Report No. 14

51. Duration limited.-

Under section 167, whatever the nature of the custody of the accused person, the magistrate is not competent to authorise the detention of the accused for a term exceeding fifteen days in all. The law therefore clearly contemplates that in the generality of cases, there should be no occasion for an investigation to be protracted beyond a period of fifteen days.

52. Remand beyond fifteen days.-

What should happen at the end of the fifteen days of remand under section 167 has been the subject of some controversy. If at the end of that period no police report as required under section 173 is filed, the question arises whether it is competent for the magistrate to continue to detain the accused person in custody. The latter part of section 167(2) which contemplates an analogous position states that if the magistrate "has not 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."

Under that sub-section, if the magistrate having jurisdiction to try the case or commit it for trial comes to the conclusion that the facts revealed by the police diary do not warrant the further detention of the accused person, he can order the release of the accused forthwith. If on the other hand he thinks that there is sufficient reason for believing that the accusation or information is well-founded and that further detention of the accused person is necessary for the completion of investigation into the case by the police, the question arises whether he can exceed the time limit of fifteen days set to the detention of the accused person under the section.

53. Submission of preliminary charge sheet.-

It has come to our notice that even in such cases, there has arisen a practice under which magistrates remand the accused to custody and authorise his further detention purporting to exercise powers under section 344 of the Criminal Procedure Code. It is a matter of doubt whether section 344 has any application at all at the stage of investigation. It is possible to take the view that the section applied only to inquiries and trials. It may be said that a magistrate having jurisdiction to try the case or commit it for trial, acquires jurisdiction only on the presentation of a police report to him. Section 173 provides that as soon as the investigation is completed, "the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed ".

It would appear that the police report can be submitted only after the completion of the investigation. We understand that in some States a practice prevails of filing, what are called "preliminary" charge sheets after the expiry of the fifteen days contemplated by section 167(2) and the magistrate is then asked to grant a further remand under section 344. The final report under section 173 is filed later; sometimes months after the apprehension of the accused. In such cases, it is a matter of doubt whether a magistrate can be said to have taken cognizance of an offence because police report in the form prescribed has not been placed before him by the officer in charge of the police station.

The magistrate may no doubt have jurisdiction to try the case; that has relation only to the nature of the offence and the requirements contained in Schedule II to the Code. But taking cognizance of an offence is something different from merely having jurisdiction to try a case. Broadly stated, a magistrate takes cognizance of the offence upon a report in writing of such facts made by any police officer [section 190(1)(b)]. Having taken cognizance, the magistrate becomes competent to commence the inquiry or the trial, as the case may be, and to take steps for the summoning of witnesses and their examination. Section 344 occurs in Chapter XXIV which deals with "General provisions as to Inquiries and Trials". Sub-section (1A) of section 344 states:-

"If from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, from time to time, postpone or adjourn the same and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time."

The language of the section would seem clearly to show that the power of remand conferred by it can be exercised only after the magistrate has taken cognizance of the offence and if it becomes necessary thereafter to postpone the commencement of the inquiry or trial for reasons to be stated. It seems to us to be difficult to invoke the power given under this provision in cases where a police report in the prescribed form has not been filed before the magistrate. A preliminary charge sheet clearly will not be a police report in the prescribed form.

Apparently, however, the explanation to this section seems to be relief upon by some magistrates in justifying a remand even in cases which should legitimately come within the scope of section 167. The explanation reads:-

"If sufficient evidence has been obtained to raise a suspicion that the accused might have committed an offence, and it appears likely that further evidence may be obtained by a remand, it is a reasonable cause for a remand".

Whatever the true meaning of the explanation, it obviously cannot be read into section 167 and made applicable at a stage prior to the filing of the police report.

54. Conflict of decisions.-

There is a conflict of opinion1 on the question whether on the expiration of the fifteen days specified in section 167 without a police report being filed, the magistrate is bound to release the arrested person or whether the period of remand can be extended by the magistrate under his powers under section 344 Criminal Procedure Code.

1. Kali Charan v. State, AIR 1955 All 462.

55. Amendment suggested.-

It seems to us that considering the scheme of these provisions, there is no warrant for the continued detention of a person beyond a period of fifteen days under section 167. Nor would section 344 be applicable, till a police report in the prescribed form has been filed and the court has taken cognizance of the case. The solution of the difficulty lies in the Legislature providing specifically for the contingency of a remand after the expiry of fifteen days by an appropriate provision which, while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual.

No doubt serious offences require a much longer time for investigation; but no one can contemplate an accused person being kept in custody for months awaiting the completion of the investigation and the filing of the police report. We would not have dealt with this matter at such length but for the fact brought to our notice that in some of the northern States, accused persons were being kept under remand for long periods extending over several months without any police report being filed in the courts. If section 344 is to be utilised in such cases, it would mean in effect, giving an unrestricted license to the police and the discretion of the magistrate could seldom be effectively exercised.

In view of the conflict of judicial opinion on the question, it is desirable that the law should be clarified by providing in section 167, that if investigation is not completed within 15 days and the police are therefore unable to file the report under section 173, the Magistrate may in suitable cases remand the accused to custody for a term not exceeding fifteen days at a time. The law must, however, fix a maximum time-limit beyond which an accused person cannot be detained without a police report being filed before a magistrate competent to take cognizance of the offence.

56. The position in the United Kingdom.-

In this connection we may point out that in the United Kingdom even a person accused of a serious offence like treason or felony cannot be kept in prison indefinitely awaiting his trial. The trial has to commence within a specified period.

Section 497(3)A, Cr. P.C.- If a person is charged with treason or felony he can insist upon being tried at the first session after his committal, or if he is not then tried, upon being bailed, unless the witnesses for the Crown cannot appear. If he is not tried at the second session after his commitment, he can insist upon his release without bail1. The prisoner can apply for a writ of habeas corpus which would ensure his being brought to a speedy trial. In this connection we would also invite attention to the provisions of section 497(3)A of the Criminal Procedure Code. It provides that in cases triable by a magistrate, if the trial of persons accused of a non-bailable offence is not concluded within a period of sixty days from the date first fixed for taking evidence, such person shall be released on bail unless the magistrate for reasons to be recorded refuses it.

1. Dicey's Law of the Constitution, p. 218 (9th Edn.).

The Code itself thus contemplates the release of a person undergoing trial for an offence if he has been in custody for some time and the trial has not been concluded.

It would be indeed anomalous that a person should be entitled under the provisions of this section to be enlarged on bail after his trial has commenced and yet it should be permissible to keep him indefinitely in custody at the stage of investigation preceding his trial.

We would, therefore, recommend that the period during which a person can be remanded to custody at the stage of investigation should under no circumstances exceed sixty days.

Supply of copies to the accused persons

57. Importance of police statements (Illegible copies) (Magistrate to supply copies) (Establishment to be strengthened).-

What we have already said shows how important to the accused is the supply of copies of documents referred to in section 173. However, we have noticed a tendency to treat this vital requirement as a mere formality. We have been shown copies of statements of witnesses supplied to accused persons which were wholly illegible. The carbon copies supplied are made in a careless manner so that even the writer himself would not be able to make out what he wrote. Counsel have told us that such copies made it impossible for accused persons to have any idea of the evidence against them and that the advantage which the accused was supposed to derive from these copies being supplied to him, had become illusory in a majority of cases.

Such difficulties probably arise only in cases where there are a large number of accused persons and numerous copies of the statements and other documents have to be prepared. On the other side, while police officers admit that these copies are not as well prepared as they might be, they complain that the preparation of these copies has thrown a very heavy burden upon the police staff. Generally, it is the station writer or some other person attached to the police station who prepares these copies. Additional staff is employed when the work becomes particularly heavy. The police officers suggested that in the circumstances the court itself might be empowered to prepare and supply copies to the accused persons.

Under section 251A(1) and under section 207A(3), a duty has been cast on the magistrate "to satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished". The magistrate has to satisfy himself in regard to this matter at the commencement of the trial or inquiry. Under this section, therefore, the magistrate is under no duty and has presumably no power to ascertain in advance of the date of the inquiry or trial whether the copies have been furnished as required. The magistrate should, in our view, satisfy himself that the copies supplied are of such a character that the accused is able to read them and know their contents.

If, therefore, on the date of the inquiry or trial, the magistrate finds either that copies have not been supplied or that copies supplied are illegible, he should direct the police to supply the required or proper copies and adjourn the inquiry or trial. We have not been told whether adjournments on this ground have become necessary in a large number of cases. We are of the view that since the law has cast a duty upon the magistrate to see that the accused has been supplied with the relevant copies, it would be desirable to entrust the magistrate with the duty of supplying the copies to the accused person. Immediately after the filing of the police report, the magistrate can, after considering the volume of the papers to be copied, fix the date of inquiry or trial.

He could, thereafter, see that the copies are prepared well in advance of the date of the inquiry or the trial and supplied to the accused. Additional staff will be necessary whether the duty is entrusted to the police establishment or to the magistrate. The advantage of entrusting this duty to the magistrate will be to ensure dispatch and a proper control over the copying establishment. If the police establishment is entrusted with this task, the police officers investigatory and other functions may suffer by the addition of these administrative duties. We therefore recommend that the Code be amended and the duty of preparing and supplying copies to the accused persons be laid on the magistrate, the magistrate being given additional staff for the purpose.

58. Voluminous documents (Inspection to suffice).-

The accused person is also entitled to be supplied with copies of "all other documents or relevant extracts thereof, on which the prosecution proposes to rely". In some cases, the evidence largely consists of account books and entries. It is easy to see that in such cases, a large number of entries, probably covering whole pages of account books, might be relief upon by the prosecution. If the law is to be strictly followed copies of numerous pages of account books will have to be supplied to the accused. We were told that such a difficulty had to be faced in West Bengal in some cases.

These bulky documents would be lying in court and could be made available for the perusal of and examination by the accused and his counsel. There seems therefore to be little purpose in requiring copies of these to be made and furnished to the accused at the cost of a great deal of labour and expense. Section 173 should, therefore, be amended suitably by vesting a discretion in the court that in the case of documents considered voluminous, the supply of copies might be dispensed with, the originals themselves being made available to the accused or his Counsel for perusal, examination and taking notes in the court house.

59. Summary of recommendations.-

Our recommendations regarding investigation by the police may be summarised as follows:-

(1) The State Government should undertake a careful examination of the adequacy of the strength of the police in relation to the prevalence of crime.

2 The police, particularly the members of the investigation force, should be trained in modern methods of investigation and the application of science to criminal investigation.

(3) Refresher courses should be arranged for senior officers.

(4) The police should be provided with the necessary modern equipment.

(5) Serious offences should invariably be investigated by senior police officers.

(6) As far as practicable, the investigation of a case should be the responsibility of one officer.

(7) Wherever possible, there should be separate investigating officers who do not have other duties than investigation of crime.

(8) Superior police officers should exercise greater control and supervision over the investigation carried out by their subordinates.

(9) The time has not yet come for making confessions to police officers generally admissible in evidence.

(10) However, a beginning may be made by permitting confessions made to superior police officers in the Presidency towns and other places of like importance admissible in evidence in cases which have been investigated by such officers themselves.

(11) In such cases there should be no scope for the application of section 27 of the Evidence Act which should be suitably amended.

(12) Before confessions to superior police officers are made admissible in respect of any local area, the judiciary in that area should be separated from the executive.

(13) The rule of prudence requiring corroboration of retracted confessions should be given statutory recognition.

(14) When a police officer records a statement under section 161 of the Criminal Procedure Code, the person making the statement, if he is able to read it for himself should be required to read what has been recorded and sign and date it and certify that it is a correct record of his statement.

(15) The law should be amended so as to provide that the investigating officer should record the statement of every person whom the prosecution proposes to examine as a witness and that the statement should as far as possible be in the witness's own words.

(16) Section 103 of the Criminal Procedure Code may be amended so as to permit the officers conducting a search to call as witnesses even persons not residing in the locality.

(17) Section 167 of the Criminal Procedure Code should be amended to enable a magistrate to remand an accused into custody for a period exceeding fifteen days if investigation is not completed within that period. The law should, however, also fix a maximum period beyond which such a remand cannot be granted.

(18) The duty of supplying copies of statements of witnesses, documents and the like to the accused should be placed upon the court and not upon the police.

(19) The court should be provided with additional staff for this purpose.

(20) In cases where the documents to be supplied to the accused are voluminous, the court might be empowered to dispense with such supply and instead allow the accused and his counsel to inspect them in court.

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