SOME IMPORTANT JUDGMENTS UNDER SECTION 167 CRPC

SOME IMPORTANT JUDGMENTS UNDER SECTION 167 CRPC

1.    State through C. B. I v. Dawood Ibrahim Kaskar and others

AIR 1997 SUPREME COURT 2494

Accused arrested subsequently by police during further investigation - Can be detained by Court in police custody in exercise of its power under S. 167.

There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to S. 309(2) are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, there is no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is interpreted - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. Therefore the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309 (2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.

2. Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Ors AIR 2013 SC 313

Issue: Where the Magistrate after considering the allegations in FIR had remanded the accused to custody and subsequently thereof order staying investigation comes to be passed, whether the detention pursuant thereto will become illegal and the writ of Habeas Corpus can be issued to release the person so detained?

The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.

Where the Magistrate after considering the allegations in FIR had remanded the accused to custody and subsequently thereof order-staying investigation comes to be passed, the stay order so passed would have no impact on remand order. Stay of investigation could only have bearing on the action of the investigating agency and it is difficult to perceive that the order of remand, which is a judicial act, suffers from any infirmity. Stay of investigation would not make the order of remand and the consequential detention unsustainable necessitating issuance of writ of habeas corpus. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.

3. Achpal @ Ramswaroop & Another v. State of Rajasthan 2019 CRI. L. J. 401

Right of Accused to be Released on Bail– In this recent case, the Supreme Court has deliberated on the law pertaining to right of bail when the investigation is pending and is not completed within the period as prescribed under Section 167(2) of the Code of Criminal Procedure (CrPC).

·       The Two-Judge Bench of the Supreme Court heavily relied on its verdict in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, which elaborated on the law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code.

·       In Uday Mohanlal case, the Supreme Court held that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

·       Reference was also made to Law Commission’s recommendation, whereby it was observed that such remand beyond the statutory period fixed under Section 167 would lead to serious abuse and therefore some time limit was required to be placed on the power of the police to obtain remand and as such the maximum period for completion of investigation was suggested.

·       The Supreme Court in the case noted that the letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself.

·       That further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not.

·       Object of Section 167 of CrPC– The Supreme Court noted that the purpose of the provision was that the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation.

·       That matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police.

4.Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453,

1. Majority view (per Pattanaik and Banerjee, JJ. (Agrawal, J. contra) :- Where after expiry of period of 60 days for filing challan the accused filed an application for being released on bail and was prepared to offer and furnish bail, however, the Magistrate rejects application on erroneous interpretation about non-application of S. 167(2) to case pertaining to MPID Act of 1999 and accused approaches higher forum and in meanwhile charge-sheet is filed, the indefeasible right of accused of being released on bail does not get extinguished by subsequent filing of charge-sheet. The accused can be said have availed of has right to be released on bail on date he filed application for being released on bail and offers to furnish bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with S. 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail.

An accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of S. 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. Such an interpretation would subserve the purpose and the object for which the provision in question was brought on to Statute Book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right then filing of challan at the stage will not take away right of the accused. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawful preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency.

Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Art. 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of S. 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Cri. P.C., and as such, could be violative of Art. 21 of the Constitution. The expression "if not already availed of" used by Court in Sanjay Dutt's case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of S. 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. 2001 (1) Bom CR 354, Reversed. 1995 Suppl (3) SCC 221, Overruled.(Para 8)

2. Minority view (Per B. N. Agarwal, J.): The expression 'availed of' does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If challan is filed before that, then there is no question of enforcing the right, however, valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised. In case the Court concerned has adopted any dilatory tactics or an attitude to defeat the right of the accused to be released on bail on the ground of default, the accused should immediately move the superior Court for appropriate direction. But if the delay is bona fide and unintentional and in the meantime challan is filed then such a petition has to be dismissed and it cannot be said that the accused has already availed of the right accruing under proviso to S. 167 of the Code. Right accruing under proviso to S. 167(2) of the Code on the expiry of the statutory period of sixty days cannot be said to have been availed of by mere making of an application for bail expressing therein willingness to furnish bail, but on furnishing bail bond as required under Cl. (a)(ii) of proviso read with Explanation 1 to S. 167(2) of the Code. If because of any bona fide view or procedure adopted by the Court concerned some delay is caused and in the meantime challan is filed, the Court has no power to direct release under proviso to S. 167(2) of the Code.

5. Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni : AIR 1992 SUPREME COURT 1768

1.    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.

2.    Remand of accused to police custody - It can be for fifteen days only - Thereafter further remand during periods of ninety days or sixty days - Can only be judicial.

3.    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

4.    S.309— Remand under - Can only be judicial custody

5.    In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying S.167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. If best must be made in this connection explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of S.167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued would seriously hamper the very investigation or the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same.

6. Rakesh Kumar Paul v. State of Assam AIR 2017 SUPREME COURT 3948

1.    While it is true that merely because a minimum sentence is provided for in statute it does not mean only minimum sentence is imposable. Equally, there is also nothing to suggest that only maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance?

2.    It was held that it is eventually for court to decide what sentence should be imposed given range available. Undoubtedly, the Legislature can bind sentencing court by laying down minimum sentence (not less than) and it can also lay down maximum sentence. If minimum is laid down, sentencing Judge has no option but to give a sentence 'not less than' that sentence provided for. Therefore, words 'not less than' occurring in Clause (i) to proviso (a) of S. 167(2) of the Cr. P. C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in case of S. 167 of Cr. P. C. these words must relate to an offence punishable with a minimum of 10 years imprisonment. In present case, petitioner had satisfied all requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge-sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by High Court on reasonable terms and conditions of bail.

3.    A bare reading of S. 167 of Code clearly indicates that if offence is punishable with death or life imprisonment or with a minimum sentence of 10 years, then S. 167(2) (a)(i) will apply and accused can apply of 'default bail' only if investigating agency does not file charge-sheet within 90 days. However, in all cases where minimum sentence is less than 10 years but maximum sentence is not death or life imprisonment then S. 167(2)(a)(i) will apply and accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed. S. 167(2)(a)(i) of Code is applicable only in cases where accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence is less than 10 years. In all cases where minimum sentence is less than 10 years but maximum sentence is not death or life imprisonment then S. 167(2)(a)(ii) will apply and accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed.