S.

167

Further, new sub-s. (2-A) empowers an Executive Magistrate, on whom the powers of a Judicial
Magistrate or Metropolitan Magistrate have been conferred under s. 13 or s. 18 to make an order
for remand of an accused for a period not exceeding seven days in the aggregate in cases where a
Judicial Magistrate is not available. The period of detention ordered by such a Magistrate will,
however, be taken into account in computing the total period specified in cl. (a). This has been done
with a view to overcoming the difficulties arising out of a shortage of Judicial Magistrates in certain
remote areas

Anglo-Saxon Criminal Law, on which the Indian Law is based, that the accused is entitled to demand
that justice is not delayed and the Habeas Corpus Act entitled a person to ask for a writ of habeas
corpus directing his trial at the next assizes.

The period of 90 days commences from the date on which the accused is remanded and not from
the date of arrest.

It is the duty of the Magistrate which has been imposed on him by the Legislature that if an accused
has completed 90/60 days in detention and no charge-sheet is filed against him then the Magistrate
should pass an order of bail calling upon the accused to furnish bail bonds. He cannot ask the
accused to move an application for that purpose and if the accused does not move an application
after completion of 90/60 days then the bail cannot be denied to him after filing of the charge-sheet
on the ground that the accused had not applied for bail under the provisions

The word used in s. 157 is "offender", and the word "accused" is used for the first time in this
Chapter in this section. At the time s. 157 comes into operation there is only a report and a suspicion
that a cognizable offence has been committed, while this section comes into play after the Police
Officer entrusted with the investigation has taken necessary steps to arrest the person who is
alleged or suspected to have committed the offence. So a person becomes an accused person
immediately after he has been arrested by the police for an offence which forms the subject-matter
of investigation by them.32 A person arrested by the police during investigation after ascertaining
his complicity is an accused person within the meaning of s s. 167 and 169, even if his name is not
mentioned in the FIR under s. 154

This section operates at a stage when a person is arrested and either an investigation has started or
is yet to start, but is such that it cannot be completed within 24 hours. Section 309, on the other
hand, indicates that investigation has already begun and sufficient evidence has been obtained
raising a suspicion that the accused person may have committed the offence and further evidence
may be obtained, to enable the police to remand to jail custody, if necessary. The fact that s. 309
occurs in the Chapter dealing with enquiries and trials does not mean that it does not apply to cases
in which the process of investigation and collection of evidence is still going on. The Magistrate may
even postpone the enquiry or trial and grant a remand under s. 309. But while a remand under this
section may be to judicial custody or police custody, a remand under s. 309 can be only to judicial
custody;67 and while a remand under this section may be for a total period of 15 days, a remand
under s. 309 may be for a period not exceeding 15 days at any one time

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, and this would defeat the very object underlying s. 167 of the Code
The requirement of sending the case diary along with the remand report is of a mandatory
character. A violation may taint the prosecution in cases where the facts justify it. The evidence
cannot be discarded on the ground of a mere violation of this provision.

The prosecution has option to seek cancellation of bail after the defect of nonfiling the charge-sheet
within the stipulated time is cured on the ground that the accused has committed non-bailable
offence

The Supreme Court (a decision of a Bench of 7 Judges) has held in Raj Narain v. Superintendent,
Central Jail, New Delhi, 6 that detention of the petitioner on the ground that he was not produced
before the Magistrate when the latter passed an order of remand, was not illegal. Hence his petition
for a writ of habeas corpus was dismissed. This was a decision by a majority of five Judges. Two
Judges dissented and held that the remand order was invalid.

It is not open to the officer-in-charge to submit an incomplete or preliminary charge-sheet with a

view to deprive an accused of his valuable right to liberty when the investigation is not complete
within the period prescribed by the proviso to sub-s. (2) of s. 167 of the Code. However, it is the
substance that matters and the Court has to consider if any subterfuge had been adopted to negate
the right granted by the proviso to s. 167(2). If investigation has, in fact, been completed, mere
description of the charge-sheet as incomplete or preliminary would not take the report out of the
category of reports contemplated by s. 173(2).

The object of incorporating the proviso is to see that a person arrested by police does not languish
unnecessarily in prison awaiting completion of investigation. The provisions contained in s. 167(2)
are mandatory and failure of the Investigating Agency in completing the investigation within the
prescribed period entitles the accused to be enlarged on bail.85 Proviso (a) to sub-s. (2) of s. 167
Crpc is not controlled by s. 437 of Crpc. Merits of the case are immaterial. However serious may be
the nature of the crime and gravity of offence, no discretion is given to the Magistrate when the
accused files an application under proviso (a) to sub-s. (2) of s. 167 Crpc and thereupon the accused
is entitled for bail as a matter of right.86 Where in a case, the police fails to complete the
investigation and file chargesheet under s. 167(2) Crpc within the stipulated period, the accused
would be entitled to bail.87 Where the charge sheet was not filed within 90 days, accused was
released on bail.

The custody referred to in s. 167(2) Crpc means the police custody in a particular case for
investigation and not judicial custody in another case. The notional surrender cannot be treated as
police custody so as to count 90 days from that notional surrender. A notorious criminal may have
number of cases pending in various police stations in city or outside city, and a notional surrender in
pending case for another FIR outside city or of another police station in same city, such that if the
notional surrender is counted then the police will not get the opportunity to get custodial
investigation.95 In a case, the accused who applied for compulsory bail under s. 167(2) Crpc was in
custody in another case. The accused made notional surrender in the case in which he applied for
bail. Held, from the date of notional surrender in the case, the computation of period of 15, 60 or 90
days did not start. The accused was not entitled to compulsory bail under s. 167(2) Crpc.

When an under-trial prisoner is produced before a Magistrate, and he has been in detention for 90
days or 60 days, as the case may be, the Magistrate must before making an order of further remand
to judicial custody point out to the under-trial prisoner that he is entitled to be released on bail.

"From the time the accused appears or is produced before the Magistrate with the police report
under Section 170 and the Magistrate proceeds to enquire whether Section 207.has been complied
with and then proceeds to commit the accused to the Court of Session, the proceeding before the
Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. If the Magistrate is
holding the inquiry obviously Section 309 would enable the Magistrate to remand the accused to the
custody till the inquiry to be made is complete." An accused cannot claim a right to be released on
bail under the proviso (a) to subs. (2) if the Magistrate does not take cognizance within the statutory
period of 90 days or 60 days even though the police filed the charge sheet within that period. An
inquiry is deemed to have commenced on the date the charge-sheet is submitted in such a case and
the Magistrate, therefore, has power to remand the accused under s. 309(2)

An accused released under default clause under s. 167(2) proviso cannot be re-arrested on the mere
filing of the chargesheet

An accused released on bail under the proviso to s. 167(2)(a) is deemed to have been released under
s. 437(1) or (2). Therefore, the bail so granted cannot be cancelled on the ground that the charge-
sheet has been filed. Such a bail can be cancelled only if the conditions under s. 437(5) are fulfilled.
That is to say, the Court must consider whether on the materials placed before it, the bail should be
cancelled or not.

S. 169

In fact, the Investigating Officer is not even supposed to apply to a Magistrate under s. 169 for
discharge. The word used in s. 169 is "release"

S. 172

The object of recording "case diaries" under this section is to enable Courts to check the method of
investigation by the police,61 to avoid concoction of evidence, or changing chronology to suit
investigation

The case diary is only a record of day to day investigation of the investigating officer to ascertain the
statement of circumstances ascertained through the investigation