Laws of Custody in India: An Analysis of Section 167 of the Code of Criminal Procedure

By Bhavani Kumar, SLS Pune

Editor’s Note: 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. This paper discusses the laws of custody in India and also the rights of an accused person. It also discusses the remedies that an accused has if he/she challenges the legality of the arrest.

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 a 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 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.

RIGHTS OF ACCUSED

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[i]. 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 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 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[ii] 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-I, New Delhi v. Anupam J.Kulkarni [iii] 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.

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[iv] 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 society of have nots, have to suffer untold physical and mental agony and spend their lives in the jail without having any ray of hope of their release.”

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

In Kami Sanyal v Dist. Magistrate[v], 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[vi] the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench decision of the Patna High Court, in Babunandan Mallah v. State[vii] 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 AND 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 167b 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[viii] 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.

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.

Edited by Hariharan Kumar

[i] Constitution of India, Article 22(1)

[ii] 1983 CriLJ 1009

[iii] AIR 1992 SC 1768

[iv] 1983 Mad LW (Cri) 121

[v] 1990 CriLJ 2685

[vi] 1980 Cri LJ 344

[vii] 1972 Cri LJ 423

[viii] 2002 CriLJ 2907

9 Replies to “Laws of Custody in India: An Analysis of Section 167 of the Code of Criminal Procedure”

  1. If the police custody is pending and the accused is in the majestrate custody can the judge give the police custody without seeing the accused

    1. Accused has to be brought before magistrate while seeking remand
      And police custody has to be granted on first fifteen days not afterwards

  2. When the Husband is a drinker and irresponsible about children,Is the Wife has got right to appoint a person as Custodian to Children.Is it possible to provide Facilities, Education through Custodian to the children to protect from husband.

  3. How many days can or should the police spend time for the investigation in case of IT act Section 66 (c) & (d)

  4. Child criminal justice system is down and I will reach you by the way you do that again please let me know what to do that
    Police station in the morning so we could go to ????

  5. WHEN CHARGE SHEET IS IN 363 366 120B i.p.c$3/4 pocso act
    but remand of accused is continuing in section 363 366 376ipc&3/4pocso act
    in this irregularity what is law?

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