23 Oct 2021 5:50 AM GMT
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.
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.
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?
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.
"Where an accused detained in a hospital is not in a position to be moved and produced before the Magistrate concerned, the Magistrate shall –
Let us now examine the case-law on this aspect:-
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.
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.
In para 7 the Supreme Court observed –
This case gives rise only to two inferences:-
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.
(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 ?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
"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).
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]