DR.

RAM MANOHAR LOHIYA,

NATIONAL LAW UNIVERSITY, LUCKNOW

CRIMINAL PROCEDURE CODE

[PROJECT WORK]

ON

Analysis of Section 167 of Criminal Procedure Code

SUBMITTED FOR THE PROJECT WORK UNDERTAKEN IN THE PARTIAL

FULFILLMENT OF B.A. LL.B. (HONS.) 5 YEARS INTEGRATED COURSE OF DR.
RAM MANOHAR LOHIYA NLU, LUCKNOW

SUBMITTED TO: SUBMITTED BY:

Dr. Prem Kumar Gautam Ankur Kumar

Assistant Professor(Law), ROLL NO.-21; SECTION-A

DR. RMLNLU, LUCKNOW BA.LLB. (H); SEMESTER- V

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ACKNOWLEDGEMENT

The present project on the said subject is able to get its final shape with the support and help
of people from various quarters. My sincere thanks go to all the members without whom the
study could not have come to its present state. I am proud to acknowledge gratitude to the
individuals and institutes during my study and without whom the study may not be
completed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to ma’am to assign and help
me in my project. I am also thankful to the whole Ram Manohar Lohiya National Law
University family that provided me all the material I required for the project.

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Table of Contents
Introduction................................................................................................................................4
Statutory Provisions...................................................................................................................5
Rights of Person.......................................................................................................................15
Remedies..................................................................................................................................24
Analysis & Conclusion............................................................................................................24
References................................................................................................................................25

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Introduction

It is often the case when the police arrest a person in suspicion of a crime they are unable to
complete the investigation in 24 hours. At this juncture when they require the accused or
suspect to be kept away from society at large for the protection of society, of the accused or
for the purpose of ensuring his availability for investigation, they may produce him before a
magistrate, who may allow for the suspect to be held in the custody of the police or the
judiciary.

The provisions for holding a person in custody for the purpose of furthering investigation, in
India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the
Code allows that a person may be held in the custody of the police for a period of 15 days on
the orders of a magistrate. A judicial magistrate may remand a person to any form of custody
extending up to 15 days and an executive magistrate may order for a period of custody
extending up to 7 days. A person may be held in the custody of the police or in judicial
custody. Police custody may extend only up to a period of 15 days from the date custody
begins but judicial custody may extend to a period of 90 days for a crime which entails
punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60
days for all other crimes if the magistrate is convinced that sufficient reasons exists,
following which the accused or suspect must be released on bail.

The magistrate has the authority to remand the person into judicial or police custody. The
detaining authority may be changed during the pendency of the detention, provided that the
total time period does not extend 15 days. If a person is transferred from police to judicial
custody the number of days served in police custody is deducted from the total time
remanded to judicial custody.

The difference between judicial and police custody apart from the difference in custodian
authority, is that under police custody, the suspect may be interrogated by the police but under
judicial custody interrogation is not permitted except in exceptional circumstances, police
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custody starts when a person is taken into custody by the police and his rights are read out to
him along with the explanation for reasons for custody but judicial custody starts when a
judge orders for judicial custody. The first thing that happens to a suspect on arrest is that he
is taken into police custody, following which he is taken before a magistrate and he may
either be remanded to judicial custody or be sent back into police custody. He may also gain
temporary relief by posting bail.

Statutory Provisions

Section 167. Procedure when investigation cannot be completed in twenty-fourhours.

(1) Whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-four hours fixed by section 57,
and there are grounds for believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate
a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the
same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether
he has or not jurisdiction to try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a Magistrate having such
jurisdiction:

Provided that-

[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the
custody of the police, beyond the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total period exceeding-

(i) Ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years;

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(ii) Sixty days, where the investigation relates to any other offence,

And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is prepared to and does furnish bail, and every
person released on bail under this sub-section shall be deemed to be released under the
provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) No Magistrate shall authorize detention in any custody under this section unless the
accused is produced before him;

(c) No Magistrate of the second class, not specially empowered in this behalf by the high
Court, shall authorize detention in the custody of the police.

[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the
expiry of the period specified in paragraph (a), the accused shall be detained in Custody so
long as he does not furnish bail.]

[Explanation II].If any question arises whether an accused person was produced before the
Magistrate as required under paragraph (b), the production of the accused person may be
proved by his signature on the order authorizing detention or by the order certified by the
Magistrate as to production of the accused person through the medium of electronic video
linkage, as the case may be:]

[Provided further that in case of a woman under eighteen years of age, the detention shall be
authorised to be in the custody of a remand home or recognised social institution.]

[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer
in charge of the police station or the police officer making the investigation, if he is not below
the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the
nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan
Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed
relating to the case, and shall, at the same time, forward the accused to such Executive
Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in
writing, authoress the detention of the accused person in such custody as he may think fit for
a term not exceeding seven days in the aggregate; and on the expiry of the period of detention
so authorized, the accused person shall be released on bail except where an order for further
detention of the accused person has been made by a Magistrate competent to make such

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order; and, where an order for such further detention is made, the period during which the
accused person was detained in custody under the orders made by an Executive Magistrate
under this sub-section, shall be taken into account in computing the period specified in
paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall
transmit to the nearest Judicial Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted to him by the officer in charge
of the police station or the police officer making the investigation, as the case may be.]

(3) A Magistrate authorizing under this section detention in the custody of the police shall
record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward
a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not

concluded within aperiod of six months from the date on which the accused was arrested, the
Magistrate shall make anorder stopping further investigation into the offence unless the
officer making the investigation satisfies the Magistrate that for special reasons and in the
interests of justice the continuation of the investigation beyond the period of six months is
necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-
section (5), the Sessions Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to be made, vacate the order made
under sub-section (5) and direct further investigation to be made into the offence subject to
such directions with regard to bail and other matters as he may specify. Judicial Remand:

The Judicial Magistrate to whom the accused person is so forwarded, whether he has or has
not the jurisdiction to try the case, may authorise the detention of the accused in police
custody for a term not exceeding 15 days in the whole. He may order the accused to be
forwarded to a judicial Magistrate having jurisdiction to try the case, if he consider detention
of the accused beyond 15 days necessary for completion of investigation.

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The nature of custody may be altered from police custody to judicial custody and vice versa
during the first 15 days period [7 days in case of Executive Magistrate vide subsection (2-A)].
But on expiry of 15 days period, the accused can be ordered to be kept in judicial custody and
not in the custody of the police.

The Supreme Court in CBI Special Investigation Cell v. Atiupam Kulkarni, has reiterated that
the custody after the expiry of first 15 days can only be judicial custody for the rest of the
period of 90 days or 60 days as the case may be.

Thus police custody if found necessary can be ordered only during the first 15 days.
However, if the accused is involved in another case he can be re-arrested and remanded to
police custody with the permission of the Magistrate.

Where police is not readily available for escort duty, it would be a valid ground for extending
the period of remand of an accused under Section 167 (2) of the Code. The Magistrate is
expected to apply his judicial mind while deciding the matter of remand taking into
consideration all the available materials including the copy of case diary, and the order of
police remand should not be passed in a routine manner merely because the police has so
requested.

The Magistrate has the discretion to order detention of the accused in police custody cr
judicial custody as he thinks fit. He may also remand the accused to Army, Navy or Air Force
custody if the accused person is subject to that law. In case of remand by Executive
Magistrate under sub-section (2A) the reasons for authorising the detention of accused have
to be recorded in writing. The maximum period of remand in case of offences punishable
with death, imprisonment for life or imprisonment for a term not less than ten years is 90
days and for any other offence it is 60 days. If the investigation is not completed within this
period the accused person has got to be released on bail without any further detention.

The prescribed statutory period of 90 days or 60 days as mentioned in Proviso (a) to Section
167 (2) is to be computed from the date on which the Magistrate authorises the detention of
the accused person.

The Court cannot refuse to pass an order directing the release of accused on bail on the
ground that no such written application has been given by the accused. However, after filing

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charge-sheet the Magistrate is not competent to grant bail under this Proviso to Section 167
(2).

The Supreme Court in State of West Bengal v. Dinesh Dalmia observed that “the whole
purpose of Section 167, Cr. P.C. is that the accused should not be detained for more than 24
hours and subject to 15 days’ police remand and it can further be extended upto 90/60 days,
as the case may be.” The Court made it clear- that police custody means the police custody in
a particular case for investigation and not judicial custody in another case.

Thus, where two F.I.Rs were lodged against the accused at Calcutta and Chennai and the
accused who was arrested and in CBI custody in the case pending before the Court at
Chennai, on receiving information that he was also required in case at Calcutta, voluntarily
surrenders before the Magistrate of Chennai in case relating to F.I.R. in Calcutta, such
notional surrender cannot be treated as police custody so far as counting 90 days, from that
surrender as regards case pending in Calcutta.

Explaining the reason, the Court held that a notorious criminal may have number of cases
pending against him in various police stations in city or outside city, a notional surrender in
pending case for another F.I.R. outside city or of another police-station in same city, if
counted for the purpose of 90/60 days, as the case may be, police will not get an opportunity
to get custodial investigation. Therefore, the surrender by the accused in the instant case
cannot be deemed to be in the police custody in the case pending in Calcutta.

In State of Rajasthan v. Ravishankar Shrivastaya, it was held that release on bail is not
allowed for an accused of corruption charges. In the instant case the accused was not arrested
in the F.I.R. filed against him, but was arrested on second F.I.R. being filed against him the
next day.

Application for bail was filed by the accused under Section 167 on the ground of his
continued detention beyond 24 hours without proper remand in the first F.I.R. (in which he
was not arrested). The High Court of Rajasthan held that the arrest of accused on the basis of
second F.I.R. could not be treated as deemed custody in first F.I.R. also.

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Therefore, failure of filing of charge-sheet in first F.I.R. within stipulated period from the
date of so called deemed custody does not entitle the accused to be released on bail under
proviso (a) of Section 167 (2) of the Code of Criminal Procedure.

In Jagdeeswar v. State of Andhra Pradesh, the High Court of Andhra Pradesh, inter alia, has
observed, that, “remand order to be passed in accordance with the provisions of Section 167
of the Code of Criminal Procedure, is certainly not an administrative order to be passed by
the Magistrate. It is a judicial order to be passed on application of mind to the contents of the
remand report submitted by the Investigating Officer.

The order should reflect the necessary application of mind on the part of the Magistrate and
the extension of remand in consequence thereof. It is not an empty formality or a routine
course to extend remand time and again as and when sought for by the police. The order,
therefore, should contain the reason to extend remand further.

The authorisation of the detention of the accused in custody must be with reference to entries
made in the remand report that the investigation could not be completed within a period of 24
hours as fixed under Section 57 of Cr PC and that there are grounds for believing that the
information is well founded. This is the reason why the Investigating Officer is obliged under
law to forward the entries in the case diary while seeking remand to custody. The necessary
satisfaction of the Magistrate in regard thereto should reflect in the remand order.” Where the
accused was not produced before the Magistrate and without seeing him, the Magistrate went
on remanding him to custody, the action was held illegal because of the contravention of the
provisions of Section 167 (2) of the Code.

However, the High Court of Karnataka in Sajjad v. State of Karnataka, held that presence of
accused at the time of passing a remand order may be dispensed with by the Magistrate only
on special reasons. The Court observed that fundamental rights of a person cannot be
trampled. Even the accused also enjoys fundamental rights which have to be safeguarded.
Therefore, it is necessary on the part of the police to produce the accused in the Court before
seeking an order of remand. But if under any circumstances, the accused cannot be produced,
the Court should insist the police officer seeking the remand order to file an affidavit stating
the reasons for not producing the accused and also as to the state of health of the accused.
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While remanding the accused without he being produced in Court, the Court shall give
reasons for not getting the accused produced before the Court. Thus the Court can dispense
with the presence of the accused only on special reasons.While computing the total period of
60 days referred to in Proviso to Section 167 (2), the period of detention under Section 57
(which must not be more than 24 hours) should be excluded. Where it has been filed
consequent to the completion of investigation, the remand comes to an end and the provisions
of Section 167 (2) cease to operate.

Then the question of release of the accused on bail depends on the judicial discretion of the
Magistrate. The Magistrate will cease to have any jurisdiction to commit the accused to
police custody after he has been granted bail. Where the charge sheet was filed within 90
days, but the Magistrate had not passed an order taking cognizance within the period, it was
held that the accused was not entitled to seek bail under Proviso to Section 167(2) of the
Code. Where the petitioner was arrested for allegedly having committed attempt to murder.
As no hurt was caused to any person in or during attempt to murder, the case was covered
under first part of Section 307 of IPC prescribing imprisonment which may extend to ten
years. As charge-sheet was filed within the statutory period of sixty days of the date of
detention of the petitioner, he was entitled to be released on bail under Proviso to Section
167(2) of the Code.

Where there was failure to submit charge-sheet even after the expiry of statutory period of 60
days from the date of detention, in case of an accused charged with offence under Section
304-B, I.P.C. which is punishable with imprisonment for life, the rejection of bail application
was held proper. The reason being that the statutory period for this case was 90 days and not
60 days.

The Supreme Court in Bhupinder Singh v. Jarnail Singh reiterated that permissible limit for
filing challan for offence under Section 304-B IPC is 90 days and if the challan is filed within
this statutory period, the accused will be entitled to be released on bail under Section 167 of
Cr. P.C. Explaining the meaning and significance the expression ‘punishment’ used in Section
167 (2) of Proviso, the Apex Court observed that what should be the adequate punishment in
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a given case has to be decided by the Court on the basis of the facts and circumstances
involved in the particular case. The stage of punishment comes only after recording the order
of conviction of the accused person. The word ‘punishable’ appearing in the Proviso denotes
liable to be punished and not ‘must be punished’. Where minimum and maximum sentences
are prescribed both are imposable depending in facts of the cases. It is for the Court, after
recording conviction, to impose appropriate sentence. Therefore, it does not mean that where
the minimum sentence is provided, the sentence imperable can only be the minimum
sentence.

In Gayasuddin v. State of Jharkhand, application was filed for release on bail under Section
167 (2). The charge-sheet was filed by police after the order of release was passed but before
filing of bail bond by the accused. It was held that the accused was not entitled for grant of
bail. More so, because it was shown by the material on record that complicity of accused in
alleged offence and allegations were serious in nature.

In a case, under Section 18 of the NDPS Act, 1985, the charge-sheet was submitted after 90
days but the full Bench of High Court of Madhya Pradesh refused the release of accused on
bail under Section 167 (2), Proviso as Cr. P.C. is not applicable to proceedings under NDPS
Act. However, his prayer for bail could be considered under Section 37 of the NDPS Act

The Supreme Court in Hussainara Khatoon v. State of Bihar, has emphasised that it is the
duty of the Magistrate to inform the accused that he has a right to be released on bail under
Proviso to Section 167 (2) and also the State is under a constitutional obligation to provide
free legal services to an indigent accused not only during trial but when he is remanded from
time to time.

Failure on the part of the Magistrate to inform the accused of this precious right to free legal
aid in case of his being indigent, would vitiate the trial and result in the acquittal of the
accused person. The bail granted to the accused under this section has the same incidents as
the bail granted under Chapter XXXIII of the Code and it shall remain valid till it is cancelled
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as per the provisions of Section 437 (5) of the Code. The Supreme Court in Bashir v. State of
Haryana,11 has ruled that receipt of the charge-sheet in Court by itself is no ground for
cancellation of bail which was granted under Section 167 (2) of the Code.

It has been made clear in Explanation I to Section 167 (2), that mere lapse of statutory period
of 90 days or 60 days, as the case may be, shall not entitle the accused to be released on bail
forthwith unless he furnishes bail. In other words, he shall remain in custody until he
furnishes bail.

Where the accused has voluntarily surrendered to judicial custody, the provisions of this
section authorising his detention in police custody or other custody within the prescribed
statutory time limit will not be applicable because in such a case, the accused is not
“forwarded” by the police to the Magistrate as required under Section 167 (2) of the Code. In
summons cases, the investigation has to be concluded within a period of six months from the
date of arrest of the accused. This period may be extended by the Judicial Magistrate where
the officer making investigation satisfies him that continuation of investigation period beyond
six months is necessary in the interest of justice.

The continuation of investigation beyond 6 months period without Magistrate’s permission

will be illegal and the subsequent taking cognizance of the offence by the Magistrate and
initiating proceedings thereon will also be without jurisdiction.

Sub-section (6) empowers the Sessions Judge to direct further investigation, on an application
made to him or otherwise, on his own satisfaction that such investigation is necessary and he
should record reasons for doing so. Thus he may vacate the order made by the Magistrate
under which the investigation was stopped due to expiry of six months period. In Jayanta
Borbora v. State of Assam the order of remand of accused who was a terrorist, to Army
custody on prayer by investigation officer was held to be illegal and ultra vires the
Constitution, as the Armed Forces have no powers of investigation or interrogation while
coming to the help of civil authorities.

Transit Remand:
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Quite often it happens a person commits a crime in one State and is caught or apprehended by
the police of another State. In such a case the police of the other State by which the offender
has been arrested produces him before the Magistrate. The Magistrate thereupon issues an
arrest warrant against the accused and orders the police to take (transfer) the accused to the
State in which he has committed the offence.

For this transit of the accused the Magistrate has to pass an order for his transit remand. For
example, in a crusade against the Naxalites, the CRPF made recruitment of some constables
in its special Anti-Naxalite Wing ‘KOBRA’. There were allegations of bribery and corruption
against the CRPF Commander Yadvendra Singh and two collegues Pargat Singh and Pappu
Singh and these officers were arrested by the CBI in Delhi.

But since the alleged offences had been committed in Begusarai (Bihar) the accused persons
had to be taken to Patna to be produced before the Special Court, Patna in Bihar. Therefore,
they were taken on transit remand by the CBI, Delhi to be taken to Patna and the Delhi Chief
Metropolitan Magistrate, Kaveri Baveja, ordered their transit remand on May 6, 2009 to be
produced in Patna Court on May 7, 2009.

In the instant case, FIR was filed against the accused persons on May 1, 2009 in which it was
alleged that Commandant of the CRPF Group Centre, Tata Nagar, Shri Yadvendra Singh, in
collusion with Pargat Singh, the brother-in-law (Bahnoi) of the Chairman, Police Recruitment
Board, Begusarai, Shri B. S. Sindhu corruptly earned illegal money to the tune of crores of
rupees in recruiting constables in its special force KOBRA which was a special Anti-Naxalite
Wing.

Four days later, the CBI arrested Shri Yadvendra Singh from his residence located in Delhi
and recovered several incriminating documents from him. His collegue Pappu Yadav was
arrested at Delhi Railway Station with Six lakh rupees in his possession which he allegedly
was going to give to Pargat Singh.

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Since the accused persons were to be tried in the Special Court at Patna, their transit from
Delhi to Patna was necessary therefore, the Delhi Police moved the Court of Chief
Metropolitan Magistrate, Delhi for a Transit Remand which the Court granted by its order
dated May 6,2009.

Section 57.Person arrested not to be detained more than twenty-four hours.

No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s
court.

Rights of Person

The rights of the accused begin from the time of his arrest. The Constitution of India under
Article 22 provides for the protection of the arrested person to the extent that he has a right to
be informed of the reason for arrest and he must be produced before the nearest magistrate
within a period of 24 hours. Article 22 (1) also provides that he shall be entitled to consult
and to be defended by a legal practitioner of his choice. 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.

After the legal arrest of a person, his rights are protected through the time period for which he
may be held in custody. For the custody to be a legal, a person may not be held in custody for
more than 15 days. A magistrate must be convinced that there are exceptional circumstances
present to extend this custody for a maximum of 60-90 days depending in the nature of the
crime being investigated. A cautious reading of S. 167(1) of the code of criminal procedure
makes it clear that the officer in charge of the police station or the investigating officer (if he
is not below the rank of sub-inspector) can ask for remand only when there are grounds to

15
believe that the accusation or information is well founded and it appears that the investigation
cannot be completed within the period of twenty four hours as specified under Section 57.
Hence, Magistrate’s power to give remand is not mechanical and adequate grounds must
subsist if Magistrate wants to exercise his power of remand. The same was held in Raj Pal
Singh v. State of U.P. the case also said that the remand order sheet need not look like, a
judgment delivered after full trial but application of main must be evident.

It is the right of the accused that he is brought before a magistrate within 24 hours of arrest,
excluding the time taken in transportation from the place of custody to the magistrate. If no
judicial magistrate is immediately available then he may be taken before an executive
magistrate who can remand him to custody for a maximum of 7 days following which he
must be taken before a judicial magistrate. In Central Bureau of Investigation, Special
Investigation Cell, New Delhi v. Anupam J. Kulkarni the question regarding arrest &
detention in custody was dealt with, it was held that the magistrate under S.167(2) can
authorise the detention of the accused in such custody as he thinks fit but it should not exceed
fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the
whole. The custody can be police custody or judicial custody as the magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days in whole” are very
significant. On a combined reading of S.167(2) and (2A) it emerges that the Judicial
Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order
detention in such custody namely police custody or judicial custody under S.167(2) for the
rest of the first fifteen days after deducting the period of detention order by the Executive
Magistrate. The detention thereafter could only be in judicial custody.

There are also specific rights during arrest and custody, governing the right of medically unfit
prisoners. These are that women accused of any offence, if arrested so soon after child birth
that they cannot at once be taken before the Magistrate without personal suffering and risk to
health should not ordinarily be removed until they are in a proper condition to travel.

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They should be allowed to remain under proper charge in the care of their relations, or be sent
to the nearest dispensary, and suffered to remain there until the officer in charge of the
dispensary certifies that they are sufficiently recovered. In such cases, sanction must be
obtained by the police from the nearest Magistrate for their detention at their homes, or in the
dispensary, beyond the period of 24 hours as allowed by section 57 of the code of criminal
procedure 1973. The same procedure should be followed in the case of other accused persons
who are too ill to travel.

The other right that is accorded to the accused is a derivative of the principles of natural
justice which would dictate that the police proceed as swiftly as possible with the
investigation so as to cause minimum suffering to all parties concerned. In the case of
Elumalai v. State of Tamil Nadu the court has held that “For a speedy trial, the prosecution
agencies also must take a prompt step in completing their investigations and filing their final
reports as contemplated under the Code as expeditiously as possible.”

In case the investigating officer fails to take speedy action in a case registered against any
person arrested under S. 41(1), S. 151(1) or any other penal provision of the law, and keeps it
in cold storage, forgetting his obligation to the society and in contravention of the principles
of natural justice and allow, by his conduct, the arrested persons to be kept behind the bars,
for months together and if the Courts without being conscious of the mandatory provisions of
S. 167(2), mechanically authorise repeated detention and also do not show any diligence in
completing the trial of the case speedily, the result would be that prisoners, especially those
coming from the downtrodden society, have to suffer untold physical and mental agony and
spend their lives in the jail without having any ray of hope of their release.”

1. Right To Silence

The ‘right to silence’ has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely
because he has not responded to questions which were asked by the police or by the court.
The Justice Malimath Committee in its report was of the opinion that right to silence is very

17
much needed in societies where anyone can be arbitrarily held guilty of any charge. As per
the law of evidence, any statement or confession made to a police officer is not admissible in
a court of law. Right to silence is mainly concerned about confession. The breaking of silence
by the accused can be before a magistrate but should be voluntary and without any duress or
inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right
against self-incrimination, it states that any person who has been accused of any offence,
shall not be compelled to be a witness against himself. The same was again reiterated by a
decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held
that no one can forcibly extract statements from the accused and that the accused has the right
to keep silent during the course of interrogation (investigation). The Supreme Court again in
the year 2010, held that narco-analysis, brain mapping and lie detector test are in violation of
Article 20(3) of the Constitution of India.

2. Right To Know The Grounds of Arrest

2.1) As per Section 50(1) of Cr.P.C., every person who is being arrested by any police officer,
without any warrant, is entitled to know the full particulars of offence for which he is being
arrested, and that the police officer is duty bound to tell the accused such particulars and
cannot deny it.

2.2) As per Section 55 of Cr.P.C., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making
such arrest, notify the person to be arrested the substance of the written order given by the
senior police officer specifying the offence or other cause for which the arrest is to be made.
If this provision is not complied with, then the arrest would be rendered illegal.

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2.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.P.C, any
person who is executing such warrant must notify the person to be arrested, the particulars of
such warrant, or even show such warrant if needed. If the substance of the warrant is not
notified, the arrest would be unlawful.

2.4) the Constitution of India also confers this right as one of the fundamental rights. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by a legal practitioner of his choice.”

3. Information Regarding The Right To Be Released On Bail

Any person who is to be arrested without a warrant and is not accused of a non-bailable
offence has to be informed by the police officer that he is entitled to be released on bail on
payment of the surety amount.[1] This helps persons who are arrested for bailable offences
and are not aware of their right to be released on bail.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the
person who is making such arrest has to bring the arrested person before a judicial officer
without any unnecessary delay. Further, the arrested person has to be confined in police
station only and nowhere else, before taking him to the Magistrate. These matters have been
provided in Cr.P.C. under sections 56 and 76 which are as given below:

Section 56 of Cr.P.C. states that “Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send the

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person arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station”.

Section 76 of Cr.P.C. states that “Person arrested to be brought before Court without delay-
The police officer or other person executing a warrant of arrest shall (subject to the provisions
of section 71 as to security) without unnecessary delay bring the person arrested before the
Court before which he is required by law to produce such person”.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24 hours in any case. While calculating the time period of 24 hours, the time necessary for the
journey is to be excluded. The same has been enumerated in the Constitution as a
Fundamental Right under Article 22(2). This right has been created with a view to eliminate
the possibility of police officials from extracting confessions or compelling a person to give
information.

If the police officials fails to produce an arrested person before a magistrate within 24 hours
of the arrest, the police officials shall be held guilty of wrongful detention.

6. Rights at Trial

6.1) Right To A Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera.

6.2) Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in
the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be
conducted “as expeditiously as possible.”

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In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused
is arrested, the investigation for the trial has to be completed within the period of six months
or stopped on receiving an order from the Magistrate, unless the Magistrate receives and
accepts, with his reasons in writing, that there is cause to extend the investigation.

7. Right To Consult A Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice. This
has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which
cannot be denied in any case. Section 50(3) of the Code also lays down that the person
against whom proceedings are initiated has a right to be defended by a pleader of his choice.
This starts begins as soon as the person is arrested. The consultation with the lawyer may be
in the presence of police officer but not within his hearing.

8. Rights Of Free Legal Aid

The Supreme Court in the case of in Khatri(II) v. the State of Bihar has held that the state is
under a constitutional obligation (implicit in Article 21) to provide free legal aid to an
indigent accused person as is implicit in Article 21 of the Constitution . This right does not
come into picture only at the time of trial but exists at the time when the accused is produced
the first time before the magistrate, as also when remanded from time to time. The Supreme
Court further states that failure on the part of the state to inform the accused of this right will
vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to
inform the indigent accused of his right to get free legal aid. The apex court has gone a step
further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been laid down
that this constitutional right cannot be denied if the accused failed to apply for it. It is clear
that unless refused, failure to provide free legal aid to an indigent accused would vitiate the
trial entailing setting aside of the conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 of Cr.P.C. enumerates this right. It states that:

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Section 54 of Cr.P.C:- “Examination of arrested person by medical practitioner at the request
of the arrested person- When a person who is arrested, whether on a charge or otherwise,
alleges, at the time when he is produced before a Magistrate or at any time during the period
of his detention in custody that the examination of his body will afford evidence which will
disprove the commission by him of any offence or which will establish the commission by
any other person of any offence against his body, the Magistrate shall, if requested by the
arrested person so to do direct the examination of the body of such person by a registered
medical practitioner unless the Magistrate considers that the request is made for the purpose
of vexation or delay or for defeating the ends of justice.”

Important case

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to eradicate the
possibility of the committing torture by the police officials, there were frequent instances of
police atrocities and custodial deaths. Therefore, the Supreme Court, in this case, issued some
guidelines which were required to be mandatorily followed in all cases of arrest or detention.
Following are some of the important ones-

The person who is going to arrest any accused should bear accurate, visible, and clear
identification along with their name tags with their designation.

The police officer who is arresting the arrestee must prepare a memo of arrest, and it should
be attested by at least one person who may either be a family member of the arrestee or any
other respectable person in the locality. The memo must contain the date and time of arrest
and must also be countersigned by the arrestee.

If the person who has signed the memo of arrest is not a family member, relative or friend of
the arrestee, then the arrestee is entitled to have one friend or relative being informed about
his arrest as soon as possible.

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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.

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.

The police officer should, on the request of arrestee, record at the time of his arrest major and
minor injuries, if any, present on arrestee’s body, after subjecting the arrestee to an
examination. The “Inspection Memo” must be signed both by the arrestee and the police
official making such arrest, and one copy of that memo must be provided to the arrestee.

Copies of all the documents including the memo of arrest, referred to above, should be sent to
illaqa Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.

The court also ordered that in every district and state headquarters, a police control room
should be established, wherein every arrest which is being made must be reported by the
police officer making such arrest within 12 hours of such arrest, and it should be displayed on
a conspicuous notice board.

The Court also emphasized failure to fulfill the given requirements would render the
concerned officer liable for contempt of court along with departmental actions, and such
proceedings can be initiated in any High Court having the territorial jurisdiction over the
matter.

Remedies

If the arrest is invalid on account of breach of procedure or violation of any other right or if
the custody is not passed within the framework of the law by a competent magistrate who has
jurisdiction over the issue, the person so detained can file a writ of habeas corpus under
Article 32 or 226 of the Constitution of India. However it must be noted that a writ does not

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lie against a legal custody, no matter what rights may have been violated before the lawful
custody.

In Kami Sanyal v Dist. Magistrate, Darjeeling the Supreme Court observed that “while a
person is committed to jail custody by a competent Court by an order, which prima facie does
not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of
that person cannot be granted”. It has been held that the crucial date when the legality of the
remand is to be looked into is the date when the petition comes up for hearing, in Kana v.
State of Rajasthan the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench
decision of the Patna High Court, in Babunandan Mallah v. State held that “if the detention of
the accused is legal, when the bail application is preferred, his previous illegal detention
should not be considered.”

Analysis & Conclusion

Like in the case of all law enforcement in India, the right of the underprivileged always
becomes harder to protect. The provisions of section 167 of Cr.P.C. extends to allowing the
person bail if there isn’t sufficient cause to hold him in custody. The section, however also
explicitly states that if the accused is unable to furnish bail then he continues to remain in
custody. It was observed in Laxmi Narain Gupta v. State that - Along with the present
petition at least another 20 cases have been listed, where the accused are in judicial custody,
merely because they are poor. In each of those cases, directions have been passed by the
Courts concerned, for admitting them to bail. They are in judicial customary because they
have not been able to arrange a surety while the orders for their judicial remands are being
passed in a routine manner.” This drawback also persists when the accused is unaware of his
rights.

While this section has been made clear by the statute, the same cannot be said for provisions
relating to the inability of the police to get a person into custody due to medical or other
reasons. The law is not clear if the 15 day limit must be suspended during the period of
inability to hold in physical custody.

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It becomes clear that the while the law provides for safeguards against abuse, it need to be
amended to remove all obscurities and contradiction. The magistrates must also see to the
background of the victims before passing orders. Section 167 must also be expanded so that
remedies must be available for past illegal detentions or arrest even if in the present case
custody is legal. Lastly, the executive must also play a role by ensuring that more and more
people are aware of their right.

References

• R.V. Kelkar’s Criminal Procedure by K.N. Chandrasekharan Pillai, 6thedn, EBC,

2015.

• The Code of Civil Procedure, 1973, Universal Law Publishing.

• Ratanlal & Dheerajlal, Criminal Procedure Code, Student Edition, LexisNexis, 2014.

• The Code of Criminal Procedure, S C Sarkar, 11th Edn. Vol. I, LexisNexis.

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