CODE OF CRIMINAL PROCEDURE, 1973 Section 57 - Person arrested not to be detained more than twenty-four hours Comments 1.

Legislative history.- Section 57 is verbatim reproduction of section 61 of the Code of 1898. 2. Object of provision.- The object of these provisions of law is to see that a person arrested by the 1 police is brought before a Magistrate with the least possible delay, in order to ensure that the arrest 2 and detention of the accused person are prima facie justified and to enable the latter to judge if such person has to be further kept in custody and also to enable such person to make any representation if he may wish to make in the matter. By these provisions, it is also intended to prevent the possible abuse by the police of their powers in trying to make discoveries of crime by means of duress, terror, 3 and wrongful confinement. The provisions ofsection 57 provide for the limitations on the power of police to arrest and detain beyond the stipulated period and they indicate that the police has been 4 given the least powers to detain the accused without a proper authority in that behalf. This provision helps the Magistrate to keep a check over police investigation and it is necessary that the Magistrates should enforce this requirement and come down heavily when they find that it has 5 been disobeyed. 3. Detention in general (i) Detention, custody or imprisonment-What constitutes?- The detaining of a person in a particular place or compelling him to go in a particular direction by force of an exterior will, overpowering or suppressing, in anyway his own voluntary action, is an imprisonment on the part of 6 him who exercises that exterior will. When the accused were unable to leave the thana for their 7 homes they were held to have been kept in custody, although there was no special guard over them. 'Police custody' does not necessarily mean custody after formal arrest. It also includes 'some form of police surveillance and restriction on the movement of the person concerned by the police'. The word 'custody' does not necessarily mean detention or confinement. A person is in custody as soon as he 8 comes into the hands of police. (ii) Approver-Detention of.- There is no difference as regards the nature of the custody in which he is to be detained, between an approver and an accused. During an enquiry or trial, an approver must be detained in judicial custody or in prison. There is no warrant in law or legal authority for the 9 detention of the approvers in police custody. (iii) Place of detention.- See 7 WR (Cri) 3. 4. Applicability and scope of provision (i) Applicable to arrests without warrant.- S.R. Das, J., delivering the judgment of the Supreme 10 Court in the case of State of Punjab v. Ajaib Singh, observed that "there can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provision that the arrested persons should, within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the 11 person making the arrest and the regularity of theprocedure adopted by him." (ii) Applicable to arrests on warrant.- Article 22(2) of the Constitution of India which is in similar terms, gives in effect not only constitutional protection to the provision contained in section 57 but further liberalises it by making the provision applicable in those cases also where the arrest is made in 12 pursuance of a warrant. (iii) Detention for a longer period than under all circumstances reasonable not permissible.Section 57 does not give power to police officer to detain even for an hour except upon some 13 reasonable ground. He cannot detain up to twenty-four hours without warrant. This section does not empower a police officer to keep an arrested person in custody a minute longer than is necessary for the purposes of the investigation. It does not give him an absolute right to keep a person in custody till 24 hours and longer for other reasons like the inability of the admission of the accused in 14 jail.

Section 57 is concerned solely with the question of the period of detention by the police of a person 15 arrested without warrant. This section does not deal with the question of the grant of bail. The victim was brought to outpost at 9 a.m. after being arrested and was sent out therefrom for medical treatment at 8.30 a.m. next day and twenty four hours had not by then elapsed. It was held that there was no contravention of mandate of section 57 and accused police personnel were entitled to 16 benefit of doubt. (iv) Detention not to exceed 24 hours exclusive of time necessary for journey (a) Limit of 24 hours-Scope of.- The twenty-four hours prescribed under section 57 is the outermost limit beyond which a person cannot be detained in police custody. It is certainly not an authorisation for the police to detain him for twenty-four hours in their custody. It is only in a case where a police officer considers that the investigation can be completed within the period of twenty-four hours fixed 17 by section 57 that such detention for twenty-four hours is permitted. (b) Computation of 24 hours-Exclusion of time necessary for journey.- The twenty-four hours of detention under the section are to be counted up to the time when the accused person leaves the police station on the way to the Magistrate. The time occupied on the journey to the Magistrate is not to be counted in the 24 hours, but it is the duty of the Magistrate to see that the time so occupied is 18 reasonable with reference to the distance to be traversed and other local considerations. If a person is arrested at 11.30 p.m. on a date and is sent to the Magistrate at 8 p.m. on the next date, but the police officer is directed to produce the accused before another Magistrate, the Magistrate concerned being on leave, the detention of the accused for more than 24 hours for being taken to another 19 Magistrate will be lawful custody. Where an arrested accused is produced before court after expiry of 24 hours for the reason that the concerned officials immediately proceeded to other place in connection with communal rioting for which the officials tender unconditional apology, the officials cannot be considered to be lacking 20 in bona fides. (c) Liability of police officer detaining prisoners longer than 24 hours.- There must be a continuous detention of twenty-four hours to bring the parties within the scope of the section. The law cannot mean that the number of hours an accused person is detained at a thana is to be added up 21 irrespective of circumstances. Where a sub-inspector of police is charged with having detained prisoners for more than 24 hours, it is not necessary for the prosecution to prove that he detained them with a guilty knowledge, as the section imperatively lays down that accused persons are on no 22 account to be detained beyond that time except under special order of the Magistrate. 5. Absence of special order of Magistrate under section 167 (i) Magistrate and Magistrate's court.- In article 22 of the Constitution as well as in section 51, Cr.P.C., the terms "Magistrate" and "court of a Magistrate" are interchangeable ones and mean the 23 same thing. (ii) Order under section 167.- Section 167 of the Code also authorised detention in police custody of the arrested person for a period not exceeding fifteen days. The Magistrate authorising such detention shall record his reasons for so doing. By these provisions it is intended to ensure expeditious investigation into cases not lasting more than 90 days where they relate to grave offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more and 24 up to 60 days where they relate to other offences. (iii) Remand of accused to police custody when allowable.- The period for which a Magistrate can authorise under section 167, the detention of an accused person in police custody is 15 days on 25 the whole. Circumstances may exist in which a special order under section 167 may properly be passed. For instance, if, in a case the police were enquiring into, the suspected or confessing person had voluntarily offered to conduct the police to a place where the stolen property would be found and such offer could not be carried into execution within the limited period of 24 hours, the power which the abovementioned section confers on a Magistrate could be lawfully exercised. But to return accused persons to the police, so that they might be forced to give a clue to an offence, is to abuse 26 the provisions of thissection. The law views with disfavour detention in the custody of the police and even in the case of an accused person, such detention can be allowed only in the special cases

mentioned in section 167 and for reasons to be stated in writing, and not as a matter of course whenever it may be asked for by an investigating police officer. Those provisions of law should be 27 strictly complied with by subordinate courts. There is no provision in the Code which lays down that for purposes of investigation, the detention of the accused in police custody is essential. Sections 60, 61 and 167 are inapplicable to the case of a convicted criminal prisoner and the provisions of the Prisons Act, 1894 and of the Prisoners Act, 1900, do not empower a Magistrate to transfer a convicted criminal prisoner from the custody of the 28 prison to that of the police for purposes of investigation. (iv) No authorisation in bailable offences.- When a person is arrested by the police for a bailable offence, he has to be produced before the Magistrate having jurisdiction in the case subject to the provisions contained as to bail. Thus, before he is produced before a Magistrate, if the accused is prepared to give bail, the police officer concerned has to release him on bail. If at the stage while the accused is in police custody he is not prepared to give bail he has to be produced before the Magistrate within 24 hours as stated in section 57 of the Code. When he is produced before a Magistrate and if the accused is prepared to give bail in a bailable offence, he shall be released on bail. The Magistrate has no discretion in the matter and it would not be open to the Magistrate to authorise 29 his detention in the police custody for the purpose of the investigation. (v) Computation of period of detention under section 167.- Under section 57 of the Code a police officer can detain an accused for a period of twenty-four hours in the maximum, provided it is reasonable, as well as for the time which may be necessary for the journey from the place of arrest to the Magistrate's court. This journey may in some cases, take a long time depending upon the circumstance. All this period of detention does not need any authorisation by the Magistrate. It is only when the period for which a police officer can detain under section 57 of the Code expires that he needs authorisation of a Magistrate for further detention. The total authorisation which can be made 30 for police custody by the Magistrate is not to exceed 15 days. However, the power of a Magistrate to grant police custody for 15 days is unaffected by the period of 31 detention in police custody under section 57. The words "in the whole" in section 167(2) have been used with reference to the context that the Magistrate may "from time to time" authorise the detention of the accused in police custody and they have no reference to the period of detention during which a police officer can detain the accused under section 57 of the Code. Similarly when the proviso (a) to sub-section (2) refers to "a total period of sixty days" it relates to the period of detention authorised by the Magistrate in police custody as well as the custody other than police custody. While computing the total period of 60 days referred to in proviso (a) to sub-section (2) 32 of section 167, the period of detention under section 57 of the Code has to be excluded. (vi) Procedure at expiration of 15 days' detention.- At the expiration of the maximum period of 15 days' detention of an accused person and the additional time necessary to bring him before a Magistrate allowed under sections 57 and 167, an accused must either be released by the police under section 169, security for his appearance, if and when required being taken or the Magistrate empowered in that behalf must either take cognizance, if he has before him a police report, which he thinks, makes out a prima facie case, or he must release him. After a Magistrate has taken cognizance 33 of a case, his powers of postponement and adjournment are regulated by section 309 of the Code. 6. Effect of wrong mention of time of arrest.- Where the evidence is reliable to connect the 34 accused with the offence, mere mention of wrong time of arrest is immaterial. 7. Effect of article 22(2) of the Constitution.- Clause (2) of article 22 provides the most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply its mind to his case. The Cr.P.C. contains analogous provisions but our Constitution-makers were anxious to make these safeguards an integral part of fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of article 15A (as numbered in the Draft Bill of the Constitution) which corresponded to present article 22 : "Article 15A merely lifts from the provisions of the Cr.P.C. two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these

two provisions contained in clause (1) and clause (2) are already to be found in the Cr.P.C. and thereby probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change, because what we are doing by the introduction of article 15A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate these two provisions, because they are now introduced in our Constitution 35 itself." 8. Effect of detention beyond 24 hours.- Production after 24 hours of the arrest does not render 36 the custody illegal. 9. Legal aid to person arrested.- The constitutional obligation to provide free legal service to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before a Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. Therefore, the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time. The Magistrate or the Sessions Judge before whom the accused appears must, as laid down by the Supreme Court in Khatri, be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free 37 legal services at the cost of the State. ________________________________________________________