Cr.P.C.

  • No. first of all, here it is crime stage. Remand to custody under Sec. 209 and Sec. 309 (2) Cr.P.C. can be made only at the post-cognizance stage. See Jeewan Kumar Raut v. CBI (2009) 7 SCC 526. Mithabhai Pasha bhai Patel v. State of Gujrat – (2009) 6 SCC 332). Secondly, even if the discharge of the surety was during the post-cognizance stage, accused can be remanded to judicial custody under Secs. 209 (a) and 309 (2) Cr.P.C. only if he is in custody and not when he is on bail. There cannot be automatic cancellation of bail under Section 209 (a) Cr.P.C. (Vide Ali Ahammed v. State of Kerala 1986 KLT 28 and Vikraman V. State of Kerala 1986 KLT 1372.

A surety can, at any time apply to the Court to discharge him. (Vide Section 444 (1) Cr.P.C.) When such an application is filed by the surety, the court has to issue a warrant of arrest for the production of the accused. (Vide Section 444 (2) Cr.P.C.). It is only thereafter can the Court discharge the surety from his obligation under the bail bond. (Vide Section 444 (3) Cr.P.C.)

After discharging the surety the accused should be called upon to find another sufficient surety and should be given reasonable time to produce fresh surety in view of Section 444 (3) Cr.P.C. (Vide Raghubir Singh v. State of Bihar - (1986) 4 SCC 481 = AIR 1987 SC 149).

38. If before the expiry of the default period no charge-sheet is filed by the police, whether there is any obligation on the part of the Magistrate to inform the accused that the accused has got an indefeasible right to apply for default bail (compulsive bail) and whether the Magistrate has a further obligation to ensure that the accused is provided with free legal aid for the purpose of filing the necessary bail application.

  • Yes. See Hussainara Khatoon v. State of Bihar – (1980) 1 SCC 108 = AIR 1979 SC 1377 (3 Judges); Para 43 of Rakesh Kumar Paul v. State of Assam AIR 2017 SC 3948 (3 Judges).

39. Final report was not filed within 90 days. Default bail application was filed on the 91st day. Thereafter on the 91st day itself the final report was filed. Thereupon the Court dismissed the bail application. The accused approached the higher forum seeking default bail. Is the accused entitled to default bail.

  • Yes. The indefeasible right of the accused to be released on default bail does not get extinguished by the subsequent filing of the charge sheet. (See Uday Mohanlal Acharya v. State of Maharashtra – AIR 2001 SC 1910; Sayed Mohd. Ahmed Kazmi v. State of Gujrat – (2012) 12 SCC 1 – 3 Judges; Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 – 3 Judges).

The contrary view taken in paras 21 and 23 of Sadhwi Pragyna Singh Thakur v. State of Maharashtra (2011) 10 SCC 445 – 2 Judges, is not good law.

The Magistrate is obliged to grant bail even if, after the filing of the application for default bail by the accused, a charge sheet has been filed. The view of the Constitution Bench in Sanjay Dutt V. State through CBI (1994) 5 SCC 410 that the indefeasible right of the accused to bail does not survive or remain enforceable on the challan being filed, if already not availed of, must be understood to mean that the accused must have filed an application for default bail after the lapse of the period under Section 167 (2) Cr.P.C. and before the filing of the challan. If the charge sheet is filed subsequent to the filing of the aforesaid application by which the accused has availed of his right, then the indefeasible right of the accused will not be frustrated or extinguished.

40. Due to the non-filing of the charge-sheet by the investigating agency within 90 days, the accused files an application for default bail on the 91st day. The Magistrate orders his release on default bail on his executing a bond with 2 sureties. The accused is unable to get sureties for 2 days and it is only after 2 days that he has been able to get sureties. In the meanwhile the police file the charge-sheet. Can the accused be released on default bail.

  • If the accused is unable to furnish bail as directed by the Magistrate, then on a conjoint reading of Explanation I to Section 167 (2) Cr.P.C. and the provisions of Section 167(2) Cr.P.C, the continued custody of the accused even beyond the period specified in para (a) of the proviso to Section 167 (2) Cr.P.C, will not be unauthorized. If during that period the investigation is completed and the charge sheet is filed, then the so called indefeasible right of the accused would stand extinguished. (Vide- para 13 of Uday Mohanlal Acharya V. State of Maharashtra (2001) 5 SCC 453 = AIR 2001 SC 1910 - 3 Judges ). In such a case the accused can be released on bail only on merits.

In Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 – (3 Judges) the practice adopted by some Courts keeping the application for default bail pending to enable the investigating officer to file the charge-sheet has been strongly deprecated).

41. In a case the default period is 90 days. No charge sheet is filed till the expiry of 90 days. The investigating officer files the charge – sheet on the 93rd day. The accused approaches the High Court and seeks compulsive bail alleging that even though he had "orally represented" to the Magistrate that he was prepared to offer bail the Magistrate did not suo motu grant compulsive bail which was an indefeasible right that had accrued to him. Whether the accused can succeed if he is unable to prove the oral request for bail.

  • No. Even otherwise, the accused cannot succeed before the High Court because he did not avail of his right to compulsive bail by filing a written application seeking his release on bail alleging that no charge sheet had been filed within the statutory period and that he was prepared to furnish bail. (Vide Uday Mohanlal Acharya v. State of Maharashtra – (2001) 5 SCC 453= AIR 2001 SC 1910 - 3 Judges).

But, in Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 – 3 Judges, it has been held that the accused is entitled to make an oral application also for default bail.

NOTE by VRK: With due respect this decision runs counter to Uday Mohanlal Acharya which is also by 3 Judges. That apart, it is practically difficult to establish that such an oral application had been made by the accused. There can be situations where the claim of the accused before the superior Court to the effect that he had made an oral application, is controverted either by the Public Prosecutor in the Lower Court or by the Magistrate himself. After the decision of the Apex Court in Hussainara Khatoon's case (AIR 1979 SC 1377 – 3 Judges) the Magistrate is obliged to inform the accused about his indefeasible right to default bail and even the Magistrate is obliged to give free legal aid to the accused. In spite of all these, if the accused does not file written applications, he has to blame himself. The view taken in Uday Mohanlal Acharya to the effect that there should be a written application, is more practical. Even though default bail is understood to confer an indefeasible right of bail to the accused, it is pertinent to note that as per Explanation 1 to Section 167 (2) Cr.P.C. the accused is liable to be detained in custody beyond the statutory period if he does not furnish bail.

42. Whether there should be an "application" for remand (detention) or for its extension, during the stage of investigation.

  • No. Strictly speaking there is no provision in the Cr.P.C. requiring the arresting officer to submit a remand report or remand application before the Magistrate. The officer should send along with the accused a copy of the entries in the case diary. The purpose of filing a remand report is only to enable the Magistrate to exercise his power of authorizing detention in police or judicial custody or to forward the accused person to the Magistrate having jurisdiction etc. (Vide paras 4 and 9 In Re Raman Velu 1972 KLT 922 = ILR 1973 (1) Ker. 50 (DB); para 17 of Kamarudheen v. SHO, Muvattupuzha P. S. 2010 (4) KHC 173 = 2011 Cri.L.J. 388 – VRK – J ). Of course, if the I.O. needs custody of the accused for the purpose of investigation, he has to file a written application together with affidavit stating the reasons and then only the Magistrate can effectively discharge his duties under Section 167 (3) and (4) Cr.P.C.

43. Whether the remand report (remand application), is a "public document" and whether the accused is entitled to obtain a certified copy of the same.

  • Yes. A Division Bench of the Kerala High Court In Re Raman Velu 1972 KLT 922 = ILR 1973 (1) Ker. 50 (DB) observed as follows in paragraphs 9 and 10:-

"The purpose of the "remand report" is a relevant consideration in construing whether it is a 'public document' or not. What forms the basis of a judicial decision, or what is used to any extent in aid of a judicial decision, cannot but be a public document in our view. We are, therefore, of the opinion that the remand report submitted by the Police, whether in relation to the remand under S.167, of extension or remand under S.344 of the Code, is a public document within the meaning of S.74 of the Evidence Act, What is expected to be furnished to the court at the time of moving for the remand or for the extension of the remand, are the entries in the case diary which is a document forming acts or record of acts of the investigating officer.

10. We have now to consider whether the accused has a right to inspect the document, of which the certified copy has been applied for. Bearing in mind the purpose and significance of the "remand report" in relation to the orders passed or to be passed under S.167 and 344 Crl. P.C., we are of the opinion that the accused, who has a tangible interest in the matter, has right to know the reason for his being committed to custody or prison. It is the duty of the court to jealously guard the liberty of citizens in order that there may not be an abuse of the power by the police. The Magistrate, in terms of S.167 and 344 of the Crl. P.C., has to apply his mind to satisfy himself whether on the material placed before him there are reasonable grounds to commit the accused to custody or to extend the remand. The accused has a right to move for bail, and for this purpose he is interested in knowing on what grounds the order of remand has been passed against him. The order passed by the Magistrate on an application for bail may be open to challenge in revision. The revisional court also is to consider the order under attack and has to satisfy itself whether or not it could be sustained on the materials that have been placed before the Court S.76 of the Evidence Act, no doubt does not define or specify the expression "person entitled to inspect" the document. However, it is well settled, as observed by Shephard J., in Queen Empress v. Arumugam ( ILR 20 Mad. 189 ):

"the Legislature intended to recognise the right generally for all persons who can show that they have an interest for the protection of which it 'is necessary that liberty to inspect such documents should be given."

44. Whether a Magistrate or a Special Judge is obliged to release an accused on compulsive bail under the proviso to Sec. 167 (2) Cr.P.C. in a case where the arrest and production before Court were made by a "non-police officer". (Eg. a Customs Officer).

  • Yes. Although a Customs Officer is a non-police officer (as generally understood), he is an officer invested with the powers of an officer-in-charge of a police station to whom Section 167 Cr.P.C. applies. (Vide C.I.U., Cochin v. P. K. Ummerkutty 1984 KLT 1 = 1983 Cri.L.J. 1860; N. K. Ayoob v. Supdt. of Customs – 1984 KLT 215 = 1984 Cri.L.J. 949 – U.L.Bhat – J. Approved in para 103 of Directorate of Enforcement v. Deepak Mahajan – (1994) 3 SCC 440 = AIR 1994 SC 1775).

In Ashok Munilal Jain v. Asst. Director of Enforcement (2018) 16 SCC 158, it has been held that Section 167 (2) Cr.P.C is applicable to proceedings under the Prevention of Money Laundering Act, 2002.

But see Jeevan Kumar Raut v. CBI – (2009) 7 SCC 526 = AIR 2009 SC 2763 – where it is held that since under Section 22 of the Transplantation of Human Organs Act 1994, filing of a Police Report by the authorised Police Officer is forbidden and the said Police Officer can only file a complaint before the Court, Section 167 (2) Cr.P.C. is not attracted. With due respect, this view is not legally sustainable.

Arrest need not necessarily be by a police officer alone but may be by an authorised officer or an officer including a Magistrate empowered to arrest. (Vide Directorate of Enforcement v. Deepak Mahajan – (1994) 3 SCC 440 = AIR 1994 SC 1775); Supdt. of Customs, C.I.U, Cochin v. P.K. Ummerkutty – 1984 KLT 1; M.K. Ayoob v. Supdt. of Customs – 1984 KLT 215) affirmed.

Ashok Munilal Jain v. Asst. Director of Enforcement (2018) 16 SCC 158.

About The Author: This article is written by Justice V. Ramkumar (Retd.), Former Judge of High Court of Kerala

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]

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


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