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Author Topic: Is it legal to arrest exercising power under section 167 of Crpc  (Read 7576 times)

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Offline sinthia

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Is it legal to arrest exercising power under section 167 of Crpc
« on: February 10, 2012, 11:47:28 PM »
Immediately after arrest, by friend is admitted in a hospital on account of his illness. He is discharged from the hospital after twenty days. On demand by the police, the Judicial Magistrate orders for remand of my friend for a period of ten days exercising power under section 167 of the Code of Criminal Procedure, 1973. is it legal?

amit

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Re: Is it legal to arrest exercising power under section 167 of Crpc
« Reply #1 on: February 11, 2012, 12:00:29 AM »
In "Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni" AIR 1992 SC 1768 question relating to arrest & detention in custody was dealt with it was held that 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 .. 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. 1 was observed :-

Whenever any person is arrested under Section 57, Cr. P.C. he should be produced before the nearest. Magistrate within 24 hours as mentioned therein. Such Magistrate mayor may not have jurisdiction to try the case. If Judicial magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorize the detention" of the accused in such custody i.e. either police or judicial from time to time the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from. police to judicial or vice versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the" Executive Magistrate may authorise further detention within that period of first fifteen days to su custody either police or judicial. After the expiry of the first period of fifteen days the further remand:: during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serial or otherwise committed by him in the same transaction come to light at a later stage. But this bar does no; apply if the same arrested accused is involved in a different case arising out ofa different transaction. Ever: if he is in judicial custody in connection with the investigation of the earlier case he can formally b;: arrested regarding his involvement in the different case and associate him with  the investigation oft other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remar,= him to such custody as mentioned therein during the first period of fifteen days and thereafter I  accordance with the proviso as discussed above. If the Investigation is not completed within the period's; ninety days or sixty days then the accused has to be released on bail as provided under the proviso i.e. Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention 2-' per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period: of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and at expiry of the period of first fifteen days it should be only judicial custody.

 

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