Section 167 of the Cr.P.C. has been subjected to a lot of interpretation over time due to the nature of the subject matter. The provision concerns remanding a person to custody by a court, when the police present said person before the court within 24 hours of an arrest. Nonetheless, two very interesting interpretive questions remain largely unexplored when you scan through Section 167 of the Cr.P.C. They are quite fascinating. I thought they merit some discussion.
Enter, the 'accused'
Our criminal law confers several rights upon an accused person. For instance, the accused has a constitutional right against self-incrimination [Article 20(3) of the Constitution]. But, nowhere do we have a definition of who is an 'accused'. The Supreme Court helped out by giving an explanation in 1954, when it held that one is an 'accused' when there is a formal accusation which may in the normal course result in prosecution [M.P. Sharma v Satish Chandra, AIR 1954 SC 300]. Later, though, it held that persons taken into custody and interrogated by customs officers are not 'accused' [Romesh Chandra Mehta v State of West Bengal, AIR 1970 SC 940]. The problems arising from this stand have been discussed here before. Suffice to say, that it remains unclear from the decisions who is an 'accused'. Which is why Section 167 assumes significance. This is the first time when the Cr.P.C. mentions an 'accused'. Section 167(1) says "whenever any person is arrested and detained in custody ... and there are grounds for believing that the accusation or information is well-founded ... shall at the same time forward the accused to such Magistrate" [Run a ctrl+f search to test me]. Before this, the Code speaks of arresting a person "accused of" a certain offence. Now, that person becomes the accused.
Lets try line-drawing. Before this, what has happened? Arrest, and some (not more than 24) hours in custody. One conclusion which emerges is that only after the police seek formal custody from court does one become an accused. The first 24 hours are not included because they are needed to determine whether the accusation is well-founded. We can perhaps say that the test in M.P. Sharma could be modified to define the accused as a person against whom a well-founded accusation, as opposed to an accusation, has been made. This also invites a problematic reading of Article 20(3) which would then exclude the protection from persons for that initial 24 hour period and incentivise under-reporting of arrests. Before you disregard the idea, remember that the Court has already sanctified this exclusion for periods longer than 24 hours where the detaining authority is not wearing khaki but a better fabric [i.e., its a customs officer and not police officer]. Keeping that important development aside for a moment, what is important here is the possibility to use Section 167 for providing a clear, consistent idea of who is an accused.
Interpreting The Proviso
The proviso to Section 167(2) creates 90 day and 60 day limits on detention in custody. 90 days where the offence is one punishable with death, imprisonment for life "or imprisonment for a term of not less than ten years". 60 days for "any other offence". Death and life imprisonment are clear enough, but how do we read "imprisonment for a term not less than ten years" in Proviso (a). Our drafting style for offences has been quite standard over time: there is always a maximum, there may be a minimum. The Proviso is based on the nature of offences, but no offence in the IPC is defined as having a punishment "not less than ten years". So why choose such perplexing language! The courts are left to make good of what they have. The Supreme Court has considered the proviso in detail twice to my knowledge; Rajeev Chaudhary v State [AIR 2001 SC 2369] and Bhupinder Singh v Jarnail Singh [(2006) 6 SCC 277]. Both decisions are problematic.
Rajeev Chaudhary required deciding whether Section 386 IPC fell in the 60 day or 90 day category. Section 386 is punishable up to ten years imprisonment. The Court held that in the Proviso "the expression not less than would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more." In Bhupinder Singh, the Court was faced with a resulting problem. Section 304-B IPC allowed a minimum imprisonment of seven years and a maximum of life. This meant imprisonment was not "for a clear period of 10 years or more". Justice Pasayat decided that custody could still be for 90 days by wisely noting that "merely because the minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence". The only way to arrive at this conclusion was to overrule the clear period test of Rajeev Chaudhary but this never happens.
I would therefore regard Bhupinder Singh as per incuriam, and address the position as it remains from Rajeev Chaudhary. The position is unacceptable. Not only does it re-write the text, but (a) plainly illogical and (ii) contrary to how we read the Cr.P.C. elsewhere. On logic, this reading potentially excludes offences such as Section 307 IPC and a host of other grave offences under special laws [NDPS Act, for instance] by this clear period test. Surely, that could not have been the legislative intention. On interpreting the Cr.P.C., turn to the Part-II of the Schedule to the Cr.P.C. [its right at the end] which explains how offences under laws other than IPC are normally tried. Offences punishable for 3 years form one category of cognizable and non-bailable, and those for less than 3 years form a separate one of non-cognizable and bailable. Non-IPC offences punishable up to 3 years have been consistently treated as cognizable and bailable (unless specified otherwise) illustrating that courts include the maximum punishment while understanding the offence (see decisions on Section 63 of the Copyright Act 1957). Similarly, not less than ten years in the Proviso, must mean to include all offences punishable with up to ten years.