Presentation by

Vijay Pal Dalmia, Advocate

Supreme Court of India & Delhi High Court

Mobile: +91 9810081079

Email: vpdalmia@vaishlaw.com

Linkedin: https://www.linkedin.com/in/vpdalmia/

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Twitter: @vpdalmia

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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