Custody, Default Bail

and Conclusion of
Investigation
Konina Mandal, Assistant Professor, JGLS
Procedure when investigation cannot be completed in twenty-
four hours (S. 187 BNSS)
187. (1) 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 58, 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 Magistrate a copy of
the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to
such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or
has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or
his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial
forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-
section
(3), 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.
(3) The Magistrate may authorize the detention of the accused person, 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 sub-section 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 ten years or more;
(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
XXXV for the purposes of that Chapter.

(4) No Magistrate shall authorise detention of the accused in 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 production of the accused either in person or
through the audio-video electronic means.
(5) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise 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
sub-section(3), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.—If any question
arises whether an accused person was produced before the Magistrate as required under sub-section

(4), the production of the accused person may be proved by his signature on the order authorising detention or by the order
certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may
be: Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a
remand home or recognised social institution: Provided further that no person shall be detained otherwise than in police station
under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State
Government. SUBSECTION (5) ONWARDS – READ FROM BARE ACT
“Custody” under s.187 Section 187 of BNSS, the corresponding provision to Section 167 of
CrPC, retains the 15-day limit on police custody. However, it
introduces a crucial change in its wording, allowing investigating
• The provisions for holding a person in custody
for the purpose of furthering investigation, in agencies to seek this period “in the whole or in part over 60 or 40
India are governed by Section 187 of the BNSS. days”. This phrasing does not explicitly restrict police custody to the
initial 15 days, unlike the proviso (as was interpreted in Kulkarni) in
• Section 187 allows that a person may be held in Section 167(2) of CrPC. This change in the BNSS aligns with the
the custody of the police for a period of 15 two-judge bench’s reasoning in the Senthil Balaji Case.This change
days on the orders of a Magistrate. has sparked a debate and serious concerns about potential misuse and
• A Judicial Magistrate may remand a person to its impact on individual liberties. The lack of clear guidelines in
any form of custody extending up to 15 days BNSS regarding the circumstances under which police custody can
and an Executive Magistrate may order for a be sought beyond the initial 15 days has amplified these concerns.
period of custody extending up to 7 days.
Under the old CrPC regime, police could only request custody during
• A person may be held in the custody of the the first 15 days of an investigation. After that, the accused was
police or in judicial custody. Police custody may either placed in judicial custody or granted bail.
extend only up to a period of 15 days from the
date custody begins but judicial custody may Under the new BNSS regime, the police can request custody in parts.
extend to a period of 90 days for a crime which For instance, they may request a 4-day custody period, after which
entails a punishment of death, life imprisonment the accused could be granted bail. However, since the police still
or period of imprisonment exceeding 10 years have 11 days of custody left, they can later request another 4-day
and 60 days for all other crimes if the Magistrate custody, potentially a week after the accused is granted bail. This
is convinced that sufficient reasons exists, means the 15-day custody limit could be stretched across the first 40
following which the accused or suspect must be or 60 days, depending on the severity of the offense
released on bail.
• Ordinarily, the term “custody” under Section 187 is understood to mean “police custody” or
“judicial custody”.
• The difference between the two is characterized by the degree of access the investigating
agency or the police has to the accused for the purpose of interrogation.
• In police custody, an accused is in the exclusive custody of the police officers, and the primary
aim is to allow the police to conduct “custodial interrogation” in order to unearth the truth in
any given case.
• On the other hand, judicial custody refers to custody of an accused in jail. When a person is in
jail custody, he is indirectly deemed to be in the custody of the court. The police officers or
investigating agencies do not have the same level of access to an accused as they do in police
custody.
• In fact, police officers and investigating agencies usually cannot question the accused in judicial
custody without seeking permission from the court and following such conditions as prescribed
by the court.
Section 167 v/s Section 187 (1) 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 58, and there are grounds for believing that the
167. Procedure when investigation cannot be completed in twenty-four accusation or information is well-founded, the officer in charge of the police
hours.—(1) Whenever any person is arrested and detained in custody, and it station or the police officer making the investigation, if he is not below the
appears that the investigation cannot be completed within the period of twenty-
rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a
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 copy of the entries in the diary hereinafter specified relating to the case, and
station or the police officer making the investigation, if he is not below the rank shall at the same time forward the accused to such Magistrate.
of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a (2) The Magistrate to whom an accused person is forwarded under this section
copy of the entries in the diary hereinafter prescribed relating to the case, and may, irrespective of whether he has or has no jurisdiction to try the case,
shall at the same time forward the accused to such Magistrate. after taking into consideration whether such person has not been released on
bail or his bail has been cancelled, authorise, from time to time, the
(2) 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, detention of the accused in such custody as such Magistrate thinks fit, for a
authorize the detention of the accused in such custody as such Magistrate thinks term not exceeding fifteen days in the whole, or in parts, at any time during
fit, for a term not exceeding fifteen days in the whole; and if he has no the initial forty days or sixty days out of detention period of sixty days or
jurisdiction to try the case or commit it for trial, and considers further detention ninety days, as the case may be, as provided in sub-section (3), and if he has
unnecessary, he may order the accused to be forwarded to a Magistrate having no jurisdiction to try the case or commit it for trial, and considers further
such jurisdiction: detention unnecessary, he may order the accused to be forwarded to a
Provided that— 2 [(a) the Magistrate may authorise the detention of the accused Magistrate having such jurisdiction.
person, otherwise than in custody of the police, beyond the period of fifteen (3) The Magistrate may authorise the detention of the accused person, beyond
days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate the period of fifteen days, if he is satisfied that adequate grounds exist for
shall authorise the detention of the accused person in custody under this doing so, but no Magistrate shall authorise the detention of the accused
paragraph for a total period exceeding— (i) ninety days, where the investigation person in custody under this sub-section for a total period exceeding—
relates to an offence punishable with death, imprisonment for life or (i) ninety days, where the investigation relates to an offence punishable with
imprisonment for a term of not less than ten years; (ii) sixty days, where the death, imprisonment for life or imprisonment for a term of ten years or more;
investigation relates to any other offence, and, on the expiry of the said period of (ii) sixty days, where the investigation relates to any other offence, and, on the
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 expiry of the said period of ninety days, or sixty days, as the case may be, the
released on bail under this sub-section shall be deemed to be so released under accused person shall be released on bail if he is prepared to and does furnish
the provisions of Chapter XXXIII for the purposes of that Chapter;] bail, and every person released on bail under this sub-section shall be deemed to
be so released under the provisions of Chapter XXXV for the purposes of that
Chapter.
Section 187 – A drafting mishap
TEXTUAL ISSUES!!! What was the Parliament thinking??
Section 187(2): Authorizes a Magistrate to detain an
accused for up to 15 days “at any time during the To override the Supreme Court’s ruling in CBI v. Anupam J.
initial forty or sixty days” of the total detention Kulkarni, which limited police custody to the first 15 days only.
period (which can be 60 or 90 days, depending on Parliament seems to want to expand the window for police custody
the offence).Allows detention in “such custody” as by allowing it any time within 40/60 days.But this intent is not
deemed fit (unclear whether police or judicial). clearly communicated, and the provision becomes ambiguous and
potentially dangerous, risking overuse of police custody. Regardless
Section 187(3): Authorizes detention beyond the 15 of whether Parliament’s intended change to pre-trial custody was
days if adequate grounds exist, subject to 60/90 day good or bad, the language of Section 187 fails to express it clearly.
limits.Requires bail to be granted after these periods, The drafting failure of Section 187 reflects broader criticisms (e.g.,
if conditions are met. by former CJI N.V. Ramana) about Parliament's tendency to pass
poorly worded laws.
Key Conundrum ? Parliament must act swiftly to amend Section 187 to prevent chaotic
15-day detention under 187(2) can be ordered at any implementation of the BNSS when it comes into force on 1 July
point in the first 40/60 days. This flexibility creates 2024.
unexplained gaps. Creates ambiguity.
FULL ARTICLE!!!
The general legal position (based on earlier law like Anupam J. Kulkarni) was that police custody can only be
granted during the first 15 days after arrest.
But in Senthil Balaji’s case, the Madras High Court said:
Even after the accused had been sent to judicial custody,
police custody could still be ordered, as long as it was within
the total 15-day limit.

This is a departure from the traditional view that once a person

is remanded to judicial custody, the police lose their chance to
get police custody.

The new BNSS Section 187(2) seems to build on or

reflect the idea from the Senthil Balaji ruling — by
allowing flexible timing of the 15-day police custody
within 40 or 60 days.
However, the author is critical of this approach. They
say this flexibility creates legal gaps and doesn't
explain how to legally justify detention on days before
or between police custody orders.
Default bail: A fundamental right
• In order to safeguard the rights of the accused and limit direct and prolonged
access of the police to the accused, a Magistrate cannot authorize detention of
an accused in police custody for a period exceeding 15 days.
• The underlying principle behind this time limit of 15 days is that it is not proper
for an accused to remain under police influence after the inquiry or trial has
begun.
• However, the Magistrate has the power to order detention beyond this period
where such detention is “otherwise than in the custody of the police”
(commonly referred to as “judicial custody”- this has now been omitted !!),
and the total period of custody must not exceed :
(i) 90 days, where investigation relates to an offence punishable with death, life
imprisonment, or imprisonment for over ten years;
(ii) 60 days, where the investigation relates to any other offence.
• For an effective understanding of default bail, it is necessary to know that according to s.58 of
the BNSS, any person arrested by the Police without warrant cannot, under any circumstances,
be kept in custody of the police beyond the period of 24 hours, unless a special order
authorizing the detention is obtained by the police from a Magistrate’s Court.
• Section 187 is a key part of the law of criminal procedure, providing that an accused may not be
arrested and detained in custody for a period of longer than 24 hours without being produced
before a Magistrate. The section empowers a Magistrate to send an accused to either police or
judicial custody while a police investigation is ongoing. The section also provides that an
accused may only be held in such custody for a set period of time, after which he will be
entitled to default bail. These provisions are key to upholding an accused’s fundamental right to
personal liberty.
• Section 187 BNSS comes into play when an investigation has commenced but before it has
been completed. In order to undertake and complete an investigation, the investigating agency
often needs to arrest and detain the accused for the purposes of interrogation, collection of
evidence, preventing evidence, tampering, etc.
• Section 187 sets out the framework to be followed by the police and court(s) in order to
detain an accused in custody for the purposes of investigation
• Accordingly, Section 187 prescribes the procedure to be followed if an
investigation cannot be completed within 24 hours of the accused’s arrest.
• In such a scenario, the accused has to be produced before the nearest Judicial
Magistrate within 24 hours of the arrest, excluding the time of travel.
• The Magistrate may authorise detention of the accused in “such custody” as he
“thinks fit” to allow the investigating agency to complete investigation.
• In case an accused is arrested in a State other than the one in which the FIR or
complaint is registered such that transportation of the accused has to be arranged
and the detention may go beyond a 24-hour period, courts have started passing
orders granting “transit remand” to allow the police to transport an accused from
one State to another.
 Balancing two competing interests
the power
granted to
Magistrates
to prolong
the detention attempts to
of an safeguard the
accused right of an
individual accused not
can assist the to be
investigating arbitrarily
agencies in detained for
completing prolonged
an periods of
investigation time.

The mechanism by which Section 187 seeks to achieve this balance is to provide that an accused may not be detained
for longer than 24 hours without being produced before a Magistrate, such that the Magistrate may evaluate whether
further detention is necessary.
• Once the accused has been in custody for 90 days or 60 days as the case may be, an
indefeasible right to be released on bail accrues in favour of the accused. This right to
be released on bail is referred to as “default bail” or “statutory bail”. This provision
keeps the investigation agencies and police on their toes and ensures that the
investigation process is not misused to keep people behind bars indefinitely by
prolonging the investigations.
• The right to seek default bail continues to be enforceable even if a regular bail
application by the accused is pending adjudication. Unlike regular bail, where the court
has discretion in granting bail depending on various conditions, the right to default bail
must be granted as a matter of indefeasible right once the conditions under Section
167(2) are met. The Supreme Court has also held that the right to default bail is not
merely a statutory right but a fundamental right under Article 21 of the
Constitution, preserving the right to personal liberty of an accused.
• The procedural and substantive protections provided by Section 167 BNSS are central
to ensuring that the fundamental right of personal liberty of an accused is upheld and
there is a continuous check on the powers of the investigative agencies during the
process of investigation.
Conditions for grant of default bail :-
• In Hitendra Vishnu Thakur vs. State of Maharashtra AIR 1994 SC 2623 Hon'ble
Apex Court held that “Parliament has introduced the amendment to Section. 167(2)
Cr.P.C prescribing the outer limit within which the investigation is to be completed. If
the same is not completed, the accused would acquire a right to be released on bail and
such release on bail shall be deemed to be under Chapter XXIII of the Code.”
• Though the accused becomes entitled to be enlarged on bail, in a situation contemplated
by Section167, however it is essential that following conditions are met out:
1. Application of accused :
• Though the accused becomes entitled to be released on bail where the charge-sheet has
not been filed within the prescribed period of 60 or 90 days, however, in order to avail
the benefit of default bail it is mandatory that the accused should file an application
before the Court praying for his release on bail.
• The Court cannot exercise its jurisdiction and grant default bail merely on the completion of
period in absence of an application by the accused. It often happens that the advocate of the
accused orally apprise the court with the expiry of remand period and makes submission for
grant of default bail however the mandate of Section 167 requires the advocate of the
accused to formally file an application stating that since the period of remand has expired
and no charge-sheet has been filed, the accused is liable to be released on bail.
• Default bail is an indefeasible right of the accused but in order to enjoy the same the accused is
required to approach the court in the procedure prescribed. Mere expiry of the period does not
suffice the requirement of the grant of default bail and the accused will not be
automatically released. In other words on the lapse of the period and non-filing of the charge-
sheet the right of default bail becomes operative however to exercise the same an application
before the magistrate is a must.
• “In our opinion an accused is required to make an application if he wishes to be released on
bail on account of the 'default' of the investigating prosecution agency…” It was further held
that the Designated Court would have no jurisdiction to deny to an accused his indefeasible
right to be released on bail on account of the default of the prosecution to file the challan within
the prescribed time if an accused seeks and is prepared to furnish the bail as directed by court.
Thus, it is imperative that the accused has to move an application to realize his right of default
bail. Mere oral submission of the expiry of period and non-filing of challan will frustrate his
right.
2. Investigation should be pending
• Filing of charge-sheet under Section 173 of the Code results into culmination of investigation. Once the charge-sheet is
filed the provision of Section 167 is no longer applicable. Therefore the accused can avail the benefit of default bail
only if the charge-sheet has not been filed within the prescribed period.

• Default bail is available only during the pendency of the investigation. Thus it is important that the application for
default bail should be filed before the filing of charge-sheet. If the accused fails to do so and charge-sheet is filed
meanwhile then his right extinguishes. This proposition was clarified by the Hon'ble Supreme Court in the landmark
judgement of Sanjay Dutt vs. State in the following words:
“The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filling of the challan
and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has
been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case
under the provisions relating to grant of bail to an accused after filing of the challan. The custody of the accused after the
challan is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had
accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement
thereafter since it is extinguished the moment challan is filed because section 167 ceases to apply.”

Thus, as soon as the period of remand expires i.e the 61st or 91st day, the accused has to move an application under
Section 167(2)CrPC if the and charge-sheet has not been filed. Where he fails to do so and on 62nd day charge-
sheet is filed then his right extinguishes. Thereafter he cannot approach the court under Section 167(2) as that stage
has been crossed.
When is accused is said to have 'availed of' his right of default. Is it
when he applies or when he furnishes bond or when he is released on
bail?

• The Apex Court in Sanjay Dutt v State (1994) 5 SCC 410 case held that the accused can be awarded
default bail even after the filing of the chargesheet, provided that the bail has already been availed of
and that the accused is capable of furnishing the bail.
• Furthermore, the interpretation of ‘availed of’ as used in the Sanjay Dutt case was attempted to be
clarified in the case of Uday Mohan Acharya v. State of Maharashtra (2001) 5 SCC 453.
• The Apex Court held that availed of means the accused person merely has to file an application for
bail before the Magistrate, bringing forth that no chargesheet has been filed within the specified period
and that he is ready to furnish the bail. The Magistrate must forthwith dispose of the bail application,
after considering the veracity of the accused person’s claims in the application. Hereby, even when
the filing of the bail application by the accused is followed by the filing of the challan or
chargesheet, which is preceded by the grant of the bail, the right to default bail cannot be
extinguished.
Calculation of remand period
• Case-law on computing the period u/s 167(2) has taken two distinct lines.
• One line of reasoning in State of M.P. Vs. Rustam & Ors. 1995 , which was later followed in
Ravi Prakash Singh Vs. State of Bihar 2015 and M. Ravindran Vs. Intelligence Officer ,
Director of Revenue Intelligence 2021 , where it was held that the date of remand is to be
excluded for computing the stipulated 60/90 day period, for the right of default bail, to
arise.
• On the other hand Chaganti Satyanarayan Vs. State of Andhra Pradesh 1986, CBI Vs.
Anupam J Kulkarni 1992, State Vs. Mohd. Ashraft Bhat 1996 and State of Maharashtra
Vs. Bharati Chandmal Varma 2002, to contend that the first date of remand must be
included for computing the remand period for determining an accused’s entitlement to
default bail.
• In ED v Kapil Wadhawan, the Court was tasked to decide “whether the date of remand is to be
included for considering a claim for default bail” [para 6]. The case arose when the ED filed its
chargesheet on the 61st day of remand (in a case carrying a maximum punishment of seven
years), and the accused filed their statutory bail application the same day at an earlier time. The
Court laid down the position of law on this issue authoritatively, holding that the day of
remand must be included in computing the completion of 60/90 days.
CBI v. Anupam Kulkarni 1992 AIR 1768
An important question that arises for consideration is whether a person arrested and
produced before the nearest Magistrate as required under Section 167(1) Code of
Criminal Procedure can still be remanded to police custody after the expiry of the
initial period of 15 days?
• A case relating to abduction of four Bombay based diamond merchants and one Shri
Kulkarni was registered at Police Station Tughlak Road, New Delhi, on September 16,
1991 and the investigation was entrusted to C.B.I.
• During investigation it was disclosed that not only the four diamond merchants but also
Shri Kulkarni, and one driver Babulal were kidnapped between September 14 and 15,
1991 from two Hotels at Delhi.
• It emerged during investigation that the said Shri Kulkarni was one of the associates of
the accused one Shri R. Chaudhary responsible for the said kidnapping of the diamond
merchants
• On the basis of some available material Shri Kulkarni was arrested on October 4,
1991 and was produced before the Chief Metropolitan Magistrate, Delhi on
October 5, 1991. On the request of the C.B.I. Shri Kulkarni was remanded to
judicial custody till October 11, 1991.
• On October 10, 1991 a test identification parade was arranged but Shri Kulkarni
refused to co-operate and his refusal was recorded by the Munsif Magistrate
concerned.
• On October 11, 1991 an application was moved by the investigating officer
seeking police custody of Shri Kulkarni which was allowed. When he was being
taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the
Hospital the same evening where he remained confined on the ground of illness up
to October 21, 1991 and then he was referred to Cardiac Out-patient Department
of G.B. Pant Hospital.
• Up to October 29, 1991 Shri Kulkarni was again remanded to judicial custody by
the Magistrate and thereafter was sent to Jail.
• In view of the fact that the Police could not take him into police custody all these
days the investigating officer again applied to the court of Chief Metropolitan
Magistrate for police custody of Shri Kulkarni.
• The Chief Metropolitan Magistrate relying on a judgment of the Delhi High Court
in State (Delhi Admn.) v. Dharam Pal [1982 Cri LJ 1103 : (1982) 21 DLT 50 :
1982 Chand Cri C (Del) 114] refused police remand.
• Questioning the same a revision was filed before the High Court of Delhi.
• The High Court, however, did not decide the question whether or not after the
expiry of the initial period of 15 days a person can still be remanded to police
custody by the Magistrate before whom he was produced. The said order is
challenged in these appeals.
• The learned Additional Solicitor-General appearing for the C.B.I. the appellant
contended that the Chief Metropolitan Magistrate erred in not granting police
custody and placed reliance on a case which has been wrongly decided. The
further contention is that the High Court has erred in granting bail to Shri
Kulkarni without deciding the question whether he can be remanded to
police custody as prayed for by the C.B.I.
• Shri Ram Jethmalani, learned counsel for the respondent accused submitted that
the language of Section 167 CrPC is clear and that the police custody if at all
be granted by the Magistrate should be only during the period of first 15 days
from the date of production of the accused before the Magistrate and not
later and that subsequent custody if any should only be judicial custody and
the question of granting police custody after the expiry of first 15 days
remand does not arise.
• 4… it is well-settled that it (section 167) is supplementary to Section 57. It is clear
from Section 57 that the investigation should be completed in the first instance
within 24 hours; if not, the arrested person should be brought by the police before
a Magistrate as provided under Section 167.
• The law does not authorize a police officer to detain an arrested person for more
than 24 hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate court.
• Sub-section (1) of Section 167 covers all this procedure and also lays down that
the police officer while forwarding the accused to the nearest Magistrate should
also transmit a copy of the entries in the diary relating to the case.
• The entries in the diary are meant to afford to the Magistrate the necessary
information upon which he can take the decision whether the accused should be
detained in the custody further or not.
• It may be noted even at this stage the Magistrate can release him on bail if an
application is made and if he is satisfied that there are no grounds to remand
him to custody but if he is satisfied that further remand is necessary then he
should act as provided under Section 167.
• It is at this stage sub-section (2) comes into operation which is very much
relevant for our purpose. It lays down that the Magistrate to whom the accused
person is thus forwarded 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
he thinks fit for a term not exceeding fifteen days in the whole.
• If such Magistrate has no jurisdiction to try the case or commit it for trial and if
he considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction
• The section is clear in its terms. The Magistrate under this section 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 thinks fit.
The words “such custody” and “for a term not exceeding fifteen days in the
whole” are very significant. It is also well settled now that the period of fifteen
days starts running as soon as the accused is produced before the Magistrate.
• 7…. if an accused is detained in police custody, the maximum period during
which he can be kept in such custody is only fifteen days either pursuant to a
single order or more than one when such orders are for lesser number of days but
on the whole such custody cannot be beyond fifteen days and the further
remand to facilitate the investigation can only be by detention of the accused
in judicial custody.
• 8… Taking the plain language into consideration particularly the
words “otherwise than in the custody of the police beyond the
period of fifteen days” in the proviso it has to be held that the
custody after the expiry of the first fifteen days can only be
judicial custody during the rest of the periods of ninety days or
sixty days and that police custody if found necessary can be
ordered only during the first period of fifteen days.
• 9. At this juncture we want to make another aspect clear namely the computation
of period of remand.
• The proviso to Section 167(2) clearly lays down that the total period of
detention should not exceed ninety days in cases where the investigation
relates to serious offences mentioned therein and sixty days in other cases and
if by that time cognizance is not taken on the expiry of the said periods the
accused shall be released on bail as mentioned therein. …the first period of
detention should be computed from the date of order of remand.
• Section 167(2-A) which has been introduced for pragmatic reasons states that if
an arrested person is produced before an Executive Magistrate for remand, the
said Magistrate may authorise the detention of the accused not exceeding
seven days in aggregate.
• It further provides that the period of remand by the Executive Magistrate should
also be taken into account for computing the period specified in the proviso i.e.
aggregate periods of ninety days or sixty days
• Since the Executive Magistrate is empowered to order detention only for seven
days in such custody as he thinks fit, he should therefore either release the
accused or transmit him to the nearest Judicial Magistrate together with the
entries in the diary before the expiry of seven days. The section also lays down
that the Judicial Magistrate who is competent to make further orders of detention,
for the purposes of computing the period of detention has to take into
consideration the period of detention ordered by the Executive Magistrate.
• Therefore on a combined reading of Sections 167(2) and (2-A) 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 Section 167(2) for the rest of the first fifteen days
after deducting the period of detention ordered by the Executive Magistrate.
• The detention thereafter could only be in judicial custody
• Likewise the remand under Section 309 CrPC can be only to judicial custody in
terms mentioned therein. This has been concluded by this Court and the language
of the section also is clear.
• Section 309 comes into operation after taking cognizance and not during the
period of investigation and the remand under this provision can only be to
judicial custody and there cannot be any controversy about the same.
• 10. The learned Additional Solicitor-General however submitted that in some of
the cases of grave crimes it would be impossible for the police to gather all the
materials within first fifteen days and if some valuable information is disclosed at
a later stage and if police custody is denied the investigation will be hampered and
will result in failure of justice.…
• The scheme of Section 167 is obvious and is intended to protect the accused from
the methods which may be adopted by some overzealous and unscrupulous police
officers.
• Article 22(2) of the Constitution of India and Section 57 of CrPC give a mandate
that every person who is arrested and detained in police custody shall be produced
before the nearest Magistrate within a period of 24 hours of such arrest excluding
the time necessary for the journey from the place of the arrest to the court of the
Magistrate and no such person shall be detained in the custody beyond the said
period without the authority of a Magistrate.
• These two provisions clearly manifest the intention of the law in this regard and
therefore it is the Magistrate who has to judicially scrutinise circumstances and if
satisfied can order the detention of the accused in police custody.
• However, taking into account the difficulties which may arise in completion of the
investigation of cases of serious nature the legislature added the proviso providing
for further detention of the accused for a period of ninety days but in clear terms it
is mentioned in the proviso that such detention could only be in the judicial
custody. During this period the police are expected to complete the investigation
even in serious cases.
• Likewise within the period of sixty days they are expected to complete the
investigation in respect of other offences. The legislature however disfavoured
even the prolonged judicial custody during investigation.
• That is why the proviso lays down that on the expiry of ninety days or sixty days
the accused shall be released on bail if he is prepared to and does furnish bail.
• If further interrogation is necessary after the expiry of the period of first fifteen
days there is no bar for interrogating the accused who is in judicial custody during
the periods of 90 days or 60 days. …
• 11…We may, however, like to make it explicit that such re-arrest or second
arrest and seeking police custody after the expiry of the period of first fifteen
days should be with regard to the investigation of a different case other than
the specific one in respect of which the accused is already in custody….

• It is true that the police custody is not the be-all and end-all of the whole
investigation but yet it is one of its primary requisites particularly in the
investigation of serious and heinous crimes.

• The legislature also noticed this and permitted limited police custody.
• The period of first fifteen days should naturally apply in respect of the
investigation of that specific case for which the accused is held in custody. But
such custody cannot further held to be a bar for invoking a fresh remand to
such custody like police custody in respect of an altogether different case
involving the same accused.
• 12. As the points considered above have an important bearing in discharge of the
day-to-day magisterial powers contemplated under Section 167(2), we think it
appropriate to sum up briefly our conclusions as under:
• 13. Whenever any person is arrested under Section 57 CrPC he should be
produced before the nearest Magistrate within 24 hours as mentioned therein.
Such Magistrate may or 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 authorise the detention of the
accused in such custody i.e. either police or judicial from time to time but 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 such 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 serious or otherwise committed by him
in the same transaction come to light at a later stage.

• But this bar does not apply if the same arrested accused is involved in a
different case arising out of a different transaction
• Even if he is in judicial custody in connection with the investigation of the
earlier case he can formally be arrested regarding his involvement in the
different case and associate him with the investigation of that other case and the
Magistrate can act as provided under Section 167(2) and the proviso and can
remand him to such custody as mentioned therein during the first period of fifteen
days and thereafter in accordance with the proviso as discussed above.
• If the investigation is not completed within the period of ninety days or sixty days
then the accused has to be released on bail as provided under the proviso to
Section 167(2).
• The period of ninety days or sixty days has to be computed from the date of
detention as 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 after the expiry of the
period of first fifteen days it should be only judicial custody.
• A question may then arise whether a person arrested in
respect of an offence alleged to have been committed Once a person is arrested, the police get a
by him during an occurrence can be detained again maximum of 15 days of police custody from the
in police custody in respect of another offence date of first remand. After that, even if new and
committed by him in the same case and which fact more serious offences (arising from the same
comes to light after the expiry of the period of first incident) come to light, police cannot seek fresh
fifteen days of his arrest. police custody. This is to prevent misuse and
harassment.
• We are unable to agree. In one occurrence it may so
happen that the accused might have committed several
offences and the police may arrest him in connection
with one or two offences on the basis of the available Suppose a person named Ravi is arrested for
information and obtain police custody. causing hurt in a street fight. Based on initial
• If during the investigation his complicity in more investigation, police remand him and get 7
serious offences during the same occurrence is days of police custody.While investigating,
disclosed that does not authorise the police to ask after 20 days of arrest, the police discover:
for police custody for a further period after the One of the victims in the same fight has died
expiry of the first fifteen days. If that is permitted due to internal injuries.
than the police can go on adding some offence or the Now, Ravi can be charged with culpable
other of a serious nature at various stages and seek homicide.But — Can police now ask for
further detention in police custody repeatedly, this
fresh police custody for Ravi based on the
would defeat the very object underlying Section 167.
new charge of culpable homicide?
Exception – when police custody can be asked for
even after expiry of 15 days
• However, we must clarify that this limitation shall not apply to a different occurrence in
which complicity of the arrested accused is disclosed. That would be as different transaction
and if an accused is in judicial custody in connection with one case and to enable the police to
complete their investigation of the other case they can require his detention in police custody
for the purpose of associating him with the investigation of the other case. In such a situation he
must be formally arrested in connection with other case and then obtain the order of the
magistrate for detention in police custody.
• The occurrences constituting two different transaction give rise to two different cases and
the exercise of power under Section 167(1) and (2) should be in consonance with the object
underlying the said provision in respect of each of those occurrences which constitute two
different cases. Investigation in one specific case cannot be the same as in the other.
• Arrest and detention in custody in the context of Sections 167(1) and (2) of the Code has to be
truly viewed with regard to the investigation of that specific case in which the accused person
has been taken into custody.
V Senthil Balaji v. ED (2023 INSC 677)
• A case was registered in Enforcement Case Information Report No. 21 of 2021 by
the Respondent No.1. (ED) against the appellant (SENTHIL BALAJI)and others.
It was followed by summons dated 04.08.2021 and 07.10.2021 requiring the
attendance of the appellant. Further summons were issued on 07.03.2022 and
24.07.2022. A search was conducted by the Authorised Officer invoking Section
17 of the PMLA, 2002 at his premises on 13.06.2023
• Finding that the appellant was not extending adequate cooperation, the Authority
had invoked Section 19 of the PMLA, 2002 by way of an arrest on 14.06.2023. An
arrest memo was also prepared. Though grounds of arrest were furnished, the
appellant declined to acknowledge them. The information pertaining to the arrest
was also intimated to his brother, sister-in-law and wife.
• The appellant was taken to the Tamil Nadu Government Multi Super Specialty
Hospital, Chennai as he complained of chest pain. His wife rushed to the High
Court and filed a Habeas Corpus petition being HCP No.1021 of 2023 on the very
same day 14.06.2023.
• In the meanwhile, the respondents filed an application before the learned
Principal Sessions Judge seeking judicial custody for 15 days. An order of remand
was passed sending him to judicial custody till 28.06.2023.
• Thereafter, the appellant filed an application for bail which was dismissed on
16.06.2023 by a speaking order considering all the contentions. This has attained
finality. The respondents made a further application seeking custody for further
investigation.
• All the above activities took place on a single day, except the dismissal of the
application for bail. The Habeas Corpus petition filed by the appellant’s wife was
taken up for hearing on 15.06.2023 on an urgent mentioning, whereby the
appellant was directed to be shifted to a private hospital of his choice to undergo a
bypass surgery. A surgery was accordingly done.
• On the application filed by the respondents, the learned Principal Sessions Judge
granted custody to them (ED )for a period of 8 days, while dismissing the bail
application as noted earlier.
• After filing an application on 17.06.2023, seeking a direction that the first 15
days custody period should not come in the way of actual period of custody,
before the learned Principal Sessions Judge, the respondents approached this
Court in Special Leave Petition (Criminal) No. 7437 of 2023. Incidentally, another
Special Leave Petition (Criminal) No. 7460 of 2023 was filed assailing the
conditions imposed in the order dated 16.06.2023 by which 8 days custody was
granted as afore-stated in favour of the respondents
• In the meanwhile, in the pending Habeas Corpus petition additional grounds
were raised questioning the orders of the learned Principal Sessions Judge
granting both judicial and police remand, no specific prayer as such was
sought for.
• On 22.06.2023, the respondents filed an application before the High Court of
Madras to exclude the period of hospitalization for the purpose of counting
custody period as no actual custody was taken.
HELD
• Seeds of liberty are sown in this provision while facilitating further investigation, upon being
satisfied that the same cannot be completed within 24 hours. It is not a mere procedural
provision but one having an inherent element of substantivity. While facilitating a fair play, it
is introduced as a limb of Article 21 and 22(2) of the Constitution of India, 1950.
• Under sub-section (1) of Section 167 of the CrPC, 1973, a competent officer shall forward the
accused to the Magistrate when it appears that the investigation cannot be completed within 24
hours.
• Two factors are important as envisaged under sub-section (1). They are,
• it must be a case where investigation cannot be completed within 24 hours of arrest of an
accused and
• that he has to be forwarded to the Magistrate, meaning thereby he comes into the judicial
custody from that of the investigating agency.
• The object and rationale behind this provision is rather clear. By restricting the custody to 24
hours, the liberty of the accused is meant to be considered and taken note of by an independent
authority in the form a Magistrate. It is also an act of confirmation by the Magistrate on the
• Sub-section (2) of Section 167 of the CrPC, 1973 deals with the power of the
Magistrate. Such a Magistrate may or may not have the jurisdiction to try a case.
There is no question of jurisdiction in any form that would stand in the way of the
Magistrate from exercising the said power. By a mere designation he assumes
such power. This is for the reason that liberty is paramount and any delay would
amount to its curtailment. It may also delay further investigation. The words
“time to time” would clearly indicate that a power to grant custody is not
restricted to the first 15 days of remand, but the whole period of
investigation. It is not referable to judicial custody as against police custody. It
only means “as the occasion arises”, which is from the point of investigation.
• Thus, when an investigation reveals new materials to be confronted with the
accused, a need for custody might arise, subject to the satisfaction of the
Magistrate.
• While authorizing the detention of an accused, the Magistrate has got a very
wide discretion. Such an act is a judicial function and, therefore, a reasoned order
indicating application of mind is certainly warranted. He may or may not authorize
the detention while exercising his judicial discretion. Investigation is a process
which might require an accused’s custody from time to time as authorized by the
competent Court. Generally, no other Court is expected to act as a supervisory
authority in that process. An act of authorization pre-supposes the need for custody.
Such a need for a police custody has to be by an order of a Magistrate rendering his
authorization.
• The words “such custody as such Magistrate thinks fit” would reiterate the
extent of discretion available to him. It is for the Magistrate concerned to decide
the question of custody, either be it judicial or to an investigating agency or to any
other entity in a given case.
• Interpreting the words “such custody”, the Law Commission in its 37th Report,
while dealing with the pari materia provisions under the CrPC, 1898, has observed
that the Magistrate is having wide powers as there is no express restriction under
Section 167(2). It can be given to any investigating agency and, therefore, not
DOES SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE,
1973 RESTRICT A POLICE CUSTODY ONLY TO THE FIRST 15
DAYS OF REMAND?
• We have given our interpretation on the scope and ambit of Section 167(2)
of the CrPC, 1973. With due respect, we are unable to concur with the
views expressed in Anupam J. Kulkarni (supra) to the effect that a
police custody shall only be within the first 15 days of remand.
• Nowhere under Section 167(2) of the CrPC, 1973 such a stipulation is found
either directly or indirectly. The words such as “time to time”, “such
custody”, and “in the whole” mentioned under Section 167(2) of the CrPC,
1973 have not been properly taken note of and interpreted. What is required
is a simple and natural interpretation when there is no semblance of
ambiguity.
• The maximum period of 15 days of police custody is meant to be applied
to the entire period of investigation – 60 or 90 days, as a whole.
• The words “such custody” occurring in Section 167(2) of the CrPC,
1973 would include not only a police custody but also that of other
investigating agencies.
• The word “custody” under Section 167(2) of the CrPC, 1973 shall
mean actual custody.
• Curtailment of 15 days of police custody by any extraneous
circumstances, act of God, an order of Court not being the handiwork
of investigating agency would not act as a restriction.
• Section 167 of the CrPC, 1973 is a bridge between liberty and
investigation performing a fine balancing act.
• The decision of this Court in Anupam J. Kulkarni (supra), as followed
subsequently requires reconsideration by a reference to a larger Bench
Sanjay Dutt V. State Through CBI, Bombay (Ii) (1994)
5 Scc 410

• The petitioner is one of the several accused persons in case No. 1 of 1993 being
trial in the Designated Court for Greater Bombay in connection with the bomb
blasts which took place in Bombay on 12.3.1993 killing a large number of person
and causing huge destruction of property.
• The case of the prosecution against the petitioner, set out in the charge-sheet, is
that on 16.1.1993 he "knowingly and intentionally procured from accused Anees
Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba @
Ibrahim Musa Chouhan, Abu Salem Abdul, Qayoob Ansari and Manzoor Ahmed
Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and
cartridges for the purpose of committing terrorist acts.
• By keeping the AK-56 rifles, hand grenades, pistol and cartridges' in his
possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts
of the rifle, the 9 mm. pistol and 53 rounds of live cartridges were recovered
during the course of investigation.
• Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla,
Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1 AK-
56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them from the
house of accused Sanjay Dutt, at his instance, with the intention to protect the
offender i.e. Sanjay Dutt from legal consequences and therefore, they are also
guilty of the offence u/s 201 IPC".
• The charge against the petitioner is of several offence including those under the
TADA Act, of which Section 5 thereof is one, reliance is placed by the prosecution
on the testimony of certain witnesses, some incriminating circumstances and an
unretracted confession by the petitioner himself.
• The petitioner further stated that in view of the tense communal situation as a result of
the incident at Ayodhya on 5.12.1992 and the serious threats given to petitioner's father
Sunil Dutta then a Member of Parliament, for his active role in steps taken to restore
communal harmony and serious threats to petitioners' sisters also, all of whom were
residing together, the petitioner agreed to obtain and keep one AK-56 rifle with
ammunition for protection of him family without the knowledge of his father.
• In short, the petitioner's statement (confession) is that his possession of one AK-56 rifle
with ammunition was in these circumstances for self defence on account of the serious
threats to the members of his family, unrelated to any terrorist activity and, therefore,
mere unauthorised possession of the weapons and ammunition by him in these
circumstances cannot constitute an offence under Section 5 of the TADAAct. and has to
be dealt with only under the Arms Act, 1959
• The petitioner claims to be released on bail on this basis and places reliance on certain
other facts pertaining to his conduct to support his assertion that his action is
unconnected with any terrorist or disruptive activity.
• The Designated Court has refused bail to the petitioner. These special leave petitions are
against the order of the Designated Court, in substance, for grant of bail to the petitioner.
Questions of law
• …( 2) The proper construction of clause (bb) of sub-section (4) of
Section 20 of the TADA Act indicating the nature of right of an
accused to be released on bail thereunder, on the default to
complete investigation within the time allowed therein; and

• (3) The proper construction and ambit of sub-section (8) of Section 20

of the TADA Act indicating the scope for bail thereunder
TADA- PART IV: MISCELLANEOUS

SECTION 20. Modified application of certain provisions of the Code.

• (4) Section 167 of the Code shall apply in relation to a case involving an offence
punishable under this Act or any rule made thereunder subject to the modifications that
—
• (a) the reference in sub-section (1) thereof to ‘Judicial Magistrate’ shall be construed as
a reference to ‘Judicial Magistrate or Executive Magistrate or Special Executive
Magistrate’; (
• b) the references in sub-section (2) thereof to ‘fifteen days’, ‘ninety days’ and ‘sixty
days’, wherever they occur, shall be construed as references to ‘sixty days’, ‘one
hundred and eighty days’ and ‘one hundred and eighty days’, respectively; and
• (bb) in sub-section (2), after the proviso, the following proviso shall be
inserted, namely:— Provided further that, if it is not possible to complete the
investigation within the said period of one hundred and eighty days, the
Designated Court shall extend the said period up to one year, on the report
of the Public Prosecutor indicating the progress of the investigation and the
specific reasons for the detention of the accused beyond the said period of one
hundred and eighty days; and (c) sub-section (2-A) thereof shall be deemed to
have been omitted

• (7) Nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed an
offence punishable under this Act or any rule made thereunder
(8) Notwithstanding anything contained in the Code, no person accused of an
offence punishable under this Act or any rule made thereunder shall, if in custody,
be released on bail or on his own bond unless—

• (a) the Public Prosecutor has been given an opportunity to oppose the application
for such release, and
• (b) where the Public Prosecutor opposes the application, the court is satisfied that
there are reasonable grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.

(9) The limitations on granting of bail specified in sub-section (8) are in addition to
the limitations under the Code or any other law for the time being in force on
granting of bail
• 43. Section 20 of the TADA Act prescribes the modified application of the Code
of Criminal Procedure indicated therein.
• • The effect of sub-section (4) of Section 20 is to apply Section 167 of the Code of
Criminal Procedure in relation to a case involving an offence punishable under the
TADA Act subject to the modifications indicated therein.
• • One of the modifications made in Section 167 of the Code by Section 20(4) of
the TADA Act is to require the investigation in any offence under the TADA Act to
be completed within a period of 180 days with the further proviso that the
Designated Court is empowered to extend that period up to one year if it is
satisfied that it is not possible to complete the investigation within the said period
of 180 days, on the report of the public prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the accused beyond the
said period of 180 days.
• This gives rise to the right of the accused to be released on bail on expiry of
the said period of 180 days or the extended period on default to complete the
investigation within the time allowed.
• 44. In Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 :
1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] the conclusion was summarised, as
under : (SCC p. 635, para 30)
“In conclusion, we may (even at the cost of repetition) say that an accused person
seeking bail under Section 20(4) has to make an application to the court for grant
of bail on grounds of the ‘default’ of the prosecution and the court shall release the
accused on bail after notice to the public prosecutor uninfluenced by the gravity of
the offence or the merits of the prosecution case since Section 20(8) does not
control the grant of bail under Section 20(4) of TADA and both the provisions
operate in separate and independent fields. It is, however, permissible for the public
prosecutor to resist the grant of bail by seeking an extension under clause (bb) by
filing a report for the purpose before the court. However, no extension shall be
granted by the court without notice to an accused to have his say regarding the
prayer for grant of extension under clause (bb)
• In this view of the matter, it is immaterial whether the application for bail on
ground of ‘default’ under Section 20(4) is filed first or the report as envisaged by
clause (bb) is filed by the public prosecutor first so long as both are considered
while granting or refusing bail.
• If the period prescribed by clause (b) of Section 20(4) has expired and the court
does not grant an extension on the report of the public prosecutor made under
clause (bb), the court shall release the accused on bail as it would be an
indefeasible right of the accused to be so released.
• Even where the court grants an extension under clause (bb) but the charge-sheet
is not filed within the extended period, the court shall have no option but to
release the accused on bail, if he seeks it and is prepared to furnish the bail as
directed by the court.
• Moreover, no extension under clause (bb) can be granted by the Designated Court
except on a report of the public prosecutor nor can extension be granted for
reasons other than those specifically contained in clause (bb), which must be
strictly construed.”
• 45. In Hitendra Vishnu Thakur [(1994) 4 SCC 602] , it was held that the
Designated Court would have “no jurisdiction to deny to an accused his
indefeasible right to be released on bail on account of the default of the
prosecution to file the challan within the prescribed time if an accused seeks and is
prepared to furnish the bail bond as directed by the court”; and that a ‘notice’ to
the accused is required to be given by the Designated Court before it grants any
extension under the further proviso beyond the prescribed period of 180 days for
completing the investigation…
• 48. We have no doubt that the common stance before us of the nature of
indefeasible right of the accused to be released on bail by virtue of Section 20(4)
(bb) is based on a correct reading of the principle indicated in that decision.
• The indefeasible right accruing to the accused in such a situation is enforceable
only prior to the filing of the challan and it does not survive or remain enforceable
on the challan being filed, if already not availed of
• Once the challan has been filed, the question of grant of bail has to be considered
and decided only with reference to the merits of the case under the provisions
relating to grant of bail to an accused after the filing of the challan.
• The custody of the accused after the challan has been filed is not governed by
Section 167 but different provisions of the Code of Criminal Procedure.
• If that right (of default bail) had accrued to the accused but it remained
unenforced till the filing of the challan, then there is no question of its
enforcement thereafter since it is extinguished the moment challan is filed
because Section 167 CrPC ceases to apply.
• The Division Bench also indicated that if there be such an application of the
accused for release on bail and also a prayer for extension of time to complete the
investigation according to the proviso in Section 20(4)(bb), both of them should
be considered together.
• It is obvious that no bail can be given even in such a case unless the prayer for
extension of the period is rejected. In short, the grant of bail in such a situation is
also subject to refusal of the prayer for extension of time, if such a prayer is made.
• If the accused applies for bail under this provision on expiry of the period of 180
days or the extended period, as the case may be, then he has to be released on bail
forthwith.
• The accused, so released on bail may be arrested and committed to custody
according to the provisions of the Code of Criminal Procedure.
• It is settled by Constitution Bench decisions that a petition seeking the writ of
habeas corpus on the ground of absence of a valid order of remand or detention of
the accused, has to be dismissed, if on the date of return of the rule, the custody or
detention is on the basis of a valid order
• 49. This is the nature and extent of the right of the accused to be released on bail
under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a
situation.
• We clarify the decision of the Division Bench in Hitendra Vishnu Thakur [(1994)
4 SCC 602] , accordingly, and if it gives a different indication because of the final
order made therein, we regret our inability to subscribe to that view.
• 53. As a result of the above discussion, our answers to the three question of law
referred for our decision are as under : - • (2)(a) Section 20(4)(bb) of the TADA
Act only requires production of the accused before the court in accordance with
Section 167(1) of the Code of Criminal Procedure and this is how the requirement
of notice to the accused before granting extension beyond the prescribed period of
180 days in accordance with the further proviso to clause (bb) of sub-section (4)
of Section 20 of the TADA Act has to be understood in the Judgment of the
Division Bench of this Court in Hitendra Vishnu Thakur
• The requirement of such notice to the accused before granting the extension for
completing the investigation is not a written notice to the accused giving reasons
therein.
• Production of the accused at that time in the court informing him that the question
of extension of the period for completing the investigation is being considered, is
alone sufficient for the purpose.
• (2)(b) The 'indefeasible right' of the accused to be released on bail in accordance
with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of
Criminal Procedure in default of completion of the investigation and filing of the
challan within the time allowed, as held in Hitendra Vishnu Thakur is a right
which ensures to, and is enforceable by the accused only from the time of
default till the filing of the challan and it does not survive or remain
enforceable on the challan being filed
• If the accused applies for bail under this provision on expiry of the period of 180
days or the extended period, as the case may be, then he has to be released on bail
forthwith.
• The accused, so released on bail may be arrested and committed to custody
according to-the provisions of the Code of Criminal Procedure.
• The right of the accused to be released on bail after filing on the challan,
notwithstanding the default in filing it within the time allowed, as governed from
the time of filing of the challan only by the provisions relating to the grant of bail
applicable at the stage.
• 54. The questions referred are answered in the above manner. This case, for
decision of the petitioner's claim for grant of bail on merits, like any other bail
matter, has now to be considered and decided by the appropriate Division Bench.
We direct, accordingly.
ED v. Kapil Wadhawan (2023) 5 SCR 918

• The core issue that arises for consideration is whether the date of remand is
to be included or excluded, for considering a claim for default bail, when
computing the 60/90 day period as contemplated in proviso (a) of Section 167
(2) of the CrPC.
• The prosecution relies, on the line of reasoning in State of M.P. Vs. Rustam &
Ors.2 , which was later followed in Ravi Prakash Singh Vs. State of Bihar3 and
M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence4 , where
it was held that the date of remand is to be excluded for computing the
stipulated 60/90 day period, for the right of default bail, to arise.
• On the other hand, the Accused rely, inter alia, on Chaganti Satyanarayan Vs. State
of Andhra Pradesh5 , CBI Vs. Anupam J Kulkarni,6 State Vs. Mohd. Ashraft
Bhat7 and State of Maharashtra Vs. Bharati Chandmal Varma,8 to contend that
the first date of remand must be included for computing the remand period
for determining an accused’s entitlement to default bail.
• The two respondents, while being confined in judicial custody since 10.5.2020 in RC
No.219/2020 registered by the CBI, came to be arraigned as accused in ECIR/MBZO-I/3/2020
registered by the ED for the alleged commission of offence under Section 3 of the PMLA.
• On 14.5.2020, the applicants were produced before the learned Special Court, Mumbai and
were then remanded to police custody and on 27.5.2020 were subsequently remanded to
judicial custody.
• The applicants contended before the High Court that they were arrested on 14.5.2020 and on
the very same day, they were remanded by the Magistrate and such remand orders came to be
passed from time to time.
• As per the ED, on 11.7.2020, (i.e. a Saturday), a complaint was filed by them, through e-mail
and it was argued by the applicants that this was only a forward but not the entire complaint.
• On 13.7.2020 i.e. Monday, the ED filed the physical complaint before the Court. Based on
these facts, the applicants’ counsel submitted that the period of 60 days from the date of
remand of the applicants (14.5.2020) expired on 12.7.2020 (Sunday) and the applicants on
13.7.2020 sought enlargement on default bail, under the proviso (a) (ii) of Section 167 (2),
CrPC. Initially, the applications were transmitted through e-mail at around 8:53 AM and
after about two hours on 13.7.2020, at around 11 AM, the bail applications were presented for
physical filing in the Sessions Court and a token acknowledging the filing was issued and the
applications were also numbered
• The ED claimed to have filed the complaint through e-mail on 11.7.2020 followed by a
physical application on 13.7.2020. As per the ED, relying on Rustam(, the 60 day period
ends on 13.7.2020 (wherein it seeks to exclude the date of remand i.e. 14.5.2020). Thus,
as per the ED, complaint was filed in time.
• The learned Special Court denied default bail on 14.7.2020 with the understanding that
the 60 days’ time limit for filing the complaint expired. The learned Judge opined that
the date of remand will have to be excluded and the 60 days period will have to be
computed from 15th May 2020. With this reasoning the bail application came to be
rejected.
• On respondents’ challenge to the rejection of their default bail applications, the High
Court after analyzing the implication of the rival submissions and interpreting the
statutory provisions and their applications to the facts of the case, concluded that the
learned Special Judge incorrectly excluded the date of remand, while computing the 60
day period. Since the chargesheet by the ED was filed on 13.7.2020, being beyond 60
days by including the day of remand i.e. 14.5.2020, the applicants were found to be
entitled to default bail. Accordingly, a direction was issued for release of the
respondents by adverting to the provisions of Section 167 (2) of the CrPC, subject to the
accused persons furnishing their bail bonds. This order of the High Court is challenged
• Since there exists vacuum in the application and details of Section 167 CrPC, we
have opted for an interpretation which advances the cause of personal liberty. The
accused herein were remanded on 14.05.2020 and as such, the chargesheet ought to
have been filed on or before 12.07.2020 (i.e. the sixtieth day). But the same was
filed, only on 13.07.2020 which was the 61st day of their custody. Therefore, the
right to default bail accrued to the accused persons on 13.07.2020 at 12:00 AM,
midnight, onwards. On that very day, the accused filed their default bail applications
at 8:53 AM. The ED filed the chargesheet, later in the day, at 11:15 AM. Thus, the
default bail Applications were filed well before the chargesheet.
• We therefore declare that the stipulated 60/90 day remand period under Section
167 CrPC 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 CrPC.
• 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
 Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272
Can bail granted under the proviso to Sub-section (2) of Section 167 of the CrPC,
1973 for failure to complete the investigation within the period prescribed thereunder
be cancelled on the mere presentation of the challan (charge-sheet) at any time
thereafter?
• A complaint was lodged against the appellant and 8 others at Miraj City Police Station,
District Sangli alleging commission of offences punishable under Sections 147, 148, 302
and 323 read with Section 149 IPC, in regard to an incident which took place at about 11
p.m. on 8th September, 1990.
• The appellant was arrested in that connection on the next day i.e. 9th September,
1990. The appellant thereafter made an application before the Sessions Judge, Sangli for
being enlarged on bail That application was rejected. The appellant approached the High
Court but later withdrew the application and then once again moved the Sessions Judge,
Sangli for bail under the proviso to Section 167(2) of the Code on the ground that the
investigation had not been completed within 90 days. The learned Sessions Judge by his
order dated 11th March, 1991 directed the release of the appellant on bail.
• After the charge-sheet was submitted and the documents were tendered
subsequent thereto, the State of Maharashtra moved an application under
Section 439(2) of the Code in the High Court for cancellation of bail granted by
the Sessions Judge.
• The High Court by the impugned Order dated 31st March, 1992 cancelled the bail.
The High Court was of the view that since the learned Sessions Judge had granted
bail on a technical ground, namely, failure to file the charge-sheet within the time
allowed and since the investigation revealed the commission of a serious offence
of murder, on the ratio of this Court's decision in Rajnikant Jeevanlal
Patel v. Intelligence Officer NCB, New Delhi it was open to the High Court to
direct cancellation of the bail.
• On this line of reasoning the High Court cancelled the bail and directed the
appellant to surrender to the bail. In obedience to that order the appellant has
surrendered to his bail. These, in brief, are the facts which have a bearing on the
question under consideration.
• In the present case, as stated earlier, the appellant had applied for bail before the
expiry of the period of 90 days which was refused by the learned Sessions Judge
since the offence allegedly committed was of a serious nature.
• However, unfortunately the investigating agency did not show urgency and did not
complete the investigation within the maximum period allowed by the proviso to
Section 167(2) and hence on the appellant making an application for release on bail,
the learned Sessions Judge had no alternative but to direct that he be released on bail
on his executing a bond for Rs. 5,000 with one surety for like amount.
• Undoubtedly this release was solely on account of the fact that the investigating
agency had failed to complete the investigation within the maximum period
allowed by the proviso to Section 167(2) i.e. 90 days. This default on the part of
the investigating agency enabled the appellant to seek and secure his release on bail.
• The investigating agency submitted the charge-sheet at a later date and
appended the documents subsequent thereto. On the completion of the charge-
sheet the investigating agency moved the High Court for cancellation of the bail
under Section 439(2) of the Code. The High Court for reasons already stated earlier
cancelled the bail and directed that the appellant be taken into custody.
• Chapter XXXIII of the Code comprises Sections 436 to 450; of these Sections 437
and 439 have relevance so far as the question at issue is concerned.
• Once bail has been granted under that provision it can be cancelled and the
accused person can be arrested and committed to custody if the court considers it
necessary so to do. That is the import of Sub-section (5) of Section 437 of the
Code.
• The circumstances in which the court will exercise the power of the cancellation
of bail have been set out in a number of judgments of this Court to which we will
have an occasion to refer a little later.
• At this stage it is sufficient to state that the Legislature has conferred on the court
the power to grant bail as well as to cancel the same. Similarly Sub-section (1) of
Section 439 empowers the High Court as well as the Court of Session to direct any
accused person to be released on bail. Sub-section (2) thereof provides that the
High Court or the Court of Session may cancel bail and direct that the person
released on bail under Sub-section (1) be re-arrested and re-committed to custody.
Here again the circumstances under which the court will exercise the power
• The power of the Court to cancel bail if it considers it necessary is preserved in
cases where a person has been released on bail under Section 437(1) or (2) and
these provisions are applicable to a person who has been released under
Section 167(2). Under Section 437(2) when a person is released pending inquiry
on the ground that there are not sufficient grounds to believe that he had
committed a non-bailable offence may be committed to custody by court which
released him on bail if it is satisfied that there are sufficient grounds for so doing
after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are
applicable to a person who has been released under Section 167(2) the mere fact
that subsequent to his release a challan has been filed is not sufficient to commit
him to custody.
• Dealing with this contention this Court examined the scope of Section 167 read with
Sections 437 and 439 of the Code and the ratio of the decision in Bashir's case and
proceeded to observe as under:
• The order for release on bail may however be cancelled under Section 437(5) or
Section 439(2). Generally the grounds for cancellation of bail, broadly, are,
interference or attempt to interefere with the due course of administration of Justice,
or evasion or attempt to evade the course of justice or abuse of the liberty granted to
him.... Where bail has been granted under the proviso to Section 167(2) for the
default of the prosecution in not completing the investigation in sixty days after the
defect is cured by the filing of a chargesheet, the prosecution may seek to have the
bail cancelled on the ground that there are reasonable grounds to believe that the
accused has committed a non-bailable offence and that it is necessary to arrest him
and commit him to custody.
• It will thus be seen that this Court came to the conclusion that once an order for
release on bail is made under the proviso to Section 167(2) it is not defeated by lapse
of time and on the mere filing of the charge-sheet at a subsequent date. The order for
release on bail can no doubt be cancelled for special reasons germane to cancellation
• The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a
persons' liberty has been interfered with by the police arresting him without a court's order or a warrant,
the investigation must be carried out with utmost urgency and completed within the maximum period
allowed by the proviso (a) to Section 167(2) of the Code.
• It must be realised that the said proviso was introduced in the Code by way of enlargement of time for
which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that
if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge
sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed
to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code.
• Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be
traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which
are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code.
• The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to Section
167(2) of the Code then recedes in the background. Once the accused has been released on bail his
liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently
submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating
agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57
and 167(2) of the Code.
• We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be
taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so
doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime.
 Justice A.M. Ahmadi &Justice K. Ramaswamy
CONCURRING
Justice M.M. Punchhi
Both agreed that: DISSENTING
• Default bail under Section 167(2) CrPC arises
from a statutory right due to the failure of the He disagreed with the majority and held that:
investigating agency to file a chargesheet in time.
• Bail granted under Section 167(2) cannot
• Once this bail is granted, it can be cancelled under be cancelled only because the police files
Sections 437(5) or 439(2) CrPC, but only on the the chargesheet after the bail is granted.
basis of supervening circumstances, such as: • Since the bail was granted due to a
• The accused misusing liberty, legislative lapse (delay in filing
• Tampering with evidence, chargesheet), its character is distinct from
discretionary bail.
• Likelihood of absconding, etc. • Sections 437(5)(480) and 439(2)(483) do
• The filing of the chargesheet alone does not justify not apply automatically to default bail
automatic cancellation of the bail granted under since the accused has not been released on
Section 167(2). merits.
• Once the right accrues and bail is granted,
• Thus, the default bail doesn’t become permanent, it crystallizes and cannot be undone except
but its cancellation must follow established legal upon proof of abuse of liberty or similar
grounds for revoking bail in general. grave grounds — which must be separate
from the belated filing of the charge sheet.
• The provision must be construed strictly in favour of individual liberty since even
the law expects early completion of the investigation. The delay in completion of
the investigation can be on pain of the accused being released on bail.
• The prosecution cannot be allowed to trifle with individual liberty if it does not
take its task seriously and does not complete it within the time allowed by law. It
would also result in avoidable difficulty to the accused if the latter is asked to
secure a surety and a few days later be placed behind the bars at the sweet will of
the prosecution on production of a charge-sheet.
• We are, therefore, of the view that unless there are strong grounds for
cancellation of the bail, the bail once granted cannot be cancelled on mere
production of the charge-sheet. The view we are taking is consistent with this
Court's view in the case of Bashir & Raghubir (supra) but if any ambiguity has
arisen on account of certain observations in Rajnikant's case our endeavour is to
clear the same and set the controversy at rest.
State of Karnataka v. Kalandar Shafi (Crl Petition No
13459/2024; decided by Karnataka HC on 13 December
2024
This case arose out of the rejection by the Judicial Magistrate First Class (JMFC), Mangaluru, of the prosecution's application for
police custody of certain accused in a case registered under Crime No. 150/2024. The High Court of Karnataka was approached
by the State and the complainant challenging this rejection.
Facts:
A man named B.M. Mumtaz Ali died on
06.10.2024, and the case was registered
under Sections 108, 308(2), 308(5), ISSUE
351(2), and 352 of the Bharatiya Nyaya
Whether the offence of abetment to suicide (Section
Sanhita (BNS).The accused were arrested
in phases and initially remanded to judicial
108 BNS), punishable with imprisonment “up to 10
custody. Police custody was granted to years,” qualifies under Section 187(3)(i) (which allows
some accused within the permitted period. police custody up to 60 days) or under 187(3)(ii)
On a later date, the prosecution sought (where it is limited to 40 days).
additional police custody, which was
denied on the ground that 40 days had
elapsed since arrest — the outer limit for
seeking police custody for offences
punishable with less than 10 years under
Section 187(3)(ii) of the BNSS.
HELD:
The High Court held that “up to 10 years” does not qualify
under Section 187(3)(i) (which requires minimum threshold KEY TAKEAWAY :
punishment of 10 years or more). Section 187(3) BNSS changes CrPC's phrase “not
•The correct category was Section 187(3)(ii), which permits:
less than 10 years” to “10 years or more” –
• 60 days for completion of investigation, and
implying only those offences with minimum
• Police custody only within the first 40 days
(maximum 15 days). punishment of 10 years qualify for the 90-day rule.
Since 40 days had passed, further police custody was 1.Offences punishable up to 10 years fall under
impermissible.The Court drew support from several Supreme the 60-day investigation period, with police
Court judgments emphasizing that personal liberty under custody allowed within the first 40 days only.
Article 21 must be strictly protected and interpreted in favour 2.The offences in this case do not meet the
of the accused. threshold for the 90-day/60-day police custody rule.
3.No error in the JMFC’s order rejecting the police
custody plea.

Both the criminal petition and the writ petition were

dismissed.
The interpretation affirms strict compliance with procedural
safeguards under BNSS to uphold the accused’s right to
liberty.
PROCEDURE ON COMPLETION OF INVESTIGATION

Section 189 – no sufficient

evidence
Section 190 – if sufficient
Release of accused on execution of evidence
bond with direction that he may have Forwards accused to the Magistrate
to appear before the Magistrate if
required to try him.
Till the chargesheet is not
filed investigation remains
s.193 – CHARGE SHEET/POLICE
pending. Once, it is filed – it
would mean the investigation REPORT
is complete and ready to be Upon completion report to be sent to
forwarded to the Magistrate. Magistrate along with all documents
prosecution chooses to rely upon other than
CAN THE POLICE STILL ones supplied during investigation and
CONTINUE statements recorded under 181 of all
INVESTIGATING persons whom the prosecution proposes to
FURTHER? examine as a witness.
Police Report reflects police opinion
• Police Report means a report forwarded by a police officer to a Magistrate under subsection (2) of Sec. 173 Cr.PC
vide the definition given in Section 2 (r) Cr.PC.

• As soon as investigation of a case involving at least one cognizable offence is completed by the police, the
officer-in-charge of the police station, where the case has been registered, has to submit a report to the Magistrate.
Therefore, the report submitted by the officer-in-charge of the police station to the competent Judicial Magistrate
at the end of investigation, incorporating Agency, is knows as “Police Report”.

• The final step in the investigation of an offence is the formation of opinion by the O.C. of the P.S.
• The opinion ought to be based on the evidence collected in course of investigation.
• The ultimate opinion to be formed by the police is whether the case in hand is one which ought to be sent up for
trial.
This will mainly depend upon:
 Whether the case is true or false.
 If true, whether the offenders have been discovered or not.
 Whether they have been arrested or not.
 Whether there is sufficient evidence to prosecute them.
Protest Petition
• The term ‘Protest Petition’ has not been
defined under any statute in India, whether
the Criminal Procedure Code (CrPC), 1973
or the BNSS, 2023.
• Protest Petitions are defined as
representations made by the aggrieved
person, victim or complainant/informant to
the Magistrate. If the informant or victim is
dissatisfied with the investigation and the
Closure Report filed by the police under
Section 193, r/w s.189, he can make
submissions challenging the Report and
raise objections against it.
• The Court, in Bhagwant Singh v. Commissioner of Police and Anr AIR [1985 SC
1285], clarified the situation in which a Protest Petition can be filed.
• As per the decision, on completion of the investigation, the police is required to
forward to the Magistrate a police report under Section 173(2)(i), setting out
whether, in its opinion, an offence has been committed.
• The police may either file a charge sheet concluding that an offence appears to have
been committed or a closure report, stating that, in the opinion of the police, no
offence appears to have been committed. In either case, if the Magistrate takes
cognizance of the offence, no Protest Petition lies.
• However, when the Magistrate decides that there is no sufficient ground for
proceeding further and drops the proceeding, the informant’s interest, in prompt and
effective action on the FIR, would be prejudiced. Thus, if the Magistrate is
inclined to accept the closure report or reject the charge sheet, then the
informant must be given an opportunity to be heard, challenge the investigation
process and make a submission against the closure report, so as to persuade the
Magistrate to take cognizance of the offence. Such a challenge can be made
Bhagwant Singh v. Comm’r of Police (1985) 2 SCC 537

Gurinder Kaur died as a result of burns The petitioner was however not aware
received by her and allegedly, she was that such a report had been submitted by
burnt by her husband and his parents on the Central Bureau of Investigation and
account of failure to satisfy their demand he, therefore, brought an application for
for dowry. The circumstances in which
Gurinder Kaur met with her unnatural initiating proceedings for contempt
death were investigated by the Central against the Central Bureau of
Bureau of Investigation and a report was Investigation on the ground that the
filed by the Central Bureau of Central Bureau of Investigation had not
Investigation in the court of the Chief completed their investigation and
Metropolitan Magistrate on 11th August, submitted their report within the period
1982 stating that in their opinion in stipulated by the Court by its earlier
respect of the unnatural death of order.
Gurinder Kaur no offence appeared to
have been committed.
Issues
Whether in cases of this kind, the first informant
or any relative of the deceased or any other Whether in a case where First
aggrieved person is entitled to be heard at the Information Report is lodged and
time of consideration of the report by the after completion of investigation
Magistrate and whether the Magistrate is initiated on the basis of the First
bound to issue notice to any such person, is a Information Report, the police
question of general importance which is likely submits a report that no offence
to arise frequently in criminal proceedings? appears to have been committed,
the Magistrate can accept the
report and drop the proceeding
without issuing notice to the
first informant or to the injured
or in case the incident has
resulted in death, to the relatives
of the deceased?
• Sub-section (2)(i) of Section 173 (s. 193 BNSS)provides that as soon as investigation is
completed, the officer in charge of a police station shall forward to the magistrate
empowered to take cognizance of the offence on a police report, a report in the form
prescribed by the State Government setting out various particulars including whether, in
the opinion of the officer, as offence appears to have been committed and if so, by whom
• Sub-section (2)(ii) of Section 173 states that the officer shall also communicate, in such
manner as may be prescribed by the State Government, the action taken by him to the
person, if any, by whom the information relating to the commission of the offence
was first given.
• When an informant lodges the First Information Report with the officer-in- charge of a
police station he does not fade away with the lodging of the First Information Report.
• He is very much concerned with what action is initiated by the officer in charge of the
police station on the basis of the First Information Report lodged by him. On sooner he
lodges the First Information Report, a copy of it has to be supplied him, free of cost,
under sub- section (2) of Section 154.(173 BNSS)
• If notwithstanding the First Information Report, the officer-in-charge of a police
station decides not to investigate the case on the view that there is no sufficient
ground for entering on an investigation, he is required under sub-section (2) of
Section 157 to notify to the informant the fact that he is not going to investigate
the case because it to be investigated.
• Then again, the officer in charge of a police station is obligated under sub-
section(2)(ii) of Section 173 to communicate the action taken by him to the
informant and the report forwarded by him to the magistrate under sub- section
(2)(i) has therefore to be supplied by him to the informant
• The question immediately arises as to why action taken by the officer in charge
of a police station on the First Information Report is required to be
communicated and the report forwarded to the Magistrate under sub-section
(2)(i) of Section 173 required to be supplied to the informant.
• When the report forwarded by the officer-in charge of a police station to the
Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by
the Magistrate, one of two different situations may arise. The report may
conclude that an offence appears to have been committed by a particular person
or persons and in such a case, the Magistrate may do one of three things:
• he may accept the report and take cognizance of the offence and issue process
• he may disagree with the report and drop the proceeding
• he may direct further investigation under sub-section (3) of Section 156 and
require the police to make a further report.
 When police report states no offence appears
to have been committed
The Magistrate again has an option to adopt one of three courses :
• (1)he may accept the report and drop the proceeding or
• (2) he may disagree with the report and taking the view that there is sufficient
ground for proceeding further, take cognizance of the offence and issue process or
• (3) he may direct further investigation to be made by the police under sub-section
(3) of Section 156
• If the Magistrate decides to take cognizance of the offence and to issue process, the
informant is not prejudicially affected nor is the injured or in case of death, any
relative of the deceased aggrieved, because cognizance of the offence is taken by the
Magistrate and it is decided by the Magistrate that the case shall proceed.

• But if the Magistrate decides that there is no sufficient ground for proceeding further
and drops the proceeding or takes the view that though there is sufficient ground for
proceeding against some, there is no sufficient ground for proceeding against others
mentioned in the First Information Report, the informant would certainly be
prejudiced because the First Information Report lodged by him would have
failed of its purpose, wholly or in part.
• Moreover, when the interest of the informant in prompt and effective action being
taken on the First Information Report lodged by him is clearly recognised by the
provisions contained in sub-section (2) of Section 154, sub- section (2) of
Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the
informant would equally be interested in seeing that the Magistrate takes
cognizance of the offence and issues process, because that would be
culmination of the First Information Report lodged by him.
• There can, therefore, be no doubt that when, on a consideration of the report made
by the officer in charge of a police station under sub-section (2)(i) of Section 173,
the Magistrate is not inclined to take cognizance of the offence and issue
process, the informant must be given an opportunity of being heard so that
he can make his submissions to persuade the Magistrate to take cognizance of
the offence and issue process. (PROTEST PETITION)
HELD
• The SC was accordingly of the view that in a case where the magistrate to whom a report is
forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence
and to drop the proceeding or takes the view that there is no sufficient ground for proceeding
against some of the persons mentioned in the First Information Report, the magistrate must give
notice to the informant and provide him an opportunity to be heard at the time of
consideration of the report
• the First Information Report has to be communicated to the informant and a copy of the report has
to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any
reason why it should be difficult to serve notice of the consideration of the report on the
informant.
• The difficulty of service of notice on the informant cannot possibly provide any justification for
depriving the informant of the opportunity of being heard at the time when the report is considered
by the Magistrate.
Whether the injured person or a relative of the deceased, who is
not the informant, is entitled to notice when the report comes up
for consideration by the Magistrate?
• The injured person or any relative of the deceased, though not entitled to notice
from the Magistrate, has locus to appear before the Magistrate at that time of
consideration of the report, if he otherwise comes to know that the report is going
to be considered by the Magistrate and if he wants to make his submissions in
regard to the report, the Magistrate is bound to hear him.
SUMMARISING PROTEST PETITION
There are three options available to the Magistrate, when the final report is submitted
by the police and the Protest Petition is filed.
• Firstly, Magistrate may accept the final report and may also reject the Protest Petition.
• Secondly, he may accept the final report but treat the Protest Petition as a Complaint
and proceed in accordance with Section 200 and 202 of the Code.
• Lastly, he may accept the Protest Petition and reject the final report and take
cognizance under Section 190 (1) (b) of the code.
• The correct legal position is that Magistrate is not bound to accept the final report
submitted by the police officials. The Magistrate can disagree with that report and
take the cognizance even on the basis of police papers, if any submitted along with
the police report. Hence, where the Protest Petition is filed, the procedure prescribed
for trial of the complaint case has to be followed and Protest Petition has required to
be dealt accordingly as per law.
Abhinandan Jha v Dinesh Mishra
(1968 AIR 117)

Whether a Magistrate can direct the police to submit a charge-sheet, when the police, after the
investigation into a cognizable offence, had submitted a final report, under S. 173 ??
• The formation of the opinion, as to whether or not there is a case to, place the accused for trial, is
that of the officer in-charge of the police station and that opinion determines whether the report is
to be under s. 170, being a 'charge- sheet', or under S. 169, 'a final report’.
• It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the
opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by
us. But he cannot direct the police to submit a charge-sheet, because, the submission of the
report depends upon the opinion formed by the police, and not on the opinion of the
Magistrate.
• The Magistrate cannot compel the police to form a particular opinion, on the investigation, and
to submit a report, according to such opinion. This will be really encroaching on the sphere of
the police and compelling the police to form an opinion so as to accord with the decision of the
Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the
decision. Such a function has been left to the police, under the Code.