Procedure when investigation cannot be completed in twenty-four hours
(1) 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 hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) 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—
| (a) | the Magistrate may authorise the detention of the accused person, otherwise than in the 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 under this paragraph for a total period exceeding,— |
| (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, and, on the expiry of the said 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ; | |
| [(b) | no Magistrate shall authorise detention of the accused in custody of the police under this section 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. |
Explanation I : 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.
[Explanation II : 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:]
[Provided further that 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.]
(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), 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 an 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 specified in paragraph (a) of the proviso to sub-section (2) :
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.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reason for so doing.
(4) 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.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
STATE AMENDMENTS
ANDAMAN AND NICOBAR ISLANDS AND LAKSHADWEEP
■ Sub-section (1)
After the words “nearest Judicial Magistrate”, the words “or, if there is no Judicial Magistrate in an island, to an Executive Magistrate functioning in that island” shall be inserted.
■ Sub-section (1A)
After the sub-section (1), the following sub-section shall be inserted, namely :—
“(1A) Where a copy of the entries in the diary is transmitted to an Executive Magistrate, reference in section 167 to a Magistrate shall be construed as references to such Executive Magistrate.”
■ Sub-section (3)
The following proviso shall be added, namely :—
“Provided that no Executive Magistrate, other than the District Magistrate or Sub-Divisional Magistrate, shall, unless he is specially empowered in this behalf by the State Government, authorise detention in the custody of the police.”
■ Sub-section (4)
The following proviso shall be added, namely :—
“Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it to the Executive Magistrate to whom he is immediately subordinate.”—Vide Reg. 1 of 1974.
DELHI
■ Section 167(2)
In the proviso for paragraph (b) the following clause shall be substituted, w.e.f. 16-8-2004, namely:—
“(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him either in person or through the medium of electronic video linkage:
Provided that if the accused is in police custody, no Magistrate shall authorize his detention in any custody unless the accused is produced before him in person;”;
– the following Explanation II shall be substituted, w.e.f. 16-8-2004 namely:—
“Explanation II.—If any question arises whether an accused person was produced in person or, as the case may be, through the medium of electronic video linkage before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing his detention or by video recording of the proceedings, as the case may be.”—Vide Delhi Act 4 of 2004.
GUJARAT
■ Sub-section (2), paragraph (a)
For paragraph (a), substitute the following paragraph :
“(a) the Magistrate may authorise detention of the accused person, otherwise than in the 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 under this section for a total period exceeding,—
| (i) | one hundred and twenty 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, |
and, on the expiry of the said period of one hundred and twenty 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ;”—Vide Act No. 21 of 1976.
■ Sub-section (2), paragraph (b)
After the words ‘no Magistrate shall’ insert the following :
‘except for reasons to be recorded in writing’.
■ Explanations
Renumber existing Explanation as Explanation II and insert the following new Explanation I :
“Explanation I : For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused person shall be detained in custody so long as he does not furnish bail.”—Vide Act No. 21 of 1976.
HARYANA
■ Section 167A
After section 167 the following section shall be inserted namely :—
“167A. Procedure on arrest by Magistrate.—For the avoidance of doubt, it is hereby declared that the provisions of section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a magistrate, whether executive or judicial”.—Vide Haryana Act 20 of 1981.
MADHYA PRADESH ACT NO. 2 OF 2008
■ Section 167(2)
– In the proviso, for paragraph (b), the following paragraph shall be substituted, w.e.f. 14-2-2008 namely : —
“(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till such time the accused remains in the custody of police, but the Magistrate may extend further detention in judicial custody on production of accused either in person or through the medium of electronic video linkage;”
– for Explanation II, the following Explanation shall be substituted, namely:—
“Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing 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.”—Vide Madhya Pradesh Act No. 2 of 2008.”
MAHARASHTRA
■ Section 167(2)
– In the proviso, for paragraph (b), the following paragraph shall be substituted w.r.e.f. 25-11-2004, namely :—
“(b) no Magistrate shall authorise detention in any custody, of the accused person under this section unless, the accused person is produced before him in person, and for any extension of custody otherwise than the extension in the police custody, the accused person may be produced either in person or through the medium of electronic video linkage.”—vide Maharashtra Act No. 8 of 2005.
– In Explanation II, for the words “an accused person was produced” the words “an accused person was produced in person, or as the case may be, through the medium of electronics video linkage” shall be substituted with retrospective effect from 25-11-2004.—Vide Maharashtra Act No. 8 of 2005.
ORISSA
■ Section 167(2)
– Sub-section (2), paragraph (a) of the proviso
| (i) | for the words “under this paragraph” the words “under this section” shall be substituted; and | |
| (ii) | for the words “ninety days” wherever they occur, the words “one hundred and twenty days” shall be substituted—Vide Orissa Act No. 11 of 1997. |
PUNJAB
■ Sub-section (2)
In sub-section (2) of section 167 for the words “fifteen days”, at both the places where they occur, the words “thirty days” shall be substituted—Vide Act No. 22 of 1983.
RAJASTHAN
■ Section 167
– In proviso to sub-section (2)—
| (i) | for the existing paragraph (b) the following shall be substituted, w.e.f. 8-7-2005, namely :— |
| “(b) | where the accused is in police custody, no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person; | |
| (bb) | where the accused is in judicial custody, no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him either in person or through the medium of electronic video linkage;”. |
| (ii) | for the existing Explanation II, following shall be substituted, w.e.f. 8-7-2005, namely:— | |
| “Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under paragraphs (b) and (bb), the production of the accused person may be proved— |
| (i) | by his signature on the order authorising detention, if he is produced in person; or | |
| (ii) | by a certificate to the effect that he was produced through the medium of electronic video linkage recorded by the Magistrate on the order authorising detention, if he is produced through the medium of electronic video linkage.”—Rajasthan Act No. 16 of 2005. |
TRIPURA
■ Sub-section (2)
– In paragraph (a) of the proviso—
| (a) | for the words “ninety days” wherever they occur, the words “one hundred eighty days” shall be substituted; | |
| (b) | for the words “sixty days” wherever they occur, the words “one hundred twenty days” shall be substituted—Vide Tripura Act No. 5 of 1997. |
UTTAR PRADESH
■ Section 167A
After section 167, following shall be inserted—
“167A. Procedure on arrest by Magistrate.—For the avoidance of doubts, it is hereby declared that the provisions of section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a magistrate, whether executive or judicial.”—Vide U.P. Act No. 18 of 1977.
WEST BENGAL
■ Section 167(2)
– In proviso to section 167(2) for clause (b), the following clause shall be substituted :—
“(b) no Magistrate shall authorise detention under this section—
| (i) | in the police custody, unless the accused is produced before him in person everytime till the accused is in police custody; | |
| (ii) | in the judicial custody, unless the accused is produced before him either in person or through the medium of electronic video linkage”.—Vide West Bengal Act 20 of 2004. |
■ Section 167(5)
– For sub-section (5) of section 167 substitute the following :
“(5) If, in respect of—
| (i) | any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or | |
| (ii) | any case exclusively triable by Court of Session or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within period of three years, or | |
| (iii) | any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, |
from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary.”—Vide Act No. 24 of 1988.
■ Section 167(6)
In sub-section (6), after the words “any order stopping further investigation into an offence has been made”, insert the words “and the accused has been discharged”—Vide Act No. 24 of 1988.