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

Justice V. Ramkumar
9 Oct 2021 7:07 AM GMT

An order by a Magistrate for the detention of a person, whether in "police custody" or "judicial custody" under Section 167 (2) Cr. P.C, pre-supposes an "arrest" of such person before such order. The 3 modes of arrest laid down in Section 46 Cr.P.C are – by physically touching the body of the person to be arrested, orby confining the body of the person to be arrested, orby the...

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An order by a Magistrate for the detention of a person, whether in "police custody" or "judicial custody" under Section 167 (2) Cr. P.C, pre-supposes an "arrest" of such person before such order. The 3 modes of arrest laid down in Section 46 Cr.P.C are –

  • by physically touching the body of the person to be arrested, or
  • by confining the body of the person to be arrested, or
  • by the person to be arrested voluntarily submitting to custody by word or action.

(vide Thaniel Victor v. State 1991 Cri.L.J 2416 (Madras)

If the person to be arrested is in "judicial custody", then the police officer has 2 options –

  • Take the permission of the Court which ordered the person to be detained in "judicial custody" for the purpose of effecting formal arrest of the person and then proceed to formally arrest the person in accordance with Section 46 Cr.P.C, or
  • Request the Magistrate concerned to issue a production warrant under Section 267 (1) (a) Cr.P.C for removal of the arrestee from "judicial custody" to "police custody" for the purpose of completing the investigation in another case.

(vide State of Rajasthan v.Santhosh Yadav 2005 Cri.L.J. 1830 (Raj) (FB). This was followed by a Division Bench of the Kerala High Court in Bineesh v. State of Kerala 2006 (3) KLT 364 = 2007 Cri.L.J.414 (Ker-DB).

Both under Article 22 (2) of the Constitution of India as well as Section 57 Cr.P.C., a person arrested ("arrestee" for short) cannot be detained in the custody of the arresting officer for more than 24 hours within which time he should be produced at least before the nearest Magistrate, excluding the time taken for journey from the place of arrest to the Court of the Magistrate. Upon production of the arrestee before the judicial Magistrate as enjoined by Section 167 (1) Cr.P.C., the said Magistrate is given the power to authorise the detention of the arrestee to such custody as he thinks fit. Such custody which may either be "Police custody" (only for the first 15 days) or "judicial custody".

2. As per Section 57 read with Section 167 (1) Cr.P.C. the investigation of a case has to be completed within 24 hours. However, the framers of the Code, taking note of the unavoidable delay in completing the investigation, have prescribed an outer limit under clauses (i) and (ii) of paragraph (a) of the proviso to Section 167 (2) Cr.P.C. depending on the total length of imprisonment which can be awarded to the culprit for the offence concerned. If the charge-sheet or complaint (in the case of a non-police officer) is not filed within the aforesaid period, the accused is given the indefeasible right to bail, loosely called "default bail" or "compulsive bail" or "statutory bail" which will be deemed to have been granted under Chapter XXXIII of Cr.P.C. This is the main purport of Section 167 Cr.P.C. We will now discuss a few practical problems which usually crop up for resolution before the criminal Courts.


1. Whether the production of an arrested person under Section 167 (1) Cr.P.C. should be before a Judicial Magistrate or before an Executive Magistrate

  • The arrested person (arrestee) should be produced before the Judicial Magistrate as enjoined by Section 167 (1) Cr.P.C. It is only when the Judicial Magistrate is not available that the arrestee can be forwarded to an Executive Magistrate if the powers of the Judicial Magistrate have been conferred on such Executive Magistrate as permitted by Section 167 (2A) Cr.P.C.

2. Whether an Executive Magistrate can authorise the detention of the accused in jail or police custody and if so, the maximum period permissible.

  • Where a Judicial Magistrate is not available and the nearest Executive Magistrate on whom the powers of the Judicial Magistrate have been conferred, is available, then he can authorise the detention of the arrestee for a maximum period of 7 days in the aggregate and that too for reasons to be recorded. (Vide Section 167 (2-A) Cr.P.C.). On the expiry of which the accused shall be released on bail unless his further detention has been ordered by the competent Magistrate. (Vide Section 167 (2A) Cr.P.C.) In the State of Kerala there is no practice of Executive Magistrates being invested with the powers of Judicial Magistrates during the non-availability of Judicial Magistrates. Another nearby Judicial Magistrate is invariably given charge of the Judicial Magistrate concerned.

3. After the initial order of detention in judicial custody for 5 days by an Executive Magistrate under Section 167 (2-A) Cr.P.C, whether the Judicial Magistrate before whom the arrestee is produced can direct detention of the arrestee in police custody and if so upto what period.

  • In view of the embargo under Clause (a) of the proviso to Section 167 (2) Cr.P.C., the maximum period of "police custody" or "judicial custody" which the Judicial Magistrate can order is only for the rest of the first 15 days (i.e. the remaining 10 days), after giving due allowance to the Judicial custody of 5 days ordered by the Executive Magistrate. (Vide para 9 of CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768 - Natbar Parida v. State of Orissa (1975) 2 SCC 220 = AIR 1975 SC 1465 relied on).

4. The meaning of the word "remand"

The word "remand" means "to send back a soldier to his post" or "to commit an accused person back to custody". In civil law, to remand a case means to send a case back to the lower Court from which it came.

Very often, the word "remand" is incorrectly used as "the case is accordingly remanded back to the trial court". This is bad usage. It is enough to say that the case is remanded to the trial Court.

5. Whether the word "remand", is a verb or a noun.

  • The word "remand" is used both as a verb as well as a noun. As a verb, in the present context, it means "to re-commit an accused person to the same custody from where he was released.

As a noun, the word "remand" means a Judicial Order of re-committal. E.g. the accused is on remand.

6. When a Magistrate orders an arrested person to be detained in "police custody" or "judicial custody", whether it is not legally correct to say that the arrested person is "remanded" to police or judicial custody.

  • No. The word "remand" is a misnomer when applied in the contest of Section 167 (2) Cr.P.C. (Vide para 45 of Directorate of Enforcement v.Deepak Mahajan (1994) 3 SCC 440 = AIR 1994 SC 1775). Remand can only be to the very same custody from where the arrestee was released. But, under Section 167 (2) Cr.P.C., the first order of custody can either be to "police custody" or "Judicial custody", depending upon the requirement of the case. In either case, such custody is ordered at the pre-cognizance stage and is, therefore, appropriately called "detention" instead of "remand".

7. Situations in which the word "remand" can legitimately be used as per the Cr.P.C.

  • Cr.P.C. uses the word "remand" only under Section 209 (a) Cr.P.C (remand during committal proceedings) and Section 209 (b) Cr.P.C (remand till the conclusion of trial) and Section 309 (2) Cr.P.C (remand when the inquiry or trial is postponed). All the above provisions are applicable at the post-cognizance stage. On both these occasions, the accused is sent back to the same judicial custody from which he was once released and that is why the framers of the Code have wisely used the word "remand" in those Sections. In Gourishankar v. State of Bihar (1972) 1 SCC 564 = AIR 1972 SC 711, interpreting Section 344 of the old Code (corresponding to Section 309 Cr.P.C) the Supreme Court had held that such remand after the commencement of inquiry or trial can only be to "judicial custody" and not police custody. Justice Bhaskaran Nambiar of the Kerala High Court in State of Kerala v. Sadanandan 1984 KLT 747 = 1984 Cri.L.J 1823 had taken the same view under the present Code. This decision of the Kerala High Court was noted with approval in paragraph 6 of CBI v. Anupam J Kulkarni (1992) 3 SCC 141 = AIR 1992 SC 1768.

8. In a case involving an offence which is triable exclusively by a Court of Session, whether instituted on a "police report" or a "private complaint", if the accused appears or is brought before Court under Section 209 Cr.P.C., whether the Court is obliged to remand the accused to custody until committal under Clause (a) and until the conclusion of the trial under Clause (b) of Section 209 Cr.P.C.

  • No. There cannot be any ritualistic or automatic cancellation of the bail of an accused (who is on bail) and remand of such accused to custody. Clauses (a) and (b) of Section 209 Cr.P.C. are subject to the provisions relating to bail. (Vide Ali Ahammed v. State of Kerala 1986 KLT 28 (S. Padmanaban – J ); Vikraman v. State of Kerala 1986 KLT 1372 (K. T. Thomas – J).

9. The nature of the custody after production of a person who is arrested by the police and produced before the Magistrate with a remand application under Section 167 (1) Cr.P.C.

  • The "police custody" of such person is converted into judicial custody. To be precise, on the arrest and production by the police before the Court, such person comes into the custody of the Court. (custodia legis) (Vide para 9 of Haridas P. Nair v. State of Kerala 2008 (2) KLT 373 = 2008 (2) KHC 275).

10. If the arrested person after production before the Magistrate is custodia legis and is represented by a lawyer and while the Magistrate is in his chamber, escapes from the Court premises, whether the lawyer is responsible for such escape.

  • Ordinarily no, unless the lawyer had aided the arrestee for escaping from lawful custody. (Vide para 9 of Haridas P. Nair v. State of Kerala 2008 (2) KLT 373 = 2008 (2) KHC 275).

11. Before the Magistrate passes an order for detention under Section 167 (2) Cr.P.C., whether the police officer effecting arrest is required to furnish to the Magistrate the facts and circumstances of the case justifying his arrest and whether the Magistrate should be satisfied that the conditions precedent for the arrest under Section 41 Cr.P.C. have been complied with by the police officer.

  • Yes. In order to ensure that Police Officers do not arrest accused persons unnecessarily and Magistrates do not authorise detention of the accused persons casually and mechanically, the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 = AIR 2014 SC 2756, issued the following directions :-

(1) All the State Governments to instruct its Police Officers not to automatically arrest when a case under S.498A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from S.41, Cr.P.C;

(2) From a plain reading of Section 41 (1) (b) Cr.P.C. it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years with or without fine, cannot be arrested by the Police Officer only on the satisfaction that such person had committed the offence punishable as aforesaid. The Police Officer before arrest, in such cases has to be further satisfied that such arrest is necessary –

  • to prevent such person from committing any further offence; or
  • for the proper investigation of the case; or
  • to prevent the accused from causing disappearance of the evidence of the offence, or
  • to prevent the accused person from tampering with such evidence in any manner; or
  • to prevent such accused person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or to the police officer, or
  • to ensure the presence of such accused person in Court whenever required.

(3) All Police Officers be provided with a check list containing specified sub-clauses under S.41(1)(b)(ii);

(4) The Police Officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding / producing the accused before the Magistrate for further detention;

(5) The Magistrate while authorising detention of the accused shall peruse the report furnished by the Police Officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(6) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(7) Where arrest of the accused is not required under Section 41 (1) Cr.P.C, a notice of appearance in terms of S.41A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(8) Failure to comply with the directions aforesaid shall apart from rendering the Police Officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to be instituted before the High Court having territorial jurisdiction.

(9) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

It is only after satisfying himself that the Police Officer has complied with the above requirement, that the Magistrate can authorise the appropriate detention under Section 167 (2) Cr.P.C.

12. If the Magistrate is convinced that the arrest effected by the Police Officer was without complying with the requirements of Section 41 Cr.P.C., whether the Magistrate, instead of passing an order for detention, duty-bound to "release" the accused.

  • Yes. (Vide para 9 of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 = AIR 2014 SC 2756; Para 102 of Gautam Pratap Navlakha v. National Investigtion Agency (judgment dated 21-06-2021 of the Supreme Court in Criminal Appeal No: 510/ 2021).

Such release can be under Section 59 of Cr.P.C.

If the arrest of the accused was in violation of Article 22 (1) of the Constitution of India which guarantees the right to be informed of the grounds of arrest and the right to consult and to be defended by a legal practitioner of his choice, the Constitutional Courts can order release of the accused. (Vide In the matter of Madhu Limaye (1969) 1 SCC 292 = AIR 1969 SC 1014 – 3 Judges).

13. The distinction between "police custody" and "judicial custody".

  • "Police custody" involves the passing of the person to the exclusive custody of the police for the purpose of "custodial interrogation" which may be indispensible for unearthing the truth in a given case. "Judicial custody" (jail custody) is under the custody of the court. Unlike in a case where the person is in "police custody", the police officer does not have access to the person in "judicial custody" unless permission of the court is sought and obtained. (Vide para 95 of Gautam Pratap Navlakha v. National Investigation Agency (2021 KHC 6278) (judgment dated 21-06-2021 of the Supreme Court in Criminal Appeal No: 510/ 2021).

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


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