Subject: Code of Criminal Procedur-I

B.A.LL.B-VIIIth Sem
Subject Teacher: Dr. Md. Junaid
Teaching Material of Unit-II-(A)(d)
Topic: Procedure when investigation cannot be completed in twenty-four hours- Section
167 CRPC

Procedure when investigation cannot be completed in twenty-four hours- Section 167

CRPC

The provisions regarding procedure when investigation cannot be completed within twenty-four
hours has been provided under section 167 of the Code of Criminal Procedure, 1973. As per
Section 57 of the Code of Criminal Procedure, a person arrested without a warrant cannot be
detained by the police for more than 24 hours. If the police officer considers it necessary to
detain such a person for a longer period for the purposes of investigation, he can do so only after
obtaining a special order of a Magistrate under Section 167 of the Code.

Section 167 reads as under:

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
57, and there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time forward the accused to such Magistrate.

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, authorise the detention of
the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen
days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:

Provided that-

1. the Magistrate may authorise the detention of the accused person, otherwise than
in the custody of the police, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this paragraph for a total period
exceeding-

1. ninety days, where the investigation relates to an offence punishable with

death, imprisonment for life or imprisonment for a term of not less than
ten years;

2. 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 to released under the provisions of Chapter XXXIII for
the purposes of that Chapter;

2. 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 medium of electronic
video linkage;

3. 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 paragraph (a), 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 clause (b), 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 medium of electronic video linkage, as the case may be.

2A. Notwithstanding anything contained in Sub-Section (1) or Sub-Section (2), the

officer in charge of the police station or the police officer making the investigation, if
he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate, on whom the powers of a
Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the
entry in the diary hereinafter prescribed relating to the case, and shall, at the same
time, forward the accused to such Executive Magistrate, and there upon such
Executive Magistrate, may, for reasons to be recorded in writing, authorise the
detention of the accused person in such custody as he may think fit for a term not
exceeding seven days in the aggregate;

and on the expiry of the period of detention so authorised, the accused person shall be
released on bail except where an order for further detention of the accused person has
been made by a Magistrate competent to make such order;

and, where an order for such further detention is made, the period during which the
accused person was detained in custody under the orders made by an Executive
Magistrate under this Sub-Section, shall be taken into account in computing the
period specified in paragraph (a) of the proviso to Sub-Section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall
transmit to the nearest Judicial Magistrate the records of the case together with a copy
of the entries in the diary relating to the case which was transmitted to him by the
officer in charge of the police station or the police officer making the investigation, as
the case may be.
 Provided further 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.

3. A Magistrate authorising under this section detention in the custody of the police shall
record his reasons for so doing.

4. Any Magistrate other than the Chief Judicial Magistrate making such order shall forward
a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

5. If in any case triable by a Magistrate as a summons-case, the investigation is not

concluded within a period of six months from the date on which the accused was arrested,
the Magistrate shall make an order stopping further investigation into the offence unless
the officer making the investigation satisfies the Magistrate that for special reasons and in
the interests of justice the continuation of the investigation beyond the period of six
months is necessary.

6. Where any order stopping further investigation into an offence has been made under Sub-
Section (5), the Sessions Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to be made, vacate the order
made under Sub-Section (5) and direct further investigation to be made into the offence
subject to such directions with regard to bail and other matters as he may specify.

Analysis of Section 167

It is often the case when the police arrest a person in suspicion of a crime they are unable to
complete the investigation in 24 hours. At this juncture when they require the accused or suspect
to be kept away from society at large for the protection of society, of the accused or for the
purpose of ensuring his availability for investigation, they may produce him before a magistrate,
who may allow for the suspect to be held in the custody of the police or the judiciary.

The provisions for holding a person in custody for the purpose of furthering investigation, in
India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code
allows that a person may be held in the custody of the police for a period of 15 days on the
orders of a magistrate. A judicial magistrate may remand a person to any form of custody
extending up to 15 days and an executive magistrate may order for a period of custody extending
up to 7 days. A person may be held in the custody of the police or in judicial custody. Police
custody may extend only up to a period of 15 days from the date custody begins but judicial
custody may extend to a period of 90 days for a crime which entails a punishment of death, life
imprisonment or period of imprisonment exceeding 10 years and 60 days for all other crimes if
the magistrate is convinced that sufficient reasons exists, following which the accused or suspect
must be released on bail.

The magistrate has the authority to remand the person into judicial or police custody. The
detaining authority may be changed during the pendency of the detention, provided that the total
time period does not extend 15 days. If a person is transferred from police to judicial custody the
number of days served in police custody is deducted from the total time remanded to judicial
custody.

The difference between judicial and police custody apart from the difference in custodian
authority, is that under police custody, the suspect may be interrogated by the police but under
judicial custody interrogation is not permitted except in exceptional circumstances, police
custody starts when a person is taken into custody by the police and his rights are read out to him
along with the explanation for reasons for custody but judicial custody starts when a judge orders
for judicial custody. The first thing that happens to a suspect on arrest is that he is taken into
police custody, following which he is taken before a magistrate and he may either be remanded
to judicial custody or be sent back into police custody. He may also gain temporary relief by
posting bail.

As per Section 167 of the Code of Criminal Procedure, whenever any person is arrested and
detained in custody and it appears that the investigation cannot be completed within the period of
twenty-four hours fixed by Section 57 of the Code, and there are grounds for believing that the
accusation or information is well founded, the officer-in-charge of the police station or the police
officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith
transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time forward the accused to such Magistrate.
According to Section 167(2-A) of the Code, when a Judicial Magistrate is not available, the copy
of the entries in the case diary as well as the accused person as mentioned above may be
transmitted to the nearest executive magistrate on whom the powers of a judicial magistrate or
metropolitan magistrate have been conferred.

According to Section 167(2-A) of the Code, where a judicial magistrate is not available, the
copies of the entries in the case diary as well as the accused person may be transmitted to the
nearest Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan
Magistrate has been conferred. Then the Executive Magistrate may, for reasons to be recorded in
writing, authorize the detention of the accused person in such a custody as he may think fit for a
term not exceeding seven days in the aggregate.

The proviso to Section 167(2-A) of the Code provides that before the expiry of the said period,
the Executive Magistrate is required to transmit to the nearest Judicial Magistrate the records of
the case together with a copy of the entries in the case diary which was transmitted to him by the
police.

As per Section 167(2-A) of the Code, if the period of detention so authorized expires and no
further detention of the accused person is authorized by a competent judicial Magistrate, the
accused person shall be released on bail.

The nature of the custody can be altered from judicial custody to police custody and vice versa
during the first period of 15 days mentioned in Section 167(2) or seven days as mentioned in
Section 167(2-A) of the Code. After 15 days mentioned in Section 167(2) of the Code, the
accused can only be kept in judicial custody or any other custody as ordered by the Magistrate,
but not the custody of the police.

As per proviso (b) to Section 167(2) of the Code, no Magistrate shall authorize detention in any
custody under Section 167 of the Code unless the accused is produced before him. According to
Explanation II to the proviso to Section 167(2) of the Code, if any question arises whether an
accused person was produced before the Magistrate, the production of the accused person may
be proved by his signature which was taken by the Magistrate on the order authorizing detention.
The object of requiring the accused to be produced before the Magistrate is to enable the
Magistrate to decide judicially whether remand is necessary and also to enable the accused to
make any representation to the Magistrate to controvert the grounds on which the police officer
has asked for remand.

The order of detention is not to be passed mechanically as a routine order on the request of the
police for remand. The Magistrate has to exercise his judicial mind while deciding whether or
not the detention of the accused in any custody is necessary.

As per paragraph (c) of the proviso to Section 167 of the Code of Criminal Procedure, no
Magistrate of the second class, not specially empowered to order detention in police custody or
judicial custody by the High Court, shall authorize detention in the custody of the police.
However, the Magistrate has full discretion to order detention in police custody not exceeding 15
days.

As per Section 167(2-A) of the Code of Criminal Procedure, an Executive Magistrate may
authorize the detention of the accused in such custody as he may think fit, ‘for reasons to be
recorded in writing’. Further, Section 167(3) of the Code provides that a Magistrate authorizing
detention in the custody of the police shall record his reasons for doing so.

According to paragraph (a) of Proviso to Section 167(2) of the Code of Criminal Procedure, the
Magistrate may authorize the detention of the accused person, otherwise than in the custody of
the police, beyond the period of 15 days, if he is satisfied that adequate grounds exist for doing
so, but no Magistrate shall authorize the detention of the accused person in custody for a total
period exceeding;

(i) Ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence, and, on the expiry of the said
period only 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.

It is the duty of the Magistrate to inform the accused that he has a right to be released on bail
under the proviso to Section 167(2) of the Code. As per Explanation I to Section 167(2) of the
Code, notwithstanding the above mentioned period of ninety days or sixty days, as the case may
be, the accused shall be detained in custody so long as he does not furnish bail.

Section 167(4) of the Code of Criminal Procedure provides that any Magistrate other than the
Chief Judicial Magistrate making such order of detention under Section 167(2) shall forward a
copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

As per Section 167(5) of the Code, if in any case triable by a Magistrate as a summons case, the
investigation is not concluded within a period of six months from the date on which the accused
was arrested, the Magistrate shall make an order stopping further investigation into the offence
unless the officer making the investigation satisfies the Magistrate that for special reasons and in
the interest of justice the continuation of the investigation beyond the period of six months is
necessary.

According to Section 167(6) of the Code, where any order stopping further investigation into an
offence has been made under Section 167(5) of the Code, the Sessions Judge, if he satisfies, on
an application made to him or otherwise, that further investigation into the offence ought to be
made, vacate the order stopping further investigation into the offence under Section 167(5) of the
Code and direct further investigation to be made into the offence subject to such directions with
regard to bail and other matters as he may specify.

Raj Pal Singh v. State of U.P(1983) in this case it was held that a cautious reading of S.167(1) of
the code of criminal procedure makes it clear that the officer in charge of the police station or the
investigating officer (if he is not below the rank of sub-inspector) can ask for remand only when
there are grounds to believe that the accusation or information is well founded and it appears that
the investigation cannot be completed within the period of twenty-four hours as specified
under Section 57. Hence, Magistrate’s power to give remand is not mechanical and adequate
grounds must subsist if Magistrate wants to exercise his power of remand.

It is the right of the accused that he is brought before a magistrate within 24 hours of arrest,
excluding the time taken in transportation from the place of custody to the magistrate. If no
judicial magistrate is immediately available then he may be taken before an executive magistrate
who can remand him to custody for a maximum of 7 days following which he must be taken
before a judicial magistrate.
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam
J.Kulkarni (1992) the question regarding arrest & detention in custody was dealt with it was held
that the magistrate under S.167(2) can authorize the detention of the accused in such custody as
he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially
should not exceed fifteen days in the whole. The custody can be police custody or judicial
custody as the magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days in the whole” are very
significant. On a combined reading of S.167(2) and (2A) it emerges that the Judicial Magistrate
to whom the Executive Magistrate has forwarded the arrested accused can order detention in
such custody namely police custody} or judicial custody under S.167(2) for the rest of the first
fifteen days after deducting the period of detention order by the Executive Magistrate. The
detention thereafter could only be in judicial custody.

There are also specific rights during arrest and custody, governing the right of medically unfit
prisoners. These are that women accused of any offence if arrested so soon after childbirth that
they cannot at once be taken before the Magistrate without personal suffering and risk to health
should not ordinarily be removed until they are in a proper condition to travel.

They should be allowed to remain under proper charge in the care of their relations, or be sent to
the nearest dispensary, and suffered to remain there until the officer in charge of the dispensary
certifies that they are sufficiently recovered. In such cases, sanction must be obtained by the
police from the nearest Magistrate for their detention at their homes, or in the dispensary, beyond
the period of 24 hours as allowed by section 57 of the code of criminal procedure 1973. The
same procedure should be followed in the case of other accused persons who are too ill to travel.

The other right that is accorded to the accused is a derivative of the principles of natural justice
which would dictate that the police proceed as swiftly as possible with the investigation so as to
cause minimum suffering to all parties concerned.

In the case of Elumalai v. State of Tamil Nadu (1983) the court has held that “For a speedy trial,
the prosecution agencies also must take a prompt step in completing their investigations and
filing their final reports as contemplated under the Code as expeditiously as possible”.
If the arrest is invalid on account of breach of procedure or violation of any other right or if the
custody is not passed within the framework of the law by a competent magistrate who has
jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article
32 or 226 of the Constitution of India. However, it must be noted that a writ does not lie against a
legal custody, no matter what rights may have been violated before the lawful custody.

In Kami Sanyal v Dist. Magistrate(1990) the Supreme Court observed that “while a person is
committed to jail custody by a competent Court by an order, which prima facie does not appear
to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person
cannot be granted”.

Achpal @ Ramswaroop vs The State Of Rajasthan(2018) the divisional Bench of SC held that
that provisions of the Code of Criminal Procedure (CrPC) do not empower anyone to extend the
period within which the investigation must be completed nor does it admit of any such
eventuality. Consequently, an accused will be entitled to default bail on the expiry of the 90 days
contemplated in Section 167 of CrPC even if the chargesheet is returned due to technical reasons.

Probable Questions

1. Discuss in detail the procedure to be followed when investigation cannot be

completed in twenty four hours.
2. “The provisions contained under section 167 is a blessing for undertrail
prisoners”. Comment
3. Critically evaluate the provisions contained under section 167 CRPC.
4. Explain the relationship between section 57 crpc , section 167 crpc and article 22
of Indian Constitution with regard to the rights of the accused persons.