Posted on May 22, 2023



SECTION 167(2) of Cr.P.C 

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours.

It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him. 

Section 167(2) lays down:- The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused person in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; 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. 

Provided that: (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, 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 paragraph for a total period exceeding: 

  1. ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
  2. sixty days, where the investigation relates to any other offence, and

on the expiry of the said period of ninety days, or sixty 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 subsection shall be deemed to be so released under the provisions Restrictions imposed on the powers of the magistrate with regard to grant of regular bail under section 437 of the Code would not be applicable when magistrate exercises power under section 167(2). 

In NatbarParinda vs State of Orissa AIR 1975 SC 1465 Honble Supreme Court noted that the accused has a right to be released on bail under this provision even in serious and ghastly types of crimes. 

The period of 90 or 60 days would begin to run from the day on which the accused is remanded to custody by the magistrate at the first instance.

Since person arrested is to be produced before a magistrate within 24 hours of arrest, date of remand to custody may not necessarily be the same as the date of arrest. 

The period of 90/60 days is the total period of custody - police custody and/or judicial custody - that can be authorized by the magistrate. 

In the case of Union of India V Nirala Yadav13 our Honble Apex court held that Magistrate should decide the application for statutory bail on the same day it is filed.

Accordingly, if the charge sheet is not filed within 60 days of date of detention, petitioner is entitled to be released on bail. 

Recently, Honble Apex Court in Rakesh Kumar Paul vs. State of Assam, held that an accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-sheet within 60 days of his arrest for the offence punishable with ‘imprisonment up to 10 years.