Meaning & Purpose of Remand
Meaning : “Remand” is to send back into custody either custody of police or Judicial Custody.
Purpose: to facilitate completion of investigation or unfold the investigation.
Constitutional Validity
Article 21 – Right to life and personal liberty.
Siddharam Mehtre Versus State of Maharashtra and others 2011
SAR (Cri) 118 S.C, the Honourable Apex Court has held that arrest
should be the last option
Manubhai Ratilal Patel vs. State of Gujrat and others (2013) 1 SCC
314, the Hon'ble Apex Court observed that, “remand is a
fundamental judicial function of the Magistrate.
RELEVANT PROVISIONS
Section 167 of Code of Criminal Procedure- provides detention of accused during pendency of investigation
Section 209 of Code of Criminal Procedure- provides detention of accused during pendency of committal proceeding
Section 309(2) of Code of Criminal Procedure- provides detention of accused during pendency of trial or inquiry.
Section 57 of CRPC :- Police officer shall produce the arrested person before the Magistrate before expiry of 24 hours from his arrest excluding the time of journey as per Section 57 of the Code.
Section 50 of CRPC mandates the police officer to inform the arrested person about the particulars of offence and if he is arrested for bailable offence, then he shall be informed about his right to be released on bail .
Duties of the Magistrate
Compliance of Section 50-A of Cr.P.C. & Article 22 of the Indian Constitution.
It is duty of Magistrate before whom the arrested person is produced, to satisfy himself that police informed arrested person of his right to inform his relative or next friend about his arrest and place of arrest(Section 50-A).The Magistrate should invariably note down time of production of arrested person and put the question to him in regards to verify the compliance of Article 22 of the Constitution before ordering remand of the arrested person.
GROUNDS FOR ARREST TO BE WRITTEN
Section 41: The police should write reasons for arresting any person for the offence punishable with imprisonment extending upto seven years with or without fine.
Arnesh Kumar -vs- State of Bihar (2014) 8 SCC 273 :Guidelines on arrest of accused to ensure that the police officers do not arrest
accused unnecessarily and Magistrate do not authorize detention casually and mechanically.
LEGAL ASSISTANCE TO ACCUSED
Duty of Magistrate to provide legal assistance to accused if needed
Mohd. Ajmal Mohd. Amir Kasab alias Abu Mujahid Vs. State of Maharashtra AIR 2012 SC 3565 the Honourable Supreme Court held that, it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the state.
REMANDING THE ARRESTED PERSON TO CUSTODY
Section 167 of the Code provides that Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, investigating police officer shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and shall at the same time forward the accused to such Magistrate. The Magistrate to whom the accused is forwarded, from time to time, authorizes the detention of the accused in such custody, as the Magistrate thinks fit for a term not exceeding 15 days in the whole. The Magistrate may, however authorize the detention of the accused beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing, but no Magistrate shall authorize the detention of the accused in custody under Section 167 of the Code for a total period exceeding ninety-days in case of offences punishable with death, imprisonment of life or imprisonment for a term not less than 10 years, and for a period exceeding 60 days for other offences and if charge-sheet is not filed within said period of 90/60 days, the accused shall be released on bail if he is prepared to and does furnish bail.
Physical production of accused
Section 167 (2) (b) of the Code provides that first authorization in custody of police must be made by Magistrate only after production of arrested person before him and for further custody, except police custody, can be extended by video conferencing apart from actual production of him.
Distinction between Section 167 and Section 309(2) of The Code of Criminal Procedure :
The remand and the custody referred to in the first proviso to Section 309 are different from detention to custody under Section 167. Remand under the section 309(2) relates to a stage after cognizance and can only be to judicial custody. Whereas remand under section 167 is during investigation and it may either be police or magisterial custody. The words “ accused if in custody ” appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation.
So far as the accused in the first category is concerned he can be
remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167 of CRPC. State V. Dawood Ibrahim Kaskar,(2000)10 SCC 43.
Grounds for grant of Police Custody :
Instruction contained in paragraph 5 of Chapter I of Criminal Manual :-
-There is reason to believe that material and valuable information would thereby be obtained, which cannot be obtained except by his remand to Police custody.
-Where a remand is required merely for the purpose of verifying a statement made by the accused, the Magistrate should ordinarily remand the accused person to Magisterial custody.
-If the Magistrate thinks that it is not necessary for purposes of investigation to remand the accused to police custody, he should place the accused person in Magisterial custody; and in case he has no jurisdiction to try the offence charged, he should issue orders for forwarding the accused person to a Magistrate having jurisdiction.
Section 167(3) the Code makes it obligatory on Magistrate to give reasons for further detention of an accused. Before passing of order of remand, to either judicial or police custody, it is necessary that the Magistrate should be satisfied about existence of the grounds, which will justify the remand. It is, therefore, essential to pass speaking order of remand.
Grounds for refusal of police custody
Para 4 of Chapter I Criminal Manual clearly states that Magistrate should not allow remand without being satisfied that there are really good ground for it. Police custody remand cannot be granted for trivial reasons, simply for verification of statements made by accused, merely for the purpose of making arrest of other accused persons. Police custody remand may be refused when there is a prima-facie evidence regarding Maltreatment of the accused at the hands of police. Interrogation of the accused can be done without granting police custody and so, Magistrate can grant permission for such interrogation of an accused who is in judicial custody.
Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni AIR 1992 SC 1768 : 1992 Cri.L.J. 2768 (1), the question regarding arrest & detention in custody was dealt with. The Hon'ble Apex Court held that “The Magistrate under Section 167 can authorize the detention of the accused in such custody as he thinks fit, but it should not exceed fifteen days in the whole” The period of fifteen days starts running as soon as the accused is produced before the Magistrate.
Transfer from PCR to MCR & vice-versa
Transfer from PCR to MCR and vice-versa within first 15 days from the date of first production of the accused before the magistrate. Accused in judicial custody, if circumstances justify, can be remanded to police custody or vice- versa within time limit (15 days) as prescribed in Sec.167 (2) of Cr.P.C. Kosanapu
Ramreddy Vs. State of A.P. & others 1994 Cri.L.J. 2121 (SC).
Counting of Days of Remand
First 15 days of PCR has to be counted from the
date of first remand and not from the date of arrest.
State of Delhi Administration vs. Ravindar Kumar
1982 Cri.L.J. 2366.
REMAND UNDER SPECIAL ACTS
The Protection of Children from Sexual Offences Act, 2012.
Power of remand under this Act vest with Special Judge appointed under Section 28 of the Pocso Act. It is imperative for all police officers to produce the accused for remand before Special Court and not before the court of Magistrate.
Maharashtra Control of Organized Crime Act, 1999.
Powers of remand vest with Special Judge appointed u/s 5(3) of the Act. The power of Special Judge may not be conferred on any Judge unless he has been appointed as a Special Judge by State Government.
Prevention of Corruption Act, 1988.
Section 5(1) of prevention of Corruption Act makes provision for taking cognizance of the offences under the Act by Special Judge without the accused being committed to him for trial. Hence, the Special Judge exercises powers of remand u/s. 167 of the Code of Criminal Procedure.
The Schedule Caste & Schedule Tribes (Prevention of Atrocities)
Act. 1989.
The Special Court shall exercise original jurisdiction to take cognizance of any offence under the Act as per Section 14 of the said Act Such courts shall have power to remand the accused by exercising the power under sub- section(2) of Section 167 of Code of Criminal Procedure without there being any need for committal.
The Narcotic Drugs and Psychotropic Substances Act, 1985.
The Act provides for constitution of Special Court, for trying all offences under the Act which are punishable with imprisonment for a term of more than 3 years. Section 36A(1)(b) of NDPS Act provides that a person accused of or suspected of the commission of an offence under the Act be forwarded to Magistrate u/s. 167 of CRPC. Whereupon a Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding 15 days. In case of offences triable by the Special Court, the proviso to the said sub-section provides that when such person forwarded to him; or upon or at any time before the expiry of the period of detention authorized by him, the Magistrate considers the detention of such person is unnecessary, he shall order such person be forwarded to the Special Court having jurisdiction and the Special Court shall then exercise all the powers of remand conferred on Magistrate u/s 167 of CRPC.The period for remand of 90 days under Sec. 167 of the Code is modified with a period of 180 days, only for the offences u/s 19, Sec. 24 or Sec. 27A or for the offences involving a commercial quantity.
The Maharashtra Protection of interest of Depositors (in Financial Establishments) Act, 1999.
As per Section 6 of the Act, the Government by notification in the official gazette, constituted Designated Court in the cadre of a District and Sessions Judge for the purpose of such case. Only Designated Court shall have jurisdiction in respect of any matter to which provisions of this Act applies.
Electricity Act, 2003-
Section 151,Proviso (2) provides that Special Court constituted
u/s. 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial in respect of offences punishable under Section 135 to 140 and 150 of the Act. Additional District and Sessions Judge shall be qualified to be appointed as Special Judge under the Act.
Immoral Traffic (Prevention)Act,1956, Essential Commodities
Act,1955, Indian Forest Act,1927, Wildlife (Protection) Act,1972,
Copyright Act1957 and The Maharashtra Animal Preservation
(Amendment) Act,2015.
In all the aforesaid Acts, remand of accused is with Judicial Magistrate or Metropolitan Magistrate.
The Juvenile Justice (Care and Protection of Children) Act,2015.
As per Section 7 of the Act read with Rule 9 of Maharashtra Juvenile Justice (Care and Protection) Rules,2018, a child in conflict with law be produced before the Juvenile Justice Board, if the Board is in sitting. When the Board is not in sitting, child in conflict with law be produced before its individual member for furthers orders.
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