Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Article 22(2) of the constitution of India provides that any person arrested and detained in custody must be produced before the nearest magistrate within 24 hours of his arrest and no person can be detained beyond the period of 24 hours without the authority of the magistrate. Similarly, section 57 of the Code of Criminal Procedure, 1973 (CrPC) states that the police officer who arrests a person without a warrant shall not detain him in his custody for more than 24 hours without the special permission of a magistrate under section 167 of the CrPC. This special permission referred to in Section 57 is known as remand. It can also be known as pre- trial detention.
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 of the competent authority and secondly, it means to send back the cases from the appellate court to the lower court.
The power of a court to remand an accused to custody is governed by a number of provisions of the CrPC, these being Sections of these 167(2), 209(b) and 309(2). Each provisions is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under S.309(2) relates to a stage after cognizance and can only be sent to judicial custody.
It has been held in the case of State rep. by Inspector of Police and ors. v. N.M.T. Joy Immaculate1, that the remand under Section 209(b) and Section 309(2) of CrPC is for securing the presence of the accused during the trial.
HOW LONG CAN A POLICE OFFICER DETAIN A PERSON WITHOUT REMAND?
The police cannot detain any person in its custody for more than 24 hours according to Section 57 of CrPC. It specifically prohibits a police official from detaining the arrested person for more than 24 hours in police custody. This period of 24 hours is exclusive of the time required for transporting the accused from the place of arrest to the court of the Magistrate.
It was held in the case of R.K. Naba Chandra Singh v Manipur Administration2 by the Hon'ble High Court that if the police officer considers that the investigation cannot be completed within 24 hours, then it is his duty to produce the accused forthwith before the Magistrate.
It was held in the case of Mohd. Suleman v King Emperor3 that the right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view-
- To prevent arrest and detention for the purpose of extracting confessions or as a means of compelling people to give information.
- To prevent police stations being used as though they were prisons
- To afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.
Another point which must be noted is that only an officer in charge of the police station or an investigating officer not below the rank of Sub-Inspector of Police is empowered to ask for remand.
It has been held in the case of Sharifbai v Abdul Razak4 that if the Police officer fails to produce an arrested person before a Magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention.
PROCEDURE TO BE FOLLOWED WHEN INVESTIGATION CANNOT BE COMPLETED WITHIIN 24 HOURS
Section 167 lays down the procedure that is to be followed when investigation cannot be completed by the investigating agency within 24 hours which has been fixed by Section 57 of the CrPC. Whenever an accused person is arrested or detained in custody by a police officer during investigation and it appears that the investigation cannot be completed within 24 hours, the accused person must be forwarded to a Judicial Magistrate. The Magistrate to whom the accused is so forwarded may from time to time authorize the detention of the accused in such custody as such the Magistrate deems fit, for a term not exceeding 15 days in whole.
It is held in the case of State of Gujarat v Swami Amar Jyoti Shyam that there is no obligation on the part of the Magistrate to grant remand as a matter of course. The Police has to make out a case for that.
The proviso clause to S. 167(2) states that the Magistrate shall have the authority to remand an accused to judicial custody for a period not exceeding 60 days for offences that are not punishable with death, life imprisonment or imprisonment upto 10 years and not exceeding 90 days for offences that are punishable with death, life imprisonment or imprisonment exceeding 10 years and on expiry of the period of 60 days or 90 days as the case may be, the accused person shall be released on bail under this sub-section. . The prime objective of Section 167 of the CrPC for further extension of the detention period is to keep away the accused person from the society for the protection of the society and the accused person himself. This extension ensures that the accused person does not evade the law and is present for all the inquiry that is needed by the police officers regarding their investigation.
While computing the total period of 60 or 90 days referred to in proviso to sub section 2 of Section 167, the period of detention under Section 57 of CrPC has to be excluded.5
There have been differing views with regard to the computation of the period of 60 or 90 days, as the case may be. While one view preferred to count the period from the day of arrest, the other view held that it should be counted from the day of remand by the Magistrate. The Supreme Court of India has resolved the matter by upholding the latter view in the case of Chanti Satyanarayana v State of A.P.6
A three-judge bench of the Supreme Court comprising of Justices Rohinton Fali Nariman, Navin Sinha and KM Joseph has held in the case of Bikramjit Singh v. State of Punjab7 that right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the CrPC, but that it is part of the procedure established by law under Article 21 of the Constitution of India Therefore, it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.
Section 167 ceases to be applicable for the purposes of extending remand, once the charge sheet has been filed or beyond the prescribed period of 60 days or 90 days as the case may be. Time and again, this has been upheld by the Supreme Court of India as well as by several High Courts across the country.
Hence, it can be understood that the purpose of Section 167 is to cast a duty on the investigating agency to complete the investigation and file a charge sheet within the specified time limit
This Section also provides that the Magistrate should not only direct but should also record his reason of remanding the accused. In case he does not feel that it is necessary to order for the detention of the accused, then also he must record his reason for the same.
From all the discussion regarding remand by a judicial magistrate when investigation cannot be completed within 24 hours, it can be concluded that the provision is enacted in a manner so as to favour the accused. The intention of the section is to protect the accused from the unscrupulous police officer. This is done by providing the maximum duration for which the accused can be sent to police custody. The detention is police custody is not favoured by the law as the section provides for the maximum period for which the accused can be sent for remand in police custody, i.e., 15 days. Various other protections are also given in the provision like presentation before magistrate before completion of 24 hours time period so that after considering the evidence on record, he can decide as to whether remand should be ordered or not. Remand is ordered only after considering evidence and not on the face of the application. Also, a maximum limit is set for which remand can be ordered. After expiry of that period, the accused is entitled to bail in case the chargesheet is not filed by the police in time.
1. A.I.R. 2004 S.C. 2282
2. AIR 1964 Gau 39
3. (1925-26) 30 CWN 985, 987
4. AIR 1961 Bom 42
5. Tarsem Kumar v State, 1975 Cri Lj 1303 (Delhi)
6. (1986) 3 SCC 14
7. CRIMINAL APPEAL NO. 667 OF 2020
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