Whether a Magistrate can authorize the detention of an accused in Police Custody without the accused being produced before him under Section 167 Crpc

The Article 22 of the Constitution and section 167 Crpc of India states “Protection against arrest and detention under certain cases”, it further contemplates under its sub-clauses that

(1)       No person who is arrested shall be detained in custody without being informed of the grounds for such arrest, and nor shall he be denied the right to consult, and also to be defended by a legal practitioner of his choice

(2)       Every such person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 (twenty-four) hours of such arrest excluding the time consisted for the journey from the arrest to the court of the magistrate, further, no such person shall be detained in custody beyond the prescribed period without the authority of a magistrate.

Thus, every person is guaranteed the fundamental right conferred under Article 22 sub-clause (2) to be produced before a magistrate after detention within the stipulated period viz. 24 hours from the time when such a person has been taken into arrest or detained in custody. Further Section 167 of The Code of Criminal Procedure (hereinafter referred as CrPC) also contemplates that, the magistrate to make the detention orders in presence of the accused.

The statute as it contemplates a perspicuous provision where the law safeguards the interests of the person(s) from any exploitation of liberty, yet in practical circumstances, it diverges the composition of the statute by which the delivery of justice and its pace is balanced.

The objective of this research, with absolute adherence to the procedure contemplated under section 167 of the CrPC is, whether a magistrate can authorize the detention of an accused in police custody without the accused being produced before him.

Section 57 of the CrPC contemplates that a police officer cannot keep an accused under custody for more than 24 hours, whether or not the investigation is complete. The accused is to be produced before the concerned Magistrate within 24 hours from the arrest, the police entreat the remand of the person(s) accused to police custody in order to complete the investigation in a diligent manner, the police decides for how long the accused need to be assigned in charge, which cannot be exceeding a period of 15 days.

Also, the provisions as per section 167 of CrPC contemplate;[1]

“No Magistrate shall authorise detention in any of the custody under this section unless the accused is produced before him”

Though the statute contemplates, the accused to be produced before the magistrate to authorise any (police or judicial) custody, on the contrary where the cases relating to such circumstances are under judicial inquest, the interpretation of this statute has differed on the basis of the respective circumstances and thus the analysis can be established with reference at the precedents further.

In Smt. Nilima Murgesh Achari v. State of Chhattisgarh,[2] the Chhattisgarh High Court quoting Section 167 CrPC, observed

“The provisions under Section 167 CrPC are to see that the person(s) who is arrested by the police is produced before the Magistrate within the least possible delay. In order to enable the magistrate to judge if the person(s) has to be kept further under police custody and to allow such a person to make necessary representation in the matter”.

However, the High Court further made a reference to the recent case of Tmt. Affiya v. State Rep. By the Superintendent of Central Prison,[3] where it has been held,

“While it is desirable to secure the presence of such accused at the time of declaring extension of custody but nonetheless, such detention does not become illegal merely due to failure to produce an accusation before the Magistrate”.

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Furthermore, in the same case, the High Court observed “In view of the consistent judgments of their Lordships of the Supreme Court noticed aforementioned, the provision contained under the proviso to sub-section (2) of Section 167 of the CrPC has to be adhered to substantially, and the jurisdictional Magistrate has to secure the presence of the accused at the time of granting/extending his judicial custody by either his physical presence or by the medium of any electronic video linkage. The criminal Courts are expected to ensure the presence of the accused person while extending the period of judicial remand without fail by either of the means enabling him either to make representation and/or for release on bail”. The High court further held “…which goes to show that the reason communicated by the State authorities being unable to physically produce the accused before the Chief Judicial Magistrate while the date of extension of the order of judicial remand, in case it is valid it is reasonably acceptable to this Court and thus his detention for the period during which he remained in judicial custody is neither illegal nor unauthorised, on the contrary, it is in accordance with the law, and therefore he is not entitled to obtain compensation for being unable in producing the accused on subsequent dates for extending the period of judicial remand”.

Here, the magistrate pondered about the importance of the accused being produced before a magistrate before the magistrate is delivering an order for detention, but though such an order is made in the absence of the accused, such detention does not become illegal if the grounds for such treatment are reasonably valid.

In Gauri Shankar Jha v. the State of Bihar,[4] it was observed by the Hon’ble Supreme Court that an order for remand against an accused can be passed by the magistrate in absence of the accused where the latter’s presence at such time could not be secured.

In Rai Narain v. Superintendent, Central jail, New Delhi,[5] it was held that,

It is conclusive that the appellant himself had refused to appear and present before the Magistrate remand applications were conveyed to him. Thus, it cannot legitimately make a grievance that such orders were passed in his absence. Those orders could be passed validly in his absence where his presence at such time could not be secured.

Court further mentioned that even in respect of an accused who has been alleged for an offence and concerning it, the police has conducted such investigation, the production of such an accused before the magistrates as under section 167(2) Cr.P.C. is critically vital in the purpose of police seeking such necessary orders for further detaining the accused, beyond the period of 24 hours referred to in s. 61 Cr.P.C.

The Madras High Court while answering to a reference made by a magistrate as to, whether a person has to be placed before a magistrate at every hearing while a fresh remand is being authorised. The names of such parties are not given in the Report. In High Court dated June 10, 1867, it stated as:

“The High Court observed that to remand is to recommit to custody and that a magisterial commitment requiring the presence of the prisoner, the recommitment of the prisoner also requires that presence.”

Furthermore, with reference to the case of Crown v. Shera and others, the court held that it was illegal to remand such a person over the application of police when the prisoner is not produced before the magistrate.

In Re. M. R. Venkataraman and others,[6] a Division Bench of the Madras High Court to consider the legitimacy of a detention order authorised by a magistrate under section 167 and 344 of the CrPC without the prisoners having been produced before him. In dealing with this question the High Court further observed as:

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“…….. it reasonably seems certain that illegality was committed by the Magistrate in authorising an order of remand without ensuring the prisoner’s presence before him and questioning such prisoners whether they wished any person to represent their cause and to allow them an opportunity of showing cause for which they should not be authorised at such remand. We trust that the Sub-Magistrate issued the said order through oversight and as he further said, the prisoners were at Trichinopoly and he did not receive much notice that a request for a further remand would be made. However, that may be, we agree with the learned Counsel for the petitioners that an illegality involving a breach of the provisions of the CrPC was committed, and we trust that our order will serve as a warning to the Magistrate not to repeat this illegality.”

But if we observe in the matter of Sambasiva Rao v. Union of India,[7] their Lordships of Supreme Court expressed the view that a magistrate while authorising an order of remand, the same cannot be considered to be invalid merely on the ground that an accused has not produced before the Magistrate,, further, their Lordships held that it is highly desirable that in such matters, the accused should be personally produced before the Magistrate so that accused may if he so chooses, make such representation against remand and for release on bail.

The Madhya Pradesh High Court in the matter of Rajkumar and others v. State of Madhya Pradesh and others,[8] enumerated some circumstances and held that such order of remand made when the accused is not present before the magistrate it would not be per se invalid. It was observed by the court that,

On a critical examination of proviso (b) under section 167(2) of the CrPC, together with the explanation we find that the percept of Law is that the accused of whose remand is the subject matter, should be physically produced at the Magistrate at the time the accused is to be remanded in custody. But it may be particularly mentioned that this principle and the requirement cannot be considered to be overlapping to such an extent as to consider even those cases and circumstances where it is almost practically impossible to physically produce the accused before the Magistrate. There may be such circumstances where in spite of adhering to all due diligence, bona fide intention and precautions it could not be possible for the State to physically produce the accused in person before the Magistrate and, therefore, due to such absence the order of remand may not be vitiated. There may not be any dearth of such circumstances a few of which may, for instance be stated herein as, the cases of terrorists and dangerous criminals whose travel from the place of their custody to the respective Court or Magistrate concerned and back may not be safe from hazards and risk from any attack by their associates with a view to free them from lawful custody. Also be a case where the accused(s) may with his choice refuse to appear before the Court or Magistrate on the apprehensions of being exposed to the witnesses who may identify him in a test parade. And also, where several such cases are pending against an accused at different places or say in different States and if by chance same dates are fixed in two or more such cases or in close, so that, where it may not be practically possible to produce the accused before all the Courts. In certain cases, the accused may have been critically injured in the similar incident or otherwise such reason he may have been hospitalised resulting in quite impossibility for him to move about. The accused may at times become seriously ill and will be only at a critical risk of his life that such accused to be produced before the Court or Magistrate. These are merely few instances and there could be many more circumstances drawing such factors where it may be impractical and for good and valid reasons to physically produce the accused.” It further stated, “In the circumstances discussed above, the protection contained in proviso (b) of section 167(2) of the Code, therefore, have to be interpreted to adhere utmost reasonably and logically so as to make them effective and not to impose them nugatory and meaningless. It is for this reason that the apex Court in its several pronouncements took the view that such order of remand would not be vitiated even though it is passed in the absence of accused. Although the decisions which we are going to mention were rendered under the old Code[9] which did not contain the proviso (b) to section 167(2) whereas it is added now in new Code[10], but the rationale should be the same as we have discussed above, that is, where the circumstances are exclusive of the control, to produce an accused person, such order of remand may be validly- passed in the absence of the accused.”

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Every Person has a fundamental right to be presented before the magistrate within 24 hours of the arrest, excluding the time required for the accused to bring at the magistrate or the court concerned from custody.

The Magistrate in further directing the remand should ensure the presence of the accused in any matter, whether the magistrate is authorising a police custody or a judicial custody.

The provision mandating the production of the accused at the magistrate also ensures protection of accused that the presence of accused is essential even when the concerned magistrate or court is re-authorising further custody of the same accused.

Though it is essential that the accused to be produced before the concerned magistrate or court while authorising the further detention, such an absence of the accused while declaring the remand by the magistrate does not invalidate the orders on sheer grounds of the absence of accuse, such orders made shall be reasonable that sufficient opportunity of being heard was allowed and the accused was made aware about his rights and consequences regarding his production before the magistrate.

Where such orders are passed by the magistrate in the absence of the accused, when the accused deliberately denied to make his presence, and he was aware of the consequences of such performance. The accused further cannot claim any illegality or neither can make any claims for benefits for authorisation of further remand by the magistrate in the absence of such accuse.

Also read The Conundrum of Judicial Independence

[1] Section 167 sub section (2) clause (b)

[2] High Court of Chhattisgarh, Bilaspur; Writ Petition (227) No. 952 of 2018; Judgement Declared on 17.06.2019

[3] High Court of Madras; H.C.P.No.801 of 2017; Judgement Declared on 14.07.2017

[4] 1972 AIR 711; 1972 SCR (3) 129

[5] 1971 AIR 178; 1971 SCR (2) 147

[6] (1947) 2 MLJ 202

[7] AIR 73 SC 850

[8] 1990 MPLJ 289

[9] The Code of Criminal Procedure, 1898

[10] The Code of Criminal Procedure, 1973

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