Overview

There shall be no unlawful detention beyond the specified period without the order of the magistrate. A provision has been made under section 57 of the Code of Criminal Procedure where the police officer arresting an individual without a warrant shall not detain the accused beyond 24 hours without special permission of the magistrate. The special permission of the magistrate is given under section 167 of the Code of Criminal Procedure. This special permission taken from the Magistrate is known as the remand where the accused arrested is taken back to custody. This article deals with the process of remand both in case of police as well as judicial remand. The article focuses on the types of remand and how to make an application for Remand.

Literal meaning of remand is to send back or to return. However, legally it can be defined as sending the accused back to the custody of the competent authority before the beginning of his trial. It can also mean sending back the cases from the appellate court.

The right to life and personal liberty has been enshrined under Article 21 of the Constitution of India. Further, Article 22(2) contains provisions that any individual arrested and has been detained in custody should be produced before the magistrate within 24 hours of his arrest.

Remand is made during the trial of the accused or the investigation. Under the Code of Criminal Procedure, two kinds of remands have been mentioned, namely, pre-cognizance remand and post-cognizance remand. Section 167 of the Code deals with pre-cognizance remand and section 309 deals with the post-cognizance stage of remand. The object behind remand is to shift the accused from such a place where an arrest has been made to the place where he is to be tried. Remand can further be categorised into police remand and judicial remand.

The police officer has been empowered under section 41 to arrest an individual who has committed a cognizable offence or there exists suspicion as to his or her involvement in committing a cognizable offence. This implies that the police officer arrests without a warrant. As the arrest of the individual has been made without a warrant, the police officer, as specified under section 57 of the Code of the Criminal Procedure has no right to detain the individual arrested for more than 24 hours. Only with the special permission obtained from the Magistrate can the arrested individual be detained beyond the specified period. Such police officer or investigation officer is under obligation, under section 167 of the Code, to forward the accused to the judicial magistrate if the investigation cannot be completed within 24 hours of the accused arrest. The arrested individual cannot be kept in police custody or remand for more than 15 days. Further, the accused can be transferred to judicial custody till he or she gets bail. Generally, in remand, the accused is kept in custody till the trial of the offence committed begins. Therefore, it is pre-trial detention of the accused.

A magistrate has the authority of granting judicial or police remand. The magistrate also has the authority for detaining the accused individual for a period beyond 15 days if such an accused is not in police custody. However, the magistrate cannot detain the accused for more than 90 days where the accused has committed an offence punishable with death, imprisonment for life, or imprisonment not less than 10 years. Further, the magistrate cannot also detain the accused for more than 60 days in other cases. Section 167 of the Code has application only when the trial is pending. When the mentioned period expires, the accused is released on bail according to provisions of bail. However, if the police or investigation officer completes the investigation within the given period then the accused will be deprived of the default.

Generally, remand can be categorised into police remand and judicial remand. However, another type of remand is transit remand. Following is a brief description of the types of remand.

Transit remand is where the accused is arrested in such a place that is not within the jurisdiction. Therefore, a transit remand request is made to the court having jurisdiction. Under section 167 of the Code, transit remand is implicit. Transit remand can be described as a type of police remand. However, as mentioned earlier, transit remand is for transiting the accused from one place to another for production before the magistrate has jurisdiction.

Judicial Remand- in this type of remand, the accused is either sent to the local jail or such other establishment which is within the watchful authority of the judiciary. This implies that custody of the accused is in the hands of the judiciary. Section 16792) of the Code states that the magistrate has the authority for sending the accused to police or judicial custody. Here interrogations are held with the permission of the magistrate. In Gian Singh v State of Delhi Administration, it was held that interrogating the accused in judicial custody does not affect the nature of the custody.

Police remand- here, the accused is sent to the police station jail. The accused is under the watchful authority of the police. Generally, a police remand is requested for investigating or interrogating the accused. The police custody prevents the accused from destroying evidence. Section 57 of the Code states that without special permission of the Magistrate the police cannot detain the accused for more than 24 hours.

Section 167 of the Code of Criminal Procedure states that the officer in charge of the police station or such individual making an investigation who is not below the rank of sub-inspector makes the remand application. Application is made by the officer when the officer is of the opinion that investigation cannot be completed within 24 hours.

1. In Ram Doss v. State of Tamil Nadu, it was held by the court that before granting remand under section 167, the Magistrate must keep in mind that-

• The reason for detaining the accused even after 24 hours and on what basis of material the accused is to be kept in police custody.
• Whether there is exists cognizable offence in the report
• Whether the registration of the case has been made for the investigation.

2. In State of U.P v. Dharam Pal and others, it was held that the custody in which an accused has been remanded can be altered within the 15 days as mentioned in Section 167 of the Code. Further, it was held that the accused is to be kept in judicial custody as ordered by the Magistrate except in the police custody.

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