Transcription
Today is the 286th Friday group meeting. The topic is arrest and detention and remedies. The speaker is our beloved topmost criminal lawyer Justice Nagamutu. Sir, we are grateful to you. Sir addressed earlier 20 times of our [applause] today is the 21st time sir's contribution in our YouTube channel 4 lakhs 55 [applause] s as date our YouTube channel you are aware of that, 2,1 lakh views our subscribers 38,900 [applause] total videos 238 8 videos [applause] you are alone 20 videos are in your YouTube channel sir now kindly initiate [cough and clears throat].
My dear friend and organizer of this Friday group who has been rendering human service to the legal fraternity on this institution. My dear friend officer team my mentor this is senior educates my dear young friends. It gives me much pleasure as usual to stand before you to speak something about law. Once again as it was pointed out this is the 21st occasion that I am before you from 2017 onwards. My first lecture here was in 2017. Today's topic is really a very important one. The reason being that the international community as well as our constitution is much concerned about the human rights, personal liberty and life.
Today we are going to focus mainly on two constitutional guarantees under article 21 and article 22. Article 21 guarantees that no person shall be deprived of his life and personal liberty without or except by following the procedure established by law. We as lawyers know very well that any law which deprives either the personal liberty of an individual or life shall not be arbitrary. It should be reasonable and it should not be violated of any of the provisions and fundamental rights guaranteed under article and under chapter 3. And if any such law made either procedural or substantive law which deprives or which is likely to deprive the life and liberty of any individual then the law will be void as declared under article 13 of the constitution of India.
In recent days, this topic has assumed importance in view of certain developments which has occurred by way of the admin of this honorable court. Though these two concepts namely deprivation of life and liberty and preserving the fundamental rights are these rights have been the topic even from 1948 or at least from 1940 when our 1950 when our conclusion was brought into force. In recent times, lot of developments have occurred in this branch of law that is procedural as well as substantive law. Therefore, I thought that it [clears throat] would be appropriate today to have some focus on these subjects.
Now incidentally we should also look into article 22 which says protection against arrest and detention in certain cases. Submarinity one mandates that as soon as arrest is made the grounds of arrest shall be supplied to the arrested person and there are other measures which I will take you through at the appropriate stage of my speech. Now these are the two provisions which we are today concerned with.
Now you see the personal liberty of an individual can be deprived of by arrest. The arrest is the power of the police or even a private individual. But though power has been given under the court to arrest in every case arrest shall not be resorted to. First one, though there is power given to police officers to arrest in connected with any crime, such power shall not be exercised in a mechanical fashion in every case in otherwise unless it is so desperately warranted. Arrest shall not be made. The reason being the personal liberty of an individual is so susant that it is guaranteed as a fundamental right in our constitution.
So in Jagind Kumar case 1994 4C page 260 in 1994 itself this debate came the question before the Hollywood Supreme Court was [snorts] whether in a given case the arrest was a right and whether it is violative of the fundamental rights. The court distinguished between the power to arrest and necessity to arrest or compelling reasons to arrest. This honorable court the Supreme Court clarified that though the police officer has been vested with the power to arrest, don't resort to arrest invariably in all cases. Your power is well recognized but the exercise of that power should be your guarded one. You should not do it so freely in every case. This is Joinder Kumar case is a much celebrity case.
Then very recently and the we we had the case of Arnesh Kumar that is of the year 2014. Here normar the honorable Supreme Court further directed that in cases where the offense involved is punishable for less than 7 years or up to 7 years I'm sorry up to 7 years don't resort to arrest as a rule now Supreme Court has made it as a rule don't arrest if the offense is punishable for more than 7 years Then you can arrest that arrest also should be justified. So far as up to 7 years is concerned in aresh which is a very celebrated historic case. This court has said that in a case involving less than seven years. If you want to arrest you have to record reasons for that. You have to give a check slip to the court when the accused is produced as to why you arrested him. Though the offense is punishable for somewhere less than 7 years, you have to give a check slip to the court. That court the magistrate is required to peruse the check and also the records produced along with that to see whether the reasons recorded by the police officer for arresting him is legally sustainable or it is justifiable. If the magistrate finds no there is no need to arrest this probably a small offense this arrest should not have been resorted to in such an event as of rule the magistrate shall not remand him and he shall discharge him immediately there there shall be no remand at all in a given case for any reason the magistrate in a mechanical fashion without looking into this check slip and without looking into the records of the case makes an order of remand then the magistrate is liable for departmental action to that extent the honorable supreme court has valued the human rights and he is direction this is the law today that is harsh therefore my friends with from these two gentlemen I do not want to take you through so many other judgments with these These two I would impress upon you to say that you can classify the offenses into two categories up to 7 years punishable more than 7 years punishable. If it is up to 7 years then as I said arrest shall not be resorted to and despite that notwithstanding such position if the police officer wants to arrest he has to record reasons elaborately and those reasons are to be in the check slip which should be given to the magistrate. It is for a ministrate to do in cases where the is punishable for more than seven years. It does not mean that as permission or principle that you can arrest invariably and indiscriminately. No, that is also not possible. In such an event also you have to exercise your power of arrest very carefully and cautiously and unless and until it is so imminently required you shall not resort to arrest. These are the two things in respect of arrest.
All right. Now after arrest what happens? The moment a person is arrested he is touched and he comes to the custody of the police officer who is arresting him. So custody follows arrest. First person is arrested then comes the custody. So in the as soon as the custody is so secured there are other legal obligations mandatory obligations on the part of the police who is arresting him that is also a constitutional mandate that comes by way of section article 22 which says if you kindly have a look at article 22 I'll read no person shall be detained in custody I said this provision does not speak of arrest Arrest is the first thing. Honest principal already said Kumar principal has already said arrest is made after the custody comes. Can you keep him in custody after arrest? How to deal with that? Constitutional mandate is no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest. This is mandatory. So in every case as soon as arrest is made and the person comes to the custody of the police officer who who arrest him he has to inform the grounds of arrest to the arrested person. This is a constitutional mandate in olden days. This was not strictly followed. The grounds of arrest this concept of article 221 were all followed only in preventive detention cases. But recently [clears throat] following some early judgments the Honduran Supreme Court has reiterated in this 2024 8C 254. Okay. Nothing. So in this case the honorable Supreme Court has extended the benefit of article 2021 [cough and clears throat] even to arrest made in every case not only prevented detention [clears throat] in every case where there is arrest and custody is secured before detaining continue to detain him in your custody. You have to supply the grounds of arrest in writing. The language used in article 22 is informed of the grounds of arrest. This has been so interpreted by the Honda Supreme Court to say that such information should be in writing. Grounds of arrest must be in writing.
All right. Now in the very same case the honorable Supreme Court has gone to the extent of saying for any reason if this is not complied with on the grounds of arrest is not supplied to the accused what is the legal effect what is the consequence the Supreme Court says that if grounds of arrest is not supplied is not furnished is not served on the accused then the very arrest is illegal. If the arrest is illegal then the magistrate cannot remind him. Magistrate cannot remind him. Therefore, instead of applying for bail in a case where you find that the grounds of arrest were not supplied to him, you can very well challenge the very arrest itself under article 226 or under article 32 of the constitution straight away without moving for bail. Here when you so move the honorable high court under article 226 by a repetition then the court cannot go into the merits of the case. What is the gravity? How many people are involved? For how long you have been there? All these questions are irrelevant. The only question before the court was whether the grounds of arrest were furnished to the accused as soon as as soon as arrest was made. If not, this is the only question. If it is proved to the satisfaction of the court that drones of arrest was not supplied, then the court shall set aside the arrest and release settlement. But this is the first relief given in this case. There are other case also this also has given another judgment. Bhan Kumar Bihan Kumar that is 2025 ACC 789. So this is one one one thing.
All right. We have heard of a concept known as formal arrest. That is an correct inangular the honorable Supreme Court for the first time evolved a new concept known as formal arrest. Suppose an accused is arrested in a case here in Delhi. He has been remanded to custody by the court here. But he is wanted in another case in Nova for example. Now the NOA man cannot arrest because he is already in prison. He cannot take him into custody. Therefore, the Supreme Court to manage such a situation said that you cannot make an actual arrest because he is already in judicial custody. But you can make formal arrest. Formal arrest means the police officer has to go to the prison where he is lodged and he has to affect he has to serve paper on him that you are under arrest. In this case also after doing so he has to go back to that court having jurisdiction that is Nida court. where he has to make an application inform the court that I have made a formal arrest there he is largely his own prison he he to be remanded to custody here I want to produce him before this court any person arrested is to be produced before the magistrate within 24 hours we know very well I do not want to elaborate on that 157 says section 57 of CRP says corresponding new provision also so this is also confusional media con also says that within 24 you have to produce. So in this case when formal arrest is effected he cannot be brought here within 24. How is it possible? Therefore what they will do is as per this judgment he has to go back to the original court make an application for the production of this accus from the prison here. So he will be produced before this court. At that stage he will make an application for remand. He will produce the case diary etc etc and he will convince the court that I have made the formal arrest there. He please remount him into custody. Right? So the grounds of arrest in this case also should have been served where the grounds of arrest should have been served in the prison where he was arrested formally. So even in the case of formal arrest this constitutional mandate used to be complied with the grounds of arrest must be supplied in the prison itself. Now he brought here. So here the court will remand into custody. Now in the meanwhile 24 hours time will go right. Supp today police officer comes to Delhi arrest he will go back to that court. Next day he will make an application tomorrow again he will come back here and thereafter he will take him to that court. This will go for two three days. So 24 hours time will go what you need. So this was the argument before the masai court before a division b that judgment is a very interesting judgment. Please kindly read K and nu versus the state of Tamil north. Okay. Near 2000. You can go to the website. It's also reported dated 311 2011. The same thing happened. See very interestingly this was also approved by this honorable court very recently by honorable justice was take very recently this view has been approved by the honorable Supreme Court also. Therefore this is the law which holds appeal today. The argument was that when he is produced before the court 24 hours time he has gone. So now he is in illegal custody. Therefore do this are the argument. See the counterargument was >> sound. >> The counterargument was the counterargument was no. A person as for this conclusutional provision. A person arrested shall not be detained beyond 24 hours. Detained. So he cannot be in custody of the police for more than 24 hours. Here in the case of formal arrest there is no custody at all. Custody there is a judicial custody already. Though arrest is made he does not come to the custody. Therefore question detaining him in the cy of the police for 24 hours does not arise. So when he was produced by production warrant this rule this 24 hours won't apply. So the remand is illegal. This was the view taken by the madasai court. This was holding appeal. This was challenged before this honorable court after extensive arguments were heard reported to the court that it had become infectuous. So therefore this was not examined then in 2011 12 though that was argued for 2 three days as to whether this view is right or wrong there was no judgment. So therefore this judgment was holding a so far as Chennai is concerned. Now recently Hanov justice party in Dendra Ashwani Ashwani as SWA Drawani versus Amar Sur Chandani and another criminal appeal number 25501 of 2024 has approved this view. So today the law is that in case of formal arrest production within 24 hours does not arise reason being there is no custody at all with the police. This is the law today.
All right. This is regarding formal arrest. Now sir I already told you that if grounds of arrest is not furnished arrest is illegal you can come under 226. I already said. All right. I also told that as per Aeshkumar the remand shall not be a mechanical one. [clears throat] Right? The magistrate before whom he is produced has to apply his mind and unless and until he satisfied that further extension of detention that is custody is required he shall not authorize the detention. You see the term reman we have been using this remand in our everyday use but the language used is different in section 157 and the new provision also 187 187. See the term remand the expression remand is used only in 39 of CRPC. So this is only authorization to detain a person in custody. That custo may be unique custody. Now, now you suppose the magistrate has remanded the accus in a mechanical fashion without applying his mind, without following the mandate of law. Now, what is the remedy? The remedy is that either you can challenge the very remand order by way of repetition or by invoking the inherent jurisdiction of the high court. You can straight away come here or else while you move for bail you can raise this also as a ground. Now I would advise that in these two situation where there was no grounds of supply where you can very well come because it's a matter of record but regarding the remand application of mind etc etc I would advise you not to challenge that remand order instead of that you write this as a ground in the b application itself in the in the b why I suggest this is if you file a petition or [clears throat] a petition invoking the inherent jurisdiction challenging the very remand order itself which is judicial order the court is obliged to give a finding right if this finding is once recorded then that is binding subsequently in all other proceedings you can raise it once again but if you raise this as a ground in the bail application the court is not called upon to give any finding. Quote is called upon only to make only an observation that is primmaive opinion that alone is recorded. So though there is opinion recorded in that that remand order is perfectly valid or the arrest is valid. It is still open for you to raise it even at a later stage in a different proceeding as well. Therefore, I would advise not to adjust this remedy by approaching the court under 226 warranting an unnecessary finding from the court. If you are so confident that you can succeed on these two grounds to secure the liberty of an individual as a remedy then I would advise you to approach the white court directly without approach the trial court or magistrate straight away. You can do this is the remedy available in respect of the arrest and and remand.
Now a person is remanded to custody. Now without arrest question is without there being an arrest can a person surrender before the court? If you look at the CRPC and the new provision, see it says 167 1 whenever any person is arrested and detained in custody. So the precondition for the court to exercise its power under 167 is that the person must have been arrested and must have been detained. If these two conditions are satisfied then only he can remark. That is one argument advanced. If you look at subsection two we say the magistrate to whom an arrested person is forwarded under this section which means person is arrested detained by the police then he forwarded to the magistrate. Who is that magistrate? There are two magistrates. One is the nearest magistrate the other one is a jury magistrate. So whoever it may be unless these three prerequisite conditions are satisfied that is arrest by the police or by any other agency detention third forwarding. Unless these three things are satisfied the magistrate cannot remand one argument. If he the accused voluntarily surreners before the court then there is no arrest there is no detention there is no remand. This was the argument advanced. So I had an occasion to consider this. See I am a man with a little amount of common sense. I posed one question to myself. After committing a grave crime of murder, the person holds the seed head and weapon in his hand. Straight away enters into the magistrate's court. He says that I have committed the murder. Now this is the head. This is the weapon. I'm surrendering. If you are to say that the magistrate cannot remount because there was no arrest, there was no detention, there was no forwarding. Now, how to go about how the magistrate will deal with this situation? If the magistrate says no, I cannot do anything for please kindly take that head to take the weapon of the goat. Whatever you want, you do. I got no power to remand. Would it be a plausible or acceptable interpretation of this provision? It cannot be. Therefore, the honorable Supreme Court Justice Krishna said that custody can be heard either by arrest or by surrender. Either by arrest, detention then production or on his own surrender before the court. court can have custody. Of course, this was a judgment that is Naranjan Singh versus uh Pramaka 1982 ACC 559 very celebrated case. As for this judgment when the accurate surreners he gets into the custody of the court then the court can grant bail to the accused under section 437 or 439 or 436. So following this judgment though it is a judgment on 439. Following this judgment courts were taking the view that accused can surrender before a court. If he surreners he gets into the custody then the police officer will ask for further detention. He may ask for police custody or he may ask for judicial custody. Then the court will pass on. This was the law being of course almost through the country this is the procedure being followed without any uh any deviation at all. Now one question arose. Suppose a person comes and surrenders but I the person who is required in that so case I'm surrendering to the there is a murder so I am wanted in that case I'm surrendering. How does the magistrate know that he is the that there was actually a murder? How does he know that there is investigation going on? How does he know that he is wanted in this case? Unless he satisfied with all these things, he cannot. Right? Therefore, 1672 says if the magistrate is satisfied about the fact that there was an occurrence which can be proved by production of a fire, right? Then it will carry the name and the person who surreners has got his other card say that I person investigation going on. In such an event the magistrate is now satisfied regarding identity regarding the necessity for his surrender and regarding the case pending investigation. In such an event the magistrate though he does not have jurisdiction the occurrency is elsewhere. He surrendered before this court. The magistrate shall remand him to custody. Then the magistrate will directly to be produced before the court concern on the next hearing date within 3 days 4 days 5 days not before 15 days will be produced there intimation will also go to the juristic police this is a procedure suppose a doesn't have anything at all no F no other nothing how to do that now for that you may kindly see the provision the mandate. So this is this was the your division judgment. Of course I had occasion to author that that is um versus state of Tamil Nadu 2015 ACC online page 11389. What was said by the court was by closely following this subsection two. Okay. Kindly see this. The magistrate to whom an accused person is forwarded under this section may whether he has or has not been written to try the case from time to time authorize the detention of the accused in such custody as a magistrate thinks for a term not exceed in 15 days. Now BNS's make some changes in this I will tell you 15 days in the court and if he has no jurisdiction to try the case or committed for trial and considered further detention unnecessary. Please kindly see considered his further detention unnecessary. He may order the accused to be forwarded to the magistrate heaven. So interpreting this last portion of this section in this judgment in case the court said that when the court is not sure about the necessity or his involvement in the crime then the court may without authorizing the detention simply forward the accused. That is a language used forward the accused to the magistrate having jurisdiction. He will simply forward him to the court concerned. So he says that there was some occurrence in so and so please. So the court knows as to where the who is the jurist magist. So he will call the local police hand over him to him ask him to lead him to for to take him to that court. There he will be produced. In the meanwhile intimation will go to the police also. Policeman will come and he will say yes this man is wanted. Yes, there is model. This man is wanted in such an event. He will file a memo asking for custody. So police custody can be immediately given to him or if he says no no no we do not want police custody remind you into custody judicial custody. He will be reminded to custody. So this is what was said in this case. Now but subsequently in a different judgment the Madras High Court has taken a different view that is state of Tamil Nadis 2024 SEC online Madras PL 481 here 11 single J has considered the division judgement also but has held very strictly going with meaning of the language forwarded. He says because the accus has not been forwarded by the police after arrest and detention. The court has got no jurisdiction at all to Roman. Therefore, no court whether the magistrate having jurisdiction or whether magistrate having no jurisdiction, he cannot remand an accused if he surreners. The condition according to the learned judges that unless he is arrested he cannot be unless and arrest and forwarded he cannot be reminded to custody. This judgment is under challenge before this honorable court notice has been ordered but no state has been granted. It is the bar association of high court challenged that it is now pending. This is regarding the harest detention and production for remand and remand right.
All right. See after this let us go to the special annments. Take for example PM. There also the officers have been empowered arrest right. They are also required to give the furnish the grounds of arrest as soon as need. Now one judgment here that is bankel the two judgment said that as soon as arrest if it is not punished then arrest is illegal therefore grant be right. Subsequently another judgment came referring to this this judgment say this also by two judges. This benji say as soon as means not immediately or at once. It can be within 24 hours. I got my one different opinion on that. What is the purpose? If you look at the purpose for which this is insisted upon constitutionally that grounds of ars must be separated. Why? I should know the person who is arrested should know as to why he is arrested. What are the accusations against him? When he is produced before the magistrate, he does not have any paper instance. Does he have? No. Has he got any other thing? No. Orally something said you are arrested for this case except that. So when he is produced before a magistrate he has got right of gear or when he is produced before a special court under the PML or any other act for that purpose he has got right of audience right of hearing it is a must so at that time if you are not already informed him of all these things how can he defend himself he have to convince the court please don't remind me why what is stated would it make out an offense? No offense is made of please don't remind me he can say he can say this as per arest principle quickly kindly look at this nothing therefore don't remind me so this valuable right is available for the accused at the time when he is produced before the nist state right this right can be exercised by him meaningfully if only he is put on notice as to what are the grounds upon the state that is the reason Meanwhile in Pankat Benel this honorable court said that furnish copy immediately it is a few minutes a safer you are arresting you are detaining for 24 hours you can detain in the meanwhile you furnish the copy then you take him you forward him to the magistrate for so at the time when his remand produced for he will have two remedies now one he will have legal assistance which is also constitutionally guaranteed. He will get legal assistance. The lawyer will go through the party may not know about Ares or Naran Singh or any other principle. The party may not know. Lawyer knows. Therefore, he will make appearance. He will say please this is the paper supply to me. Please look at there's no offense made up. There is no necessity to remand. There is no the arrest is illegal. All these things can be projected before the court if only the accused have got the detailed grounds of arrest. There is a reason why in Pangit bans honorable justice Sanjay Kumar ladies dead his lordship said that as of rule as per the constitutional mandate you have to furnish the copy at once at once but subsequent judgment say 24 hours so that judgment I understand in this At any rate he has to produce within 24 hours right. So within 24 hours which means before he is being produced before a magistrate you supply the copies to him the ground you supply to him. So therefore my dear friends I would say that you take these two judgments that is Bangatal and Ram Kishor Aurora that is a judgment of honorable justice Biladi. These two judgments are to be reconciled to say that at any rate before the accused is produced before the magistrate then you have to supply the grounds of arrest in writing in writing to right now I have been telling you that unless there is absolute necessity don't arrest I already told you says power existence of power to arrest is different from exercise of the power but that judgment does not elaborately say about the necessity to arrest it only says that be cautious don't arrest any mechanical patient this is what he said now this question arose this was raised before this one before the count of supreme court recently in giwal's there on the the hammer chief this is this is it bench has framed the question after having dealt with all the judgments has referred it to a larger bench now the matter pending a larger bench so necessity to arrest is a ground to be raised by the accused or not As of now, unless and until it is answered, it is available for us to raise for any reason in future while answering that reference. If the honorable Supreme Court holds no, the necessity for arrest need not be recorded, need not be given, then this right may not be available for us. You may kindly make a note of this judgment. This is in criminal appeal number 2493 of 2024 case. the reference you'll find the last I will read the question framed by this honor code see whether the need and necessity to arrest is a separate ground to challenge the order of arrest persons in terms of section 191 of PMA act this is pertaining to PMA I will say that this is applicable to every case. So the question referred to was whether the need and the necessity to arrest refers to the satisfaction of the formal parameters to arrest and take a person into custody or it relates to other personal grounds and reasons regarding [snorts] necessity to arrest a person in the facts and circumstances of the set case. Question number three, if questions A and B are answered in the affirmative. So suppose it is said yes necessary to destroy to be recorded. If questions A and B are answered in the affirmative what are the parameters and facts that are to be taken into consideration by the court will examine the question of need and the necessity to arrest. So my dear friends the the topic covers the remedy. I already said that arrest is a very serious business because it deprives the person personal liberty which is guaranteed under the constitution and it's a natural human rights when you are doing you have to be extra cautious. So these are all the protections given to the citizens when or even non-citizens when a person is arrested and remanded.
Now let us go to the other areas. We'll go to other areas. The for how long a person can be remanded or detained in custody during the course of investigation. Otherwise we call it a default bill. For how long? You know that as per section 1672 of CRPC for a maximum period of 90 days or 60 days as the case may be in a case where a person is punishable for not less than 10 years. You may kindly consider this language. Keep this in your mind. Old law as per CRPC was where the of is punishable with imprisonment for not less than 10 years. Not less than 10 years then he can be detained for 90 days that is not less than 10 years or life imprisonment or uh death penalty. In these cases the maximum period of detention can be 90 days. In the other cases it is 60 days otherwise as of right is entitled for default B. This expression not less than 10 years was examined by this court. Take for example 326 IPC maximum punishment is life. There are other cases punish maximum punishable up to 10 years. In a case where the offense is punishable up to 10 years whether it is 90 days period or 60 days period was examined by this court. This court took the consistent view that not less than 10 years should mean that that should be the minimum punishment which could be imposed. Not less than 10 years. If the offense is punishable up to 10 years or up to 20 years that is the criteria. So law was that there has to be a minimum punishment prescribed that minimum punishment should be for a period not less than 10 years then only it is 90 days. That was a judgment [clears throat] in Rakkesh Kumar Paul versus state of Azam 2017 15 ACC 67. So this is a judgment by three judges. Two honorable judges by majority take this view. The minority view is otherwise. So I agree with the majority view. Now this was taken note of by the lawmakers recently in DNS. They've changed the law note. You kindly see what is the language used. Yeah, I will read the original provision 1672 as well as this provision. See 90 days where I'm reading CRPC 90 days where the investigation relate to you an offense punishable with the death imprisonment for life or imprisonment for a term not less than 10 years. So supreme court say not less than 10 years mean minimum punishment present must be not less than 10 years. Now to in order to overcome this what they have done is this please see 90 days this I'm referring to BNSS section 187 90 days where the investigation related to an offense punishment of the death imprisonment for life same thing or imprisonment for a term of 10 years or more. Now the minimum punishment concept which are laid out by the sort in Rakkesh tomorrow has gone. Now by statuto now they say what we have to see is what is the maximum punishment which is imposible under the section not the minimum punishment maximum punishment if it is 10 years 12 years 13 years 20 years then it is 90 days. Now if you look at section 326 of IPC the punishment is life imprisonment where in that case therefore the whether it is 20 60 days or 90 days it is 90 days right so this one change made now in the BNSS the other change made was very interestingly in anupang Analytable [clears throat] court said that when the accused is produced for the first time that he can be remanded or he can be order to be detained in custody such custody as the magistrate or court deems necessary or deems appropriate. Any custody can be given for 15 days. Any subsequent custody shall be only judicial custody. Right? So if at all police custody or official custody is required, this should be asked for that should be given and completed within the first initial period of 15 days. This is Anupamjulkarn. This was doubted by honorable Jamal Sundes. His lordship was of the view that 15 days does not mean within the initial period of 15 days. It can be even in fractions but it should not totally exceed 15 days. This question was to be examined. Therefore his lordship sitting in two dead bench referred the matter to a larger bin doubting the correctness of one gulkani that is again a case from kamuni sindil balaji what's the state of uh I think that is 2024 3C page 51 20 23 25 5 AC I'm sorry 24 3 AC 51 So this reference has not been answered yet. But now in order to overcome that difficulty which was imposed by Anupam Gulkari and by having regard to the doubt raised by honorable justice sundas now in BNSS they have changed the law. What they say in 187 2 hours is that such master thing for a term not exceeding 15 days right same language not exceeding 15 days as perki during the initial period of 15 days only. Now clarification you see not exceeding 15 days in whole or in part or in part at any time during the initial period of 40 days or 60 days out of the detention period of 60 days or 90 days as the case may be. So in cases where the offense is punishable for unit term less than 10 years within 40 days from the day of arrest police custody can be asked any number of times for 40 days now as per this BNS any number of times they can ask today they can ask for 2 days up to few days they can ask for another five days like that [clears throat] I'll see a code it should not exceed 15 days so this is in tune with the view expressed as a doubt by honorable justice. Now in cases where the maximum punishment detention can be for 90 days, same 15 days period of custody to police or to the agency but but it should be within your total period of 60 days. 60 days which means from the day of first day of arrest and production within 16 days thereafter any number of times the police [clears throat] custody can be as far it can be given. Now this is a very drastic change made in the matter of police custody or custody in the hands of any agency. Now this provision I understand [clears throat] is now being misunderstood in certain quarters. What they say is when you apply for bail some of the magistrate take the view no they can ask for custody police custody for 40 days during the period of 40 days or 60 days before which I won't grant what is said because he is required for the for this purpose for interrogation etc by the is they can make any time any day tomorrow they can make day after tomorrow they can make any any day they can make expecting that I won't grant so I would say that this is an utter misconception of law this is not the correct understanding of law gives power to the police to take custody because it it is a detention why he is taken he taken for the purpose of interrogation. Now does it mean that such a kind of interrogation can be made only if the person is in custody? No. Even after a person has come out on bail, he can issue summons to him to appear under section 161 of the world and correspond new provisions to appear. He can interrogate any time. It does not mean that only in custody an accused can be interrogated. Therefore, if anyone is having this view that for 40 days or 60 days as the case may be, bail cannot be granted because of this provision. I would say that this is your wrong provision. So brothers, my friend Mr. Ra has indicated to me that my time is over. >> [laughter] >> So therefore I want to conclude. I think that if not I have dealt with the subject very deep. I have given a very short introduction to you. It may appear as a very simple subject. You would have heard of that this arrest. Every day we are hear hearing in court [clears throat] but therefore we may have a superficial impression in our mind that it is an ordinary subject very simple. No it is a very very serious subject because it concerns the liberty of an individual. Liberty of individual is so susant. It is given by God Almighty. We cannot deprive no agency can deprive the same without following the procedure established in law which is mandatory. Therefore, please focus on these things. And regarding the default bail, I in fact I wanted to deal with the uh default bail also. But the time is up. Our camera there. >> Yeah. 5 minutes. Yes. Regarding default bail, quickly I will say one thing. I told you about this 187 167 and all. So in the matter of default bail, is there any development of law today? from the honorable Supreme Court. That is my I I want to take you for another 15 minutes. You take it quickly that on completion of the investigation if char sheet is filed then he is not entitled for default bail. Right? Suppose on the 90th day charge sheet is filed [clears throat] right. It is returned on the same day. On the next day, on the 91st day, the accused offers bail whether he is entitled for default bail. Yes, this honorable court says that if as on the date been the right is exercised by the accused for default bail, the char sheet must be available on the table of the court. If it has already been returned, then there is no char sheet before the court. They accuse the entity for default B. Number one. Number two, two today application is filed. The application is posted after 2 three days for hearing. In the meanwhile, charge sheet is laid. So as on the date application is concerned char sheet is on the table of the court. Can you say [clears throat] yes today char sheet is there and therefore he is not ready for bail? No. The concept is this. It says the right occurs on the on the date when this period expires 90 days or 60 days. It expire the right occurs but he has to exercise the right immediately. So if he once tells the court yes I want to go out on uh this default bail he has exercised his right then thereafter it cannot be defeated by filing any charit subsequently or resubmitting the char sheet subsequently char sheet is returned today I move for bail I exercise excise my right now tomorrow it is represented sheet is court says no no no it represented therefore I would know as on the date when I exercise my right when I ask for default bail the charit should not be there on the file either come the charites should not have been filed or it should have been returned it's even for bail one more thing is that is that apal versus state of Rajasthan 20194 ACC 59 but mah moanal is the very celebrated case moan Acharia of the state of Masha 205 ACC 453. Now there is another concept known as incomplete char sheet. Incomplete charit in order to defeat the [clears throat] right to come out on bail on defund what they do is that they file one charge sheet. They send one report saying that this is the charge sheet and continue with the investigation. Right? This is known as incomplete charge sheet. When an incomplete charge sheet is filed, whether the accused is still entity for default bail. Yes, he is. It is my view. That was the view taken by the this court in Chabaria versus Union of India 2024C page 116. This judgment was questioned by way of review. It came up before the bench of honorable justice ka the I'm sorry the honorable chief justice then that is CBI versus revision petition criminal number 124 of review petition criminal number 124 of 2025 by one line order his slid dismissed to the review. Therefore, this is the law today holding the appeal. If you file an incomplete charge sheet, then as per justice burari, it is it does not satisfy the requirement of section 1732 and therefore this cannot deprive the accus from coming out on this judgment. Now one more development in this matter is when this judgment was delivered by the two jet bench a mention was made before the then honorable chief justice. So an order was passed saying that this judgment shall not be followed by any court. This judgment that chabara shall not be followed. So this matter one one matter two matter there are so many matters which were club similar questions. Now finally man Singh Talvar that is SLP criminal number 5724 of 2023 this is pending in this honorable Jesse Piala has has recorded the reasons and he has narrated the events and finally he has said that this question needs to examined. Therefore, the matter all these matters have been clubbed and the matter is now pending before a three bench. So, this is to be answered. On one side, the three jet bench is examining. On other side, the review file was dismissed. Therefore today in my view the judgment of Chabara alone holds appeal until and unless it is reversed by the Honda Supreme Court in this >> nonping case. So this is the law today prevailing is a very great subject ready for bail is a very great subject. So time is out today. I will not find time today. uh so therefore with this I want to control and you are all great lawyers of the Supreme Court so I can only kind of your mind ready for you to work out further on that and develop the law further and improve the law further see and to take the law and the much of law is in your hands with this I want to conclude thank you so much SIR [applause] thank you very much sir very nicely explained uh detention and remedies etc. It's up to date. Every state is [clears throat] facing this problem. Citizens you have chosen excellent topic and excellently you tell us sir particularly dhra case you refer and nephro case and your own judgment I open case. Wonderful. These are all very nef. Oh excellent sir. Now I request a mean Rahul Aarwal give you amen of thanks please Rahul on behalf of everyone present it is my proud privilege to propose the vote of thanks for today's enriching Friday group meeting we are deeply honored to have have had [clears throat] with us Sri S Nagamatu senior advocate who delivered a most illuminating and insightful session on the topic health and detention remedies sir's exposition was not only academically enriching but also immensely practical guided guiding us through the news remedies available to safeguard personal liberty an area that lies at the very heart of the criminal experience. His clarity of thought, depth of experience and amply to simplify complex legal principles have greatly benefit all of us. It is worth placing on record that on numerous occasions sir has graciously guided this forum on several intricate and complex issues in criminal law. His continued me mentorship has been a constant source of learning and inspiration for the entire group and we remain profoundly grateful for his unwavering support and wisdom. I would also like to extend our special and heartful thanks to Sheshur the admin and organizer of the Friday group whose selfless and dedicated service has been the backbone of this platform. His tireless efforts, meticulous coordination and sincere commitment have enabled the legal fraternity to come together week after week for meaningful academic exchange and professional growth. Such devotion truly deserves our highest appreciation. I further thanks all the participants and members who have actively engaged in today's session and making each and every meeting of the Friday group a grand success. Thank you Rahul. [applause] Uh again once again those who are not signed