Presentation by
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Mobile: +91 9810081079
Email: vpdalmia@vaishlaw.com
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Article 22 Constitution of India

  • Article 22(2) of the constitution of India provides that any person arrested and detained in custody must be
    • produced before the nearest magistrate within 24 hours of his arrest and
    • no person can be detained beyond the period of 24 hours without the authority of the magistrate.

Sec. 57 Cr.P.C.
(Code of Criminal Procedure, 1973)

  • No police officer shall detain in custody a person arrested
    • without warrant for a longer period than under all the circumstances of the case is reasonable, and
  • such period shall not,
    • in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours
    • exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court.

Sec. 167 Cr.P.C.

Procedure when investigation cannot be completed in twenty-four hours.

  • 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 as prescribed relating to the case, and
    • shall at the same time forward the accused to such Magistrate.
  • The Magistrate to whom an accused person is forwarded under this section may,
  • whether he has or has not jurisdiction to try the case, from time to time,
  • authorise the detention of the accused in such custody as such Magistrate thinks fit,
  • for a term not exceeding fifteen days in the whole; and
  • if he has no jurisdiction to try the case or commit it for trial, and
    • considers further detention unnecessary,
    • he may order the accused to be forwarded to a Magistrate having such jurisdiction;
  • Provided that-
    • the Magistrate may authorise the detention of the accused person,
    • otherwise than in custody of the police,
    • beyond the period of fifteen days,
    • if he is satisfied that adequate grounds exist for doing so,
    • but no Magistrate shall authorise the detention of the accused person in custody 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,

Default Bail

  • On the expiry of the 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 subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Conditions for Detention

  • No Magistrate shall authorise detention of the accused in custody of the police
    • 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;
  • (c) 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.
  • 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.
  • 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.
  • 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.]
  • The officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available,
    • transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred,
    • a copy of the entry in the diary hereinafter prescribed relating to the case, and
    • shall, at the same time, forward the accused to such Executive Magistrate, and
    • thereupon such Executive Magistrate, may, for reasons to be recorded in writing, 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 no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period.
  • Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
  • A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
  • Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

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