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

• No. This is in view of the bar under Clause (a) of the First Proviso to Section 167 (2) Cr.P.C. (Vide paras 11 and 13 of CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768 – Jayachandra Reddy - J; Para 11 of State of Maharashtra v. Bharathi Chandmal Varma (Mrs) @ Ayesha Khan (2002) 2 SCC 121 = AIR 2002 SC 285 – K.T.Thomas - J).

15. Whether the bar against granting "police custody" beyond the first 15 days of detention under Clause (a) of the first proviso to Section 167 Cr.P.C. applies if a new or additional offence is subsequently revealed in the very same transaction in which the accused was remanded to judicial custody.

• Yes. The bar will still apply. For the said bar to be not applicable, the new offence should have been committed in another occurrence or a different transaction altogether. (Vide paras 11 and 13 of CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768). If the investigation into the offence for which the accused was arrested had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167 (2) Cr.P.C. would remain unextendable. (Vide end of para 11 of State of Maharashtra v. Bharathi Chandmal Varma (Mrs.) @ Ayesha Khan (2002) 2 SCC 121 = AIR 2002 SC 285 – K. T. Thomas – J).

The legal position was summarized by Justice K. Jayachandra Reddy in para 13 of Anupam J. Kulkarni, as follows:-

"Whenever any person is arrested under S.57, Cr. P.C. he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either "police custody" or "judicial custody" from time to time but the total period of detention cannot exceed 15 days in the whole. Within this period of 15 days there can be more than one order changing the nature of such custody either from police to judicial or vice versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records.

When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate may authorise further detention within that period of first 15 days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction.

Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under S.167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the Investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to S.167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in S.167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody."

NOTE BY VRK:- Going by the interpretation to paragraph (a) to the proviso to Section 167 (2) Cr.P.C, even if the accused successfully avoids judicial custody by getting himself hospitalized on a fake claim of illness, or if the police were disabled form seeking police custody on account of the fact that the accused is afflicted by Covid 19 and is on strict quarantine, nothing can be done, as long as the above interpretation is in vogue. Such and similar situations call for appropriate legislative intervention.

16. Whether it will be illegal if a Magistrate orders "house arrest" of an arrested person by way of "judicial custody" under Section 167 (2) Cr.P.C. which speaks of "such custody as such Magistrate thinks fit".

• Going by paragraphs 138 and 139 of Gautam Pratap Navlakha v. National Investigation Agency (judgment dated 21-06-2021 of the Supreme Court in Criminal Appeal No: 510/ 2021) 2021 (7) SCALE 379 = 2021 KHC 6278, the Supreme Court has held that in appropriate cases it will be open to courts to order "house arrest" as part of "judicial custody" both under Section 167 (2) as well as under Section 309 Cr.P.C. But the above view is contrary to --
• Chaganti Satyanarayana v. State of A.P. AIR 1986 SC 2130.
• CBI v. Anupam J Kulkarni AIR 1992 SC 1768.
• Budh Singh v. State of Punjab (2000) 9 SCC 266 – 3 Judges.
• Devender Kumar v. State of Haryana (2010) 6 SCC 753.
• Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat AIR 2013 SC 313 --

wherein it has been held that the words "such other custody" in Section 167 (2) take in only "police custody" and "judicial custody". Judicial custody is "jail custody" since the person is confined in a specified prison (jail) and is deemed to be under the custody of the court (custodia legis). "Prison" is the place specified by the State Government under Section 417 Cr.P.C. where a person, who is, inter alia, "committed to custody", should be confined.

• The only custody other than "Police custody" and "jail custody" recognized by the Cr.P.C. is the one covered by the last proviso to Section 167 (2) Cr.P.C. wherein a woman under 18 years should be ordered to be detained in the custody of a "remand home" or a "recognized social institution". An order for "house arrest" with police surveillance of an accused person residing in an apartment in a huge residential flat can be of a nuisance value to the other apartment dwellers. Moreover, it will be an additional burden on the State in providing for adequate police escort to such an accused person. Supposing the accused had a fall and had sustained a fracture and is in bed-rest. For passing an order of extension of the judicial custody, going by the interpretation placed by the Supreme Court in Khatri v. State of Bihar AIR 1981 SC 928 to Section 167 (2) Cr.P.C, the Magistrate has to see the accused person (wherever he is) before his remand is extended. A Magistrate visiting a residential flat with all paraphernalia and security personnel can be of great nuisance to the other dwellers in that building.
• Even in America and other countries, "house arrest" is ordered as a measure of probation for good conduct.
• Which accused person will not prefer to be in the bosom of his own family even if there were to be restrictions on his freedom of movement?
• A "house arrest" ordered under Section 167 (2) Cr.P.C. in lieu of "judicial custody", cannot be like a home quarantine in one's own house allowed by the Executive on account of the overcrowding of hospitals.
• Hence, the above view taken by the Supreme Court in Navlakha's case amounts to judicial legislation. The justification of "Overcrowding of prisons" and the "huge expenses incurred by the State for maintaining prisons" etc., as stated in that judgment, should not be the concern of the Court for specifying a third mode of custody by way of "house arrest" without any statutory sanction. It can result in Judge – made discrimination.

17. Whether the process by which the Magistrate orders detention in custody of a person arrested and produced before such Magistrate, is a "judicial function".

• Yes. The act of directing remand of an accused person is a judicial act and while exercising the above function, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify remand of the accused to police of judicial custody, as the case may be. The Magistrate is bound to peruse the case diary along with remand report and other relevant documents such as "check-list" etc. referred to in Arnesh Kumar v. State of Bihar (AIR 2014 SC 2756). Without applying his mind to the aforesaid matters the Magistrate cannot pass an order of remand automatically or in a mechanical fashion. (Vide para 24 of Manubhai Ratilal Patel v.State of Gujarat (2013) 1 SCC 314; Para 61 of Gautam Pratap Navlakha v. National Investigation Agency (2021 (7) SCALE 379 = 2021 KHC 6278) (judgment dated 21-06-2021 of the Supreme Court in Criminal Appeal No: 510/ 2021).

18. Whether a writ petition for Habeas Corpus lie against a Magistrate at the instance of an arrested person who has been produced before the Magistrate under Section 167 (1) Cr.P.C.

• No. This is because even before the Magistrate applies his mind and passes an order under Section 167 (2) Cr.P.C, the custody or detention of an arrested person forwarded to the nearest Magistrate under section 167 (1) Cr.P.C cannot be said to be wrongful or illegal. The proceedings at that stage cannot be pre-empted by a writ of Habeas Corpus. Such a writ against the Magistrate would be premature, especially now after the verdict in Arnesh Kumar (AIR 2014 SC 2756) since the Magistrate has the duty to examine under Section 167 (2) Cr.P.C the validity or otherwise of the arrest as well.

19. Whether, once the Magistrate has passed an order of detention under Section 167 (2) Cr.P.C, will a writ of Habeas Corpus lie against an order of detention passed by the Magistrate.

• Not in all cases. A writ of Habeas Corpus will be entertained, only if on a scrutiny of the detention order, the Constitutional Court is satisfied that the person has been committed to police or jail custody by virtue of an order which suffers from the vice of lack of jurisdiction or has been passed in an absolutely mechanical manner or in a wholly illegal manner. (Vide

• Col. Dr. B. Ramachandra Rao v. State of Orissa (1972) 3 SCC 256 = AIR 1971 SC 2197 – 3 Judges;
• Kanu Sanyal v. District Magistrate, Darjeeling (1974) 4 SCC 141 = AIR 1974 SC 510;
• Manubhai Ratilal Patel v. State of Gujarat (2013) 1 SCC 314;
• Serious Fraud Investigation Office v. Rahul Modi (2019) 5 SCC 266 = 2019 KHC 6353 (SC);

Paras 61 to 63 of Gautam Pratap Navlakha v. National Investigation Agency (2021 (7) SCALE 379 = 2021 KHC 6278) (judgment dated 21-06-2021 of the Supreme Court in Criminal Appeal No: 510/ 2021).

20. Whether there can be more than one spell of "police custody" within the first 15 days of remand.

• Yes. Within the first 15 days there can be more than one spell of police custody. But no "police custody" can be given after the first 15 days of remand. (Vide CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768; Chaganti Satyanarayana v. State of A.P. (1986) 3 SCC 141 = AIR 1986 SC 2130; Kozanapu Ramreddy v. State of A.P. - AIR 1994 SC 1447; Budh Singh v. State of Punjab – (2000) 9 SCC 266 – 3 Judges).

21. Whether there is any "restriction" on the power to grant "police custody" and whether there is any "conditions precedent" for ordering "police custody" under Section 167 (2) Cr.P.C.

• Yes. The "restriction" is the one contained in clause (a) of the proviso to Section 167 (2) Cr.P.C which enjoins that "police custody" in a case arising out of the same occurrence can be given only during the first 15 days of remand under any circumstance. (Vide Chaganti Satyanarayana v. State of A.P. (1986) 3 SCC 141 = AIR 1986 SC 2130; CBI v. Anupam J. Kulkarni -(1992) 3 SCC 141 = AIR 1992 SC 1768; Budh Singh v. State of Punjab – (2000) 9 SCC 266 – 3 Judges; Devender Kumar v. State of Haryana – (2010) 6 SCC 753). Police remand should be an exception and not the rule. (Vide paras 9, 16 and 18 of Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434.

The "conditions precedent" for ordering "police custody" are to be found in Section 167 (3) and (4) Cr.P.C. and Rule 20 of the Criminal Rules of Practice, Kerala, 1982.

Section 167 (3) Cr.P.C. mandates that the Magistrate has to record his reasons before authorizing detention in "police custody".

Section 167 (4) Cr.P.C enjoins that a Magistrate other than the CJM making such order for custody should forward a copy of the order together with his reasons, to the CJM.

Rule 20 of the Criminal Rules of Practice, Kerala, 1982 stipulates the following pre-conditions:-

• The Magistrate shall not accept a general statement made by the Investigating or other Police Officer to the effect that the accused may be able to give further information.
• The Magistrate shall not grant remand to police custody unless he is satisfied that there is good ground for doing so.
• A request for remand to police custody shall be accompanied by an affidavit setting out briefly the prior history of the investigation and the likelihood of further clues which the police expect to obtain by having the accused to his custody.
• Such affidavit shall be sworn to by the Investigating or other Police Officer not below the rank of a Sub-Inspector of Police.
• The Magistrate shall personally see and satisfy himself about the accused be sound in mind and body before entrusting him to police custody and shall also at the end of the period of custody satisfy himself by questioning the accused as to whether he had in any way been interfered with during the period of custody.
• Where the object of remand to custody is verification of the statement of the accused, he shall, whenever possible, be remanded to the charge of a Magistrate and the period of remand shall be as short as possible.
• It shall be the duty of the Magistrate who remands the accused person to custody other than that of police, and of the Magistrate in executive charge of the sub-jail to which the accused person is remanded, to guard the accused with the greatest care against the possibility of any undue influence.

22. Whether the words "if he (the Magistrate) considers further detention unnecessary" occurring in Section 167 (2) Cr.P.C. mean that the nearest Magistrate can make the first remand without much application of mind and it is only at the time of considering "further detention" that he has to meticulously apply his mind.

• No. The words "further detention" are used to denote the fact that the accused was already brought under detention in "police custody" by the police officer or in the custody of the "person in authority" who arrested the accused. The Magistrate, can after applying his mind consider whether even the first remand (detention) is necessary or not.

23. The statutory functions under Section 167 (2) Cr.P.C. available to the nearest Magistrate having no jurisdiction to try the accused or commit him for trial?

• 1. If the Magistrate either –
• discovers or is informed that he has no jurisdiction to try the case or commit it for trial,

or

• considers further detention of the accused unnecessary,

he may order the accused to be forwarded to the Magistrate having such jurisdiction.

(When the Magistrate considers further detention unnecessary, it may also be a case where the accused may have to be released on bail. But since the Magistrate is not the jurisdictional Magistrate, he cannot grant bail. The jurisdictional Magistrate alone can grant bail.)

2. The Magistrate should enquire from the arrestees as to whether they were subjected to any third degree methods by the arresting officer or anybody else.

In case there are injuries on the body of the arrestees, the Magistrate has to enquire as to how those injuries were sustained. (vide para 7 of Khatri v.State of Bihar (1981) 1 SCC 627 = AIR 1981 SC 928).

3. After Arnesh Kumar's Case (AIR 2014 SC 2756) if the Magistrate finds that the arrest of the person was in flagrant violation of the procedure, the Magistrate can even discharge him by recourse to Section 59 Cr.P.C.

4. If after perusing the entries in the case diary or the case diary itself, the remand application and other documents, if any, the Magistrate is of opinion that "custodial interrogation" of the accused is necessary for the purpose of investigation in order to unearth further materials, the Magistrate shall record his reasons under Section 167 (3) Cr.P.C. and authorise detention in "police custody" for any term within the first 15 days.

The Magistrate (other than the CJM) shall forward a copy of the order together with his reasons to the CJM under Section 167 (4). In the State of Kerala, a Magistrate has to strictly abide by Rule 20 of the Criminal Rules of Practice, Kerala, 1982, referred to earlier in Situation No.21 above.

5. If the Magistrate is of the opinion that the case is not fit for "police custody" but at the same time after perusing the diary extract or the case diary, remand report etc. the Magistrate considers it fit to authorise detention of the accused, he may order "judicial custody" of the accused for a term not exceeding 15 days.

After the first remand, the Magistrate will forward the accused and the records to the Jurisdictional Magistrate.

6. In a case where the Jurisdictional Court is far away in another District or another State, the arrested accused when produced before the nearest Magistrate will have to be forwarded to the Jurisdictional Court under a "transit remand". Here the Magistrate is not authorizing any police or judicial custody but is only passing a "Special Order" as contemplated by Section 57 Cr.P.C. In para 76 of Navlakha's case (Supra) it is observed by the Supreme Court that since as per the "transit remand", the accused is exclusively entrusted with the police to enable his journey to the jurisdictional court, his custody is "police custody". The Police officer concerned, in view of the Special Order referred to in Section 57 Cr.P.C., can thereupon produce the arrestee before the Court having jurisdiction and thereafter it is for that court to exercise the power to order detention in "police custody" or "judicial custody", if need be, under Section 167 (2) Cr.P.C.

The word "transit remand" is really a misnomer and is not dealt with under the Cr.P.C.

One aspect to be borne in mind in this context is that under Section 56 Cr.P.C it is bounden duty of the police officer arresting a person to produce him without unnecessary delay before the Magistrate having jurisdiction. (vide para 5 of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 = AIR 2001 SC 1910 – 3 Judges. G.B.Pattanaik – J). Sections 57 and 167 (1) Cr.P.C will have application only when the arrested person is to be detained beyond 24 hours. This is how Section 56 Cr.P.C on the one hand and Sections 57 and 167 (1) Cr.P.C on the other have to be reconciled.

24. Whether "default bail" also can be granted only by the Magistrate having jurisdiction to try the case.

• Yes. The authority of the nearest Magistrate having no jurisdiction is only to pass the first remand order or a special order as contemplated under section 57 Cr.P.C. Thereafter it is the jurisdictional Magistrate who has to deal with the accused and in appropriate cases, grant "bail" or "default bail", as the case may be.

25. Whether an order for detention under Section 167 (2) Cr.P.C. is an "interlocutory order" not amenable to the revisional jurisdiction of the Sessions Court or High Court.

• Yes. It is an interlocutory order since any illegality in the remand order will not affect the progress of the trial or its decision. (Vide State v. N.M.T. Joy Immaculate (2004) 5 SCC 729 = AIR 2004 SC 2282 – 3 Judges; Para 57 of Navlakha's Case 2021 (7) SCALE 379).

If the order for judicial custody is passed by the nearest Magistrate who is not the jurisdictional Magistrate then the accused can apply for regular bail only before the Sessions Court or the High Court under Section 439 (1) (a) Cr.P.C.

26. Whether notional surrender before the Magistrate in a case can be treated as "police custody" qualifying for default bail.

• No, unless a notional arrest was also made in that particular case in which the surrender was made. (Vide State of W.B. v. Dinesh Dalmia (2007) 5 SCC 273 = AIR 2007 SC 1801; CBI v. Anupam J Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768).

27. There are several persons already arrested and yet to be arrested in connection with an offence. In the remand application of one of the arrested persons, the police officer has not disclosed the name and role of a co-conspirator who is yet to be arrested but against whom materials have been collected. Whether it is not a ground for disbelieving the prosecution case or at least for treating the prosecution case suspect.

• No. By a remand application the investigating officer is required to bring to the notice of the Court the materials collected against an arrested accused so as to persuade the Court to remand him to custody for continuing the investigation. The investigating officer is not required to state in such application the materials collected against a person who is yet to be arrested. Hence, the alleged non-disclosure cannot be a ground to suspect the truth of the prosecution case. State of Maharashtra v. Ramesh Taurani – (1998) 1 SCC 412 – AIR 1998 SC 586.

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

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

Watch the Video of the Lecture here