Source: Telangana High Court 

Why in News? 

A bench of Justice P. Sam Koshy and Justice N. Tukaramji held that Article 22 (2) of the Constitution of India, 1950 (COI) and Section 167 of Code of Criminal Procedure Code, 1973 (CrPC) mandates production of accused before the nearest judicial Magistrate within 24 hours of arrest.                   

• The Telangana High Court held this in the case of Smt. T. Ramadevi, W/o T. Srinivas Goud v. The State of Telengana, Rep. By it’s Principal Secretary and Others. 

What was the Background of  Smt. T. Ramadevi, W/o T. Srinivas Goud v. The State of Telengana, Rep. By it’s Principal Secretary and Others. Case? 

• The four detenues in this case were accused under Section 406, Section 420 read with Section 120 B of Indian Penal Code, 1860 (IPC) and Section 5 of Telangana Protection of Depositors of Financial Establishments Act, 1996 (TSPDFE). 
• Accused no 3 and 4 were apprehended at 10am on 31st August 2024. 
• After apprehending them the police team went for search of other accused. 
• On 1st August 2024, at around 00:30 hours accused no1, 2 and 6 were found at their residence and the police apprehended them for questioning and at around 1:30 hours on 1st August 2024 they were brought to Central Crime Station, Hyderabad. 
• The arrest was shown on 1st August 2024 at 15:40 hours. 
• After completing all the formalities the detenues were produced before the Judicial Magistrate at his residence on 2nd August 2024 at 12:30 am. 
• There are two substantial question of law in this case: 
  • Whether the period of apprehension by the police authorities before the official arrest being shown is also to be considered for the purpose of fulfilling the requirement of producing the so-called apprehended person before the Judicial Magistrate within 24 hours? 
  • Whether an accused under the Telangana Protection of Depositors of Financial Establishments Act, 1996 (for short ‘TSPDFE Act’) can be produced for the first remand before the nearest Judicial Magistrate or he needs to be presented only before the concerned notified Special Court? 

What were the Court’s Observations?  

• With Respect to Issue (i): 
  • It was the case of the petitioner that the period of 24 hours required to be produced before the Judicial Magistrate would start from initial time of apprehension. 
  • The Court took into consideration Section 57 and Section 167 of Criminal Procedure Code, 1973 (CrPC). 
  • The Court held that the first line of Section 57 of CrPC refers to the term detention . It however does not use the term “from the time of arrest”. 
  • Thus, the Court held that the period of detention starts from the moment a person is apprehended .  
  • Therefore, the Court conclusively held that 24 hours time is not be calculated from the time of official arrest but from the time he was initially taken into custody. 
  • Thus, in the present case there was a clear violation of Section 57 CrPC. 
• With Respect to Issue (ii): 
  • The Court held that the plain reading of Section 167 (2) of CrPC indicates that the power to remand a person lies with the Judicial Magistrate. 
  • The Court held that on reading Section 167 (2) CrPC with Section 13 (1) and (2) of TSDFE Act it will clear give an indication that TSPDFE Act has not ousted the applicability of CrPC. 
  • The Court further observed that even Article 22 (2) of the Constitution of India, 1950 (COI) envisages that every person who is arrested and detained in custody “shall be produced before the nearest Judicial Magistrate” within 24 hours of such arrest and detention with exceptions carved out, those which are not applicable in the present case. 
  • Thus, the Court held that the Judicial Magistrate does have competency and jurisdiction to remand the accused.  
• Thus, the Court held that the instant writ of Habeas Corpus petition stands allowed with respect to Accused no. 3 and 4. 

Which Provisions Envisage Production of Accused Within 24 Hours? 

• Section 57 of CrPC 
  • Section 57 of CrPC provides that the person arrested without the warrant shall not be kept in custody for a longer period than is reasonable. 
  • Further, the time period of custody in the absence of special order of Magistrate under Section 167 exceed 24 hours. 
  • While calculating this period of 24 hours the time necessary for journey from the place of arrest to the Magistrate’s Court shall be excluded. 
  • This provision is reiterated under Section 58 of Bharatiya Nagarik Suraksha Sanita, 2023 (BNSS) 
• Article 22 (2) of COI 
  • This provision provides that a person detained in custody should be produced before the nearest Magistrate within the period of twenty four hours of arrest excluding the time of journey.  
  • No Person shall be detained in custody beyond the period above mentioned without the authority of Magistrate. 

What are the Facets of Section 167 of CrPC? 

• Section 167 of CrPC covers: 
  • Procedure when the investigation is not completed within twenty-four hours 
  • Powers of the magistrate 
  • Limitations on the powers of magistrate 
• The provision encircles a timeline for both police custody and judicial custody. 
• Section 167 is invoked when the accused has not been presented before a magistrate within 24 hours of his detention, and his fundamental right as provided by Article 22(2) of the Constitution of India, 1950 is violated. 
• The Magistrate of second class is not empowered by the High Court to pass an order for the detention of the accused in the custody of the police.

What is the Relevant Provision in BNSS?

• Section 187 (1) provides that: 
  • Whenever any person is arrested and detained in custody 
  • It appears that the investigation cannot be completed within 24 hours fixed by Section 58 
  • And there are grounds for believing that the information or accusation is well founded 
  • The officer in charge of police station (not below the rank of sub-inspector) shall forthwith transmit to the nearest Magistrate 
  • A copy of entries in the diary and shall at the same time forward the accused to such Magistrate. 
• Section 187 (2) provides: 
  • The Magistrate to whom the accused is forwarded under this Section 
  • Irrespective of whether he has jurisdiction or not 
  • After taking into consideration whether such person has not been released on bail or his bail has been cancelled 
  • Authorize from time-to-time detention in such custody as such Magistrate thinks fit 
  • For a term not exceeding fifteen days in whole, or in parts 
  • At any time during the initial 40 days or 60 days out of detention period of 60 days or 90 days as the case may be as provided in sub-section (3) 
  • 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. 
• Section 187 (3) provides: 
  • The Magistrate may authorize the detention of the accused person, beyond the period of fifteen days, 
  • if he is satisfied that adequate grounds exist for doing so 
  • but no Magistrate shall authorize the detention of the accused person in custody under this sub-section for a total period exceeding: 
    • ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; 
    • sixty days, where the investigation relates to any other offence 
  • And on expiry of the said period of 90 days or 60 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 XXXV for the purposes of that Chapter.