Role of Chief Judicial Magistrate

1. Role of Chief Judicial Magistrate Investigation and Recording of Confessional Statement Arvind Kumar Sinha , Retired District and Sessions Judge 28-July-2012

2. Contents

3. Limitations on wide investigatory powers Various judicial decisions of the Supreme Court have given wide interpretation to fundamental right to personal liberty • S.56 of the Cr.P.C. requires the arresting officer to send arrestee without necessary delay before a Magistrate • S.57 puts a prohibition on the detention of the arrestee beyond a period of 24 hrs. • S.167 empowers Magistrate to order the detention for a period not exceeding 15 days S.436 and S.437 provides the law relating to bailable and non bailable offence respectively, It is important that judicial authorities view bail right under presumption of innocence of the accused • S.436 A recognizes the right of every under trial to be released on bond, with or without sureties, only if he has remained under detention for a period that is half the maximum period for which the accused could be sentenced Several constitutional and statutory measures are designed to constantly monitor the working of the police as well as safeguard the interest of the accused S.59 lays down: “No person who has been arrested by police shall be discharged, except on his own bond, or on bail, or under the special order of Magistrate” • Under S.169 the law confers powers even on the officer in-charge of the police station, if after investigation it is found that the evidence against the accused is not sufficient and he is in custody, such person may be released on his executing of the bond with or without sureties • Adirection should be given to appear before concerned Magistrate who is empowered to take cognizance on the police report or to commit the case Safeguard through Remand Proceedings Safeguard through Bail Proceedings Safeguard through Discharge Proceedings

4. Safeguard through Remand Proceedings

5. Prescribed acts Section While authorizing detention of an accused in custody , the court shall: (1/2) Art. 22(2) of the Const. S57 Cr.P.C. S.167 (1) S.167 (2) Exp II S. 167 (3) S.167(2)

6. Prescribed acts Section While authorizing detention of an accused in custody , the court shall: (2/2) S. 167(4) S.167 (5) Cr. P.C.

7. Prohibited acts Section While conducting remand proceedings, the judicial authorities shall not: S.167(2) Cr. P.C. S.167 (1) Prov. (a) S.167 (2) Prov.(c) S. 167 (2) Prov. (c)

8. Safeguard through Bail Proceedings

9. Prescribed acts Section While granting bail for a bailable offence the judicial authorities shall: S.436(1) Cr.P.C S.436(1) Prov. S.436(1)prov.

10. Prohibited acts Section While considering bail for a non-bailable offence , the court shall not: S.437 (i) ProvCr.P.C S.437 (1) (i) S.437 (1) (ii) S.437

11. Prescribed acts Section While considering bail for a non-bailable offence , the court shall: S.437 (2) S.437 (6)

12. Prescribed acts Section Half of the period of the punishment accused be released on bail S.436 (A)

13. Safeguard through Discharge Proceedings

14. Prescribed acts Section The court, while considering the question of framing charges, shall: S.227 Cr.P.C S.239 Cr.P.C S.245 Cr.P.C S.258 Cr.P.C

15. Prescribed acts Section While receiving a charge sheet the court shall: S.173 (1) Cr.P.C S.173 (2) S.173 (5) S.173 (6)

16. Role of Police

17. Prohibited acts Section While effecting the arrest the police is prohibited to do following acts Ss.41 Cr.P.C S.151 S.1511 S.49 and Art.21 of the Constitution Art. 5 and Art. 102 1 Citizens of Democracy vs State of Assam (1995) 3 SCC 743 2 Art.5 of the Uni. Decl. of the Human. Rt., 1948 & Art. 10 of the Int. Conv. of Civil & Political Rights, 1966

18. Prescribed acts Section While effecting the arrest the police shall act on following lines (1/2) Article 21 Article 22 (1)S.50 Cr.P.C S. 50 A (1) Cr.P.C. S.57 Cr.P.C S.50 (2)

19. Prescribed acts Section While effecting the arrest the police shall act on following lines (2/2) S.50- A (1) S.50 A (3) & S 50 (A) (4) S.53 S.46 (4).

20. Prescribed acts Section While effecting the interrogation of the accused, the police shall act on following lines • Art 20 (3) of the Const. Art 22 (1) S.54 Cr PC.

21. Role of Investigating Authorities

22. Prohibited acts Section While effecting the interrogation of the witness, the police shall not: S.160(1) Cr. P.C. Art 20 (3) of the Const S.161 (2) S.163 S.162(1)

23. Prescribed acts Section While performing functions relating to search & seizure, the police shall: S.160(1) Prov. Cr. P.C. S.91 S.93 Art. 21 of the Const.

24. Prescribed acts Section While conducting Test Identification Parade, the investigating officer shall: S.54A Cr. PC

25. Prescribed acts Section While recording confessions under S.164 , the Judicial authorities shall: S.164 Cr. PC S.164 (1) Prov. S.164 (1)

26. Form No 2(M) to be used while recording confessions under S.164

27. Form No 2(M) to be used while recording confessions under S.164 • Note – Below are the specimen question: • Do you know that I am not an officer of the police but a Magistrate? • Do you know that you are not bound to make a confession? • Do you know that if you make a confession it may be used in evidence against you? • Do you know that you should not say anything because others have told you to say it and that you are at liberty to say whatever you really desire to say? • What are the reasons which have weighed with you deciding to make a confession?

28. Prescribed acts Section In recording confessions after the investigation stage, the judicial authority shall: S.281 Cr. PC

29. Appendix

30. Leading court rulings on the relevant subject

31. Contact Details Arvind Kumar Sinha Mobile: +91-9431413024 Email: aksbgp@gmail.com