Remand, Default Bail and the Police Report

That long clause is the biggest single change in this Chapter and it must be quoted rather than paraphrased. Under the old section 167(2), police custody could be granted only within the first fifteen days of the detention; after that, only judicial custody. Under section 187(2) the fifteen days may be taken in the whole or in parts, at any time during the initial forty days where the total is sixty, or the initial sixty days where the total is ninety.

Sub-section (3), the outer limits. Beyond fifteen days the Magistrate may authorise detention if satisfied that adequate grounds exist, but the total may not exceed:

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for ten years or more; (ii) sixty days, for any other offence.

And on the expiry of that period the accused person shall be released on bail if he is prepared to and does furnish bail, and a person so released is deemed to be released under Chapter XXXV, the bail chapter, for the purposes of that Chapter.

That is default bail. Three things about it are asked. It arises on the expiry of the period, not on the filing of the charge sheet. It requires the accused to be prepared to and to furnish bail, so it is not automatic release. And Explanation I says that, notwithstanding the expiry, the accused shall be detained in custody so long as he does not furnish bail.

Section 187(4) to (6): the safeguards

Sub-section (4), production. No Magistrate shall authorise detention in the custody of the police unless the accused is produced before him in person for the first time and subsequently every time while he remains in police custody. Judicial custody may be extended on production either in person or through audio-video electronic means.

Sub-section (5), rank. No Magistrate of the second class, unless specially empowered by the High Court, shall authorise detention in police custody.

Explanation II, proof of production. Production may be proved by the accused's signature on the order authorising detention, or by the Magistrate's certificate as to production through audio-video electronic means.

The provisos. In the case of a woman under eighteen years of age, detention shall be authorised to be in the custody of a remand home or recognised social institution. And no person shall be detained otherwise than in a police station under police custody, or in a prison under judicial custody, or a place declared as a prison by the Central or a State Government.

Sub-section (6), where no Magistrate is available. The officer in charge, or an investigating officer not below the rank of sub-inspector, may transmit the diary entry and forward the accused to the nearest Executive Magistrate on whom the powers of a Magistrate have been conferred, who may, for reasons recorded in writing, authorise detention for a term not exceeding seven days in the aggregate; on expiry the accused shall be released on bail unless a competent Magistrate has ordered further detention.

Sections 188 to 191: reporting, release, and forwarding

Section 188. A subordinate police officer who has made an investigation shall report the result to the officer in charge of the police station.

Section 189, release when the evidence is deficient. If it appears to the officer in charge that there is not sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to a Magistrate, he shall, if the person is in custody, release him on a bond or bail bond to appear before a Magistrate empowered to take cognizance on a police report if and when required.

Section 190, forwarding when the evidence is sufficient. If it appears that there is sufficient evidence or reasonable ground, the officer shall forward the accused under custody to such a Magistrate, or, if the offence is bailable and the accused can give security, take security for his appearance on a day fixed and from day to day thereafter.

The proviso. If the accused is not in custody, the officer shall take security for his appearance, and the Magistrate shall not refuse to accept the report on the ground that the accused was not taken into custody. That proviso is the statutory answer to a practice of insisting on arrest before a charge sheet.

Sub-section (2). The officer shall send any weapon or other article needed, and shall require the complainant and such persons acquainted with the facts as he thinks necessary to execute a bond to appear and prosecute or give evidence. Sub-section (3) makes a bond naming the Chief Judicial Magistrate's Court cover any Court to which he refers the case, on reasonable notice. Sub-section (4) requires a copy of the bond to be delivered to one of those who executed it, and the original sent to the Magistrate with the report.

Section 191, protection of the complainant and witnesses. No complainant or witness on his way to any Court shall be required to accompany a police officer, or be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond. But the proviso allows the officer, where a complainant or witness refuses to attend or to execute a bond under section 190, to forward him in custody to the Magistrate, who may detain him until he executes the bond or until the hearing is completed.

Section 192: the case diary

Sub-section (1). Every investigating officer shall day by day enter his proceedings in a diary, setting forth: the time at which the information reached him; the time at which he began and closed his investigation; the places visited; and a statement of the circumstances ascertained.

Sub-section (2), new. The statements of witnesses recorded under section 180 shall be inserted in the case diary.

Sub-section (3), new. The diary shall be a volume and duly paginated. That is a small provision with a large purpose: a paginated bound volume cannot have pages added later.

Sub-section (4). Any Criminal Court may send for the police diaries and may use them not as evidence in the case, but to aid it in the inquiry or trial.

Sub-section (5). Neither the accused nor his agents are entitled to call for the diaries, nor to see them merely because the Court refers to them. But if the officer uses them to refresh his memory, or the Court uses them to contradict him, sections 148 or 164 of the Bharatiya Sakshya Adhiniyam apply.

Section 193: the report on completion, that is the charge sheet

Sub-section (1). Every investigation shall be completed without unnecessary delay.

Sub-section (2), and it is new. Investigation into an offence under sections 64, 65, 66, 67, 68, 70 or 71 of the Bharatiya Nyaya Sanhita, or under sections 4, 6, 8 or 10 of the Protection of Children from Sexual Offences Act, 2012, shall be completed within two months from the date the information was recorded.

Sub-section (3)(i), the report. As soon as the investigation is completed the officer in charge shall forward, including through electronic communication, to a Magistrate empowered to take cognizance on a police report, a report stating:

(a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond or bail bond; (g) whether he has been forwarded in custody under section 190; (h) whether the report of medical examination of the woman has been attached, in the sexual offence cases named; and (i) the sequence of custody in case of an electronic device.

Clause (i) is new and it is the chain of custody requirement for digital evidence.

Sub-section (3)(ii), and it is new. The police officer shall, within ninety days, inform the progress of the investigation, by any means including electronic communication, to the informant or the victim.

Sub-section (3)(iii). He shall also communicate the action taken to the person who first gave the information.

Sub-section (4). Where a superior officer has been appointed under section 177, the report goes through him where the State Government so directs, and he may, pending the Magistrate's orders, direct further investigation.

Sub-section (6). Where the report is against a person forwarded in custody, the officer shall forward, along with it, all documents on which the prosecution proposes to rely, and the statements recorded under section 180 of all the persons whom the prosecution proposes to examine as its witnesses.

Sub-section (7). Where the officer is of opinion that part of a statement is not relevant, or that its disclosure is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part and append a note requesting the Magistrate to exclude it from the copies given to the accused, stating his reasons.

Sub-section (8). He shall submit enough copies of the report and the documents, duly indexed, for supply to the accused under section 230. The proviso: supply by electronic communication shall be considered as duly served.

Sub-section (9), further investigation. Nothing in the section precludes further investigation after a report has been forwarded, and further reports are governed by the same sub-sections. The proviso, new: further investigation during the trial may be conducted with the permission of the Court trying the case, and shall be completed within ninety days, extendable with the Court's permission.

A worked example

Nitin is arrested at Sion on 1 March for an offence punishable with twelve years. The investigation cannot be finished by 2 March.

What happens on 2 March? The officer transmits a copy of the case diary entries to the nearest Magistrate and forwards Nitin to him, section 187(1).

What may the Magistrate do? Authorise detention in such custody as he thinks fit, not exceeding fifteen days in the whole or in parts, and, because the offence is punishable with ten years or more, those fifteen days may be taken at any time during the initial sixty days of the ninety day period, section 187(2).

Must Nitin be produced? For police custody, yes, in person the first time and every time thereafter, section 187(4). For judicial custody, production may be in person or through audio-video electronic means.

How long in total? Up to ninety days, section 187(3)(i), on the Magistrate being satisfied that adequate grounds exist.

No charge sheet by day ninety-one. Nitin shall be released on bail if he is prepared to and does furnish bail, and he is then treated as released under Chapter XXXV. If he does not furnish bail, Explanation I keeps him in custody.

Change the offence to one punishable with five years. The total is sixty days, and the fifteen days of police custody may be taken within the initial forty.

Change the accused. She is seventeen. The proviso to section 187(5) requires detention to be authorised in a remand home or recognised social institution.

No Magistrate is available at the place of arrest. The officer may forward Nitin to the nearest Executive Magistrate on whom magisterial powers have been conferred, who may authorise detention for not more than seven days in the aggregate, for reasons recorded, section 187(6).

The charge sheet is filed on day eighty-five. It must state the nine matters in section 193(3)(i), including the sequence of custody of the seized phone. Copies for the accused must be supplied, and electronic supply counts as due service, section 193(8). The officer must already have informed the informant or victim of the progress within ninety days, section 193(3)(ii).

New evidence turns up after the trial has begun. Further investigation needs the permission of the trial Court and must be completed within ninety days, extendable with permission, proviso to section 193(9).

Distinctions

What this does NOT mean

Default bail is not automatic release. The accused must be prepared to and must furnish bail, and Explanation I keeps him in custody until he does.

The ninety or sixty days does not run from the charge sheet. It runs from the detention, and the right accrues on its expiry if the report has not been filed.

Section 192(4) does not make the case diary evidence. The Court may use it to aid the inquiry or trial, not as evidence.

And section 193(9) does not require the Magistrate's leave for every further investigation. Leave of the trial Court is needed for further investigation during the trial.

Quick revision

• Section 187(1): diary entries and the accused go to the nearest Magistrate where the investigation cannot finish in twenty-four hours and the accusation appears well-founded; the officer must not be below sub-inspector.
• Section 187(2): detention in such custody as the Magistrate thinks fit, not exceeding fifteen days in the whole or in parts, at any time during the initial forty or sixty days of the sixty or ninety day period.
• Section 187(3): ninety days for death, life or ten years or more; sixty days otherwise; then release on bail if he is prepared to and does furnish bail, treated as bail under Chapter XXXV.
• Section 187(4) and (5): production in person for police custody every time; audio-video permitted for judicial custody; no second class Magistrate may authorise police custody unless specially empowered; a woman under eighteen goes to a remand home or recognised social institution; detention only in a police station, a prison, or a declared place.
• Section 187(6): an Executive Magistrate with conferred powers may authorise up to seven days in the aggregate, for recorded reasons.
• Sections 189 and 190: release on bond where the evidence is deficient; forward under custody, or take security in a bailable case, where it is sufficient; the Magistrate may not refuse the report because the accused was not arrested.
• Section 191: no witness to be made to accompany a police officer, be restrained, or give security beyond his own bond; but refusal may lead to being forwarded in custody.
• Section 192: a day by day diary of times, places and circumstances; section 180 statements inserted; a paginated volume; the Court may use it to aid, not as evidence; the accused cannot call for it, save for refreshing memory or contradiction.
• Section 193: completion without unnecessary delay; two months for the named sexual offences and POCSO sections; a report with nine particulars including the sequence of custody of an electronic device; progress to the informant or victim within ninety days; documents and section 180 statements with the report; parts may be excluded on a reasoned note; electronic supply is due service; further investigation permitted, and during trial only with the Court's permission and within ninety days.

Test yourself

1. How long may a Magistrate authorise detention at the first remand, and where may police custody now fall? Not exceeding fifteen days in the whole, or in parts, and those parts may be taken at any time during the initial forty days where the total is sixty, or the initial sixty days where the total is ninety, section 187(2).

2. When does the right to default bail arise? On the expiry of ninety days where the offence is punishable with death, life or ten years or more, and sixty days in any other case, if the investigation is not complete; and the accused shall then be released on bail if he is prepared to and does furnish bail, section 187(3).

3. Must the accused be produced each time police custody is extended? Yes, in person for the first and every subsequent occasion while he remains in police custody, section 187(4). Judicial custody may be extended on production in person or through audio-video electronic means.

4. Who may authorise detention where no Magistrate is available, and for how long? The nearest Executive Magistrate on whom the powers of a Magistrate have been conferred, for a term not exceeding seven days in the aggregate, for reasons recorded in writing, section 187(6).

5. Within what period must the investigation of a rape offence be completed? Two months from the date on which the information was recorded by the officer in charge, section 193(2).

6. What new particular must a charge sheet now state about digital evidence? The sequence of custody in the case of an electronic device, section 193(3)(i)(i).

7. Is the case diary evidence in the case? No. Under section 192(4) a Criminal Court may send for it and use it not as evidence but to aid the inquiry or trial.