Section 309 CrPC

[Vaibhav Soni]

There has been a continuous debate on the interpretation of Section 309 CrPC as far as as “remand” of the accused is concerned as far as “custody” of accused u/s 167 of CrPC is concerned. Therefore, for a clear understanding on this issue, I require clarification on the following points:
1.When does the application of both the provisions come into play in any criminal proceeding/investigation?
2.What is the significance of Section 309 i.e. how it is practically utilized by court of law?
3.What kind of custody (i.e. Police Custody or Judicial Custody) is allowed by both these provisions?
4. Whether Sec 309 is the only provision which allows detention of the accused in either custody during the pendency of the trial before the criminal courts, apart from Sec 167 of CrPC.
5. How is the duration of 15 days at a time as provided in Sec 309 CrPC is to be calculated for an accused under custody?

[Dr. Ashok Dhamija]

Section 167 of the Criminal Procedure Code (Cr.P.C.) governs the custody of an accused person during the investigation of a case. On the other hand, provisions relating to custody of accused under Section 309(2) of Cr.P.C. come into play “…after taking cognizance of an offence, or commencement of trial…”. Thus, Section 309(2) regulates the power of the court to grant custody of the accused after filing of charge sheet and after taking of cognizance of the offence. Therefore, these powers operate in different domains.

If the accused is in custody and the case is required to be adjourned during the trial stage or after taking cognizance of the case (which implies filing of charge sheet, if it is on the basis of a police investigation), then for reasons to be recorded in writing, the Magistrate can remand the accused to further custody (not exceeding 15 days at a time) under Section 309(2) of Cr.P.C.

Under Section 309 Cr.P.C., only judicial custody is permissible, whereas under Section 167 both – police custody and judicial custody – are permissible subject to time limits mentioned therein.

Once the trial has begun, Section 167 cannot be used (except, when further investigation is permitted). Section 309 Cr.P.C. is a section dealing with custody during trial. In addition, after filing of charge sheet, Section 209 Cr.P.C. can also be used for remanding accused to custody by the Magistrate (wherever it is relevant) who commits the case to the Sessions court if the case is exclusively triable by a Sessions court.

To see how the period of 15 days is to be computed, let’s see an example. If the further custody of 15 days is granted on, say, 8^th of a month, then the 15 days’ period will expire on 23^rd of the month.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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