JUDICIAL CUSTODY AFTER 90 DAYS
Is it legal to continue to hold an accused (charged of non-bailable offence) in Judicial Custody even after the 90 days period is exhausted without the court taking cognizance of the case? (PS: The police had submitted the chargesheet within 90 days period)
To answer, this question it is very necessary to know under what charges has the accused being detained in judicial custody and that if a bail application was moved and subsequently cancelled, what were the reasoning given by the Sessions Court or the High Court where the application of bail filed, for cancelling the same.
However, from what can be understood from the question, it is understandable that, the interpretation of Sec 167 of the Criminal procedure, provides for application of judicial mind to determine whether the circumstances justify the detention, of the accused in judicial custody or whether can be out on bail.
The judicial interpretation of this section is such that, even though the charge-sheet is filed after expiry of the statutory period of 90/60 days, as the case may be, if the accused is not released on bail, under sec 167(2), the magistrate after submission of the charge sheet may pass an order of remand under section 309(2). Such an order of remand will not be invalid under section 167(2).
This, however, will not mean that the accused cannot invoke his/her right to claim bail, which will depend not only upon the incident as to when the charge sheet was filed, but also upon the nature of the evidence and the court’s examination of other circumstances to decide whether the accused should be deemed to be entitled to bail for the reason of a delay in the submission of the charge sheet. This view was taken in Krishnaswamy v/s Inspector of Police, 1992 Cr LJ 2998 (Madras).
Depending on the gravity of the case, section 167 is interpreted, as in Hari Om v/s State of Up, 1992, Cr LJ 182 All, is was held that, the accused has no right to claim release on bail even after filing of charge sheet on the sole ground that charge sheet is filed and the prescribed time is over.
It must be kept very clear, that, the general understanding of this situation put above is, that, under general situations, the police has no right to keep the accused in judicial custody after the lapse of prescribed time, if there exists a potential threat that the accused may tamper with the evidence or hat his being out of custody is detrimental to the interest of justice, this view was adopted by the Apex Court in Bashir v/s State of Haryana. Hence, in such a case the accused can definitely apply for a fresh bail petition.
To Conclude, we can say, that, even if two contrasting views are present, section 167(2) should be construed in favour of liberty of the individual. Delay in completion of investigation has to be on pain of the accused being released on bail and if the gravity of the case, call for the accused to be kept in custody, the magistrate may do so definitely.
Section 167(2) in The Code of Criminal Procedure, 1973 provides that if the Magistrate is satisfied that adequate grounds exist for doing so, he may authorise the detention of the accused person, otherwise than in the custody of the police, for a maximum of
(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,
On expiry of which the accused 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.
Supreme Court opined that “It is settled by series of judgments of this Court in the last 25 years that framers of the Code conceived and desired that after expiry of the period prescribed in proviso to Section 167(2) of the Code, an accused has to be released on bail if no challan is filed because after the expiry of the statutory period prescribed therein. To be released on bail because of the default of submission of challan within the statutory period is a valuable right of the accused. There is no power in Magistrate to remand for further custody, but the proviso has prescribed a condition in that very proviso referred to above that this right to be released on bail can be exercised only on furnishing of bail.” [Uday Mohanlal Acharya vs. State Of Maharashtra]
So, it is not legal to continue to hold an accused in judicial custody even after 90 days if the accused can furnish of bail.”
Additionally, the Magistrate cannot authorise detention in any custody under this section unless the accused is produced before him.
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