 Consequent upon the registration of an FIR for a cognizable offense, punishable under section 326 IPC, the accused is arrested by a police and is produced before the nearest judicial magistrate who is not having the jurisdiction that is not a jurisdiction of magistrate with the demand report, copy of the entries, the case diaries, etc. seeking judicial custody of the arrestee. The issue which normally arises is that if the magistrate is convinced to the effect that the arrest was illegal due to the non-compliance of the statutory and judicial requirements of an arrest, can the magistrate discharge the accused and if so, under what provisions of law? Yes. In this question, we are examining seven separate situations, seven separate situations. First is the situation is, of course, in all the cases the accused who has been arrested by the police has been produced before the nearest magistrate as mandated by section 167-1 as well as article 22 of the Constitution of India. It's a constitutional requirement should be produced before the nearest magistrate. Now he has been produced before the nearest magistrate who is unfortunately not the jurisdictional magistrate because section 167 CRPC says, 167 clause 1, CRPC says whether he has jurisdiction or not, he has to be produced before the nearest magistrate. So in such a case, in one case, in our case, he has been produced before the nearest magistrate who does not have the jurisdiction to try the case or the case is tribal by a court of session. He has no jurisdiction to commit the case to the court of session. Then if the magistrate is convinced that the arrest of the accused was illegal due to non-compliance with the statutory or judicial requirements of arrest, what can he do? Formerly, the magistrate used to be very helpless and they used to remain the accused, not understanding the fact that the arrest was illegal. But now after the epoch-making decision of the Supreme Court, in Arnesh Kumar v. State of Bihar, AIR 2014, Supreme Court 2756 by Justice Seke Prasad, the magistrate is not only entitled to what is bound to examine the validity or legality of the arrest and if the arrest is bound to be illegal due to non-compliance with the statutory or judicial requirements, then the magistrate has got the jurisdiction to discharge the accused, not understanding the fact that he doesn't have the power to try the case. And that discharge can be by request to section 59 of the Code of Crime Procedure. This we have seen situation number one, where the arrest is illegal. Then we pass on to situation number, second situation, that is B. Consequent upon the registration of the FIR for a cognitive offence punishable under section 326, the accused is arrested by the police and produced near the nearest judicial magistrate, who is not the jurisdiction magistrate with the remand report, copy of the entries, the case diaries seeking judicial custody of the arrestee. Now in this particular case, the magistrate is of the view that even though the arrest is not illegal and it is a case where the arrestee should be granted bail, whether that magistrate will have the power to grant him the bail. Now we have noted that the production of the accused before the magistrate, before the magistrate under section 167, the article 22 of the Constitution of India was not before the jurisdiction magistrate. He doesn't have jurisdiction to try things. But he feels that the accused should be granted bail. He does not have the jurisdiction to try the case. But can he not grant the bail? Now there is a popular misconception against among the bench and the bar that even if the magistrate does not have jurisdiction to try the case, if he has been produced before the nearest magistrate and if he is the non-jurisdictional nearest magistrate, he can either remand or grant bail. No, he can remand the accused to judicial or police custody under section 167-2 CRPC. But if the magistrate feels that he should be granted bail, bail can be granted only by the jurisdiction and magistrate. He has to forward the accused to the jurisdiction magistrate. You will get the answer in section 167-2 CRPC which I will read for your benefit. The magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention, that is remand, authorize the detention of the accused in such custody as such magistrate thinks it for a term not exceeding 15 days in the whole. And if he has no jurisdiction to try the case or committed for trial and considers further detention unnecessary, he may order the accused to be forwarded to the magistrate having such jurisdiction. The moment he feels that his man need not be remanded to judicial custody or police custody, he feels that further detention is not necessary because he has, he was already in police custody when he was produced before the magistrate. The magistrate feels that further detention is unnecessary. Then the magistrate has to forward him to the magistrate having jurisdiction to try the case or to commit the case for trial before a court of session. So the jurisdiction magistrate alone can grant bail. He, the non jurisdiction magistrate cannot grant bail. He can only make the first remand under 167 to for 15 days maximum. Thereafter even the second remand, remand extension, even that can be done only by the jurisdiction magistrate. Yes. Now we come to a situation C. You need only read situation C. Sir, as I earlier said that here is a case where the FIR was lodged under cognitive defense under section 326 and the accused is arrested by the police and he's produced before magistrate who otherwise is not having the jurisdiction magistrate. But he has the remand report copies of the entries and seeking just judicial custody. In this particular case, can the magistrate as we have already said that he's not having the jurisdiction of the view that even though the arrest is illegal and it is a fit case to grant judicial custody as paid for in the remand application, can he order detention of the accused in jail custody? Yes. In fact that alone he can do the only order which he can pass regarding custody is detention in judicial or police custody. In police custody only for the first 15 days thereafter it can only be judicial custody in jail in the prison. Therefore this is only function which a magistrate before whom an arrested person has been produced and if the magistrate is happens to be a non-jurisdict magistrate, this is the only thing he can grant. Supposing the protection of the accused nearest magistrate happens to be the jurisdiction magistrate also, then that magistrate has the power not only to remand him, not only to order detention in police or judicial custody. He is also having the power to grant bail whereas non-jurisdict magistrate does not have the power to grant bail. Here he can grant the first remand he can grant maximum up to 15 days. Thereafter remand extension will have to be done by the jurisdiction magistrate. Yes. Now we come to situation D. In a case where there's an FIR registered under the Cognitable Offence and he is arrested by the police and that judicial magistrate is not actually the jurisdiction magistrate but he is presented with the remand report, copy of the entries, the case diaries, judicial custody of the arrestee and once the magistrate has already ordered the arrest for 15 days, can he entertain an application for bail on the second day of remand? No. See, he is not the jurisdiction magistrate. As I told you, the only order he can pass is an order for custody, remand him for judicial or police custody. Now he has already remanded him for judicial custody for 15 days. On the second day, an application for bail is filed before him. As I already told you, he cannot entertain a bail application. The moment he feels that, he can dismiss the bail application. No problem. But if he feels that further detention of the accused is unnecessary, then as mandated by section 167 clause 2, he has to forward the accused to the jurisdiction magistrate who alone can entertain and grant the bail application. Yes. Now we pass on to the situation E, fifth situation. Sir, it is a case where an FIR is lost and it is a cognizable offense. But the accused is arrested by the police and he is presented before a magistrate who does not have the jurisdiction for the said case. But he is presented with the remand report, copies of the entries, the case diaries and is convinced that the arrest of the accused and is seeking the judicial custody. Is it permissible for the non-jurisdictional magistrate who is having no powers to try the case or committed for trial to order detention of the accused in judicial custody for another 15 days after the first spell of detention and police or judicial custody is over? He is a non-jurisdictional magistrate who happens to be the nearest magistrate. Nearest magistrate means nearest from the point of arrest where the accused has been arrested. If the nearest magistrate, there is a constitutional right, fundamental right of the accused to be produced before the nearest magistrate because the police may misuse their power. Therefore, he should be produced before the nearest magistrate within 24 hours. So, here the nearest magistrate happened to be non-jurisdictional magistrate. He has already granted the police judicial custody for 15 days in exercise of his power under section 167-2 CRPC. The very same provision says that if he finds that he has no jurisdiction to try the case or commit the case for trial, then he has to forward the accused to the magistrate having jurisdiction. So, the nearest non-jurisdictional magistrate can only pass the first remand, maximum up to 15 days. Thereafter, even the second remand or remand extension can be granted only by the jurisdiction magistrate. Yes, now we come to situation F. Sir, an FIR is lost and the offence, which is a non-cognizable, it is a cognizable offence. The accused is arrested by the police and is presented before the magistrate who is the nearest magistrate, but he does not have the jurisdiction. With the remand report, copy of the entries, the case diaries, etc., and seeks the judicial custody. Is it permissible for the non-jurisdictional magistrate to order police custody after the first spell of detention in police or judicial custody for 15 days? So, if he has ordered police custody for the first 15 days, the question is whether he can extend the police custody beyond 15 days? Or if the first remand was for judicial custody, can he grant police custody after the first 15 days of judicial custody? Now, you may find section 167-2 contains a proviso. Clause A of the proviso reads as follows. Provided that the magistrate may authorize the detention of the accused person, otherwise, than in the custody of the police, beyond the period of 15 days, if he satisfied that adequate grounds exist for doing so. So, otherwise, than in custody of the police. So, police custody can be granted only for the first 15 days. If during the first 15 days, sorry, no police custody has been granted, then thereafter the magistrate, whoever be, whether jurisdiction or non-jurisdictional magistrate, cannot grant police custody. He can only grant judicial custody in the prison. Therefore, the interpreting this proviso, the Justice Jay Chandra Reddy of speaking for the bench in CBI versus Anupam Jay Kulkarni, AIR 1992 Supreme Court 1768, held that police custody can be given only for the first 15 days. If he, if police custody is not given, whatever may be the reason, in the same case, it should be in the same case. In the same case, even a subsequently a graver open case disclosed in the same occurrence, even then, if police custody is not given during the first 15 days, court has no jurisdiction, magistrate has no jurisdiction to grant police custody. Thereafter, after the first 15 days, only judicial custody, that is custody in the prison alone can be granted. These are the first interpretation of the proviso, class A of the proviso to section 167 to CRPG. Then subsequently it was followed by the Supreme Court in many decisions. Next is Nareesh Kumar Yadav versus Ravindra Kumar, AIR 2008 Supreme Court 218 by Dr. Arijit Pasahit. Again Satyajit Balubhai Deshaay versus Tate of Gujarat, 2014 SCC 434, 2014 Volume 14 SCC 434, Gyan Sudha Mishra. Supreme Court speaking through Justice Gyan Sudha Mishra. This is the interpretation given to the, to class A of the first proviso to section 167 to CRPG. So, police custody, if you want to give first 15 days, thereafter no police custody. So, if by mistake or by oversight, first 15 days was judicial custody, then no police custody, no police custody at all can be granted with regard to that occurrence, that occurrence. Of course, if there is some other case against the accused, he can be remanded and police custody can be given for the first 15 days there also. Yes, now we come to the last situation, G. Yeah, the issue which normally rises is that let's assume there is a cognitive offense and the police presents the accused before a judicial magistrate, but he does not have the jurisdiction, that is to say he's not the jurisdiction magistrate. With the remand report, copy of the entries in the case diaries seeking judicial custody of the arrest. In that particular case, normal question which arises is, it is permissible for the jurisdiction magistrate to order police custody for 15 days after the first spell of detention, either in police or judicial custody for 15 days. Because they doubt may arise that even though the non-jurisdictional magistrate cannot grant bail and jurisdiction magistrate alone can grant bail. What about the power of the jurisdiction magistrate to grant police custody after the first 15 days of remand? There also the Supreme Court stuck to the view that 167 clause A of section of the proviso to section 167-2 is very, is couched in a very mandatory terms. Once police custody is not granted during the first 15 days, it cannot be granted at all in that case. Therefore, whether it is jurisdiction magistrate or non-jurisdictional magistrate, police custody can be given only during the first 15 days, thereafter only judicial custody. If by mistake or oversight or ignorance, first 15 days was remand to judicial custody, then police custody cannot be granted at all in that case. This seems to be the interpretation given to clause A. Of course, clause A of the proviso does not admit of any doubt, very clearly worded. Therefore, this is my take on this. Thank you.