Section 167: Custody during investigation
Article 22 (2) of the Constitution of India says, “Every person who is arrested and
detained in custody shall be produced before the nearest magistrate within a period
of twenty-four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate”
Section 57 of the CrPC, 1973 says,
“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”.
Section 187, the BNSS is similar to section 167, the CrPC. Section 167.
Procedure when investigation cannot be completed in twenty-four
hours.
(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 has no jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate thinks fit, for 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:
a) the Magistrate may authorise the detention of the accused person, otherwise than
in 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;
(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 so
released under the provisions of Chapter XXXIII for the purposes of that Chapter.
Section 167(1)
There are following ingredients of section 167(1) –
❖ There must be arrest and custody rather than arrest and release.
❖ it appears that the investigation cannot be completed within the period of
twenty-four hours fixed by section 57201 and
❖ there are grounds for believing that the accusation or information is well
founded
❖ It is duty of 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
forthwith transmit to the nearest Judicial Magistrate
❖ Two things must be transmitted to Magistrate i.e. (1) a copy of the entries in
the diary, and (2) shall at the same time forward the accused to such
Magistrate
| Executive Magistrate. But not any executive Magistrate. Only those Executive Magistrates on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred. | Section 167 (2A) | 7Days | Police custody & Judicial Custody or vice versa |
| Judicial Magistrate | Section 167 (2) | 15 days | Police custody/Police Remand or Judicial Custody or vice versa |
| judicial magistrate | section 167(2) | 90-15 =75 | judicial custody where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years |
| judicial magistrate | Section 167 (2) | 60 Days (60-15 =45) | Judicial Custody where the investigation relates to any other offence |
According to section 57 person arrested without warrant cannot be detained beyond 24 hours without the special order of Magistrate under section 167. 24 hours have been allowed so that investigation in non-serious offences can be completed at level of police station. If it could not be completed within 24 hours and further detention
of the arrested person is necessary, recourse of section 167 has to be taken. Section 167 deals with the procedure when investigation cannot be completed in twentyfour hours.
Magistrate is authorised under section 167 to send accused in police custody and judicial custody as the fact of the case required. In Arnesh Kumar v. State of Bihar202 the Supreme Court observed that before a Magistrate authorizes detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest affected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused.
Judicial Custody for 90 or 60 Days –
Section 167 (2) (a) – The Magistrate may authorise the detention of the accused
person, otherwise than in 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;
(ii) sixty days, where the investigation relates to any other offence.
The Supreme Court in State of Madhya Pradesh v. Rustam205 discussed counting of 90
or 60 days. In this case, the accused was sent jail on Sept. 3, 1993. The Challan was
submitted on December 2, 1993. In this case counting of 90 and 60 days were
involved. Accused was saying that 90 days completed and challan was submitted
after 90 days. So, he was entitled for compulsory/statutory bail. Argument of the
State was opposite. According to the State, 90 days had not expired, so accused was
not entitled for compulsory bail.
The Supreme Court held that clear 90 or 60 days must expire before the right begins.
In computing the period of 90 or 60 days on either side has to be excluded as
required under 9 and 10 of the General Clauses Act, 1897206. In this case, challan was
submitted within 90 days so there was no question of granting bail by default. Clear
90 days must expire.
Bail – Bail granted under section 167 is known as ‘Default Bail’ or ‘Statutory Bail’
or ‘Mandatory Bail’. This bail is granted due to default of investigating authority
who could not file ‘Police Report’ or ‘Challan’ under section 173 of Cr.P.C. within
specified period. In the case of Rakesh Kumar Paul v. State of Assam
Supreme Court observed, “The significance of the period of 60 days or 90 days, as
the case may be, is that if the investigation is not completed within that period then
the accused (assuming he or she is in custody) is entitled to ‘default bail’ if no charge
sheet or challan is filed on the 60th or 90th day, the accused applies for ‘default bail’
and is prepared to and does furnish bail for release.
leading case-
Gautam Navlakha v. National Investigation Agency .
Section 167: Default Bail/Statutory Bail
I had already discussed default bail and counting of ninety or sixty days as the case
may be. Section 167 deals with police custody or remand and judicial custody.
House arrest was unknown for section 167. First time Supreme Court in Gautam
Navlakha v. National Investigation Agency developed concept of house custody.
( Gautam Navlakha v. National Investigation Agency
The Court decided Gautam Navlakha v. National Investigation Agency on May 12, 2021.
In this case, the Court interpreted section 167, CrPC and said that house arrest
could be part of custody under Section 167.
present problem:
‘W’ lodged an FIR against her husband (H) under section 498A of the IPC. H is arrested by a police inspector and detained in custody. It appears to the police officer that the accusation is well-founded and the investigation cannot be completed within 24 hours. Elucidate the procedure to be followed to get the detention extended. If H wants to make a confession about his guilt during investigation, what should the police officer do in order to ensure that the confession is admissible in evidence? What is the procedure to be followed for recording such confession? Discuss in light of relevant statutory provisions and case law.
Answer : In this situation, to extend H’s detention beyond 24 hours, the police must produce him before a magistrate, and the magistrate must be satisfied of the necessity for extended custody. For H’s confession to be admissible, it must be recorded by a magistrate under the conditions prescribed in Section 164 of the CrPC, ensuring the confession is voluntary and free from coercion.
“A F.IR. was lodged on 27-10-2016 in respect of allegation made under the provisions of section 7, 13(1)(b)(d)/13(2) of the Prevention of Corruption Act, 1988 (PC Act). Although Mr. M’s name was not named in the F.I.R., investigation seemed to implicate him in a very large and structured conspiracy. Accordingly on 5-11-2016, Mr. M was taken into custody pending further investigation. On 20-12-2016 Mr. M applied for bail before the Special Judge dealing with the cases relating to offences under PC Act, due to default on the part of investigation agency in not filing the charge-sheet within sixty days. His application was rejected. Subsequently, on 11- 1-2017 Mr. M applied for default bail before High Court after expiry of 60 days but before the expiry of 90 days of detention.” Decide whether Mr. M is entitled to release on bail, pending investigation, in the light of the fact that Mr. M had committed offences which could result in “imprisonment for a term not less than ten years”.
Answer : Given the above analysis, Mr. M is entitled to default bail under Section 167(2) of the CrPC as the investigation agency failed to file the charge-sheet within the mandatory 60-day period. His application for bail on 11-1-2017 before the High Court should be granted, as his continued detention without a charge-sheet violates his statutory right to default bail. The fact that the offences could result in imprisonment for a term not less than ten years is relevant only to determine the period for filing the charge-sheet (90 days). However, since the offenses under the Prevention of Corruption Act are punishable with a term extending to seven years, the 60-day period applies, making Mr. M’s claim to default bail valid.
Uday Mohanlal Acharya v. State of Maharashtra (2001): The Supreme Court held that an accused becomes entitled to bail if the charge-sheet is not filed within the prescribed period, and the right to default bail cannot be defeated by subsequently filing the charge-sheet.Rakesh Kumar Paul v. State of Assam (2017): The Supreme Court emphasized that the right to default bail under Section 167(2) of the CrPC is an indefeasible right and an important safeguard against prolonged detention without trial.
‘X’, a youtuber murders his wife at Delhi. He is on the run and absconds FIR is registered and police makes effort to arrest ‘X’. Finally ‘X’ is arrested in Mumbai and is produced before the concerned Magistrate in Mumbai, who gave his transit remand to police.’X’ is brought to Delhi and is produced before the jurisdictional Magistrate who further remands him to police custody and charge sheet is filed on the 90th day from the first remand of accused to police custody. Decide the issue raised to ‘X’ in the light of relevant provisions and judicial precedents.
Answer: Therefore, assuming the charge-sheet was filed within the 90-day period (inclusive of the date of the first remand order), ‘X’ would not be entitled to default bail solely on the grounds of delay in filing the charge-sheet. If the charge-sheet was filed after the 90th day, ‘X’ would have the right to default bail provided he applies for it.
Cognizance of 90-Day Rule:The Supreme Court in C.B.I v. Anupam J. Kulkarni (1992) held that the 90-day period for filing the charge-sheet under Section 167(2) of the CrPC begins from the date of the first remand order and includes the day on which the order was passed.
Default Bail Entitlement:The Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra (2001) and Rakesh Kumar Paul v. State of Assam (2017) reiterated that the right to default bail is an indefeasible right of the accused if the charge-sheet is not filed within the prescribed period, provided the accused applies for bail.
