Remand

You take the acxcuased person and case diary to nearest magistrate-e could be the
executive magistrate also
Gautam Navlakha- read para 13- officers of MH police were asked by Mr Lekhi- at any time
the learned CMM asked to see case diary or not- answered in the negative. Also revealed
that the case diary was also written in Marathi- subsequently brought to notice of HC that
CMM had not the knowledge of Marathi- grounds on which he has allowed transit remand
are questionable.
Para 15- what is the object of 167- having case diary-
What is the procedure oer 167- procedure starts with 57- person detained away from
jurisdiction of the court, then the police must take accused to nearest judicial magistrate-
within 24 hours (sec 57)- together with case diarey (cipy of entries made during that case).
Mandatory reuqirmeens- not only the physical presence but the case diary.
Clear that magistrate with transit application- must apply his mind that there exists material
from the case diary entries that justifies the need for transit remand. Then court says in para
19- how the term ‘reasonable suspicion’ in 41(ba)- this can be ascertained by the
magistrate: by seeing material supplied by the police (case diary) here it is written in
Marathi- how has he arrested that the right person was arrested in the right case? What is
the evidence before him- very important steps.
If the magistrate thinks that person need not be remanded- then he can be released on bail.
Court said- while it is true that magistrate examining transit remand need not go into the
adequacy of the material- should nevertheless satisfy himself about the existence of the
material.
Somewhere mentioned importance of article 22(2). Lastly, they also speak about two
important things- (i) duty of JM and transit magistrate- ask this question whether the
accused was informed of grounds of arrest or not; (ii) convey this to the accused person
before him- his right to have a legal aid lawuer (in case not able to have his own lawyer)-
both these must be complied with with the first production of the accused person. Navlakha
case- a glaring example of how the judiciary is functioning.
Mantu Majumdar v State of Bihar 1980
In one of the clasues in 167- 2(a)
2(b)- statutory bail
Mantu Majumdar- upto 10 years, 60. Beyond ten years- 90. He cannot be detained for a
single day after 60/90. Mantu was detained for six long years without a chargesheet.
Krishna Iyer- some 6 years- magistrates have been mechanically passing the remands
without realizing that he has a statutory right within 167 itself. In the 3-4 cases against
majumdar, chargesheet was not filed at all- he had the right to be released on bail.
Situation has not improved from 1980. When Majumdar wrote a letter to the court- seen as
PIL- released from custody.
167- procedure for remand, and consequences (two parts)
167(1)- mandatory for Jm and transit magistrate as well.
TADA,
UAPA – extended days
State amendments- if the days might be more. Investigating agency- could be CBI- but will
work under the same law which is prevalent or existing at the time. Whichever be the
invewtigating agency, they will follow the same procedure.
167(2)- talks about what is to be done to the person produce before the magistrate under
167(1). Whether he has or has not juridction to try- can allow custody of that person for
fifteen days in the whole from time to time- there may be more than one order of remand.
‘such custody’- there may be more than one type of custody: police custody, judicial
custody, also nari niketan- remand home or social institution (nari niketan) (woman under
eighteen years of age).
For a female less than 18 years of age- remand homes or nari niketan.
Question comes: police custody or judicial custody
‘not exceeding 15 sdays on the whole- Anupam J Kulkarni- produced before magiastrate.
Magistrate first gave four days of judicial custody (sent to jail). After four days, when he
was produced again before magistrate, police requested police custody- 4 days. When he
was being taken to police station, he complained of chest pain- taken to hospital, got
admitted and he was there for eleven days. 15 days had elapsed.
Now after being discharged from hospital- again taken back to court.
CBI asked for police custody. Court denied this.
CBI vakeel- effectively we didn’t have his custody- he was in hospital all these eleven days:
we didn’t have the chance to investigate him. This is how the case reached the SC-
(i) Lawyer of CBI- expression ’15 days in the whole’ should be read in light of 60/90
days’ period- and not be read as only first 15 days- 15 days out of the entire
period of the 60/90 days.
Held- only for the first fifteen days in which the police custody is allowed. They look at 2
proviso (a). they relied on ‘otherwise than…’- very specifically excluded from the custody of
the police: shows the very intention of the law makers. Initial 15 days- custody police or
judicial, but once these 15 days are over- only judicial custody and no police custody.
(ii) Lawyer- what is more serious offence has been discovered during the course of
the investigation?
Held that if they allow this- to be interpreted like this, it will be highly misused by police
officers- they will not disclose at the beginning of investigation the more serious offence-
after the 15 days over- will show that aggravated offence has also been committed- if the
aggravated offence is part of the same transaction (of the same transaction)- police not
allowed for further custody.
But if the aggravated offence is part of another FIR, and therefore another transaction, then
in that case, all periods will run concurrently.’
FIR 1 15 days exhausted
FIR2 before different police station, before different court- arrested after 15 days under
fir 1: he can be given police custody under this fir- this period will be started afresh and the
period of 15 days will not be read into the case. The other court first needs the custody from
the other court- order requesting the other magistrate to give custody to the police to
investigate the FIR 2. Suppose he is given JC/PC under FIR 2 for 4 days- that doesn’t mean
that his custody stops being counted under FIR 1- he is still in notional custody of court 1.

FIR3
The period overlaps- no period will pause because of the person being under different
court- the period will continue.
Fir 1- period of 60/90 days begins at 26/9- this does not change when person given custody
to court 2 in fir 2. The period under fir 1 keeps continuing.
Police custody- person in police lockup- they can commit brutality on the person. Judicial
custody- the person is in jail. The police, if they want to interrogate, has to go to the jail via
the court.
You can question the accused in jail, but he will not be available with you to get/retrieve the
murder weapon.
Jailor- superintendent of jail- under-trial detention- jail superintendent- in charge of the
security.
Smart players surrender before the court- given the JC. Person can be given police custody-
only if wither arrested by police, or detained by police.
Doubt- what is the evidentiary value of surrendering before the court at this point?

27th September
What is the relevance of Anupam J Kulkarni case?
Whether police custody can be given for fifteen days in the whole from the period of 60/90
days or not?
Court has read subclause 2- ‘such custody from time to time not exceeding 15 days in the
whole’- only initial 15 days.
ASG- what if there is an aggravated offence that the investigating agency discovers- this will
affect the investigation. Court says that any offence if discovered afterwards which had
taken place in the same transaction will not allow the police to get custody if 15 days have
lapsed but if it is from another transaction/case- the police can take his custody: it is
perfectly alright.
Accused might surrender in court- 167 no longer applies as person not detained or in
custody of police. Accused might complain of chest pain to evade police custody- but there
has to be a government hospital medical report- otherwise not be hospitalized: but if you
count the days of hospitalizing- then police won’t get custody- but nowhere is the police
prohibited from investigation- only thing they’re lacking is custodial interrogation- can still
go to the accused in jail and question the accused.
55A- the health and safety of the person is the duty of the person who has the custody of
the accused.
The first fifteen days- when do they start? Chaganti.
167 (3) and (4)-
(3)- record his reasons in writing for remanding someone to police custody.
(4)- institutional check- where the order authorizing police custody is given to magistrate
other than CJM_ must be forwarded to the CJM- institutional check: by a CJM higher in the
order than the JM.
167 is a pre-cognizance remand.
Remand can be pre-cognizance (167) or post-cognizance (209 and 309). Initially under the
old code, the entire period was only 15 days- 1898 had 15 days in the whole. It was found
that police had started misusing the power by submitting a preliminary or incomplete
chargesheet at the end of 15 days- cognizance taken, person remanded to judicial custody
under 309 after cognizance taken.
309(2)- in old code, 309 was 344: they used to submit incomplete chargesheet so that
cognizance could be taken- get the accused remanded to judicial custody. To curb this
misuse of power, in 1973- they increased the period from 15 days to 60 days. In 1978- 60/90
days came.
They also realized that 60 days also not serving the purpose in some cases- they kept 90
days as threshold for those cases punishable with death or life imprisonment…
If the magistrate thinks that the custody of the accused is no longer required- the
magistrate may release the accused on bail.
167- the 60 days period not as a whole- bifurcated into 15 days at a time. The 45/75 days-
they are further biofurcated into 15 days each- now the person is not physically produced
because in judicial custody- but can be produced using
now they have introduced statutory bail- the moment you are not able to file chargesheet-
this is not given on merit, but the default on the investigation agency.
Also, the moment he is arrested, even before he is produced before the court in 24 hours-
he can file a bail application. He can file any number of bail applications here onwards.
167 2 (b)- for police custody, the court is very clear that it cannot be done in the absence of
the accused- every time that the accused is sent in police custody, the accused must be
presented before the court.- purpose for physical presence- because it gives an opportunity
to the person to narrste any such violence that has taken place in the police custody.
(b)- every time that the magistrate decides the accused be sent to police custody, he should
be physically produced. But for JC, the person can be through electronic video linkage.
Explanation 2- in case of judicial custody, by certificate, or by taking signature or thumb
impression on order of remand- his physical presence is ascertained- this is how
requirement under (b) is fulfilled.
Usually the trend is that they give police custody for limited days- 2-3 days: pressure to
complete investigation quickly.

Chaganti case
From when these fifteen days be completed? From the date of arrest or from the date of
production before the magistrate?

30th September 2019

date of arrest- more important is the personal liberty of the accused- the very date of
arrest: this is the point of time from which the fifteen days’ period begins.
Date of being brought in front of magistrate- application of judicial mind. Section 47, sec
151- police can arrest a person who is believed to be involved in designing to commit a
cognizable offence. Ample power to arrest a person- 51: 24 hours’ minimum time to
produce the accused- 24 hours’ time exclusively belongs to police- not brought to scrutiny
of the court until the person is produced before the court- this is when the judicial mind is
applied, as 167 requires application of judicial mind.
Effective date is date of arrest- then effectively magistrate’s order has retrospective effect-
also any illegality of the police would also be legalized judicially.
167- if we read effective date as date of arrest- order a retrospective effect- code makers
did not think.
167- if we calculate from the date of arrest onwards- effectively the magistrate will not have
fifteen days’ period but fifteen minus one: in no case the accused person can be given
judicial custody for the entire fifteen days.
If the arrest were illegal, then the person could be released on bail after only a day- here the
question for remand doesn’t even arise; so a discrepancy here.
167(5)- wisdom of law makers- here they have kept the expression from the date of arrest-
six months period- investigation not completed. 167(2)- not put ‘fifteen days as a whole
from date of arret’- they just say fifteen days of arrest- so they’ve used two different
expressions: reading more than this goes beyond the intention fo the law makers.
Relevant paragraphs- para 13
If the initial order of remand from date of arrest retrospective coverage- at variance with
sec 57 and 167(2)- operative terms: not excedding fifteen days in the whole.. to be read
differently from fifteen days from date of arrest. If we read date of arrest also- magistrate
can’t give for fifteen days to either police or judicial custody- always be 14 days.

165(5)- for a summons case, maximum time limit for investigation is 6 months. Magiastrate
can stop investigation. 60/90 days- accused released on bail.
However, the same can be vacated by a sessions judge.
60/90 days- one day on either sides is deducted- the day of production then the date of
submission of chargesheet is excluded or vice versa because all these remand cases are
discussed in court in the post-lunch hour- afternoon- this day usually excluded, and the last
day of submitting chargesheet is included.
If the filing of chargesheet to be done on a national holiday- then the next day is considered.

one set of development- 1978 extension to 60/90 days.

Another important development- s167 2A: executive magistrate has also been empowered
to order detention of a person in custody- police is least trusted: in no case do you keep
beyond 24 hours’ time- if JM not available then you take the accused to the executive
magistrate on whom the powers of a JM or MM is conferred- procedural formalities are the
same: along with case diary, the accused must be transferred to such exec magistrate. The
exec magistrate has to record his reasons for detaining- not exceeding a period of seven
days on the whole: unlike JM who has fifteen days in the whole, exec magistrate has seven
days- upper limit. Can order for any number of days less than that also. On the expiry of the
actual period of detention- accused shall be released on bail except where the order for
further detention has been made by competent magistrate: this would be the Judicial
magistrate and not the executive magistrate. Even for less than 7 days the exec magistrate
authorizes custody- at the expiry of this has to be sent to JM.
‘in the whole’ vs ‘in aggregate’- if the person has been detained for four days under exec
magistrate, the competent magistrate is left with only 11 days. In case exec magistrate
exhausts entire 7 days’ period, the competent magistrate will have only 8 days to remand.
The period of the order of exec magistrate shall be considered under order of the JM. Exec
magistrate is not authorized to make multiple orders of detention- proviso- on the espiry of
this period, the accused has to be produced before the competent JM- the JM computes the
period taken into consideration the period by exec magistrate. ‘Period aforesaid’- the actual
period of detention as given at the first instance by exec magistrate: be it two days, and this
does not refer to a total period of seven days.
43
remand- the accusation must be well founded, and investigation cannot be completed
within 24 hours.

167- what should happen when the period of 60/90 days is over and there is no chargesheet
filed.
Read sanjay dutt- last paras and those mentioned in the mail and uday mohan Acharya

1 Oct

Section 167 (2)(a)(ii)

Sanjay Dutt case- derived from understandiung of 167 in Hitendra Vishnu Thakur- 167
prescribes two periods 60/90- for different punishments. TADA, POTA, UAPA- orecribe
extended periods: in some cases bifurcated into two 90+90, or 180 which may extend to
one year. Extended time period- extended time to complete invewtigation, accused
remiands in custody for that extended time. On expiry of the first half, say the 90th day out
of 180, or 180th day out of one year- prosecution needs to furnish a report: if there is no
charge sheet filed, I can move application for bail under 167- applied to these laws in this
different form. But wont get bail directly, they ask for report from prosecuton: report says
that investigation going very well but some reports to come from abroad, nuances are
there- if the court is satisfied with the progress of the investigation- then they permit the
extension of time to the prosectuon, then the person need not be released. In all these
laws, the police custody is also up to thirty days
Eg. Total period is one year. 180th day- I submit report: no chargesheet filed. Prosecution-
progess report. Court satisfied that investigation on track and no need to release person-
person not released.

On the expiry of the extended period- here the maximum period is of either one year or one
eighty days as the case may be- once this period expires, again the person moves
application for default bail, stating no chargesheet has been filed- no report form
prosecution is asked for: only if chargesheet is filed or not and whether the one year/180
days period has transpired or not.

Para 43 onwards.
Para 44- court quotes para 30 of Vishnu Thakur: conclusion in Vishnu
When bail application is moved, at the same time, extension application is also moved- this
is the only way the prosecution can defeat the right of the accused: if the court accepts one,
then it rejects the other. No extension granted without hearing the accused. Sibal argued:
how would the notice be served? Should be physically present- enough for purpose of
service of notice- to ensure that the person actually gets the notice. Immaterial which one is
filed first- in either case, both are considered together. (this is all for the special law)
In mid way, the court has discretion but it is not arbitrasry and depemnds on the prayer of
the prosecution. But on the culmination of the extended time, there is no discretion of the
coiurt and the court is bound to release the accused on bail in case no chargesheet is filed.
Para 48- one expression that was reconsidered in uday mohan
Nature of indefeasible right of accused- enforceable only prior to the filing of the challan,
does not remain enforceable on the challan to be filed, if already not availed of.
Enforceable only upto the time challan is filed.
Custody of the accused after challan has been filed does not fall under 167 as 167 is pre-
cognizance while when the challan is filed, the court will take cognizance of the challan.
409 (b), 309 (2)- post cognizance
suppose on the elapsing 180 days, and on 190th day challan is filed- no bail application in
these ten days. Accused cannot say that I had the right and the police or prosecution should
not be allowed to defeat my right. No. you have to exercise your right- your indefeasible
right ceases to operate once the challan is filed.
(in a country where legal aid is so scarce, is this fair?)

para 50- all the findings are summarized. 2a and 2b are relevant
2a- no separate notice to be issued that prosecutor has moved an application- presence in
coiurt is enough.
‘indefeasible right’- only from the time of default till the filing of the challan, not available to
the accused once the challan is filed.
‘indefeasible right’ remains in existrence till time challan is not filed if not availed of’

if already not availed of

Uday Mohan Acharya
Previous paras- object purpose etc of 167
Most important- para 13: lays down certain things about if already not availed of- can be
uinderstood in three different ways: when can you say availed of your right
1. Moves application on expiry of statutory period- in 167 is 60/90 days.
2. Could be the day the matter is being heard by the court- today I moved an
application, three days later heard by court- this could be the day I avail or Day on
which order of bail is passed
3. Or the day on which I actually furnish my bail- bail has certain conditions given:
surities etc.
Moot question: which of these?
Court:
Provison in two ways
Pro state- fixing the timeline to last one, furnishing bail
Pro liberty- first day, when application is moved
They fixed it to the very first day. Justice Agarwal dissented- should be the last day and not
the first day.
Majority thru Pattnaik-
First day- availed of his right- when application is moved- if you keep this barr to any later
dfate, it will lead to a lot of mischief: like in Uday Mohan Acharya Case- expiry of 60 days- I
moved an application for bail, stating that the prosecution has failed to furnish the
chargesheet. Court has rejected my application, stating that the very allied offence- 167 has
no application: bail application rejected on this ground. I rush to HC, challenging this order.
Single judge to division bench. A week after time was fixed for hearing because Dussehera.
When division bench was to hear this, they camd to know that police had filed chargesheet.
Division bench: accused has right to be released on bail under 167 on the very day the
accused has moved the application. But now that police has filed chargesheet, indefeasible
right of the accused remains foreclosed- HC.
SC- if we keep the date to any later day, say when the matter is heard or disposed of,: any
mischief may take place, and the very day on which he moves the application should be
treated as availing.

Justice Agarwal
If you read the provision- bail if he is prepared to and does furnish- legislative intent- person
shall not be released unless he is prepared and fdoes furnish the bail. Preparedness is
ascertained through application. But once bail order is passed, only then can you furnish the
bail: both must be fulfilled at the same time, and one alone cannot be the metric. If in
between the challan is filed, it
Literal rule ofn interpretastion-= not 0only prepared to, but also does furnish the bail- his
first requirement fulfilles the minute he moves the bail application- shows his preparedness.
But secpnd requirement- can only happen when he furnishes the bail on a subsequent day.
That means that at any point of time, between any point of time between moving the
application and furnishing the nboond, the police files the challan- thewn his right will be
extinguished. The majority hasve said- this will lead to lot of difficulties from accused and
the court- so pro liberty reading- the scale on the very date on which he has moved his
application.

Uday mohan Acharya- para 13

Now what if the magistrate fixes a very unreasonable sum of amount- person is too poor.
You’re taking the advantage of his poverty. Here you say once police furnished challan- your
right has been extinguished. Conclusion number 5-
Explanation 1- if person is not able to furnish bail, prolionged custody not treated as illegal.
Person released when he furnishes the bail- the copy goes to the jailor first, and then
inmate is rleased. If for any reasons person is not able to furnish bail- the code makers are
assuming that surety will take some time to be obtained- this custody cannot be treated as
illegal.
Court used this very explanation- conclusion 5: in this very period if he is unable to file bail-
challan filed his right is extinguished.
See he has already secured a right under an order of the court- how can this be reversed by
filing of chargsheet.
Unless date is specified by bail order itself, thre is no fixed date for furnishing the conditions
of the bail, there is no deadline on this.

Read Basheer v State of Haryana

Raghubir Singh- para 19 to 23(last para).

Raghubir Singh- can be seen as an entewnsion of the majority observation in Uday Mohan
Achrya= second part of conclusion number 5: if during that period, the investigation is
complete and chargesheet is filed, indeafeasible right of the accused stands extinguished.
And 6- if the baul order passed in his favor,he has not furnished secutirieis- then he has
availed of his right. The moment he fails to furnish the bailm, then after that the challan is
filed- indefeasible right is extinguished. 2 things- is there any deadline prescribed in the bail
order? Not really- bail order remains in operation, the moment he fulfills the conditions of
the bail- that will be allowed. So, Raghubir Singh does into second part of chapter 33. First
part- regular bail. Second part deals with bail bonds

Uday Mohan Ahcarya- 60/90 period expired, no chargesheet, application,court gives bail-
not iperative as long as he is nolt furnishing the bail bond.
441- before a person is released on bail…- no one can be released on bail unless these
conditions are fulfilled. 167 (2a) proviso- deemed to be released under chapter 33 of the
code. By default, 33 provisions of bail bond become applicable.
167 2a (ii); Explanation I – beyond 60/90 days- if he is deatined because he cannot furnish
baiol- this is not illegal. But if the magistrate does not decide on the bail application and the
magistrarte detains him any longer- then this is illegal: Nirala Yadav 2014 Justice Deepak
Mishra- the magistrate cannot defer the hering: magistrate has to ascertain the 60/90
period has been expire or not or that the challan has been filed or not- if either has
happened, then the accused cannot be granted bail: that very period is not illegal which is
called due to the default of the accused. - the detention beyond 60/90 days is not illegal-
not becuasde of the use of police fopowers- but because of the degault of the accused in
furnishing bail- the accused cannot question this period and no writ of habeas corpus can be
filed by the accused because this detention is not illegal.
The law says that magistrate has to pass the order on the very day that the application has
been moved.
Pre-trial and pre-conviction detention must be discouraged: 64% of the population in our
prisions is comprised of undertrials.
Sec 440 (1)- the amount of the bail must be reasonable
440(2)- the SC/HC can reverse that.

445- deposit instead of recognizance: personal bond- no rewuirement of any surities.

Raghubir Sing- para 20 is important for discussion: if he is not able to furnish bail nond, not
illegal custoduy- what is important that there is no time fixed for furnishing ht ebond as per
bail order- very often the accused finds it diffuclt to furnish bail: either poverty, or the
surities may not be acceptable. Fresh surities to be produced in such an event- order of bail
is effective and the accuse dperosn should not be deprived tp be released on bail merely o
the reasons that the amount is excessive or the suritity is not acceptable or where the court
allows the person to be taken back into suretyship.
Section 167(2)- also hit by 437(5) and 437(2).

Sec 444- apply to magistrate: one surety has withdrawn by making an application under 444
of court- Raghubir singh= he shall be given more time to arrange for a fresh surety and he
cannot be taken into custody- the person shall not be arrested or taken into custody but the
court shall given him extra time- he cannot simply be taken back into custody because of a
mistake that is not his own.
Court always looks at the antecedents of the person who is standing as surety.

Raghubir ISngh cas-e these nuances have not been discussed in Uday Mohan Ahcarya. Uday
Mohan- kpent the time to the very first day wehere the accused has moved the
ap[plication- the provisons of chatper 33 have not been discussed and their impact has not
been asses. Raghubir is older.

Reading Raghubir and Uday Mohan jointly- it can be understood that in ac ase person has
been relased uynder section 167 on bail, as per raghubir his right shall not be extinhised
merely because he has not been able top furnish bail because challan has been field- no
deadline has een fixed?: whenever he furnishes the bail., he’ll be released and submission
or filing of chargesheet has no impact on that.
Acxcuses may yet take advantage of the abil by furnish a fresh acceptable surety.
Para 22- conclusion: first few and last few sentences of para 22.
Raghubir singh- pro-accused: extended period- custody is not illegal.
Bashir
167- default bail- court cannot look into the seriousness of offence, antecedents of the
accused person etc. Magistrate has to forthwith look at the bail application and decide. Very
clear from these cases and the case of Nirala Yadav.

Why is the person released on bail? Because the police has defaulted. Asume 90th day no
chargesheet filed, person moves bauil application, furnished sureties- and he comes out of
jail. 100th day- chargesheet or challan is filed by the police=- now prosectuon moves to the
court- we’ve filed chargesheet, remedied defect on our part, his bail should be cancelled-

Police has no time limit to file the challan/chargesheet

173(1A) – only here the timeline is of two months. Otheerise they are ot boun to colete on
the 60th or 90th day.

Chargesheet filed- now should the bail be cancelled merely because the error has been
rectified? Bail is a right independent of cognizance- can be availed at any time: bailable
offence- moment he/she is able to avail the surety for bail.
167(2)- subject to chapter 33: has to be cancelled under the grounds of chapter 33- bail
given under 167 is no longer governed my 167. But can the grounds simply be this that the
defect is cured and the chargesheet is filed?
In chapter 33, can this ground be sufificent enough to cancel the bail?
Do you find any section in Chapter 33 which lists grounds for cancellation of bail?
Now there are two different things- now the grounds for submission of chargesheet are
known- the ground that the chargesehet has been submitted is not enough in itself. But
what if they put forth argument based on that chargesheet? That his name is in the case,
there is strong evidence- we are apprehending that he may threaten the witnesses- grounds
which may be considered by court to cancel a bail. So the mere filing of chargesheet- not a
geound. But any other ground oof the nature which is legally acceptable can be brought
before the court and the court here will exercise its own discretion.
Grounds- he has committed a non bailable offence, serious in nature- can interfere with
privacy and liberty of witnesses, also, can interfere with the investigation, or that his being
enlarged on bail can further create disturbance in society- in that sense, the bail can be
cancelled.
Bail under 167 cannot be an unconditional bail
Also, grounds for cancelling a bail are different from grounds for not giving the bail- can only
be established if it can be established that the person has breached any of the conditions of
the bail.
Bashir- paras 6,7.
437(5) is restricted to a court that has released a person on bail under 437 (1) or (2)- Bashir:
the person is presumed to be released on 437(1) and (2) and thereby 437(5) confers the
power on the magistrate to cancel the bail granted.
Cancellation of bail can be done on any other ground (that applies to regular bail) except the
filing of the chargesheet.
439- confers power on HC or SC to release any person on bail.
437(5)- power on very court that has released on bail
difference- in 437 the court can look into mertis of the case, antecedents of the accused,
seriousness of the offence etc.- under 167: only two gorunds- filing of chargesheet within
the 60-/90 periods, or the elapsoing of 60/90 days. Even if he is Kasab- the court cannot
deny his right to be released on statutory bail under 167.

167
(i) Once first fifteen days over, only judicial custody allowed
(ii) After 60/90 days, if chargesheet filed, the custody of the person will be dealt
under Section 209(b) ands 309(2)
(iii) Once the 60/90 days period over, then accused can be released- Sanjay Dutt,
Uday Mohan Acharya
(iv) Mere filing of chargesheet- not ground for cancelling the bail. Grounds for
cancelling- in last few lines of para 6.

Sign of completion of investigation- filing of chargesheet: section 173.

Other types of bail can also be availed at pre-trial stage- right of the person right from when
the person is arrested- doesn’t have to wait for 60/90 days. Also rejection of regular bail will
not be ipso facto ground for rejection of statutory bail under sec 167. The accused can try
multiple times to get regular bail.
Two grounds not considered as valid for cancelling the bail under 167-
i Did not get other forms of bail
ii Mere filing of chargesheet.

174,175,176- what can also be done in investigation (also part of 173 report)- preparation of
inquest report
174- requires police officer to ascertain the cause of death0- accidental, suicidal or
homicidal?
On finding the dead body, they have to prepare an inquest report- to ascertain the cause of
death.
What should not be in inquest report-
Should not necessarily indicate about the circumstances of death or name of accused or the
very weapon used- kaise mara, kisne maara, kyun maara: because there is an investigation
that is going on and all of this is part of investigation, not inquest report.
Inquest report- every unnatural death. But every unnatural death will not be an outcome of
a cognizable offence- but every unnatural death must lead to inquest report.
In 176, dowry death cases and all- it is mandatory. Is every unnatural death of bride in in-
laws’ house- is it necessarily a result of crime? No. it may be by pure accident. Unless it is a
case of some previous demands of the naure of dowry and all- it might be a case of
accident. Every such death may not give rise to investigation- why is the inquest report a
must in each such case?
Eg. Infant fell from third floor, died. Post mortem- some injuries: can’t come in an accidental
fall- prima facie looked like a case of accident. Her grandmother pushed her- the particular
angle in which she was thrown- this makes a difference as to injuries- not part and parcel of
inquest report. It merely teesl- injuries on body, what was found near the body, in what
manner was the body there- the construction of the crime scene.
Dead body and inquest report- both sent for post-mortem.
Post mortem- only done on dead body to assess probable cause of the condition of the
body. Inquest report- comprehend each thing regarding the death- crime scene, how the
body was lying, what was the general condition of the room, whether there were any blood
stains or not.
Dowry death can easily be covered by the in laws- it is their house- can clean the walls etx,
can fabricate crime scene. If later the complaint comes from the family of the bride that it is
not an accident death0 there will be no record then. Inquest report in such cases becmesa a
very curcial piece of evidence on the side of the prosecution. Inquest report, though not
part of investigation, it has very significant role to play.

Inquest report- weak piece of evidence: used for contradiction only (like FIR, for instance)
Inquest report- ascertainment of the nature of the death and not necessarily the cause of
the death.
Sec 174(3)- 1983: special cases- suicide of woman within seven years of marriage, or death
within seven years…- it gives an inference- if the case doesn’t fall in (3), police has option to
not send for post mortem. But if the death is under suspicious circumstances or unnatural-
required to send body. However, in the first iv clauses’, this discretion or satisfaction with
the nature of death is not present. Here the police is duty-bound to send the body for post
mortem.
Information about inquest report given to executive magistrate and not the JM. Police has
to forthwith forward the report.

175- power to summon persons

161 and 175- important.
176- involves executive magistrate in questions of death or rape in police custody- nearest
magistrate empowered to hold inquest (this being the executive magistrate)
magistrate can conduct an independent inquiry even though there’s a police investigation
being undertaken. If the case falls in sub clasue two- dies, disappears or rape- here the
magistrate is empowered to conduct inquiry- check on the powers of the police. Most of the
times, the police tries to cover up., in these cases- magistrate inquiry is must.
In case of death outside police custody- here person empowered- exec magistrate. But
death or rape within custody- here JM and MM.

176 (1A)- here JM or MM

Ardhsatya- Om Puri- upright police officer, ultimarely, he himself beats a person in the
custody of police- his colleague said: you go, I’ll take care of this- NCRB data- person who
have disappeared from police custody- say 100, out of these 66 have disappeared in first 24
hours- disappeared means death here: reasons all- committed suicide, jumped out of jeep
etc.- nowhere has it been written that he was killed by the police.

Why is there a provision of statutory bail when the time period of 60/90 days lapses?
Incentive to the police
Kept in custody- only so that the accused is there at the filing of the charge-sheet- but then
it is up to the state to actually do so- failure of the state in doing so cannot be at the cost of
the accused.
90 days- police not able to file challan- not sufficient evidence indicating the culpability of
the person- suggests that accused might not be the actual person.

Arudhra
167- when invetigatio cannot be completed nin 24 hours
57- produce before magistrate eiwhtin 24 hours
1. Interface between Anupam Kulkarni and Chanda B Satyanaryayana- when
police/judicial
Police custody versus judicial custody- in judicial custody, the magistrate has oversight.
Anupam J Kulkarni- guy was a diamond merchant, he orchestrated kidneapping of himself
with the others- 4th day he claimed chest pain. 15 days completely. CBI- he evaded police
custody altogether- give me the 11 days I’m entitled to- inherent right that the police has in
the initial days to question the accused etc.
Law- policd custody can only be from the first fifteen days of being first presented to the
magistrate. 15 days of police custody- multiple orders of remand- even though 15 days is
the maximum you can have, this comes in multiple orders as the courts don’t trust the
police. You can only detain in first fifteen days- from the time he is produced before the
magistrate.
Nuance- if I am accused of murder, later point 15 days over- along with the murder, I also
committed rape. If I have commited multiple crimes in the same transcation/ cause of
action- this person will not be put before police custody- if I allow this to hapone- the police
will put charges after charges after chargres- Anupam J Kulkarni- if I give this leeway that it
is separate offence- offence based determination will lead to remand over and over again.
However, this is not applicable to two different transactions.
(per Arudhra- What is a different transaction? If I commit murder on A, anything that
constitutes a different treansaction to me, should have some other subject and time.)
Satyanarayana- huge riot- impossible for you to make a determination that what crime was
committed- what are we seeking remand for? For the crime or the person?- multiple crimes
in the same transaction, period of remand is fifteen days. But different transactions- then it
isn’t only fifteen days.
The order for remand cannot be mechanical- remand has to be on the case diary, what is
being alleged etc-
Remand- liberty ought to be the rule, incarceration must be the exception- police offciers
ought to give a detailed reason on why they’re asking for more time- there must be a
qualitative assessment by the magistrate that more time can lead to something substantive.
Chaganti- 15, 60 and 90- from the day the person is first presented before the magistrate.
2. Date on which accuse arrested versus date on which produced before magistrate-
from when should the remand period be calculated? Overlaps with 1.
What is the material date? Day I was arrested or the day I was presented? 167 and 309-
both say fifteen days from when produced before the magistrate- these two sections- being
calculated from the time judicial mind is being applied- point of view of the first application
of judicial mind- first time magistrate sees the accused, what is the case being made out
1,2- Chaganti satyanarayana- rioting case, multiple offences, period of remand was being
sought on the offence, not the person
3. Date on which the challan period expires or date on which the bail bond is filed-
6 accused- 3 found on one date, 3 on amother- cognizance is of the offence, not the
offender- 309(2)- 167 at the post cognizance stage. Chargesheet has been filed- the police
still has powers under 173(8) (supplementary chargesheet)- object of Dawood Ibrahim
Dawood Ibrahim- operative part is not the crime but the person as far as 167 is concerned-
these will be treated as if they have just been arrested at the pretrial stage
4. 309 (replica of 167- post cognizance stage) and 167 CrPC- cognizance is the offence
and not the offender
5. Category of offences- 60/90 days
Whether the crime that you have committed- what is the maximum penalty that can be
imposed- punishment more than 10 years? Dacoity- life imprisonment or seven years: could
be sentenced anyway- which category do I fall into? Determination- what is the maximum
punishment the crime can get
6. When the period for filing of challan is expired, do I ipso facto get bail- Sanjay DUtt,
Uday Mohan Acharya- Statutory bail- moment police fails to file chargesheet, bail is
a matter of right
60/90 days expired- chargesheet failed to be filed- is it my right to bail or do I have to avail
for it?
Does bail have to be availed or does it become a right on failure to file chargesheet?
Bashir, Sanjay Dutt and Uday Mohan Acharya
Bashir- most progressive judgment- the mome t chargesheet fails to be filed- it is a matter
of right. Bail by the magistrate is obligatory the moment the chargesheet is failed to be filed.
Sanjay Dutt- your right to bail exists only so long as the chargesheet is filed- the police can
come on the- 94th day the police files a chargesheet, the bail I got on the 91st day can be
cancelled
When incarcerated, would a person keep track of what the time is?
Uday Mohan- even the moment the chargesheet is not filed, and within judicial opinion I’m
prepared to furnish bail, I must be let out. My bail cannot be cancelled on their subsequent
filing of chargesheet.
BN Agarwal’s dissent- read 167(2)(a)(ii)- on the expiry of the said period of ninety or sixty
days, as the accused person shall be released on bail if he is prepared to and does furnish
bail- two part test- not only do I have to be ready to furnish bail, but I have to actually have
furnished bail.
Majority- though we realize the two part test in 167(2)(a)(ii)-personal liberty should not be a
hypertechnicalities- if the police has failed to fulfill its stuatoury duty- the accused’s
personal liberty is a direct consequence
Compare Bashir and Sanjay Dutt
Bashir- importance to personal liberty
Sanjay Dutt- if they file chargesheet and the law says that they cannot be released on bail
Uday Mohan Acharya- the moment he is prepared to furnish bail, ought to be harmoniously
interpreted, clarifies the conflict between sanjay dutt and bashir. Majority- emphasis on
liberty. Minority- Justice Agarwal- two part test is strict interpretation
Grounds for cancelling bail can’t be the mere filing of chargesheet-cancelled on provisons of
437,438,439- ch 33
Ratio- filing of chargesheet – can’t cancel my statutory bail- application for bail has to be
filed- ‘the moment he is prepared to furnish bail’- this is reflected in the application

Bashir- progressive
Sanjay Dutt- regressive
Uday Mohan- clarifies the law
But still a little open ended- me being prepared to furnish bail can manifest in several
actions of mine