Detention of an accused
Detention in custody of a person is of two types:
(1) Police Custody
When the person arrested remains in the custody of police, it would be a case of police custody.
(2) Judicial Custody
When the person arrested is sent to prison as inmate or under-trial prisoner, it would be a case of judicial custody.
A person arrested without warrant cannot be detailed for more than 24 hours by Police officer
No police officer can detain in custody any person, arrested without warrant, for a period longer than 24 hours. However, this period of detention can be extended by the Magistrate, from time to time as per Section 57 of CRPC.
When a person is arrested and detailed in custody, at times it is not possible to complete the investigation within 24 hours, such person is to be produced before a Magistrate as per section 167 of CRPC.
Period of detention of an accused in Police Custody
When the person in detention is produced before the Magistrate, the Magistrate may order detention of such person by way of police custody for a term not exceeding 15 days in whole.
Period of Detention of an accused in Judicial Custody
Where a Magistrate is satisfied that there are adequate grounds to authorize detention of accused beyond 15 days, the Magistrate may authorize detention for a total period not exceeding -
90 days in case where offence is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years.
60 days in a case of any other offence
Bail when investigation cannot be completed in 90 or 60
Challan is presented in Court as and when investigation is complete. In case challan has not been presented, it would generally mean that investigation is pending. As per section 167(2) of CrPC, when investigation has not yet been completed and accused is in custody for a period even on 91st day of his detention in custody (in a case where offence is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years) such an accused has to be released on bail.
As per Section 167(2) CrPC, when investigation pertains to a case (other than a case where offence is punishable with death. imprisonment for life or imprisonment for a term of not less than 10 years), and investigation has not been completed within 60 days period, and accused is in custody for a period of even on 61st day of his detention in custody such an accused has to be released on bail.
So as soon as the prescribed 90 or 60 days, as the case may
be, expires accused becomes entitled to bail as a matter of
right, on the ground of non completion of investigation or non
presentation of challan. The accused has to furnish bonds and
surety bond as required by the court. If bonds are not furnished
the accused would not be released from custody.
For the purpose of some special Acts, separate provision has been made therein for detention of the accused in custody for a period exceeding 90 days.
Remedies against illegal arrest
If a person is arrested illegally and 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 in the Supreme Court of India or under Article 226 in the High Court. But a person cannot file writ against a legal custody, no matter what rights may have been violated before the lawful custody.
The Supreme Court of India in Kami Sanyal v Dist. Magistrate, Darjeeling 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". It has been held that the crucial date when the legality of the remand is to be looked into is the date when the petition comes up for hearing.
Important Case Laws, Citations