This article is written by Arush Mittal from Hidayatullah National Law University. It deals with the procedure when investigation cannot be completed within 24 hours under Code of the Criminal Procedure.

Introduction

A person who is detained by the police can be sent to police custody for further interrogation. The process of keeping a person in custody for further interrogation before the conviction process is known as a remand. When police arrest a person in suspicion of a crime, without a warrant, and this investigation is not completed within 24 hours of such arrest, then the police need to present that person before a magistrate. This Magistrate would either give a judicial custody or police custody so that the investigation could be carried on. The main purpose of sending the accused to the custody is for the successful completion of the investigation which could not be completed within 24 hours.

In this article, I would be dealing with the procedure that has to be followed when investigation cannot be completed within 24 hours of arrest by the police.

Investigation by the Police

The police do not have the power to arrest a person without a warrant. But, Section 41 of the Cr.P.C. is an exception. This Section mentions the circumstances when an arrest can be made by the police without issuing a warrant. The main aim of creating such exceptions was to arrest a person in times of necessity. This arrest can be made without the issuing of a warrant from the Magistrate.

According to Section 56 of the Cr.P.C., the police officer who arrests the accused without a warrant should take that person to the Magistrate or Officer who is in charge of the police station, without any delays. According to the provisions of bail, the arrested person should be sent to the officer who is in charge of the police station or the Magistrate who has jurisdiction in that case.

Section 57 of the Cr.P.C. is the most important Section in regards to the investigation by the police. This provision clearly says that a person who is arrested by the police without a warrant should not be detained for more than a time period of 24 hours from the time of his arrest. This 24-hour period cannot be exceeded by the police until the Magistrate has given a special order that allows the accused to remain in custody for a period of more than 24 hours. The special order is given by the Magistrate under Section 167 of the Cr.P.C. for the detention of the accused to either police custody or judicial custody for a period that exceeds the 24-hour limit.

Procedure when investigation cannot be completed within 24 hrs

Section 167 of the Cr.P.C. talks about the procedure when investigation cannot be completed within the time limit of twenty-four hours.

If a person is arrested without a warrant by the police and the investigation of the accused person cannot be completed within 24 hours which is fixed by section 57, but the police officer thinks that the accusation is well-informed. Then a copy of the diary has to be transmitted to the nearest Judicial Magistrate and the accused should be forwarded to the Magistrate.

If the accused is forwarded to the Magistrate who has jurisdiction over such case, then the Magistrate can allow the further detention of the accused which should not exceed 15 days. But if the Magistrate does not have jurisdiction over that case then he forwards the accused to the Magistrate who has such jurisdiction.

The Magistrate can further extend the detention period of 15 days of the accused if he is convinced that there are adequate grounds for taking this decision. The provision of Section 167 (2) (a) of the Cr.P.C. says that there can be a further extension:

• It cannot exceed a time period of 90 days if the ongoing investigation by the police is related to an offence that is punishable with imprisonment of more than ten years, life imprisonment or a death penalty. 
• It cannot exceed a time period of 60 days if the ongoing investigation is related to any other offence as mentioned above.
• After the expiry of the said 60 days or 90 days, the accused person can be released on a bail.

Detention cannot be authorized by a Magistrate when:

• The accused person has not been produced before the Magistrate.
• Detention in the police custody cannot be granted if the Magistrate is of the second class.

If the Judicial Magistrate is not available for authorizing the detention, the police officer (above the rank of sub-inspector) may forward the accused to the nearest Executive Magistrate and make a copy of this entry in the diary. The accused must be forwarded to the Executive Magistrate who confers the power of a Metropolitan Magistrate or Judicial Magistrate. If the Executive Magistrate is satisfied with the extension of the detention of the accused, then detention of not more than 7 days is granted to the police for further investigation. This is laid down under Section 167 (2A) of the Cr.P.C. 

After the expiry of the aggregate of an extension of 7 days granted by the Executive Magistrate, the accused can be released on bail. This situation arises only when an order for further detention has not been made by a Magistrate who is competent to do so.

When the decision for a further extension in the detention is made while the accused was already in custody, the time period for which he was in custody would be reduced from the total period of further detention. For this process, the Executive Magistrate has to provide all the records of the case with the entries in the diary to the nearest Judicial Magistrate.

A Magistrate who authorizes the detention should record the reasons for which he is providing the detention. A copy of the order made by the Magistrate shall be transmitted to the Chief Judicial Magistrate with the reasons for such detention.

If the investigation for the case is not completed within 6 months from the arrest of the accused, then the Magistrate can issue an order to stop the investigation of that case. However, if the officer carrying out the investigation is able to convince the Magistrate that in the interest of the justice and for some other special reasons, the investigation should not be terminated, then the Magistrate may allow the investigation to go on beyond 6 months.

Object of the section

The prime objective of Section 167 of the Cr.P.C. for further extension of the detention period, is to keep away the accused person from the society for the protection of the society and the accused person himself. This extension ensures that the accused person does not evade the law and is present for all the inquiry that is needed by the police officers regarding their investigation.

The detention is further increased only when there is a reasonable doubt against the accused person that he is related to the offence committed and the investigation cannot be concluded in the allotted time period. 

The object of this Section is supplementary to the object of Section 57. Section 57 says that if the investigation is not completed within 24 hours of the arrest of the accused, the Magistrate can extend the detention as provided in the provision of Section 167(2). 

In simple words, it has two objects:

• To allow the accused person to have a say in front of the Magistrate.
• There are special cases in which the law allows an extension of the detention.

Relevant Case Laws

In the case of Rakesh Kumar Paul v. State of Assam, an FIR was lodged against the accused under Section 13 (1) of the Prevention of Corruption Act, 1988 and the Indian Penal Code, 1860. The petitioner was taken to custody on November 5, 2016. 

The offence for which he was liable would be punishable with imprisonment for not less than four years which would extend to ten years but not more than that. About this, the State said that since his punishment may extend for a period of ten years, he would get a bail only after 90 days as mentioned in Section 167 (2) (a) (i) of the Code of Criminal Procedure. 

To this, Justice Madan B. Lokur said that the offence accused had committed was of a punishment of less than 10 years and therefore would get a default bail after 60 days of his arrest and not 90 days. The petitioner had stayed in custody for more than 60 days regarding the investigations and therefore he was eligible for a default bail. 

Justice Deepak Gupta further added that according to Section 167 (2) (a) (i) of the Code of Criminal Procedure, it applies to only those cases where the punishment of the offence committed by the accused is imprisonment for more than 10 years, life imprisonment and death penalty. In all these instances, the minimum sentence required is 10 years of imprisonment for a default bail after 90 days. Any offence with a lower imprisonment term than this would mean a default bail after 60 days.

On similar grounds, in the case-law of Nijamuddin Mohd. Bashir Khan v. State of Maharashtra the accused had committed an offence under Section 366 read with Section 34 of the IPC. The Investigating Officer had failed to file a charge sheet for a period of investigation of more than 60 days before the learned Magistrate. It was held that if the punishment for the offence committed extends to a maximum of ten years, then Section 167 (2) (a) (ii) of the Code of Criminal Procedure is applicable. It said that if the investigation is not completed within a period of 60 days, then there shall be no extension of detention above that period.

In the case of Aslam Babalal Desai v. State of Maharashtra, the Investigating Officer had failed to file a charge sheet within a specific time period of 60 days for the further extension of the detention of the accused. The issue before the court was whether a bail can be granted under the proviso of Section 167 (2) of the Cr.P.C., and a charge sheet is filed after the time period of 60 days for the cancellation of the bail. 

It was held that the proviso under Section 167 (2) of the Cr.P.C. is just for an extension of the investigation time period that is allowed to the Investigating Police Officer to carry on further investigation if he has a reasonable doubt against the accused. The charge sheet for a further extension of the allotted 60 or 90 days has to be filed within those days. If the Investigating Officer fails to do so, then a default bail is granted to the accused. This proviso in no way can be used for the cancellation of bail. A failure in filing the charge sheet within the time period results in a default bail. The power of cancellation of bail is only provided under  Section 437 (5) or  Section 439(2) of the Cr.P.C. Section 167 (2) only talks about the extension of the detention and not the cancellation of the bail.

Conclusion

The police authorities have a right to request for more time they would require to complete the investigation. If they have a reasonable doubt against the arrested person they can get the extended detention to clearly understand the facts and material lying behind the case. This Section is favorable for the accused himself as there is a defined period under which the accused remains under police custody.

After the end of this maximum time period, the accused can demand bail. Enough protection is ensured to the accused as he is produced before the Magistrate and only if the Magistrate is satisfied that there should be an extension of the detention, then an extension is granted. The Magistrate has to play a crucial role in this case as he is the one who grants an extension. He has to decide between the protection of the citizen and the performance of his legal duty. He cannot be biased while discharging his duty.

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