Gauhati HC: [S.187 BNSS] Status Of Hospitalised Arrestee Cannot Remain Unknown, Magistrate Must Verify Through Visit Or VC

Though, there is no dispute at the bar regarding the proposition of law, as mandated by Article 22 of the Constitution of India, that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of his arrest excluding the time taken for the journey from the place of arrest to the Court or the Magistrate and no such person shall be detained in custody beyond the said period without authority of a Magistrate, however, in the instant case, though the petitioner was arrested on 14.04.2025 (as apparent from the arrest memo of the petitioner available in the record), however, there is no order of remand either judicial or police neither the petitioner is released on bail. {Para 13}

14. It appears that the learned Magistrate has erred in not passing any order regarding production of the petitioner through video conferencing mode when such a prayer was made by the Investigating Officer on 15.04.2025 by simply allowing the Investigating Officer to produce the petitioner before the Magistrate as and when he is released from the hospital. Such an order without clarifying the status of the petitioner, as to whether he is in custody or a free person, when the arrest of the petitioner was reported to the said Magistrate stating the reasons for not producing him before such Magistrate, is in violation of the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India.

15. It is settled constitutional position that an arrestee shall have to be produced before the nearest Magistrate within 24 hours excluding the time required for his production before such Magistrate. There may be exceptions to such requirement, like in the instant case where the arrestee is injured and requires urgent medical care so that instead of producing such an arrestee before the Magistrate, he might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police. After the arrest of a person if he is not released on bail, an order for remand to judicial custody has to be made though it can be qualified by clarifying that the petitioner may continue to stay in the hospital after ascertaining such a requirement. For the said purpose, the Magistrate may also call for a report from the hospital where the arrestee has been admitted.

16. However, as Section 187 of BNSS categorically states that subject to condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless, such an order is passed, the initial arrest of the petitioner beyond the period of 24 hours from the time of his arrest, would become illegal.

17. In this case, the petitioner has been admitted in hospital for last 45 day after the date of his arrest. Though, he is admitted in the hospital and it appears that his status is not of a free person but of an arrestee as he has not been granted bail in this case, however, no order under Section 187 BNSS was passed by the Magistrate. In absence of any order of remand beyond the period of 24 hours from the time of his arrest, his arrest gets vitiated on completion of 24 hours in custody. Since such non-production of the petitioner, even through video conferencing mode, beyond 24 hours in custody amounts to violation of Article 22(2) of the Constitution of India, his fundamental right to liberty guaranteed under Article 21 of the Constitution of India is also violated and, on that count, the petitioner is entitled to go on bail.

 In the High Court of Gauhati

(Before Mridul Kumar Kalita, J.)

Bittu Kumar  Vs  State of Assam 

Bail Appln./1662/2025

Decided on June 2, 2025

Citation: 2025 SCC OnLine Gau 2842,

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Checklist Toolkit for Session Judges for deciding remand and Bail Applications Under NDPS Act

 Pre-Application Assessment

Legal Framework Verification

• Confirm charges under NDPS Act sections (particularly Sections 19, 24, 27A)

• Determine if case involves commercial, intermediate, or small quantity

• Verify applicability of Section 37 restrictions

• Check if public prosecutor has been given opportunity to oppose

Jurisdictional Considerations

• Ensure first remand was conducted before magistrate (not special judge).

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Constitutional Compliance Checklist for Magistrate Courts and Session Courts when Accused is Brought before them for Remand

MANDATORY CONSTITUTIONAL VERIFICATION CHECKLIST

IMMEDIATE ACTIONS (Before Considering Remand)

1. Article 22(1) Compliance Verification

- [ ] Verify if grounds of arrest were communicated to the accused

  - [ ] Check if grounds were provided in writing (not just orally)

  - [ ] Confirm grounds were provided "forthwith" (immediately) after arrest

  - [ ] Ensure grounds were communicated in language understood by accused

- [ ] Examine the arrest memo and related documents

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Whether accused can seek anticipatory bail in subsequent offence after an order of police remand is passed against him in that case?

 The investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous

offence so long as no order granting anticipatory bail has been

passed in relation to the subsequent offence. However, if an order

granting anticipatory bail in relation to the subsequent offence is

obtained by the accused, it shall no longer be open to the

investigating agency to seek remand of the accused in relation to

the subsequent offence. Similarly, if an order of police remand is

passed before the accused is able to obtain anticipatory bail, it

would thereafter not be open to the accused to seek anticipatory

bail and the only option available to him would be to seek regular bail.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2501 OF 2024

DHANRAJ ASWANI  Vs AMAR S. MULCHANDANI & ANR.

Author: J.B. PARDIWALA, J.

Citation: 2024 INSC 669.

Dated: 9 th September, 2024.

Read full Judgment here: Click here.

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Whether investigating officer can seek remand of accused if he is in custody in previous offence if he is granted anticipatory bail in subsequent offence?

 iii. While a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected.

iv. The investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous

offence so long as no order granting anticipatory bail has been

passed in relation to the subsequent offence. However, if an order

granting anticipatory bail in relation to the subsequent offence is

obtained by the accused, it shall no longer be open to the

investigating agency to seek remand of the accused in relation to

the subsequent offence. Similarly, if an order of police remand is

passed before the accused is able to obtain anticipatory bail, it

would thereafter not be open to the accused to seek anticipatory

bail and the only option available to him would be to seek regular bail.

  REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2501 OF 2024

DHANRAJ ASWANI  Vs AMAR S. MULCHANDANI & ANR.

Author: J.B. PARDIWALA, J.

Citation: 2024 INSC 669.

Dated: 9 th September, 2024.

Read full Judgment here: Click here.

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Under which circumstances the high court may issue writ of Habeas Corpus and certiorari against judicial order?

 Pronouncing upon the issue whether a writ of Habeas

Corpus would lie against an order of remand under Section 167,

by referring to the decision in case of Manibhai Ratilal Patel Vs.

State of Gujarat and ors, (2013) 1 SCC 314 which had taken a view that a writ of Habeas Corpus shall not 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 or wholly illegal manner, reference was made to a decision in case of SFIO Vs. Rahul Modi, 2019(5) SCC 260 which had laid down the position of law as below:-

“19 The law is thus clear that in a Habeas Corpus proceedings,

a Court is to have regard to the legality or otherwise of the detention

at the time of return and not with reference to the institution of the

proceedings”.

It is in this background the circumstances in which the writ

of Habeas Corpus shall lie, were clearly stipulated in the following

words:-

“If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, a person affected can seek the remedy of Habeas Corpus. Barring such situations, Habeas Corpus petition will not lie.”

36] We have no hesitation in coming to a conclusion that in the

present case, both the conditions are clearly attracted, as the

remand of the CCL, by three distinct orders passed by the Board is absolutely illegal as the impugned order, are afflicted with vice of lack of jurisdiction and further orders of remand being passed by the Board, in an absolutely mechanical manner, without

considering the most significant and pivotal fact that the CCL

continue to be on bail and there is no cancellation or revocation of the order, enlarging him on bail.

37] The act of the respondent therefore, squarely fall within the

parameters laid down in Gautam Navlakha (supra) for

entertaining a writ in the nature of Habeas Corpus. 

Looking to the manner in which the entire matter has been

dealt with by the Investigating Agency and also the various orders passed by the Board upon the application preferred by it, we must clearly express that this is one of the fit case where we shall exercise our jurisdiction by issuing a writ in the nature of Habeas Corpus, as prayed for in prayer clause (a) and issue a writ in the nature of certiorari for quashing the subsequent orders remanding the CCL to Observation Home.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2372 OF 2024

Pooja Gagan Jain v. State of Maharashtra

CORAM : BHARATI DANGRE &

MANJUSHA DESHPANDE, J

DATED : 25th JUNE, 2024.

JUDGMENT :- (PER BHARATI DANGRE, J.)

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Supreme Court: Jurisdictional Magistrate can not Remand Accused in UAPA Cases Beyond 90 Days

  In view of the definition of the 'Court' provided Under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would also be clothed with the jurisdiction to deal with the remand of the Accused albeit for a period of 90 days only because an express order of the Sessions Court or the Special Court, as the case may be, authorising remand beyond such period would be required by virtue of Section 43D(2) of UAPA(reproduced supra). {Para 36}

37. Hence, to the extent the learned Chief Metropolitan Magistrate extended the remand of the Accused beyond the period of 90 days, the proceedings were grossly illegal.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2128 of 2024 

Decided On: 18.04.2024

The State of West Bengal Vs. Jayeeta Das

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0317/2024.

Read full Judgment here: Click here.

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Supreme Court: Court of Sessions Has Jurisdiction To Try UAPA Cases When State Hasn't Designated Any Special Court

 Section 2(1)(d) of UAPA provides the definition of 'Court' under the Act and it reads as below: {Para 34}

2. Definitions.-(1) In this Act, unless the context otherwise requires,-

(d) "court" means a criminal court having jurisdiction, under the Code, to try offences under this Act [and includes a Special Court constituted Under Section 11 or under [Section 22] of the National Investigation Agency Act, 2008.

35. A plain reading of the provision would clearly indicate that the same admits to the jurisdiction of a normal criminal Court and also includes a Special Court constituted Under Section 11 or Section 22 of the NIA Act.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2128 of 2024 

Decided On: 18.04.2024

The State of West Bengal Vs. Jayeeta Das

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0317/2024.

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Supreme Court : The Day on which accused is remanded by Magistrate should be counted for the purpose of default bail

 Thus, the default bail Applications were filed well before the chargesheet. In Ravindran(supra) and Bikramjit (supra), which followed the Constitution Bench in Sanjay Dutt(supra) it was rightly held that if the Accused persons avail their indefeasible right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. We therefore declare that the stipulated 60/90 day remand period Under Section 167 Code of Criminal Procedure ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days' period resulting in unauthorized detention beyond the period envisaged Under Section 167 Code of Criminal Procedure. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the Accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the Accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 701-702 of 2020

Decided On: 27.03.2023

Enforcement Directorate, Government of India  Vs. Kapil Wadhawan and Ors.

Hon'ble Judges/Coram:

K.M. Joseph, Hrishikesh Roy and B.V. Nagarathna, JJ.

Author: Hrishikesh Roy, J.

Citation: MANU/SC/0329/2023,(2024) 7 SCC 147

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Remand of accused and remand under Special Acts

 Meaning & Purpose of Remand

Meaning : “Remand” is to send back into custody either custody of police or Judicial Custody.

Purpose: to facilitate completion of investigation or unfold the investigation.

Constitutional Validity

Article 21 – Right to life and personal liberty.

Siddharam Mehtre Versus State of Maharashtra and others 2011

SAR (Cri) 118 S.C, the Honourable Apex Court has held that arrest

should be the last option

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Whether court can release the accused on default bail by joining his broken period of custody?

  One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C., for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other than a Magistrate can order remand under Section 167. In the first place, going by the words used in Section 167, what is contemplated is that Magistrate orders remand under Section 167(2).{Para 72}

73. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand under Section 167 and at the same time, he also rejects the application for bail preferred by the accused. The accused approaches the High Court under Section 439 of the Cr.P.C. The court reverses the order and grants him bail. The accused who was sent to custody means police custody or judicial custody is brought out of his custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex Court. The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is apparent that the accused goes back to custody. Since assuming that the period of 15 days is over and police custody is not permissible, he is sent back to judicial custody. Equally if he was already in judicial custody, the order granting judicial custody is revived. Let us assume in the illustration that the accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the Magistrate. That is by piecing up these broken periods of custody, the statutory period of 90 days entitling the accused to default bail, is reached. Can it be said that the order of this Court granting custody should not be taken into consideration for calculating the period of 90 days, upon completion of which the accused can set up a case for default bail. We would think that the mere fact is that it is the Apex Court which exercised the power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the custody being authorized under Section 167.

74. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way of police custody and 5 days by way of judicial custody, the Magistrate enlarges an accused on bail. The High Court interferes with the order granting bail on the basis that the bail ought not to have been granted. Resultantly, the person who on the basis of the order of bail, has come out of jail custody, is put back into the judicial custody or jail custody. The order is one passed by the High Court. The order granting custody by the High Court cannot be treated as one which is not anchored in Section 167 of the Cr.P.C. Therefore, we would think that though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate.

75. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person.

76. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superior court be under Section 167.

 In the Supreme Court of India

(Before Uday U. Lalit and K.M. Joseph, JJ.) 

Gautam Navlakha  Vs National Investigation Agency 

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WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER SECTION (167) OF CR.P.C.?

  One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C., for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other than a Magistrate can order remand under Section 167. In the first place, going by the words used in Section 167, what is contemplated is that Magistrate orders remand under Section 167(2).{Para 72}

73. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand under Section 167 and at the same time, he also rejects the application for bail preferred by the accused. The accused approaches the High Court under Section 439 of the Cr.P.C. The court reverses the order and grants him bail. The accused who was sent to custody means police custody or judicial custody is brought out of his custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex Court. The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is apparent that the accused goes back to custody. Since assuming that the period of 15 days is over and police custody is not permissible, he is sent back to judicial custody. Equally if he was already in judicial custody, the order granting judicial custody is revived. Let us assume in the illustration that the accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the Magistrate. That is by piecing up these broken periods of custody, the statutory period of 90 days entitling the accused to default bail, is reached. Can it be said that the order of this Court granting custody should not be taken into consideration for calculating the period of 90 days, upon completion of which the accused can set up a case for default bail. We would think that the mere fact is that it is the Apex Court which exercised the power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the custody being authorized under Section 167.

74. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way of police custody and 5 days by way of judicial custody, the Magistrate enlarges an accused on bail. The High Court interferes with the order granting bail on the basis that the bail ought not to have been granted. Resultantly, the person who on the basis of the order of bail, has come out of jail custody, is put back into the judicial custody or jail custody. The order is one passed by the High Court. The order granting custody by the High Court cannot be treated as one which is not anchored in Section 167 of the Cr.P.C. Therefore, we would think that though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate.

75. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person.

76. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superior court be under Section 167.

 In the Supreme Court of India

(Before Uday U. Lalit and K.M. Joseph, JJ.) 

Gautam Navlakha  Vs National Investigation Agency 

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Bombay HC: Period for grant of default bail U/S 167 of CRPC includes the first day of remand of accused

It is pertinent to note the recent three Judge bench

decision of the Apex Court in case of S. Kasi Vs. State (Criminal

Appeal No.452 of 2020 decided on 19 th June 2020) where it is

reiterated that the period u/s.167 is inviolable and cannot be

extended by the Supreme Court even while exercising its power

under Article 142. The power of Magistrate authorizing

detention of accused in custody by prescribing the maximum

period, cannot be extended directly or indirectly by any Court

with an exception contained in Special Statutes, which to that

extent modify the applicability of Section 167 of the Code.

Undue delay is not conducive to administration of criminal

justice. By this time, crossing several hurdles, the position of law

which has clearly emerged is that if the charge-sheet is not filed

and right for ‘default bail’ has ripened into a status of

indefeasibility, it cannot be frustrated by prosecution nor by the

Court on any pretext. It is time and again reiterated through

authoritative pronouncements that no subterfuge should be

resorted to defeat the indefeasible right of the accused for default

bail. The mandatory default bail is a sequel to non-filing of the

charge-sheet/challan within the period set out by clause (i) and

(ii) as the case may be of Section 167(2) (a) of the Code. The

merits of the matter cannot be gone into at this stage.

As a corollary to the aforesaid discussion, the

impugned order passed by the Sessions Judge, excluding the first

day of remand while computing the period of 60 days cannot be

sustained and is liable to be set aside and the filing of the chargesheet

by the Directorate of Enforcement on 13th July 2020, being

after of 60 days, by excluding the day of remand i.e. 14th May

2020, make the applicants entitled for default bail. They deserve

to be released on bail in light of the right conferred u/s.167(2)(a)

(ii), if they are prepared to and furnish the bail.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LDVC BAIL APPLICATION NO.400 of 2020

Kapil Wadhawan  Vs  Directorate of Enforcement,

CORAM: SMT. BHARATI DANGRE, J.

DATED : 20th AUGUST, 2020.

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Whether magistrate can remand accused to custody even though investigating officer has not produced case diary?

 However, the submission made by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself satisfied regarding adequacy of the grounds and pass necessary order. Without the extracts of the said diary of investigation or case papers, it is not possible for the Magistrate to find out the adequacy of grounds and to get himself satisfied. The Magistrate must indicate, however succinctly it may be, his satisfaction for detention or remand of the accused. Since the order passed by the learned Magistrate is having the effect of taking away the liberty of a person, which is a fundamental right guaranteed to every citizen under the Constitution of India, it must be scrupulously followed.

8. The learned advocate for the applicants cited MANU/GH/0013/1963, R. K. Nabachandra Singh v. Manipur Administration. It dealt with Section 167 of the Code of Criminal Procedure, 1898. Same provision is to be found in the Code of Criminal Procedure, 1973, as Section 167 (with some modifications). It is observed - (at page 312 (of Cri LJ)

"...... if the police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well-founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person."

Similarly, in MANU/AP/0154/1955 : AIR 1957 AP 561, In re B. J. Reddi the Division Bench considered the effect of Section 167 of the Code of Criminal Procedure, 1898. It came to be observed as follows : at page 1065 (of Cri LJ)

"It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in S. 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under S. 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.

In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officer render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.

We are unable to understand how the Magistrate are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under S. 167 would insist upon the mandatory provisions of the section being complied with."

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Criminal Revision Application No. 61 of 1993

Decided On: 17.06.1993

Shrawan Waman Nade  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

P.S. Patankar, J.

Citations: 1994 (2) BomCR 668, 1994 CriLJ 780, 1994 (1) MhLj 220,MANU/MH/0144/1993

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Whether session judge can remand accused for more than fifteen days?

 By these Petitions, the Petitioners seek their release by invoking the writ of Habeas corpus on the ground that their judicial custody was authorized beyond a period of 15 days by the designated Court, which is contrary to the mandate of section 309(2) of Cr.P.C., the same is violative of Article 21 of the Constitution of India.

We have given our thoughtful consideration to the points urged by both sides, and we are of the considered view that writ of Habeas Corpus is not maintainable in the facts of the present case.

12. To consider the points raised by the learned counsel for the Petitioners, it is necessary to refer the relevant provisions of Cr.P.C. Section 309(2) of Cr.P.C. reads as under:

If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time..............

13. On plain reading of Section 309(2) of Cr.P.C., it is clear that the Court after taking cognizance of an offence, or at the time of commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, after recording reasons, on such terms as it thinks fit, and for such time as it considers reasonable and it may accordingly issue warrant remanding the accused in custody. In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.

16. If we apply the above settled principles of interpretation to section 309(2) of Cr.P.C., on plain reading of the said provision, it is clear that legislature did not intend to impose any restriction on the power of the Sessions/Special/Designated Court to remand the accused in further judicial custody for a particular period. Of course, this can be done only after cognizance is taken by the Sessions/Special/Designated Court and when the matter is to be adjourned, reasons for the same have to be recorded.

17. The proviso to section 309(2) of Cr.P.C. however carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under section 309(2) of Cr.P.C. for a term exceeding 15 days at a time. Thus, on plain reading of section 309(2) of Cr.P.C. and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of Cr.P.C. to put limitation on the power of the trial Court while exercising the powers under section 309(2) of Cr.P.C.

18. In the light of above discussion, we are unable to accept the proposition of the learned counsel for the Petitioner that the designated Court could not have authority to remand of the Petitioner for a period exceeding 15 days. According to us, no such restriction can be read in section 309(2) of Cr.P.C.

20. The designated Court upon filing of the charge-sheet and after taking cognizance, deals with the matter in the capacity of the designated Court. As we have already observed in the foregoing paras, the Sessions Court/Special Court and in the present case the designated Court, does not have any restrictions on extending the remand beyond period of 15 days which restriction is only applicable to the Magistrates in terms of the proviso to section 309(2) of Cr.P.C. Hence, we do not agree with this proposition advanced by the learned counsel for the Petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2639 and 2640 of 2019

Decided On: 18.12.2019

Harshad Dinanath Bari Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

S.S. Shinde and N.B. Suryawanshi, JJ.

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Whether accused can be denied default bail by extending his remand beyond period of 60 or 90 days?

 In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the Accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period Under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The Accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant.

In our considered view the Accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1218 of 2018 (Arising out of Special Leave Petition (Criminal) No. 6453 of 2018)

Decided On: 24.09.2018

Achpal Vs.  State of Rajasthan

Hon'ble Judges/Coram:

Abhay Manohar Sapre and U.U. Lalit, JJ.

Citation: AIR 2018 SC 4647

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Whether accused can claim bail on ground that he was kept in custody without order of remand?

As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the accused in custody, the accused is required to be produced before the Court in person or through video linkage and in case it is not possible to bodily produce the accused, for example when he is hospitalized or undergoing treatment etc., the Investigating Officer is required to submit the reasons for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot refuse order of remand on ground of non-production of the accused. This issue is settled by the Hon'ble Apex Court in the case of RAJ NARAIN v. SUPERINTENDENT, CENTRAL JAIL, NEW DELHI AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this Court in NOOR JAHAN v. STATE OF KARNATAKA ILR 1991 KAR 4081 wherein the Division Bench has reiterated as under:

“For the purpose of passing an order remanding the accused to judicial custody, if it not possible to produce the accused bodily, he need not be produced and the order of remand can be passed even in the absence of the production of the accused.”

17. It is held in the above case by the Division Bench that the decision in Raj Narain's case holds good even under the new Code of 1973 that wherever it is not possible to produce the accused before the court bodily, the court cannot insist upon the production of the accused and cannot refuse to pass an order of remand. Therefore, it follows that mere non-production of the accused before extending the remand does not render the custody of the accused illegal. In the instant case, the custody of the petitioner/accused is seen to have been continued without there being specific order of remand by the learned Magistrate; but that by itself, in the light of the proposition referred above, does not render the custody of the petitioner illegal even though the continuation of the custody without authorization may give rise to a cause of action to the petitioner for the remedy of habeas corpus or for damages depending upon the circumstances of the case. In the absence of any provision either in Section 167 or section 209 of Cr.P.C, the petitioner cannot seek his release on bail on the ground that the custody was extended without an order of remand or without his production before the Magistrate. The very same question fell for consideration before another Division Bench of this High Court in the case ofSAJJAD v. STATE OF KARNATAKA by IG Prisons, ILR 2005 KAR 3313 and relying on the ratio laid down in Raj Narain's case, it was held that an order of remand in the absence of the accused is not an illegality and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail. We are in agreement with this proposition and therefore, the contrary view taken by the Division Bench of the Andhra Pradesh High Court in the case relied on by the learned counsel for the petitioner in A. Narayana Reddy v. State of A.P, 1991 (3) Crimes 873 does not commend to us.

In the High Court of Karnataka at Bengaluru

(Before H.G Ramesh and John Michael Cunha, JJ.)

D. Gundappa Vs  State of Karnataka 

Criminal Petition No. 5347 of 2016

Decided on June 5, 2017

Citation: 2017 SCC online Kar 1149

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Whether accused can be remanded without producing him before magistrate either physically or through video conference?

 The second question is as to whether remand for custody of the accused can be given without producing before the court below either physically or through video linkages. To answer the question aforesaid, reference of section 167 Cr.P.C. would be relevant. As per the provision aforesaid, an accused is required to be forwarded to the Magistrate for remand if the investigation is not completed within a period of 24 hours given under section 57 Cr.P.C. In that case, police officer making investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Sub-section (2) of section 167 Cr.P.C. provides that if an accused is forwarded to a Magistrate, whether he has or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole and if such Magistrate has no jurisdiction to try the case or to commit it for trial, he may order to forward the accused to a Magistrate having jurisdiction. As per the provision aforesaid, for remand of the case, accused needs to be forwarded to the Magistrate.

19. The order for remand of custody of the accused is without even forwarding the accused to the Magistrate whether having or not having jurisdiction to try the offence. Thus the orders for remand of the accused petitioner without forwarding him to the Magistrate physically or through video linkages is illegal. The court below should not have passed an order under section 167 Cr.P.C. unless the accused is forwarded to him. Therefore, second question is answered in favour of the petitioner.

N THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

DB Civil Writ Petition (Habeas Corpus) Nos. 120 and 121/2016

Decided On: 26.05.2016

 Rahul Pareek  Vs. State of Rajasthan and Ors.

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Whether accused can be remanded in police custody prior to registration of offence?

 As per the provisions quoted above, custody of the accused can be after a report. In the instant case, accused petitioner seems to have remained in custody for almost six days even prior to the report. After his arrest on 11.3.2016, he was produced for taking remand by the police on 12.3.2016 before the learned Magistrate. Initially, remand was given for two days followed by other order of remand for 14 days on 14.3.2016. The arrest as well as initial order of remand were without registration of an FIR. In our opinion, initial two orders for remand prior to registration of FIR are hit by section 167 Cr.P.C.. The first question is accordingly answered in favour of the petitioner.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

DB Civil Writ Petition (Habeas Corpus) Nos. 120 and 121/2016

Decided On: 26.05.2016

 Rahul Pareek  Vs.  State of Rajasthan and Ors.

Hon'ble Judges/Coram:

M.N. Bhandari and J.K. Ranka, JJ.

Citation: 2017 CRLJ 721 Raj

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Whether magistrate can remand accused in judicial custody who is granted anticipatory bail by high court?

 A learned Single Judge of this Court in Jose George v. State of Kerala [MANU/KE/0082/2006 : 2006 (2) KLT 188] held thus:

"When this Court grants the relief of pre-arrest bail, though there is no specific direction to the Magistrate, the message is clear that this court is of the view that the person to whom the relief of pre-arrest bail is granted is not to be remanded to judicial custody."

The Constitution Bench of the Hon'ble Apex Court in Shri. Gurbaksh Singh Sibbia and Others v. State of Punjab (MANU/SC/0215/1980 : 1980 (2) SCC 565) held that the normal rule should be not to limit the operation of the order under section 438 Cr.P.C. in relation to a period of time and the bail granted by the Court should ordinarily be continued till the trial of the case. The Apex court in Sibbia's case (supra) further held in paragraph 36 thus:--

"Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the code, as and when an occasion arises. Such a course will defeat the very object of Section 438."

The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (MANU/SC/1021/2010 : AIR 2011 SC 312) held that the court which grants the bail also has the power to cancel it and the discretion to cancel the bail can be exercised either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. It was further held in Siddharam (supra) that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra). The Apex court in Siddharam (supra) further held in paragraph 117 thus:--

"The view expressed by this Court in all the above-referred judgments have to be reviewed and once the anticipatory bail is granted, then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused."

 The Apex Court in Bhadresh Bipinbhai Sheth v. State of Gujarat and another [MANU/SC/0949/2015 : 2016 (1) SCC 152] quoted with approval the ratio laid down by the Apex Court in Siddharam (supra).

 It is clear from the above decisions that once the pre-arrest bail is granted, the same will be in force unless it is canceled by the court granting the same or by the higher court. When pre-arrest bail is granted by the court, the same can be cancelled only by the court granting the order or by the higher court either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 688 of 2016

Decided On: 01.03.2016

 Nahif Ali 
Vs.
The Station House Officer, Ambalavayal Police Station

Coram:Bhaskaran Pillai Sudheendra Kumar, J.

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