# paragraph (b) of proviso to sub-section (2) of Section 167 of Code of Criminal

- **Citation:** C.L. No. 97/VIIb-16
- **Court:** Allahabad High Court
- **Decided:** 1992-11-23
- **Case number:** C.L. No. 97/VIIb-16
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paragraph-b-of-proviso-to-sub-section-2-of-section-167-of-code-of-criminal-163316
- **Pages:** 2

## Text

224

The Presiding Officers of the criminal courts should carefully examine and
scrutinize warrants and remand papers before putting their signatures on them, so that the
chances of bail applications being allowed solely on the ground of technical flaw, are
eliminated.
C.L. No. 97/VIIb-16 dated 16th August, 1979

The Court has noticed that the Magistrates have authorized detention of the
accused persons in jail custody without the accused being produced before them. Under
paragraph (b) of proviso to sub-section (2) of Section 167 of Code of Criminal
Procedure, 1973 no such detention order can be passed by a Magistrate unless the
accused is produced before him. All the Judicial Magistrates should act strictly in
accordance with the said provision of law.
C.L. No. 51/VIIb-47 dated 17th August, 1984

The court has noticed that when an accused is produced before the court for
remand, normally the police papers are not available with the court, either because they
are sent late or they are withheld by court-moharrir. In the absence of these papers the
bail application cannot be entertained. At times this delay in receipt of papers and
presence of accused brought for remand, results in non-consideration of application for
bail, and not unoften leads to confrontation between the lawyers and the officers.

Attention of all the Presiding Officers is invited towards the provisions of section
167 and 172 of the Code of Criminal Procedure, 1973, and they are directed to see that in
future no such violation of the law is permitted. The Presiding Officers should act in
accordance with the provisions contained in section 167 of the Code, while remanding
the accused in custody brought before them for remand.
C.L. No. 114/VIIb-47 Admn.(G) dated 7th October, 1978

The Court has noticed that very often warrants of intermediate custody and
release orders sent by the subordinate, courts do not contain all the necessary details.
They generally do not contain case number, name of Police Station, father's name, age
and residential address of the prisoner. They also do not contain description of offences,
crime number and section of Indian penal Code and other Acts and the date of conviction.

All the Presiding Officers are directed to clearly fill in all the aforesaid details in
the warrants of intermediate custody and release orders issued by them.
C.L. No. 54/VIIIa-63 dated 30th April, 1980

As soon as the charge-sheet is filed, the Presiding Officers of criminal courts
under your control should invariably draw a red line below the last remand entry in the
warrant of custody (Form No. 47, Part VIII, of Appendix ̳B' of the General Rules
(Criminal) 1957 and mention the date of submission of charge-sheet below the red line
on the left side.
C.L. No. 9/VIIb-16 dated 22nd February, 1989
The Court has noticed that warrants for intermediate custody on remand,
prescribed as Form No. 47 under Rule 157 of the General Rules (Criminal), 1957 for the
subordinate criminal courts, are not being used properly.
225

All concerned Presiding Officers are directed to comply strictly with the contents
of the Prescribed Form No. 47. The Form should be used in its entirety, and it should not
be split into two for use in respect of different prisoners.
To observe the mandate in Section 309(2) Code of Criminal Procedure, 1973.
C.L. No. 58/VIIIa-50/Admn. 'G' dated November 23, 1992
I am directed to enclose herewith a copy of the Order dated 28.9.1992 of this
High Court passed in Habeas Corpus Writ Petition No.24268 of 1991 inviting the
attention preferably to paragraph nos. 67 and 68 of the order* dated 28.8.1992 and to
request you kindly to circulate the court's order to the concerned courts and they shall be
specifically told to scrupulously observe the mandate provided in Section 309(2) Cr.P.C.
and to ensure that remand is granted for a specific period coinciding with the adjourned
date of hearing, and either a printed form of warrant be used or in case it is not available,
the typed or cyclostyled copy be used in the exact reproduction of the same in both sides.
I am, therefore, to request you kindly to bring the contents of the letter in the notice
of all the concerned judicial officers for their information and strict compliance. Mohd.
Daud @ Mohd. Saleem v. Superintendent of District Jail Moradabad, 1993 All. LJ 430
(All) (DB).
Extracts of the Judgment
1.
A production warrant issued under S.267 does not constitute a detention order
authorising detention in prison of a person. The head note as well as the
phraseology of the said section indicates that the order envisaged therein is an
order to produce a person confined or detained in a prison before a criminal court
for answering to a charge or for the purpose of any proceedings against him. An
order under this section does not partake the character of a detention order by the
Court seeking production qua the charge of the proceedings pending before it.
2.
Section 309 of the Cr. P .C. does not envisage or permit remand to custody for an
indefinite period. The remand there under has to coincide with the duration of
adjournment and not beyond it.
3.
The Court is required to record its reasons for postponement or adjournment of
the trial, and not for remanding the accused. It is because a remand under Section
309, Cr .P .C. stands on a quite different footing than one under S.167 of the
Cr.P.C. where remand is sought pending investigation and the Magistrate or
Judge is required to apply its judicial mind to consider whether on the materials
collected, remand is necessary and justified.
4.
An invalid initial order of remand of custody can be rectified by subsequent
orders. The word "custody" in S.309 embraces both legal as well as illegal
custody.
5.
Sections 267 and 270 of the Cr .P .C. read together thus contain a clear legislative
mandate that when a prisoner already confined in a prison is produced before
another criminal court for answering to a charge of an offence and is detained in
or near such court for the purpose, on the court dispensing with his further