When the investigation of the arrested person is not completed in 24 hours and allegations were well found. He will be forwarded with the case diary to the nearest judicial magistrate. There is no compulsion that such a magistrate has jurisdiction to try the case. But in absence of delay and difficulties, the police must approach for remand to the magistrate having jurisdiction under section 167(1) of the code of criminal procedure.
Under 167(2A) of CRPC, in the absence of a judicial magistrate, the accused transmitted to the nearest executive magistrate whom the power of judicial magistrate or metropolitan magistrate conferred.
Judicial magistrate whether having jurisdiction or not shall authorise the detention from time to time, not extend to more than 15 days. If the judicial magistrate whom the accused is forwarded does not have jurisdiction, cannot remand custody for more than 15 days. He may order to send the accused to the judicial magistrate who has jurisdiction to try the case.
If no further detention to the accused is authorized by a competent judicial magistrate, the accused person shall be released on bail under section 167(2A) of CRPC.
During the 1st period of 15 days, the nature of custody changes from judicial custody to police custody and vice-versa. After 15 days the accused can only be kept in judicial custody or custody other than this as ordered by the magistrate but not the custody of the police.
But if in another case he got arrested and remanded to police custody with the permission of the magistrate.
The non-availability of police for escort duty has been a valid ground for extending a remand of the accused.
No magistrate shall authorise detention unless the accused produced before him. The object behind this is to enable the magistrate to decide judicially the need to remand the accused can represent the magistrate if he wants to control the ground on which police demand remand. The signature of the accused is obtained as the proof of production of the accused before the magistrate.
Judicial magistrate record reason after authorizing detention of accused to police custody under 167(3) of CRPC.
When the magistrate is satisfied that further detention is needed. He remands the accused to judicial custody, the total period of detention including 15 or 7 days is-
- 90 days where the offence is punishable with death, imprisonment of life, imprisonment for not less than 10 years.
- 60 days where the offence is punishable with any other punishment.
The period of 90 days or 60 days computed from the day magistrate authorized detention.
On the expiry of 90 days or 60 days, the accused person shall be released on bail if he is prepared to furnish bail; it is not that he has to make a formal written application for exercising right.
After filing the charge sheet this right ceased to exist.
The stringent provision of section 167 of CRPC is designed to control the malady of protracted investigation.
Case. Hussainara khatoon vs state of Bihar, 1980, in the court, observed that it is the duty of the magistrate to inform the accused that he has a right to be released on bail under the proviso. Further, the state must provide free legal aid to the indigent accused.Case. State of MP vs Rustam, 1984, it was held that the charge sheet was filed within 90 days. Hence no right of granting bail by default to the accused.