Criminal procedural law in India mandates that an accused cannot be held in custody beyond the stipulated period of 60/90 days, unless the Magistrate takes cognizance of the offences, in which case the power to further extend the remand becomes available to the Magistrate.

However, such cognizance must be taken before or at the time of culmination of the 60/90-day period. If cognizance has not been taken, there exists no legal basis for the accused to be remanded beyond the statutorily prescribed 60/90 days.

Lately, in the wake of the restrictions imposed due to the ongoing COVID- 19 pandemic, it has become a common practice for trial courts to remand accused persons beyond the 60/90-day period, without taking cognizance. Many of these accused persons do not have access to legal resources to challenge such illegal orders and are thus becoming victims of injustice.

The power of a court to remand an accused to custody is governed by three provisions of the Code of Criminal Procedure, 1973 (CrPC), these being Sections 167(2), 209(b) and 309(2). Each of these three provisions is independent of each other and comes into play at different stages of the criminal trial.

These provisions have been analysed in this article with the help of existing case law to establish that trial courts of original jurisdiction cannot extend the period of detention before taking cognizance, as this practice is not as per any of the above-mentioned provisions of the CrPC, and is therefore illegal.

To begin with, it is pertinent to understand the scheme of S. 167 of the CrPC S. 167 lays down the procedure to be followed when investigation cannot be completed by the investigating agency within 24 hours. The proviso clause to S. 167(2) states that the Magistrate shall have the authority to remand an accused to judicial custody for a period not exceeding 60 days (for offences that are not punishable with death, life imprisonment or imprisonment upto 10 years) and on expiry of the said period of 60 days, the accused person shall be released on bail under this sub-section.

Thus, it can be understood that the purpose of S. 167 is to cast a duty on the investigating agency to complete the investigation and file a chargesheet within the specified time limit.

The natural corollary to this is that S. 167 ceases to be applicable for the purposes of extending remand, once the chargesheet has been filed or beyond the prescribed period of 60 days. Time and again, this has been upheld by the Supreme Court of India as well as by several High Courts across the country.

The second relevant provision is sub clause (2) of S. 209, which deals with the powers of a Magistrate to commit proceedings to a Sessions Judge. Since this piece focuses on matters pending before courts of original jurisdiction such as Special Courts established vide specific statutes, there does not arise any question of committal. Therefore, S. 209 is irrelevant for the purposes of this line of argument.

The third provision to be studied is S. 309(2), which allows a Magistrate to remand an accused to custody by issuing a warrant, after taking cognizance of an offence. Thus, in the absence of cognizance being taken, the designated court cannot extend remand under S. 309(2) of the Code. This is a settled position in law and has been reiterated in a plethora of judgments.

In a country where pre-trial detention is rampant, it seems like the principle of “Bail is the rule and Jail is the exception” has been long forgotten by the trial courts. It has now become routine for the trial courts in India to keep accused persons in illegal custody.

Notably, the Apex Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra ruled that that once the chargesheet has been filed within the stipulated time, default bail cannot be granted, even when the court has not taken cognizance of the offence. However, this position of law is incorrect. The correct position of law has been laid down in Sanjay Dutt v. State, which is a Constitutional Bench judgment that precedes Suresh Kumar Bhikamchand. In Sanjay Dutt v. State, the Apex Court has clearly held at paragraph 48 that:

"The custody of the accused after the challan has been filed is not governed by 167 but different provisions of the code of CrPC."

Therefore, since the Court acted in ignorance of previously settled law, the judgment in Suresh Kumar Bhikamchand Jain becomes per in curiam in this regard. It must only be interpreted in context of the peculiar facts of that case and must not be relied upon in general.

The popular argument being advanced in recent cases is that due to the lockdown issued by the Government of India in the wake of COVID- 19, the right of an accused to default bail can get affected. However, it must be noted that Section 167(2) does not bar investigating agencies from filing a final report even after the period prescribed therein and that the effect of expiry of the period under S. 167(2) is accrual of accused person’s rights for default bail. Therefore, the right of an accused to default bail under S. 167(2) cannot be affected by the general order passed by the Supreme Court to extend the period of limitation for filing of cases.

In fact, the Supreme Court has recently held that its March 23 order cannot be held to have eclipsed the time prescribed under Section 167(2), nor can the restrictions imposed by the government during the lockdown operate as restrictions on the rights of an accused which are protected by Section 167(2). As per this section, the accused has an indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.

Moreover, trial courts are bound by the CrPC. They derive all their powers from the Code and have no inherent powers. Thus, the only options available to trial courts enjoined with original jurisdiction are to either release the accused person at the culmination of the 60/90 day detention period or to immediately take cognizance of the offence, post which remand may be extended. No remand order can be issued if it does not comply with either of the abovementioned provisions of the Code. Such orders are ultra vires the CrPC and negatively impact personal liberty, which is a constitutional entitlement for all citizens of this country.

The authors are litigating lawyers based in Delhi, working at the Chambers of Advocate Stuti Gujral.