Remand & Custody

Remand & Custody

The provisions for holding a person in custody for the purpose of furthering the investigation, in India are governed by Section 167 of the Code of Criminal Procedure.

In the context of detained person remand means to send back the arrested person who is waiting to conclude his trial, to police custody for further interrogation. Remand is the process of keeping a person in custody before its actual conviction process. For serious crimes like murder, rape etc. a person an accused can be held in remand in custody till their trail or conviction. Whenever a person is arrested by the police in suspicion of any crime and Police may not be able to complete the investigation within 24 hours, in such circumstances police has to present the accused before magistrate who may allow for the suspect to be held in the custody of the police or the judiciary. The object behind furthering detention is to keep the person away from the society, for the security of the society and the security of the person himself. It is also necessary that he is present for further investigation and inquiry and does not evade the law. Remand is usually granted when the court is of the opinion that the required investigation cannot be completed in given time and there is reasonable doubt that the concerned person is involved in the offense.

In Raj Pal Singh v. State of U.P[i] it was held that Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his power of remand. A cautious reading of Section 167(1) of the code of criminal procedure makes it clear that the officer in charge of the police station or the investigating officer (if he is not below the rank of sub-inspector) can ask for remand only when there are grounds to believe that the accusation or information is well founded and it appears that the investigation cannot be completed within the period of twenty-four hours as specified under Section 57.

Sections 56, 57, 167 and 309 of Cr.P.C. deal with the procedure related to the grant of remand. Law is a zealous protector of the liberties of the subjects and generally does not permit detention unless there is a legal sanction for it. Section 56 Cr.P.C. requires the police officer making the arrest without warrant to forthwith produce the person accused of an offence before a Magistrate, while s. 57 prohibits the police officer from detaining the arrested person for a period exceeding 24 hours. The Code, however, makes a clear distinction between detention in custody before and after taking cognizance. The former is covered by s. 167 of the Cr.PC, and the latter by s. 309 Cr.P.C. The two are mutually exclusive. Judicial elucidation of these provisions can be found in the case Dinesh Dalmia v. CBI[ii]. Holding a person in custody for further inquiry and investigation is governed by Section 167 of the Code of Criminal Procedure. It enumerates two types of custody that are Remand in Police Custody and Remand in Judicial Custody.

Police Custody and Judicial custody

The first thing that happens to a suspect on arrest is that he is taken into police custody, following which he is taken before a magistrate and he may either be remanded to judicial custody or be sent back into police custody.

Section 167 provides that a person may be kept in police custody to the extent of 15 days at the order of the Magistrate. A Judicial Magistrate has the power to grant police the custody of a person for 15 days. In the case of an Executive Magistrate, he may grant custody of police to the extent of seven days. The maximum period for which a police custody can subsist is for 15 days. Beyond this, even if the custody of the person is required, it has to be judicial custody.

A judicial custody may extend up to the period of 90 days if the person is arrested in connection to a crime which is punishable by an imprisonment of 10 years or more, life imprisonment, and capital sentence. In any other case, the judicial custody of such person may extend up to the period of 60 days as provided under Section 167(2) (a) (i) and (ii). After the period of 60 or 90 days, the person is entitled to bail, till the time police have not filed the charge sheet. Once the police files the charge sheet, the person cannot claim bail as a matter of right.

It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner [iii]

The difference between police custody and judicial custody, first of all, relates to the authority. Also, in a case of police custody, a person can be interrogated, but in judicial custody, a person cannot be interrogated except in exceptional circumstances. Police custody starts as soon as a person is arrested, but judicial custody starts when the Magistrate orders it.

Police Custody Remand After First 15 Days Whether Permissible?

Alim A. Patel vs. State of Maharashtra[iv][v] , it was laid down that If accused is not in jail for whole first 15 days then he can be remanded in P.C.R. even after lapsed of first 15 days. 

C.B.I. Vs Anupam Kulkarni [vi]The police custody after first 15 days is not permissible. However if complicity of accused is found in some other transaction while in judicial custody, then aforesaid limitation will not apply. ‘

Rights of Accused-

The rights of the accused begin from the time of his arrest. The Constitution of India under Article 22 provides for the protection of the arrested person to the extent that he has a right to be informed of the reason for arrest and he must be produced before the nearest Magistrate within a period of 24 hours. Article 22 (1) also provides that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5) of the Constitution of India, enacts, that the persons arrested should be informed of the ground of arrest, and of right to bail. After the legal arrest of a person, his rights are protected through the time period for which he may be held in custody. For the custody to be a legal, a person may not be held in custody for more than 15 days. A Magistrate must be convinced that that there are exceptional circumstances present to extend this custody for a maximum of 60-90 days depending in the nature of the crime being investigated.

Uday Mohanlal Acharya v. State of Maharashtra[vii], the case elaborated the law on the point as to the rights of an accused who is in custody pending investigation. The Supreme Court held that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favor of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

The basic principles of natural justice also have to be followed. The accused has the right to get over with his case as soon as possible. In the judicial pronouncement of Elumalai v State of TN, the Court held that speedy trial is right of the accused also, and the prosecution should complete the investigation and file their reports as quickly as possible to ensure a speedy trial. 

Remedies against Illegal Detention or Custody-

If the arrest is invalid on account of breach of procedure or violation of any other right or if the custody is not passed within the framework of the law by a competent magistrate who has jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article 32 or 226 of the Constitution of India. But it should be noted that a writ does not lie against a legal custody, no matter what rights may have been violated before the lawful custody.

If the arrest effected by the Police Officer does not satisfy the requirements of S.41 of the Code, Magistrate is duty bound not to authorize his further detention and release the accused. This view was re-established in Arnesh Kumar v. State of Bihar [viii]
 In Kami Sanyal v Dist. Magistrate[ix] the Supreme Court observed that when a person is committed to jail custody by a competent Court order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted.

Provisions of Remand in other countries-

United States

Under the US Code, pretrial detention of federal suspects is allowed only under certain circumstances, such as when the defendant is a danger to witnesses or jurors. The Sixth Amendment requires criminal defendants to be “informed of the nature and cause of the accusation”. The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts’ interpretation of what due process means. The scope of such detentions is also limited by the Bill of Rights.

Czech Republic

Under Article 8 (5) of the Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Constitution, nobody shall be taken into custody except on the basis of a court decision, and for reasons and a detention period stipulated by the law. A suspect must be immediately familiarized with the grounds of detention, must be interviewed and within 48 hours either released or charged and handed over to a court. The court then has a further 24 hours either to order a custody, or to release the person detained. The statutory limits of 48 + 24 hours must be complied with and reaching the time limit should always trigger immediate release, unless a court has ordered pre-trial custody.

Sweden-

A person may be held in custody for a period of normally not more than 14 days (seven days if only the degree of suspicion “reasonable suspicion” exists), then normally new remand hearing should be held. For suspect who has not yet turned 18 needed “serious reasons” for detention decisions are to be notified of the court.A person, with less serious crimes, they are given by prosecutors a summary penalty order

Conclusion:

Enforcement of laws in India is very complex, the right of the underprivileged always becomes harder to protect. While this section has been made clear by the statute, the same cannot be said for other provisions like the inability of the police to get custody when a person is ill, or if taking a person into physical custody is not practicable at all. The law is not clear if the 15-day limit must be suspended during the period of inability to hold in physical custody.

It becomes clear that while the law provides for safeguards against abuse, it needs to be amended to remove all obscurities and contradiction. The magistrates must also see to the background of the victims before passing orders. Section 167 must also be expanded so that remedies must be available for past illegal detentions or arrest even if in the present case custody is legal. Lastly, the executive must also play a role by ensuring that more and more people are aware of their right.

Illustrations-

1. If police arrests a person X in suspicion of murder, he must be presented before Magistrate and if up till then the investigation is not completed Magistrate can grant police or judicial custody as per the requirement.

2. If even after the period of 60 or 90 days, police have not filed the charge sheet the arrested person X is entitled to bail.

Frequently Asked Question-

1. How judicial custody differs from police custody?

Judicial custody differs from police custody in many aspects. Judicial custody is ascribed by a judge or the court itself. This custody is ordered by the judge, depending on the circumstances of the case. The custody can be awarded because the judge refused bail, the suspect earned the contempt of the court, or for many other circumstances.

2. Can Police interrogate the suspect when he is in magistrate custody?

During Judicial Custody, the police officer in charge of the case is not allowed to interrogate the suspect. However, the court may allow the interrogations to be conducted if it opines the interrogation being necessary under the facts produced before the court.

Approved & Published – Sakshi Raje

Reference

[i] Raj Pal Singh v. State of U.P 1983 Crl.L.J. 109

[ii] Dinesh Dalmia v. CBI AIR 2008 SC 78

[iii] Manubhai Ratilal Pater Tr.Ushaben vs. State of Gujarat (2013) 1 SCC 31

[v] Alim A. Patel vs. State of Maharashtra CRIMINAL APPLICATION NO.5342 OF 2010 

[vi] C.B.I. Vs Anupam Kulkarni AIR 1992 S.C. 1768.

[vii] Uday Mohanlal Acharya v. State of Maharashtra AIR 1952 SC 106

[viii] Arnesh Kumar v. State of Bihar AIR 2014 SC 2756

[ix] Kami Sanyal v Dist. Magistrate 1990 CriLJ 2685

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I am Ayushi Tripathi from Amity Law School, Lucknow pursuing my BA.LLB (H). My areas of interest are Criminal Law, Company Law, and Human Rights. In my free time, I love to read about legal topics and current issues. I have presented various research papers mainly focussing on human rights and have participated in moot courts, debates, youth parliament, etc. I aim to become a part of Indian Judiciary to be able to serve the country. Exploring new places and writing is my favorite pass time.