Procedure when investigation

cannot be completed within 24

hours
Section 167
Konina Mandal, JGLS
• For an effective understanding of default bail, it is necessary to know that according to Section
57 of the CrPC, any person arrested by the Police without warrant cannot, under any
circumstances, be kept in custody of the police beyond the period of 24 hours, unless a special
order authorizing the detention is obtained by the police from a Magistrate’s Court.
• Section 167 is a key part of the law of criminal procedure, providing that an accused may not be
arrested and detained in custody for a period of longer than 24 hours without being produced
before a Magistrate. The section empowers a Magistrate to send an accused to either police or
judicial custody while a police investigation is ongoing. The section also provides that an
accused may only be held in such custody for a set period of time, after which he will be entitled
to default bail. These provisions are key to upholding an accused’s fundamental right to personal
liberty.
• Section 167 CrPC comes into play when an investigation has commenced but before it has
been completed. In order to undertake and complete an investigation, the investigating agency
often needs to arrest and detain the accused for the purposes of interrogation, collection of
evidence, preventing evidence, tampering, etc.
• Section 167 sets out the framework to be followed by the police and court(s) in order to detain
an accused in custody for the purposes of investigation
• Accordingly, Section 167 prescribes the procedure to be followed if an
investigation cannot be completed within 24 hours of the accused’s arrest.
• In such a scenario, the accused has to be produced before the nearest Judicial
Magistrate within 24 hours of the arrest, excluding the time of travel.
• The Magistrate may authorise detention of the accused in “such custody” as he
“thinks fit” to allow the investigating agency to complete investigation.
• In case an accused is arrested in a State other than the one in which the FIR or
complaint is registered such that transportation of the accused has to be arranged
and the detention may go beyond a 24-hour period, courts have started passing
orders granting “transit remand” to allow the police to transport an accused from
one State to another.
 Balancing two competing interests
the power
granted to
Magistrates
to prolong
the detention attempts to
of an safeguard the
accused right of an
individual accused not
can assist the to be
investigating arbitrarily
agencies in detained for
completing prolonged
an periods of
investigation time.

The mechanism by which Section 167 seeks to achieve this balance is to provide that an accused may not be detained
for longer than 24 hours without being produced before a Magistrate, such that the Magistrate may evaluate whether
further detention is necessary.
“Custody” under Section 167
• Ordinarily, the term “custody” under Section 167 is understood to mean “police custody” or
“judicial custody”.
• The difference between the two is characterized by the degree of access the investigating agency
or the police has to the accused for the purpose of interrogation.
• In police custody, an accused is in the exclusive custody of the police officers, and the primary
aim is to allow the police to conduct “custodial interrogation” in order to unearth the truth in any
given case.
• On the other hand, judicial custody refers to custody of an accused in jail. When a person is in
jail custody, he is indirectly deemed to be in the custody of the court. The police officers or
investigating agencies do not have the same level of access to an accused as they do in police
custody.
• In fact, police officers and investigating agencies usually cannot question the accused in judicial
custody without seeking permission from the court and following such conditions as prescribed
by the court.
Default bail: A fundamental right
• In order to safeguard the rights of the accused and limit direct and prolonged
access of the police to the accused, a Magistrate cannot authorize detention of
an accused in police custody for a period exceeding 15 days.
• The underlying principle behind this time limit of 15 days is that it is not proper
for an accused to remain under police influence after the inquiry or trial has
begun.
• However, the Magistrate has the power to order detention beyond this period
where such detention is “otherwise than in the custody of the police”
(commonly referred to as “judicial custody”), and the total period of custody
must not exceed
(i) 90 days, where investigation relates to an offence punishable with death, life
imprisonment, or imprisonment for over ten years;
(ii) 60 days, where the investigation relates to any other offence.
• Once the accused has been in custody for 90 days or 60 days as the case may be, an
indefeasible right to be released on bail accrues in favour of the accused. This right to
be released on bail is referred to as “default bail” or “statutory bail”. This provision
keeps the investigation agencies and police on their toes and ensures that the
investigation process is not misused to keep people behind bars indefinitely by
prolonging the investigations.
• The right to seek default bail continues to be enforceable even if a regular bail
application by the accused is pending adjudication. Unlike regular bail, where the court
has discretion in granting bail depending on various conditions, the right to default bail
must be granted as a matter of indefeasible right once the conditions under Section
167(2) are met. The Supreme Court has also held that the right to default bail is not
merely a statutory right but a fundamental right under Article 21 of the
Constitution, preserving the right to personal liberty of an accused.
• The procedural and substantive protections provided by Section 167 CrPC are central to
ensuring that the fundamental right of personal liberty of an accused is upheld and there
is a continuous check on the powers of the investigative agencies during the process of
investigation.
 Calculation of remand period
An interesting question thus arises on the calculation of such period of 90/60 days. When
does it start? From the date of arrest or from the date of remand?
• In Chaganti Satyanarayana v. State of AP, a two-judge Bench of the Supreme Court laid down,
• “Thus in any view of the matter i.e. construing proviso (a) either in conjunction with sub-section
(2) of Section 167 or as an independent paragraph, we find that the total period of 90 days
under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from
the date of remand and not from the date of arrest.”
• The said proposition was relied upon and approved by another two-judge bench in CBI v.
Anupam J Kulkarni with full rigor.
• Three years later, a diametrically opposite view came to be taken by another two-judge bench of
Justices MM Punchhi and KJ Reddy in State of MP v. Rustam that date of remand has to be
excluded from the counting period for purposes of Section 167(2). It held that while computing
the period of 90 days, the day on which the accused was remanded to the judicial custody
should be excluded, and the day on which challan is filed in the court should be included.
• Two judge benches in State v. Mohd Ashraf Bhat (1996, Justices Punchhi and K
Venkataswami); State of Maharashtra v. Bharati Chandmal Varma (2002, Justices KT Thomas
and SN Phukan); Pragyna Singh Thakur v. State of Maharashtra (2011, Justices Panchal and
Gokhale); and Satyajit Ballubhai Desai v State of Gujarat (2014 Justices GS Singhvi and GS
Misra) approved the view taken in Chaganti.
• In fact, in Nirala Yadav, another coordinate bench of the Supreme Court led by Justice Dipak
Misra along with Justice NV Ramana expressly overruled Rustam for setting out wrong
precedent on the extinguishment of the right to bail.
• Another two-judge bench of the the Supreme Court in Ravi Prakash Singh alias Arvind Singh v.
State of Bihar created a problem by following the ratio in Rustam. It was held that while
computing the period of 90 days, the day on which the accused was remanded to judicial
custody should be excluded, and the day on which challan is filed in the court should be
included.
• In many cases, the date of arrest and the date of remand is same. As per the line of decisions
following Chaganti, this date has to be included in the computation, while as per Rustam, this
date has to be excluded. All these decisions are by two judge benches. In many cases, the date of
arrest and date of remand is different.
• The Supreme Court has thus laid down two different propositions of
law. Confusion has been created for High Courts and courts below
on the principle to be followed for computation of 90/60 days.
• In Shalini Verma and ors v. State of Chhattisgarh (2019), the
Chhattisgarh High Court held that if two different propositions of
law are laid down by benches of similar strength, the earlier view
shall be binding on the courts. and thus the view expressed
in Chaganti and affirmed in Kulkarni that the computation of
total period of detention of the accused person in custody has to
be calculated only from the date of remand and not from the
date of arrest, holds the field.
 CBI v. Anupam Kulkarni 1992 AIR 1768
An important question that arises for consideration is whether a person arrested and
produced before the nearest Magistrate as required under Section 167(1) Code of
Criminal Procedure can still be remanded to police custody after the expiry of the
initial period of 15 days?
• A case relating to abduction of four Bombay based diamond merchants and one Shri
Kulkarni was registered at Police Station Tughlak Road, New Delhi, on September 16,
1991 and the investigation was entrusted to C.B.I.
• During investigation it was disclosed that not only the four diamond merchants but also
Shri Kulkarni, and one driver Babulal were kidnapped between September 14 and 15,
1991 from two Hotels at Delhi.
• It emerged during investigation that the said Shri Kulkarni was one of the associates of
the accused one Shri R. Chaudhary responsible for the said kidnapping of the diamond
merchants
• On the basis of some available material Shri Kulkarni was arrested on October 4,
1991 and was produced before the Chief Metropolitan Magistrate, Delhi on
October 5, 1991. On the request of the C.B.I. Shri Kulkarni was remanded to
judicial custody till October 11, 1991.
• On October 10, 1991 a test identification parade was arranged but Shri Kulkarni
refused to co-operate and his refusal was recorded by the Munsif Magistrate
concerned.
• On October 11, 1991 an application was moved by the investigating officer
seeking police custody of Shri Kulkarni which was allowed. When he was being
taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the
Hospital the same evening where he remained confined on the ground of illness up
to October 21, 1991 and then he was referred to Cardiac Out-patient Department
of G.B. Pant Hospital.
• Up to October 29, 1991 Shri Kulkarni was again remanded to judicial custody by
the Magistrate and thereafter was sent to Jail.
• In view of the fact that the Police could not take him into police custody all these
days the investigating officer again applied to the court of Chief Metropolitan
Magistrate for police custody of Shri Kulkarni.
• The Chief Metropolitan Magistrate relying on a judgment of the Delhi High Court
in State (Delhi Admn.) v. Dharam Pal [1982 Cri LJ 1103 : (1982) 21 DLT 50 :
1982 Chand Cri C (Del) 114] refused police remand.
• Questioning the same a revision was filed before the High Court of Delhi. The
learned Single Judge in the first instance considered whether there was material to
make out a case of kidnapping or abduction against Shri Kulkarni and observed
that even the abducted persons namely the four diamond merchants do not point
an accusing finger against Shri Kulkarni and that at any rate Shri Kulkarni himself
has been interrogated in jail for almost seven days by the C.B.I. and nothing has
been divulged by him, therefore it is not desirable to confine him in jail and in that
view of the matter he granted him bail.
• The High Court, however, did not decide the question whether or not after the
expiry of the initial period of 15 days a person can still be remanded to police
custody by the Magistrate before whom he was produced. The said order is
challenged in these appeals.
• The learned Additional Solicitor-General appearing for the C.B.I. the appellant
contended that the Chief Metropolitan Magistrate erred in not granting police
custody and placed reliance on a case which has been wrongly decided. The
further contention is that the High Court has erred in granting bail to Shri Kulkarni
without deciding the question whether he can be remanded to police custody as
prayed for by the C.B.I.
• Shri Ram Jethmalani, learned counsel for the respondent accused submitted that
the language of Section 167 CrPC is clear and that the police custody if at all
be granted by the Magistrate should be only during the period of first 15 days
from the date of production of the accused before the Magistrate and not
later and that subsequent custody if any should only be judicial custody and
the question of granting police custody after the expiry of first 15 days
remand does not arise.
• 4… it is well-settled that it (section 167) is supplementary to Section 57. It is clear
from Section 57 that the investigation should be completed in the first instance
within 24 hours; if not, the arrested person should be brought by the police before
a Magistrate as provided under Section 167.
• The law does not authorize a police officer to detain an arrested person for more
than 24 hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate court.
• Sub-section (1) of Section 167 covers all this procedure and also lays down that
the police officer while forwarding the accused to the nearest Magistrate should
also transmit a copy of the entries in the diary relating to the case.
• The entries in the diary are meant to afford to the Magistrate the necessary
information upon which he can take the decision whether the accused should be
detained in the custody further or not.
• It may be noted even at this stage the Magistrate can release him on bail if an
application is made and if he is satisfied that there are no grounds to remand
him to custody but if he is satisfied that further remand is necessary then he
should act as provided under Section 167.
• It is at this stage sub-section (2) comes into operation which is very much
relevant for our purpose. It lays down that the Magistrate to whom the accused
person is thus forwarded 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
he thinks fit for a term not exceeding fifteen days in the whole.
• If such Magistrate has no jurisdiction to try the case or commit it for trial and if
he considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction
• The section is clear in its terms. The Magistrate under this section can authorize
the detention of the accused in such custody as he thinks fit but it should not
exceed fifteen days in the whole. Therefore the custody initially should not
exceed fifteen days in the whole.
• The custody can be police custody or judicial custody as the Magistrate thinks fit.
The words “such custody” and “for a term not exceeding fifteen days in the
whole” are very significant. It is also well settled now that the period of fifteen
days starts running as soon as the accused is produced before the Magistrate.
• 7…. if an accused is detained in police custody, the maximum period during
which he can be kept in such custody is only fifteen days either pursuant to a
single order or more than one when such orders are for lesser number of days but
on the whole such custody cannot be beyond fifteen days and the further
remand to facilitate the investigation can only be by detention of the accused
in judicial custody.
• 8… Taking the plain language into consideration particularly the
words “otherwise than in the custody of the police beyond the
period of fifteen days” in the proviso it has to be held that the
custody after the expiry of the first fifteen days can only be
judicial custody during the rest of the periods of ninety days or
sixty days and that police custody if found necessary can be
ordered only during the first period of fifteen days.
• 9. At this juncture we want to make another aspect clear namely the computation
of period of remand.
• The proviso to Section 167(2) clearly lays down that the total period of
detention should not exceed ninety days in cases where the investigation
relates to serious offences mentioned therein and sixty days in other cases and
if by that time cognizance is not taken on the expiry of the said periods the
accused shall be released on bail as mentioned therein. …the first period of
detention should be computed from the date of order of remand.
• Section 167(2-A) which has been introduced for pragmatic reasons states that if
an arrested person is produced before an Executive Magistrate for remand, the
said Magistrate may authorise the detention of the accused not exceeding
seven days in aggregate.
• It further provides that the period of remand by the Executive Magistrate should
also be taken into account for computing the period specified in the proviso i.e.
aggregate periods of ninety days or sixty days
• Since the Executive Magistrate is empowered to order detention only for seven
days in such custody as he thinks fit, he should therefore either release the
accused or transmit him to the nearest Judicial Magistrate together with the
entries in the diary before the expiry of seven days. The section also lays down
that the Judicial Magistrate who is competent to make further orders of detention,
for the purposes of computing the period of detention has to take into
consideration the period of detention ordered by the Executive Magistrate.
• Therefore on a combined reading of Sections 167(2) and (2-A) it emerges that the
Judicial Magistrate to whom the Executive Magistrate has forwarded the
arrested accused can order detention in such custody namely police custody
or judicial custody under Section 167(2) for the rest of the first fifteen days
after deducting the period of detention ordered by the Executive Magistrate.
• The detention thereafter could only be in judicial custody
• Likewise the remand under Section 309 CrPC can be only to judicial custody in
terms mentioned therein. This has been concluded by this Court and the language
of the section also is clear.
• Section 309 comes into operation after taking cognizance and not during the
period of investigation and the remand under this provision can only be to
judicial custody and there cannot be any controversy about the same.
• 10. The learned Additional Solicitor-General however submitted that in some of
the cases of grave crimes it would be impossible for the police to gather all the
materials within first fifteen days and if some valuable information is disclosed at
a later stage and if police custody is denied the investigation will be hampered and
will result in failure of justice.…
• The scheme of Section 167 is obvious and is intended to protect the accused from
the methods which may be adopted by some overzealous and unscrupulous police
officers.
• Article 22(2) of the Constitution of India and Section 57 of CrPC give a mandate
that every person who is arrested and detained in police custody shall be produced
before the nearest Magistrate within a period of 24 hours of such arrest excluding
the time necessary for the journey from the place of the arrest to the court of the
Magistrate and no such person shall be detained in the custody beyond the said
period without the authority of a Magistrate.
• These two provisions clearly manifest the intention of the law in this regard and
therefore it is the Magistrate who has to judicially scrutinise circumstances and if
satisfied can order the detention of the accused in police custody.
• However, taking into account the difficulties which may arise in completion of the
investigation of cases of serious nature the legislature added the proviso providing
for further detention of the accused for a period of ninety days but in clear terms it
is mentioned in the proviso that such detention could only be in the judicial
custody. During this period the police are expected to complete the investigation
even in serious cases.
• Likewise within the period of sixty days they are expected to complete the
investigation in respect of other offences. The legislature however disfavoured
even the prolonged judicial custody during investigation.
• That is why the proviso lays down that on the expiry of ninety days or sixty days
the accused shall be released on bail if he is prepared to and does furnish bail.
• If further interrogation is necessary after the expiry of the period of first fifteen
days there is no bar for interrogating the accused who is in judicial custody during
the periods of 90 days or 60 days. …
• 11…We may, however, like to make it explicit that such re-arrest or second
arrest and seeking police custody after the expiry of the period of first fifteen
days should be with regard to the investigation of a different case other than
the specific one in respect of which the accused is already in custody….

• It is true that the police custody is not the be-all and end-all of the whole
investigation but yet it is one of its primary requisites particularly in the
investigation of serious and heinous crimes.

• The legislature also noticed this and permitted limited police custody.
• The period of first fifteen days should naturally apply in respect of the
investigation of that specific case for which the accused is held in custody. But
such custody cannot further held to be a bar for invoking a fresh remand to
such custody like police custody in respect of an altogether different case
involving the same accused.
• 12. As the points considered above have an important bearing in discharge of the
day-to-day magisterial powers contemplated under Section 167(2), we think it
appropriate to sum up briefly our conclusions as under:
• 13. Whenever any person is arrested under Section 57 CrPC he should be
produced before the nearest Magistrate within 24 hours as mentioned therein.
Such Magistrate may or may not have jurisdiction to try the case. If Judicial
Magistrate is not available, the police officer may transmit the arrested accused to
the nearest Executive Magistrate on whom the judicial powers have been
conferred
• The Judicial Magistrate can in the first instance authorise the detention of the
accused in such custody i.e. either police or judicial from time to time but the total
period of detention cannot exceed fifteen days in the whole.

• Within this period of fifteen days there can be more than one order changing the
nature of such custody either from police to judicial or vice-versa.

• If the arrested accused is produced before the Executive Magistrate, he is

empowered to authorise the detention in such custody either police or judicial only
for a week, in the same manner namely by one or more orders but after one week
he should transmit him to the nearest Judicial Magistrate along with the records.
• When the arrested accused is so transmitted, the Judicial Magistrate, for the
remaining period, that is to say excluding one week or the number of days of
detention ordered by the Executive Magistrate, may authorise further detention
within that period of first fifteen days to such custody either police or judicial.

• After the expiry of the first period of fifteen days the further remand during the
period of investigation can only be in judicial custody. There cannot be any
detention in the police custody after the expiry of first fifteen days even in a
case where some more offences either serious or otherwise committed by him
in the same transaction come to light at a later stage.

• But this bar does not apply if the same arrested accused is involved in a
different case arising out of a different transaction
• Even if he is in judicial custody in connection with the investigation of the
earlier case he can formally be arrested regarding his involvement in the
different case and associate him with the investigation of that other case and the
Magistrate can act as provided under Section 167(2) and the proviso and can
remand him to such custody as mentioned therein during the first period of fifteen
days and thereafter in accordance with the proviso as discussed above.
• If the investigation is not completed within the period of ninety days or sixty days
then the accused has to be released on bail as provided under the proviso to
Section 167(2).
• The period of ninety days or sixty days has to be computed from the date of
detention as per the orders of the Magistrate and not from the date of arrest
by the police.
• Consequently the first period of fifteen days mentioned in Section 167(2) has
to be computed from the date of such detention and after the expiry of the
period of first fifteen days it should be only judicial custody.
• A question may then arise whether a person arrested in respect of an offence
alleged to have been committed by him during an occurrence can be detained
again in police custody in respect of another offence committed by him in the
same case and which fact comes to light after the expiry of the period of first
fifteen days of his arrest.
• We are unable to agree. In one occurrence it may so happen that the accused might
have committed several offences and the police may arrest him in connection with
one or two offences on the basis of the available information and obtain police
custody.
• If during the investigation his complicity in more serious offences during the
same occurrence is disclosed that does not authorise the police to ask for
police custody for a further period after the expiry of the first fifteen days. If
that is permitted than the police can go on adding some offence or the other of a
serious nature at various stages and seek further detention in police custody
repeatedly, this would defeat the very object underlying Section 167.
 Exception – when police custody can be
asked for even after expiry of 15 days
• However, we must clarify that this limitation shall not apply to a different occurrence in
which complicity of the arrested accused is disclosed. That would be as different transaction
and if an accused is in judicial custody in connection with one case and to enable the police to
complete their investigation of the other case they can require his detention in police custody for
the purpose of associating him with the investigation of the other case. In such a situation he
must be formally arrested in connection with other case and then obtain the order of the
magistrate for detention in police custody.
• The occurrences constituting two different transaction give rise to two different cases and
the exercise of power under Section 167(1) and (2) should be in consonance with the object
underlying the said provision in respect of each of those occurrences which constitute two
different cases. Investigation in one specific case cannot be the same as in the other.
• Arrest and detention in custody in the context of Sections 167(1) and (2) of the Code has to be
truly viewed with regard to the investigation of that specific case in which the accused person
has been taken into custody.
 Sanjay Dutt V. State Through CBI, Bombay
(Ii) (1994) 5 Scc 410
• The petitioner is one of the several accused persons in case No. 1 of 1993 being
trial in the Designated Court for Greater Bombay in connection with the bomb
blasts which took place in Bombay on 12.3.1993 killing a large number of person
and causing huge destruction of property.
• The case of the prosecution against the petitioner, set out in the charge-sheet, is
that on 16.1.1993 he "knowingly and intentionally procured from accused Anees
Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba @
Ibrahim Musa Chouhan, Abu Salem Abdul, Qayoob Ansari and Manzoor Ahmed
Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and
cartridges for the purpose of committing terrorist acts.
• By keeping the AK-56 rifles, hand grenades, pistol and cartridges' in his
possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts
of the rifle, the 9 mm. pistol and 53 rounds of live cartridges were recovered
during the course of investigation.
• Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla,
Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1 AK-
56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them from the
house of accused Sanjay Dutt, at his instance, with the intention to protect the
offender i.e. Sanjay Dutt from legal consequences and therefore, they are also
guilty of the offence u/s 201 IPC".
• The charge against the petitioner is of several offence including those under the
TADA Act, of which Section 5 thereof is one, reliance is placed by the prosecution
on the testimony of certain witnesses, some incriminating circumstances and an
unretracted confession by the petitioner himself.
• The petitioner further stated that in view of the tense communal situation as a result of
the incident at Ayodhya on 5.12.1992 and the serious threats given to petitioner's father
Sunil Dutta then a Member of Parliament, for his active role in steps taken to restore
communal harmony and serious threats to petitioners' sisters also, all of whom were
residing together, the petitioner agreed to obtain and keep one AK-56 rifle with
ammunition for protection of him family without the knowledge of his father.
• In short, the petitioner's statement (confession) is that his possession of one AK-56 rifle
with ammunition was in these circumstances for self defence on account of the serious
threats to the members of his family, unrelated to any terrorist activity and, therefore,
mere unauthorised possession of the weapons and ammunition by him in these
circumstances cannot constitute an offence under Section 5 of the TADAAct. and has to
be dealt with only under the Arms Act, 1959
• The petitioner claims to be released on bail on this basis and places reliance on certain
other facts pertaining to his conduct to support his assertion that his action is
unconnected with any terrorist or disruptive activity.
• The Designated Court has refused bail to the petitioner. These special leave petitions are
against the order of the Designated Court, in substance, for grant of bail to the petitioner.
Questions of law
• …( 2) The proper construction of clause (bb) of sub-section (4) of
Section 20 of the TADA Act indicating the nature of right of an
accused to be released on bail thereunder, on the default to
complete investigation within the time allowed therein; and

• (3) The proper construction and ambit of sub-section (8) of Section 20

of the TADA Act indicating the scope for bail thereunder
TADA- PART IV: MISCELLANEOUS

SECTION 20. Modified application of certain provisions of the Code.

• (4) Section 167 of the Code shall apply in relation to a case involving an offence
punishable under this Act or any rule made thereunder subject to the modifications that
—
• (a) the reference in sub-section (1) thereof to ‘Judicial Magistrate’ shall be construed as
a reference to ‘Judicial Magistrate or Executive Magistrate or Special Executive
Magistrate’; (
• b) the references in sub-section (2) thereof to ‘fifteen days’, ‘ninety days’ and ‘sixty
days’, wherever they occur, shall be construed as references to ‘sixty days’, ‘one
hundred and eighty days’ and ‘one hundred and eighty days’, respectively; and
• (bb) in sub-section (2), after the proviso, the following proviso shall be
inserted, namely:— Provided further that, if it is not possible to complete
the investigation within the said period of one hundred and eighty days,
the Designated Court shall extend the said period up to one year, on the
report of the Public Prosecutor indicating the progress of the investigation
and the specific reasons for the detention of the accused beyond the said
period of one hundred and eighty days; and (c) sub-section (2-A) thereof
shall be deemed to have been omitted

• (7) Nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed an
offence punishable under this Act or any rule made thereunder
(8) Notwithstanding anything contained in the Code, no person accused of an
offence punishable under this Act or any rule made thereunder shall, if in custody,
be released on bail or on his own bond unless—

• (a) the Public Prosecutor has been given an opportunity to oppose the application
for such release, and
• (b) where the Public Prosecutor opposes the application, the court is satisfied that
there are reasonable grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.

(9) The limitations on granting of bail specified in sub-section (8) are in addition to
the limitations under the Code or any other law for the time being in force on
granting of bail
• 43. Section 20 of the TADA Act prescribes the modified application of the Code of
Criminal Procedure indicated therein.
• • The effect of sub-section (4) of Section 20 is to apply Section 167 of the Code of
Criminal Procedure in relation to a case involving an offence punishable under the
TADA Act subject to the modifications indicated therein.
• • One of the modifications made in Section 167 of the Code by Section 20(4) of
the TADA Act is to require the investigation in any offence under the TADA Act to
be completed within a period of 180 days with the further proviso that the
Designated Court is empowered to extend that period up to one year if it is
satisfied that it is not possible to complete the investigation within the said period
of 180 days, on the report of the public prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the accused beyond the
said period of 180 days.
• This gives rise to the right of the accused to be released on bail on expiry of
the said period of 180 days or the extended period on default to complete the
investigation within the time allowed.
• 44. In Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 :
1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] the conclusion was summarised, as
under : (SCC p. 635, para 30)
“In conclusion, we may (even at the cost of repetition) say that an accused person
seeking bail under Section 20(4) has to make an application to the court for grant of
bail on grounds of the ‘default’ of the prosecution and the court shall release the
accused on bail after notice to the public prosecutor uninfluenced by the gravity of
the offence or the merits of the prosecution case since Section 20(8) does not control
the grant of bail under Section 20(4) of TADA and both the provisions operate in
separate and independent fields. It is, however, permissible for the public
prosecutor to resist the grant of bail by seeking an extension under clause (bb) by
filing a report for the purpose before the court. However, no extension shall be
granted by the court without notice to an accused to have his say regarding the
prayer for grant of extension under clause (bb)
• In this view of the matter, it is immaterial whether the application for bail on
ground of ‘default’ under Section 20(4) is filed first or the report as envisaged by
clause (bb) is filed by the public prosecutor first so long as both are considered
while granting or refusing bail.
• If the period prescribed by clause (b) of Section 20(4) has expired and the court
does not grant an extension on the report of the public prosecutor made under
clause (bb), the court shall release the accused on bail as it would be an
indefeasible right of the accused to be so released.
• Even where the court grants an extension under clause (bb) but the charge-sheet
is not filed within the extended period, the court shall have no option but to
release the accused on bail, if he seeks it and is prepared to furnish the bail as
directed by the court.
• Moreover, no extension under clause (bb) can be granted by the Designated Court
except on a report of the public prosecutor nor can extension be granted for
reasons other than those specifically contained in clause (bb), which must be
strictly construed.”
• 45. In Hitendra Vishnu Thakur [(1994) 4 SCC 602] , it was held that the
Designated Court would have “no jurisdiction to deny to an accused his
indefeasible right to be released on bail on account of the default of the
prosecution to file the challan within the prescribed time if an accused seeks and is
prepared to furnish the bail bond as directed by the court”; and that a ‘notice’ to
the accused is required to be given by the Designated Court before it grants any
extension under the further proviso beyond the prescribed period of 180 days for
completing the investigation…
• 48. We have no doubt that the common stance before us of the nature of
indefeasible right of the accused to be released on bail by virtue of Section
20(4)(bb) is based on a correct reading of the principle indicated in that decision.
• The indefeasible right accruing to the accused in such a situation is enforceable
only prior to the filing of the challan and it does not survive or remain enforceable
on the challan being filed, if already not availed of
• Once the challan has been filed, the question of grant of bail has to be considered
and decided only with reference to the merits of the case under the provisions
relating to grant of bail to an accused after the filing of the challan.
• The custody of the accused after the challan has been filed is not governed by
Section 167 but different provisions of the Code of Criminal Procedure.
• If that right (of default bail) had accrued to the accused but it remained
unenforced till the filing of the challan, then there is no question of its
enforcement thereafter since it is extinguished the moment challan is filed
because Section 167 CrPC ceases to apply.
• The Division Bench also indicated that if there be such an application of the
accused for release on bail and also a prayer for extension of time to complete the
investigation according to the proviso in Section 20(4)(bb), both of them should
be considered together.
• It is obvious that no bail can be given even in such a case unless the prayer for
extension of the period is rejected. In short, the grant of bail in such a situation is
also subject to refusal of the prayer for extension of time, if such a prayer is made.
• If the accused applies for bail under this provision on expiry of the period of 180
days or the extended period, as the case may be, then he has to be released on bail
forthwith.
• The accused, so released on bail may be arrested and committed to custody
according to the provisions of the Code of Criminal Procedure.
• It is settled by Constitution Bench decisions that a petition seeking the writ of
habeas corpus on the ground of absence of a valid order of remand or detention of
the accused, has to be dismissed, if on the date of return of the rule, the custody or
detention is on the basis of a valid order
• 49. This is the nature and extent of the right of the accused to be released on bail
under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a
situation.
• We clarify the decision of the Division Bench in Hitendra Vishnu Thakur [(1994)
4 SCC 602] , accordingly, and if it gives a different indication because of the final
order made therein, we regret our inability to subscribe to that view.
• 53. As a result of the above discussion, our answers to the three question of law
referred for our decision are as under : - • (2)(a) Section 20(4)(bb) of the TADA
Act only requires production of the accused before the court in accordance with
Section 167(1) of the Code of Criminal Procedure and this is how the requirement
of notice to the accused before granting extension beyond the prescribed period of
180 days in accordance with the further proviso to clause (bb) of sub-section (4)
of Section 20 of the TADA Act has to be understood in the Judgment of the
Division Bench of this Court in Hitendra Vishnu Thakur
• The requirement of such notice to the accused before granting the extension for
completing the investigation is not a written notice to the accused giving reasons
therein.
• Production of the accused at that time in the court informing him that the question
of extension of the period for completing the investigation is being considered, is
alone sufficient for the purpose.
• (2)(b) The 'indefeasible right' of the accused to be released on bail in accordance
with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of
Criminal Procedure in default of completion of the investigation and filing of the
challan within the time allowed, as held in Hitendra Vishnu Thakur is a right
which ensures to, and is enforceable by the accused only from the time of
default till the filing of the challan and it does not survive or remain
enforceable on the challan being filed
• If the accused applies for bail under this provision on expiry of the period of 180
days or the extended period, as the case may be, then he has to be released on bail
forthwith.
• The accused, so released on bail may be arrested and committed to custody
according to-the provisions of the Code of Criminal Procedure.
• The right of the accused to be released on bail after filing on the challan,
notwithstanding the default in filing it within the time allowed, as governed from
the time of filing of the challan only by the provisions relating to the grant of bail
applicable at the stage.
• 54. The questions referred are answered in the above manner. This case, for
decision of the petitioner's claim for grant of bail on merits, like any other bail
matter, has now to be considered and decided by the appropriate Division Bench.
We direct, accordingly.