It is often the case when the police arrest a person on suspicion of a crime
they are unable to complete the investigation in 24 hours. At this juncture when
they require the accused or suspect to be kept away from society at large for
the protection of society, of the accused or for the purpose of ensuring his
availability for investigation, they may produce him before a magistrate, who
may allow for the suspect to be held in the custody of the police or the
The provisions for holding a person in custody for the purpose of furthering
investigation in India are governed by Section 167 of the Code of Criminal
Section 167 of the Code allows that a person may be held in the custody of the
police for a period of 15 days on the orders of a magistrate. A judicial
magistrate may remand a person to any form of custody extending up to 15 days
and an executive magistrate may order for a period of custody extending up to 7
days. A person may be held in the custody of the police or in
Police custody may extend only up to a period of 15 days from the date custody
begins but judicial custody may extend to a period of 90 days for a crime which
entails a punishment of death, life imprisonment, or period of imprisonment
exceeding 10 years and 60 days for all other crimes if the magistrate is
convinced that sufficient reasons exist, following which the accused or suspect
must be released on bail.
The magistrate has the
authority to remand the person into judicial or police custody. The detaining
authority may be changed during the pendency of the detention, provided that the
total time period does not extend 15 days. If a person is transferred from
police to judicial custody the number of days served in police custody is
deducted from the total time remanded to judicial custody.
The difference between
judicial and police custody apart from the difference in custodian authority, is
that under police custody, the suspect may be interrogated by the police but
under judicial custody, interrogation is not permitted except in exceptional
circumstances, police custody starts when a person is taken into custody by the
police and his rights are read out to him along with the explanation for reasons
for custody but judicial custody starts when a judge orders for judicial
The first thing that happens to a suspect on arrest is
that he is taken into police custody, following which he is taken before a
magistrate and he may either be remanded to judicial custody or be sent back
into police custody. He may also gain temporary relief by posting bail.
Body Of The Topic Procedure To Be Followed When Investigation Can Not Be Completed:
- 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.
- The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not 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:
- 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 Chapter.
- no Magistrate shall authorize the detention of the accused in the
custody of the police under this section unless the accused is produced
before him in person for the first time and subsequently every time till the
accused remains in the custody of the police, but the Magistrate may extend
further detention in judicial custody on the production of the accused
either in person or through the medium of electronic video linkage; (c) no
Magistrate of the second class, not specially empowered in this behalf by
the High Court, shall authorize detention in the custody of the police.
Explanation I: For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a), the accused
shall be detained in custody so long as he does not furnish bail.
II: If any question arises whether an accused person was produced before the
Magistrate as required under clause (b), the production of the accused person
may be proved by his signature on the order authorizing detention or by the
order certified by the Magistrate as to the production of the accused person
through the medium of electronic video linkage, as the case may be.
further that in case of a woman under eighteen years of age, the detention shall
be authorized to be in the custody of a remand home or recognized social
institution. (2A) Notwithstanding anything contained in sub-section (1) or
sub-section (2), the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of a
sub-inspector, may, where a Judicial Magistrate is not available, transmit to
the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or
Metropolitan Magistrate have been conferred, a copy of the entry in the diary
hereinafter prescribed relating to the case, and shall, at the same time,
forward the accused to such Executive Magistrate, and thereupon such Executive
Magistrate, may, for reasons to be recorded in writing, authorize the detention
of the accused person in such custody as he may think fit for a term not
exceeding seven days in the aggregate; and, on the expiry of the period of
detention so authorized, the accused person shall be released on bail except
where an order for further detention of the accused person has been made by a
Magistrate competent to make such order; and, where no order for such further
detention is made, the period during which the accused person was detained in
custody under the orders made by an Executive Magistrate under this sub-section,
shall be taken into account in computing the period specified in paragraph (a)
of the proviso to sub-section (2):
Provided that before the expiry of the period
aforesaid, the Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the entries in the
diary relating to the case which was transmitted to him by the officer in charge
of the police station or the police officer making the investigation, as the
case may be.
- A Magistrate authorizing under this section detention in the custody of
the police shall record his reasons for so doing.
- Any Magistrate other than the Chief Judicial Magistrate making such
order shall forward a copy of his order, with his reasons for making it, to
the Chief Judicial Magistrate.
- If in any case triable by a Magistrate as a summons-case, the investigation
is not concluded within a period of six months from the date on which the
accused was arrested, the Magistrate shall make an order stopping a further
investigation into the offense unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the interests of
justice the continuation of the investigation beyond the period of six months is
- Where any order stopping a further investigation into an offense has
been made under sub-section (5), the Sessions Judge may, if he is satisfied,
on an application made to him or otherwise, that further investigation into
the offense ought to be made, vacate the order made under sub-section (5)
and direct further investigation to be made into the offense subject to such
directions with regard to bail and other matters as he may specify.
Section 167 of the Code of criminal procedure talks about the procedure when an
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 a 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 Criminal procedure code 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 offense that is
punishable with imprisonment of more than ten years, life imprisonment or a
It cannot exceed a time period of 60 days if the ongoing investigation is
related to any other offense as mentioned above. and 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 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
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 Code of criminal procedure.
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 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.
A cautious reading of Section 167(1) of the code of criminal procedure makes it
clear that the officer in charge of the police station or the investigating
officer (if he is not below the rank of sub-inspector) can ask for remand only
when there are grounds to believe that the accusation or information is
well-founded and it appears that the investigation cannot be completed within
the period of twenty-four hours as specified under Section 57.
Magistrate’s power to give remand is not mechanical and adequate grounds must
subsist if Magistrate wants to exercise his power of remand. It is the right of
the accused that he is brought before a magistrate within 24 hours of arrest,
excluding the time taken in transportation from the place of custody to the
magistrate. If no judicial magistrate is immediately available then he may be
taken before an executive magistrate who can remand him to custody for a maximum
of 7 days following which he must be taken before a judicial magistrate.
Case Laws Of Section 167:
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v.
the question regarding arrest & detention in custody was dealt with it was held
that the magistrate under S.167(2) can authorize 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
The words “such custody
” and “for a term not exceeding fifteen days in the
” 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
The detention thereafter could only be in judicial custody. There are also
specific rights during arrest and custody, governing the right of medically
unfit prisoners. These are that women accused of any offense if arrested so soon
after childbirth that they cannot at once be taken before the Magistrate without
personal suffering and risk to health should not ordinarily be removed until
they are in a proper condition to travel.
They should be allowed to remain under proper charge in the care of their
relations, or be sent to the nearest dispensary, and suffered to remain there
until the officer in charge of the dispensary certifies that they are
sufficiently recovered. In such cases, the sanction must be obtained by the
police from the nearest Magistrate for their detention at their homes, or in the
dispensary, beyond the period of 24 hours as allowed by section 57 of the code
of criminal procedure 1973.
The same procedure should be followed in the case of
other accused persons who are too ill to travel. The other right that is
accorded to the accused is a derivative of the principles of natural justice
which would dictate that the police proceed as swiftly as possible with the
investigation so as to cause minimum suffering to all parties concerned.
In the case of Elumalai v. State of Tamil Nadu
the court has held that
“For a speedy trial, the prosecution agencies also must take a prompt step in
completing their investigations and filing their final reports as contemplated
under the Code as expeditiously as possible. In case the investigating officer
fails to take speedy action in a case registered against any person arrested
under S. 41(1), S. 151(1) or any other penal provision of the law, and keeps it
in cold storage, forgetting his obligation to the society and in contravention
of the principles of natural justice and allow, by his conduct, the arrested
persons to be kept behind the bars, for months together and if the Courts
without being conscious of the mandatory provisions of S. 167(2), mechanically
authorize repeated detention and also do not show any diligence in completing
the trial of the case speedily, the result would be that prisoners, especially
those coming from the society of have nots, have to suffer untold physical and
mental agony and spend their lives in the jail without having any ray of hope of
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 offense 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 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 offense accused had committed was
of 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 offense committed by the accused is imprisonment for
more than 10 years, life imprisonment and the 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 of Nijamuddin Mohd. Bashir Khan v. State of
the accused had committed an offense 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
In Malin Issabelle v. Union of India,
the Bombay High Court while
observing Section 10 of the General Clauses Act to be inapplicable while
computing the period prescribed under Section- 67(2) The Supreme Court, while
computing the days in a month which are required for computation of the period
specified by 167(2) of CRPC has included Sundays and Holidays as well.
C.B.I V. State of A.P
: It was held that period of limitation under
section 167(2) is to be counted from the next date of arrest.
Amulya Leona Noronha, the student-activist Case 2020:
The student-activist arrested on sedition charges during an anti-CAA rally
in Bengaluru on February 2020 The bail was granted under section 167(2) of CrPC
as police failed to file a charge sheet against her during the 90-day mandatory
In the case of Aslam Babalal Desai v. the 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 bail can be granted under the
proviso of Section 167 (2) of the Code of criminal procedure 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 Code of criminal
procedure is just for an extension of the investigation time period that is
allowed to the Investigating Police Officer to carry on the 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 Code of criminal procedure.
Object of the section:
The prime objective of Section 167 of the Code of procedure code 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
The detention is further increased only when there is a reasonable doubt against
the accused person that he is related to the offense 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
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
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, and 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.
Written by: Advocate Shah Ishfaq
Email: [email protected]