Judicial Remand And Police Custody
Brahmadandi Ramesh, Advocate
Telangana and Andhra Pradesh High Court
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Date : 07/06/2022
Location : H.No. 1-8-93/2, Bagh Lingampally, Hyderabad - 500 044, State - Telangana
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Judicial Remand And Police CustodyINTRODUCTION: I. Article 22(2) of the Constitution of India: That according to Article 22(2) of the Constitution of India that any person arrested & detained in Custody must be produced before the nearest Magistrate within 24 hrs without the authority of Magistrate similarly Sec 57 of CrPC 1973 explicates & envisages that every person who is arrested & detained in Police Custody shall be produced nearest Magistrate within 24 hrs of the arrest excluding the time necessary for the journey from the Place of Arrest excluding the time necessary for the Journey from the Place of Arrest to the court of the Magistrate and no such person shall be detained in the custody beyond the said period without the order of the Magistrate these two provisions are very essential and glaringly contemplates the intention of the Law in this regard. The word "Remand" generally means to return or to send back but in the Legal world, it has two different meanings firstly it means to send the accused back in the custody at the competent authority & Secondly it means to send back the cases from Appellate court to Lower Court. The Police cannot detains any person in its custody for more than 24 hrs according to Sec 57 of CrPC it specifically prohibits officials from detaining the arrested person for more than 24 hrs in Police Custody it was held in the case of "R.K. Naba Chandra Singh v. Manipur Administration" Cited in 1964 CriLJ 307 by the Hon'ble High Court that if the Police Officer considers that the Investigation cannot be completed within 24 hrs then it is his duty to produce the Accused the forthwith before the Magistrate.
1. Physical production of the accused for Judicial remand:- No Magistrate shall authorise detention in any custody under section 167 Cr.P.C. unless the accused is produced before him. If any question arises whether the accused person was produced before the magistrate, the production of the accused person may be proved by his signature on the order authorising detention. However, the Supreme Court has relaxed this rule on certain conditions and has laid down that in cases where accused cannot be produced in person due to sickness or if he is wanted in cases in two different courts in different districts on the same day, the remand may be granted in absence of the accused. This is an exception to the general rule provided under Section 167(2)(b) of Cr.P.C. [Raj Narain v. Superintendent of jail, AIR 1971 SC 178 : 1970 (2) SCC 750 : 1971 Cr.L.J. 244 : 1970 SCC (Cr.) 543].
2. Detention without Judicial remand order from Magistrate - effect of :- In the first place in a few cases the accused persons do not appear to her their arrest as required by Article 22 of the Constitution. The court does not wish to express any definite opinion in regard to this irregularity which prima facie appears to have occurred in a few cases, but the judges would strongly urge upon the state and its police authorities to see that this constitutional and 47 legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest must be scrupulously observed. It is also clear from the particulars furnished to the court from the record of the judicial magistrates that ;in some case particulars furnished to the court from the record of the judicial magistrates that in some cases particularly the accused persons were not produced before the judicial magistrates subsequent to their first production, any they continued to remain in jail without any remand orders being passed by the judicial magistrates. This was plainly contrary to law. It is difficult to detain these accused persons in jail without any remand orders. The Apex Court hope and trust that the state government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law. [Khatri v. State of Bihar, 1981 Cr.L.J. 470 (SC) : 1981 (1) SCC 627 : AIR 1981 SC 928 : 1981 SCC (Cr.) 228].
3. Period of remand of accused to Judicial Remand - criteria for computation:- The magistrate under Section 167(2) can authorise the detention of the accused in Judicial Remand as he thinks fit but it should not exceed 15 days as a whole at the first instance. It is held by the Supreme Court that the Remand after the expiry of the first 15 days can only be judicial custody during the rest of the period of 90 days or 60 days and that police custody if found necessary can be ordered only for first period of 15 days. The total period of remand of 90 days or 60 days will begin to run from the date of order of remand by the magistrate. Accordingly, the period of detention should be computed from the date of order of remand. Section 167(2A) lays down that if an arrested person is produced before the executive magistrate for remand, the same magistrate may authorise detention of the accused in custody not exceeding 7 days. The judicial magistrate, who is competent to make further order or detention will take into consideration the period of further order of detention ordered by executive magistrate for the purpose of computing the total period of detention. On combined reading of Section 167(2) and (2A) it emerges that the judicial magistrate to whom the executive magistrate has forwarded the arrested accused can order detention in such custody namely police or judicial under Section 167(2) for the rest of the first 15 days after deducting the period of detention ordered by the executive magistrate. The detention thereafter could only be in judicial Remand. Likewise, the remand under Section 309 of Cr.P.C. can only be to judicial custody. 48 In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of available information and obtain police custody. If during investigation, his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first 15 days. This limitation shall not apply to different occurrence in which complicity of the arrested accused is disclosed. It is held by the Hon'ble Supreme Court that re-arrest or second arrest and seeking police custody after the expiry of period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. Central Bureau of Investigation, Special Investigation Cell, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768.
4. Computation of period of remand of the accused wanted in several case - The best example for the computation of the Remand is the case pertains to Dinesh Dalmia. The brief facts of the case are that A First Information Report was lodged against Dinesh Dalmia in Calcutta. He was arrested in New Delhi by C.B.I. in connection with another case. On transit remand, the accused Dinesh Dalmia was produced before the Additional Chief Metropolitan Magistrate, Chennai. The officer investigating the criminal case at Calcutta prayed for issuance of production warrant against the accused Dinesh Dalmia before the Chief Metropolitan Magistrate, Calcutta, who allowed the prayer and directed that the accused would be produced before him on or before 22-02-2006. The Additional Chief Metropolitan Magistrate, Chennai observed that the prayer of investigating officer of Calcutta would be considered after expiry of the period of C.B.I. custody. That on 27-02-2006 when the accused Dinesh Dalmia was in the custody of C.B.I. at Chennai, he voluntarily surrendered before the court of Metropolitan Magistrate at Chennai in connection with the criminal case started in Calcutta. That the surrender of the accused Dinesh Dalmia was accepted by the Magistrate at Chennai and remanded him to judicial custody till 13-03-2006. That on 11-03-2006 the accused Dinesh Dalmia Was handed over to Calcutta Police and on 13-03-2006 he was produced at the court of Chief Metropolitan Magistrate, Calcutta. The Investigation Officer prayed for police remand of the accused Dinesh Dalmia for fifteen days for the purpose of investigation. The accused Dinesh Dalmia moved an application for bail and contended that the period of police remand for first fifteen days of the total period of remand expired as he surrendered before the Court of Magistrate to Chennai in connection with this case on 27-02-2006. The Chief Metropolitan Magistrate, Calcutta took the view that the custody of the accused could not be considered unless and until he was physically produced before the court and since it was 49 done on 13-03-2006 on the strength of production warrant issued by him, the period of police remand was to be considered from the date of his physical production on 13-03-2006. the accused Dinesh Dalmia approached the High Court challenging the order passed by the Chief Metropolitan Magistrate, Calcutta. The High Court at Calcutta did not approve the view taken by the Chief Metropolitan Magistrate, Calcutta and held that the detention of the accused should be counted with effect from 27-02-2006 when the accused surrendered before the Court of Metropolitan Magistrate at Chennai. On appeal, the State of West Bengal challenged the order of the High Court. The crucial question which arose for consideration before the Supreme Court was whether the detention period should be counted from 13-03-2006 when the police took the accused in custody or from 27-02-2006 when the accused surrendered before the Metropolitan Magistrate at Chennai. By allowing the appeal and by setting aside the order of the High Court, it is held by the Supreme Court that the whole purpose of Section 167 of Cr.P.C. is that the accused should not be detained for more than twenty four hours and subject to fifteen days police remand the custody can further be extended up to total period of sixty days or ninety days as the case may be. According to Supreme Court, the police custody means the police custody in a particular case for investigation and not judicial custody in another case. In the case, at hand the accused was not arrested by the police, nor was he in police custody before 13-03-2006. the accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the police and as such he voluntarily surrendered before the Metropolitan Magistrate, Chennai on 27-02-2006 when he was already in custody of C.B.I. in connection with another case. This voluntary surrender of the accused cannot be conceived to be detention under a case registered at Calcutta. Such notional surrender cannot be treated as police custody for computation of the required period. The period of detention before the Magistrate cannot be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) of Section 167 of Cr.P.C. The condition is that the accused must be in the custody of the police and the so-called deemed surrender in another criminal case cannot be taken as starting point for computation of fifteen days' police remand or ninety days' or sixty days' of judicial remand as the case may be. Thus, the police custody of the accused Dinesh Dalmia was treated by the Supreme Court with effect from his physical production before the court of Chief Metropolitan Magistrate, Calcutta on 13- 03-2006 and not from the date of surrender before the Court of Metropolitan Magistrate at Chennai on 27-02-2006 while he was in the custody of C.B.I. in connection with another case. State of West Bengal v. Dinesh Dalmia AIR 2007 SC 1801.
5. Duty of police towards accused during police custody:- Where there was death of a person in police custody and it is established from the evidence of other witnesses, who were also beaten up and injured by police that the deceased became unconscious on receipt of injuries inflicted by police and died subsequently, and irresistible inference can be drawn that the police personnel, who caused his death, must also caused the disappearance of the body. It may be a legitimate right of any police officer to interrogate or arrest any suspect, on some credible material but such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. Torturing a person and using third degree methods are of medieval in nature and they are barbaric and contrary to law. If the police officers who have to provide security and protection to the citizens indulge in such methods, they are creating a sense of insecurity in the minds of the citizens. It is more heinous than game keeper becoming a poacher. The conviction of the police personnel was upheld by the Supreme Court in the Landmark Judgement cited in Bhagwan Singh v. State of Punjab, AIR 1992 SC 1689.
6. Detention in custody of a person arrested under special Acts:- The code of criminal procedure gives power of arrest not only to a police officer and a magistrate, but also under certain circumstances to private persons. When an accused person appears before a magistrate or surrenders voluntarily, the magistrate is empowered to take that accused person into custody and deal with him according to law. To put it differently, taking of the person into judicial custody is followed after the arrest of the person concerned by the magistrate on his appearance or surrender. To invoke Section 167(1), it is not an indispensable prerequisite condition that in all circumstances the arrest should have been only by a police officer and none else and there must necessarily be records of entries of a case diary. The magistrate will take a person into his custody on his being satisfied to three preliminary conditions namely- (I) That the arresting officer is legally competent to make the arrest. (ii) That the particulars of the offence or the accusation for which the person is arrested do exist and are well founded. (iii) That the provisions of the special act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code. A magistrate before whom a person arrested by the competent authority under the Foreign Exchange Regulation Act, 1973 or the Customs Act 1962 is protected, can authorise detention in exercise of power under Section 167 of Cr.P.C. Directorate of Enforcement v. Deepak Mohajan, AIR 1994 SSC 1775.
7. Police remand under POTA - Guidelines of the Apex Court- Let's take the inhuman, draconian Godhra Incident. On 27-02-2002 some persons died at Godhra in the state of Gujarat and several others were injured when a train was brutally attacked and set ablaze. Initially the case was registered on the allegation of commission of offences punishable under various provisions of Indian Penal Code. Subsequently, an application was filed by the prosecution for addition of offences punishable under Sections 3(1)(a), (b) and 3(2) of POTA. The accused Maulavi Hussein Haji Abraham Umarji was arrested in connection with this case on 06-02-2003 and remanded to police custody till 11-02-2003 and again police custody was extended till 13- 02-2003. When the application for further extending the police remand was rejected, a criminal revision was filed before the Sessions judge. The Special Court was constituted under section 23 of POTA on 06-03-2003. The sanction order required under Section 50 of POTA was passed. Without pressing for revision application pending before the Sessions Court, the prosecution filed an application before the Special judge for police remand in terms of Section 49(2)(b) of POTA on 24-04-2003 and the same was allowed. The legality of the order of the Special Judge was challenged before the High Court by filing appeal under Section 34(1) of POTA and subsequently the order of the High Court was challenged by filing appeal before the Supreme Court. By dismissing the appeal it is held by the Supreme Court that a statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In the instant case, the proviso inserted by section 49(2)(b) of POTA is in relation to the proviso to section 167(2) of Cr.P.C. and not in respect of section 167(2) itself. As section 49(2)(b) of POTA can be resorted to without any reference to the provisions of Section 167(2) of Cr.P.C. [Maulavi Hussein Haji Abraham Umarji v. State of Gujarat 2004 SCC (Cri) 1815].Latest and Important judgments on the Police Custody and Judicial 56 Custody:-
1. In Dinubhai Boghabhai Solanki v. State Of Gujarat & Ors, Criminal Appeal No. 492 of 2014(Arising out of SLP (Crl.) No. 8406 of 2012) Date of judgment on 25 February, 2014, it was observed that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. As it is settled Principle that each case will have its own facts & merits. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a world of difference between conclusions in two cases." See. Bharat Petroleum Corporation v. N.R. Vairamani And Anr.
2. Sundeep Kumar Bafna v. State Of Maharashtra & Anr, Criminal Appeal No. 689 of 2014 [Arising out of SLP (Crl.) No.1348 of 2014, Dt. 27 March, 2014 where in it was observed that as follows: "we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of Cr.P.C of the Code is made out by the investigating agency." See. Gurbaksh Singh Sibbia Etc v. State Of Punjab, AIR 1980 SC 1632..
3. As was observed in Dr. K.S. Rao v. State of Hydrabad, AIR 1957 AP 416, in remanding the accused to police custody the Magistrate ought to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.
4. Important rulings as to the subject matter of `police custody and judicial custody' - State Rep by Inspector of Police and Ors v. NMT Joy Immaculate 2004 5 SCALE 330, CBI SIT New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768, Mithabhai Pashabhai Patel & Ors. v. St of Gujarat CDJ 2009 SC 1014.
5. Chaganti Satynarayana and Ors. v. State of Andhra Pradesh,  3 S.C.C. 14. As was held in 1981 CriLJ 1773 (1776 - Para 9), Perusal of the case diary is a must before remand of any kind - be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody.
6. A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds. Remand order should not be passed mechanically without proper application of 57 mind. State of UP v. Ramsagar Yadav, (1985) 1 Crimes 344.
7. S.167(2) only prescribes the maximum period of 15 days, but that does not authorize the Magistrate automatically to remand the accused for the period. At every stage when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient evidence against the accused and further evidence might be obtained; and it is only when the Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR 1956 Orissa 129. To authorize remand to Police custody is a very serious and sensitive judicial function of utmost responsibility.
8. The scheme of the section after the amendment of the year 1978 is intended to protect the accused from unscrupulous police officers. Great care has now been taken to see that the accused persons are not unnecessarily remanded. The object of the section is to see that the person arrested by the Police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the person produced should further be kept in Police custody and also to allow said accused to make such representation as he wish to make, 1980 CriLJ 1195.
9. The Magistrate should not authorize detention of an accused to any custody mechanically in routine. If the Law Officers charged with the obligation to protect the liberty of the person, are mindless of the constitutional mandate and the dictates of the Code, how can freedom survive for the ordinary citizen. See. Mantoo Majumdar v. State of Bihar, AIR 1980 SC 847.
10. It was held in Kana v. St of Rajasthan, 1980 CriLJ 344, Magistrate must give reasons for authorizing detention of accused to custody. Such orders cannot be passed as a matter of course.
11. Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. It is not a empty formality or a routine course to extend remand time and again as and when sought by the police. The order therefore should contain the reason to extend remand further. See. 2003 CriLJ 701 at page 702.
12. As has been observed in Muthoora v. Heera, AIR 1951 MB 70 : 17 WR 55, if the evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that fresh evidence may turn up.
13. See Arnesh Kumar v. State of Bihar, JT 2014 (7) SC 527, Joginder Kumar v. State Of Uttar Pradesh, 1994 (4) SCC 260 : AIR 1994 SC 1349, a critical and detailed observation of the Hon'ble Supreme Court in respect of unabated practice of mechanical arrests.
14. The Hon'ble Supreme Court in the case of Sanjay Chandra v. CBI (2012) 1 SCC 40 (Popularly known as 2G scam case), where in it was extensively discussed with the issue of granting or refusing the grant of Bail.
15. As was pointed out in Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2004 SC 1866, while a vague allegation that the accused may temper with the evidence or witnesses may not be a ground to refuse a bail, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or temper with the evidence, then bail may be refused.In D.K. Basu v. State of West Bengal This case gave a landmark judgement where guidelines regarding the arrest of a person for prescribed otherwise more offences were committed in the name of doing justice. It prevents any infringement with the rights of an individual during detention of administration of a criminal system existing in our country i.e., India needed an effective mechanism. Conclusion The Landmark Judgment In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, the Hon'ble Supreme Court has given certain guidelines-
1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register;
2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning;
3) The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention;
4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest;
5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested;
6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention;
7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men;
8) While an accused is in Police custody, his lawyer should be permitted to visit him;
9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters. 20. Recent judgments in Rajesh Sharma v. Uttara Pradesh, Criminal Appeal No. 1265 of 2017 [Arising out of Special Leave Petition (Crl.) No.2013 of 2017] which was pronounced in July 27, 2017 and Maharashtra -based NGO Nyayadhar's cases are also relevant to understand the issue of restoration of immediate arrest in matrimonial cases.
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