Remand to Police Custody
Abstract
Remand to police custody under section 167 CrPC is a sensitive matter and a part of police investigation in a case and cannot be taken lightly. The investigating officers sometimes need to take the accused person on police remand for making further headway in a case by proper interrogation, as police cannot keep an accused person in its custody for more than 24 hours without the order of the magistrate and it is very difficult to complete an interrogation or investigation within 24 hours. Remand may be police, judicial or transit. Police remand is normally avoided by the accused persons for alleged fear of torture and forceful confession of crime.
The courts have issued various orders and guidelines to protect the interest and safety of the accused persons taken in police custody in particular and have granted several rights to the accused persons and ensured various duties and responsibilities on the police officers, but the gap between rules and guidelines and their implementation remain.
Introduction
According to Merriam-Webster dictionary, 'remand' means 'to order back', such as to send back (a case) to another court or agency for further action or to return to custody pending trial or for further detention. Remand is also when higher courts send cases back to lower courts for further proceedings. The general meaning of remand is to return or send back, but it has two different meanings in the legal world. First, it means returning the accused back to the custody of the competent authority, and second, it means returning the cases from the appellate court back to the lower court. Remand to police custody implies returning the accused person back to the custody of the police.
Different types of remand
In general, remand can be divided into police remand and judicial remand.
Transit remand is another type of remand. The three types of remand have been described below:
Transit remand: In transit remand the accused is arrested in a place outside the jurisdiction. Therefore, a request to ensure transit is filed with the relevant court. Under Section 167 of the Code, provision of transit is implied. Transit remand is also a type of police custody. However, transit custody is meant to transport the accused from one place to another for the purpose of production before the court which has jurisdiction.
Judicial remand: In judicial remand, the accused is either sent to a local jail or other facility that is under the supervision of the judiciary. It follows that custody of the accused is in the hands of the magistrate. To send the accused person to judicial or police custody is under the power of the magistrate according to section 167 (2) CrPC.
In the case of Gian Singh v. Government of Delhi, it was held that interrogation of an accused in judicial custody does not affect the nature of custody.
Police remand: Here the accused is sent to the remand to the lock up at the police station. The accused is under police surveillance. Generally, police custody is requested for the purpose of investigation or questioning of the accused. The accused is prevented from destroying evidence in police custody. Section 57 of the Code states that the police cannot detain an accused for more than 24 hours without special permission from the magistrate, hence permission of the court is required for keeping the accused person in police custody beyond 24 hours in the interest of investigation of the case.
The authority of the court to take the accused into custody is governed by a number of provisions of the CrPC viz. section 167(2), 209(b) and 309(2) CrPC. Each provision is independent of each other and comes into play at different stages of criminal trial. Custody under Section 167(2) relates to the investigation stage and is ordered to continue the investigation and may be in judicial custody or in police custody.
Remand as per section 209 (b) applies to the stage when the court commits the case and can takes the accused into judicial custody during and until the end of the main trial, subject to the provisions of bail according to the CrPC, and finally taking into judicial custody according to Section 309 (2) refers to the stage after the cognizance.
In the case of Mohammad Daud @ Mohammad Saleem v. Superintendent of District Jail, Moradabad, 1993 Cr LJ 1358 (All-DB), it was held that sections 267 and 270 of the CrPC together contain a clear legislative mandate that if a prisoner already confined in a prison is brought before another criminal court to answer to a criminal charge and is detained for that purpose in such court or in its vicinity, he must be transported back to the prison from where he was brought for such attendance.
Grounds for granting remand
Generally, police custody is required for:
Objective and procedure of remand
The objective of remand is to help police in interrogation of the accused person to know about the details of the case, the place of occurrence, the other accused persons, the stolen property, the motive of the crime and other details of the crime for proper investigation of the case.
If the investigation cannot be concluded within 24 hours and if further detention of the accused by the police is necessary in the interest of the case, the officer-in-charge of the police station or the investigating officer not below the rank of a sub-inspector should request in writing the nearest judicial magistrate to order such detention in the police custody of the accused u/s 167 (1) of the Code of Criminal Procedure, 1973, with a clear indication of the reasons thereof and producing the accused person before the magistrate. An extract of the case diary should be enclosed with the prayer of the police officer seeking the remand to police custody. The power of remand is also given to the executive magistrate (conferred with this power) under section 167 (2A) of CrPC if the judicial magistrate is absent.
In other words, the objective of this provision is twofold; first, that the law does not favour detention in police custody except in special cases, even for reasons to be stated in writing by the magistrate, and secondly, that such a person should be allowed to represent himself before the court.
The accused should not be subjected to any kind of torture in police custody. An accused person should not be taken in police custody just to humiliate and torture him. While an accused is in police custody, his lawyer should be permitted by the police authorities to visit him. Identification Tests Parades after police remand are of very little value.
Principle of granting remand
The principle of granting or not granting remand to police custody always depends on the facts and circumstances of the case and the collection of evidence by the investigating agency. On the basis of this evidence, the investigating agency may ask for the remand of the accused persons for further investigation, i.e., to state that the investigating agency has to prove that certain evidence has been collected against the accused, and without custodial interrogation and investigation, no further investigation is possible and in case of refusal of police custody, the investigation would be spoiled. This is a general principle of whether or not to grant police custody and whether or not to grant custody depends on the facts of each case.
Article 22(2) of the Constitution of India states that every 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 for more than 24 hours without the permission of the magistrate. Similarly, section 57 of CrPC provides that a police officer who arrests a person without a warrant shall not detain him in custody for more than 24 hours without the special permission of the magistrate under Section 167 CrPC. This special permission referred to in section 57 is called remand in police custody. It may also be known as pre-trial detention.
Power of police to arrest in cognizable cases
A police officer is empowered under section 41 to arrest a person who has committed a cognizable offense or is suspected of having been involved in the commission of a cognizable offence. This means that a police officer can arrest without a warrant. Given that the person was detained without a warrant, the police officer, as stated in Section 57 of the CrPC, does not have the right to detain the arrestee for more than 24 hours. Only with special permission from the magistrate can the arrestee be detained after the expiry of the specified time.
If the investigation cannot be completed within 24 hours of arrest of the accused, the investigating officer or the police officer should hand over the accused to the magistrate's court, according to section 167 CrPC.
This period of 24 hours does not include the time required to transport the accused from the place of detention to the magistrate's Court. An arrested person cannot be held in police custody for more than 15 days. Further, the accused may be remanded in judicial custody until he gets bail.
However, in the case of Arnesh Kumar v. State of Bihar, a direction was given by the Supreme Court saying that no arrest is required in cases where the offence is punishable with imprisonment of less than 7 years or up to 7 years, with or without fine.
Difference between police custody and judicial custody
Police custody of an accused person if the investigation is not completed within 24 hours is called Remand. In remand to police custody the accused is in the physical custody of the police and is normally lodged in the lock up of the police station or lock up of any other investigating agency.
In judicial custody the accused remains under the custody of the magistrate and is normally incarcerated in jail. Arrangement should be made for medical examination of an accused person in police custody by an independent and approved panel of doctors, every 48 hours during detention. This type of medical examination is not required in respect of a person in judicial custody.
Police custody can be extended for a maximum of 15 days. Judicial custody can be extended to a maximum of 90 days for offenses punishable by imprisonment of more than 10 years, and to 60 days for all other offences. The primary difference between the two types of custody is that two different authorities are responsible for custody of the accused person. During police custody, the police have the accused person in their custody and can interrogate and investigate him.
During judicial custody, the accused person is in custody of the magistrate or judge and is held in jail or prison pending trial or bail. In judicial custody, the police cannot question an accused person without the permission of a judge or magistrate, but in police custody, no such permission is required.
Relevance of the provisions of Chapter XXXIII of CrPC
Chapter XXXIII of the CrPC deals with various provisions relating to bails and bonds. It sets out when bail is a right of the accused, when bail is at the discretion of the court, under what circumstances this discretion can be exercised, what are the conditions that the accused would have to comply with if he was released on bail and what powers the court havein the event of the accused committing default of bail order.
In addition to Chapter XXXIII, sections 436 to 439 CrPC, another provision that deals with the concept of bail is section 167 of the CrPC, which is generally referred to as "Guarantee". Both of these provisions must be examined in their context when considering the aspect of bail.
Clause (a) of Section 167(2) again provides that every person released on bail under this sub-section shall be deemed to have been released under the provisions of Chapter XXXIII, i.e., the bail and bond provisions. Once bail has been granted under this provision, the provisions of Chapter XXXIII shall apply to subsequent proceedings relating to matters of bail.
This means that bail under this provision also remains valid until it is cancelled. Filing of charges by itself is not a valid reason for cancellation of bail.
It also implies that the special powers of High Court and Court of Sessions under section 439 CrPC are applicable in this case also. The special powers are to release a person on bail and direct that any person released be arrested and re-committed to custody.
Who can apply for police custody?
Section 167 of the CrPC states that an application for detention of the accused person in police custody is submitted either by the officer-in-charge of the police station, or the investigating officer of the case. The officer submitting the prayer for police custody should not be below the rank of a Sub-Inspector. The request is submitted by the police officer if he is of the opinion that the investigation cannot be completed within 24 hours and there are cogent reasons and evidences to take the accused person in police custody in the interest of investigation of the case.
Right of the arrested person
Some of the rights of the arrested person are given below:
In the landmark case of Khatri v. State of Bihar, Hon'ble Justice P.N. Bhagwati ordered that Sessions Judges must compulsorily inform the accused of their rights to free legal aid and advise individuals if they cannot retain a lawyer to defend themselves due to indigence.
In Sheela Barse v. Union of India, the Supreme Court held that the fundamental right of a person to speedy trial is enshrined in Article 21 of the Constitution of India.
No arrested person shall be denied the right to consult a lawyer of his choice under Article 22 of the Constitution of India.
In the case of Huissainara Khatoon vs. Home Secretary, State of Bihar, the Hon'ble Court held that the State cannot evade its constitutional duty to provide speedy trial to the accused by pleading financial or administrative incapacity. The state has a constitutional mandate to ensure a speedy trial and whatever is necessary for this purpose must be done by the state.
In the landmark judgment in Joginder Kumar v. State, it was held that although the police had absolute legal power to arrest a person in criminal proceedings, any arrest had to be justified. Arrests could not be made routinely, only on accusations or suspicions of participation in a crime.
Section 75 of the CrPC stipulates that a police officer or other person executing an arrest warrant shall inform the person to be arrested of the nature of the offense and, if required, show the warrant to him.
Section 55A of the CrPC deals with the health and safety of the arrested person; the duty of the person who has the accused in custody is to adequately care for the health and safety of the accused defendant.
Magistrate's Duty And Authority While Granting Remand
In Ram Doss v. State of Tamil Nadu, the court held that before granting custody under section 167, the Magistrate must keep in mind:
The provision of section 167 of the CrPC is applicable only during the period of judicial proceedings. After the expiry of the mentioned period, the accused is released on bail according to the provisions of grating bail. However, if the police officer or investigator completes the investigation within the given period, the accused will be deprived of the default.
In the case of Jairajsinh Temubha Jadeja v. State of Gujarat, October 2001, it was held that detention according to section 167(2) CrPC is an exception, not a rule. The law does not impose a duty on the magistrate to record the reasons for not remanding in police custody, but it is imperative that the magistrate records the reasons for remanding; section 167 of the CrPC obliges the police authority to hand over a copy of the diary entries relating to the case together with handing over the accused.
The passing of mechanical orders of detention by the magistrate's court was excluded by law, as section 167(3) of the CrPC imposes on the magistrates' court the duty to exercise a judicial opinion in this matter. The magistrate must first satisfy himself that the charge is justified. The magistrate will also ensure the presence of the accused as his presence during hearing of the prayer for grant of remand in police custody is absolutely necessary.
Right To Default Bail
In case the investigation is not completed within 24 hours, the procedure to be followed are enshrined in section 167 CrPC. Section 167(2) further enshrines the right to bail in default, according to which, if the investigating authority does not file charge sheet u/s 173 of the CrPC by the end of the set period, the accused immediately becomes eligible to apply for bail. The exclusive provision to this section in this regard states that the magistrate has the power to remand the accused for a maximum period of 60 days (for crimes not punishable by death, life imprisonment or imprisonment exceeding 10 years). After this period, the accused will be released on bail.
In the case of Enforcement Directorate of India v. Kapil Wadhawan and anr etc., a three-judge bench comprising of Justice K.M. Joseph, Hrishikesh Roy and B.V. Nagarathna on March 27, 2023 ruled that the moment the stipulated 60 or 90 day remand period, as the case may be, expires, an indefeasible right to default bail accrues to the accused and added that the remand period under section 167 (procedure when investigation cannot be completed within 24 hours) of theCrPC ought to be computed from the date when a magistrate authorises remand.
Right Of Arrested Person To Be Brought Before A Magistrate
This was held in the case of Mohd. Suleman v. King Emperor that the right to be brought before a judge within a period not exceeding 24 hours of arrest was created with regard to:
Change in custody
The magistrate is empowered under Section 167 CrPC to remand a person in police custody. He can also order a change of custody from police custody to judicial custody. In such a situation, the period of police custody is deducted from the total period of judicial custody.
In the case of State v. Dharampal (1982), it was held that a person must be sent to police custody within 15 days from the date of his production before a magistrate under Section 167 of the Code of Criminal Procedure, 1973. If the accused is in policecustody, he can be sent to jail either within 15 days or even after that.
When remand cannot be granted?
The remand of the accused may be refused if prima facie the allegations or information are not substantiated and there are insufficient grounds for the Magistrate to exercise his power of remand.
An accused who has been brought before a magistrate to testify and who has refused to confess or has given an unsatisfactory statement will not be sent to remand or police custody.
An accused who has been released on bail cannot be sent to remand i.e., taken back into police custody, even to secure the recovery of stolen articles.
The approver cannot be sent on remand to police custody.
The power of granting remand cannot be exercised under section 167 (2) CrPC once charge sheet is filed and cognizance of the offence is taken.
Beyond 15 days police custody cannot be extended except under extreme circumstances.
Police custody granted in one case cannot be a bar for invoking a fresh remand to police custody in respect of an altogether different case involving the same accused.
In the case of CBI v. Anupam J. Kulkarni, the Supreme Court had observed that there cannot be police custody beyond 15 days from the date of arrest and in the case of MithabhaiPashbhai Patel and others v. State of Gujarat, the Supreme Court had ruled that the accused who has been granted bail cannot be taken into police custody for further investigation unless bail is cancelled. However, in the case of CBI v. Vikas Mishra @ Vikash Mishra(2009) 6 SCC 332, a bench of Justice MR Shah and Justice CT Ravikumar on 10.07.2023 permitted the CBI to take the accused on remand even though the accused had been released on bail and 15 days from the date of arrest had elapsed.
How Remand Is Granted
In case the police officer wants to take the accused person in police custody, the Case Diary should be written up-to-date and submitted to the magistrate's court with the accused along with the prayer for remand so that the magistrate can decide on the matter. Magistrates do not grant police custody of the accused persons unless they are satisfied that there are good reasons for doing so.
The reasons for detention must be specifically stated by the investigating police officer in the application supported by entries in the Case Diary in order to help the judicial magistrate to pass necessary order.
The accused must be brought before a magistrate. The purpose of requiring the presence of the accused before the magistrate for the purpose of detention is to enable him to represent what he wished to say in the matter.
If the magistrate authorizing detention in police custody happens to be a magistrate other than a Chief Judicial Magistrate, he shall forward a copy of his order with reasons to the Chief Judicial Magistrate.
A request by the investigating officer for the accused to be taken into police custody should not be considered a routine matter either by the police or by the judicial magistrate.
The time of police detention of the accused person should be as short as possible.
The High Courts have made the following orders relating to police custody:
The attention of all magistrates' courts is called to the provisions of Section 167 of the Code of Criminal Procedure, 1973 and the importance of exercising sound judicial discretion in the matter of granting or refusing police custody under it. Orders under this section should be made in the presence of the prisoner and after hearing any objection he may have to the proposed order, if further detention is deemed necessary, detention should be for as short a period as possible.
A request for police custody should be carefully scrutinized and generally granted only if it is shown that the accused person's presence with the police is necessary for the identification of persons, the discovery or identification of property, or a similar special reason. In particular, the court is of the view that applications for the remand of a prisoner who has not made an expected confession or statement, if ever made, should not be granted.
Prayer for remand should be made to the nearest ACJM / CJM through the Zonal DySP/SDPO/Superintendent of Police. A prayer for remand should be made at the earliest opportunity requiring the presence of the accused before the magistrate.
If there are conditions justifying taking the accused person into police custody, the O.C. or the investigating officer should hand over the accused to the nearest magistrate's court (whether or not it has jurisdiction to hear the case), together with a copy of the statement of the accused and an extract from the C.D.
The reasons for which detention is necessary must be clearly stated in the application submitted to the court.
A request by the police officer for the accused to be taken into police custody is not considered a routine and unimportant matter; it is submitted to the Chief / Additional Chief Judicial Magistrate through the Senior Police Officer present at the District or Sub-Divisional Headquarters.
Whenever an application is made to take an accused person into police custody, it should always be submitted to the magistrate. Such an application should be made as soon as possible and subsequent applications for further police custody should be made after the first, if necessary. A detained prisoner cannot remain in police custody after 15 days from the date of his first appearance before a magistrate.
In the case of Jigar alias Jimmy PravinchandraAdatiya v. State of Gujarat, AIR 2022 SC 4641, it was held that the presence of the accused, whether physically or virtually, is sine qua non at the time of taking the accused into custody under Section 167 CrPC and the accused has an inalienable right resisting the prayer for extension of custody. Failure to present the accused before the court during the assessment of the request for an extension of the investigation period constitutes a violation of his fundamental rights.
Remand To Police Custody From Jail Custody
When an accused in judicial custody is to be taken into police custody, the investigating officer should first pray to the concerned CJM / ACJM for questioning the said accused in jail and if from his statement recorded under Section 161 CrPC in jail,anything incriminating comes up, a prayer of taking the accused person in police custody may be made to the concerned magistrate along with the statement of the accused person recorded under section 161 CrPC and extract from the C.D. and the magistrate may remand the accused in police custody in such case.
Court Judgments Regarding Remand:
In the case of Ahamed Basheer and another 11 v. Sub Inspector of Police 2014 Cr.L.J. 137 (Ker), it was held that if non-bailable offence is added later on after release of the accused person on bail in a bailable offence, then he can be arrested again by the police without cancellation of his bail by the court.
In the case of Sharifbai v. Abdul Razak, AIR 1961 Bom 42, it was held that if a police officer fails to produce an arrested person before a Magistrate within 24 hours of his arrest, he will be charged with wrongful detention.
In the case of Alim A. Patel v. State of Maharashtra 2011 (2) AIR BOM R 271, it has been held that if the accused is not in jail for the whole of first 15 days, then he can be remanded in police custody even after a lapse of 15 days.
While deciding the case of Central Bureau of Investigation v. Rathin Dandapath, AIR 2015 SC 3285, it was held that even after a charge sheet is filed in a case, police remand can be sought under Section 167 (2) CrPC.
In the case of State of Gujarat v. Swami Amar Shyam, it was held that there is no duty on the part of the Magistrate to grant reamnd as a matter of course and the police have to convince the court for it after making out a case.
In the case of State of T.N. v. V.K. Naidu, AIR 1979 SC 1255, it was held that a Special Judge can exercise the powers of magistrate under section 167 CrPC under Criminal Law (Amendment) Act, 1952.
In the case of Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Others AIR 2013 SC 313, it was held that the magistrate should apply his mind and not pass an order of remand automatically or in a mechanical manner, as it is his duty to apply his mind while granting remand of an accused person
In the case of Ramesh Kumar Ravi v. State of Bihar, 1987 CrLJ 1489 (Patna) (Full Bench), it was held that even if the investigating officer does not file a request or application for further remand, the magistrate can grant further remand of the accused under Section 167 of the CrPC.
In the case of Raj Narain v. Superintendent, Central Jail, New Delhi, AIR 1971 SC 178 (Seven Judge Bench), it was held that although the physical production of the accused before the magistrate is desirable, failure to do so would not in itself vacate the order of remand if the circumstances of the non-production were beyond the control of prosecution or the police. A remand order passed under Section 167 or 309 of the CrPC in the event of failure to produce the accused would not be illegal.
In the case of Budh Singh v. State of Punjab, (2000) 9 SCC 266 (Three Judge Bench), it was held thatafter the expiry of the period of 15 days of detention by the police, the order of detention for another 7 days was held as a violation of Section 167 of the CrPC.
In the case of Umakant Yadav v. Superintendent, District Jail, Azamgarh, 1995 CrLJ 906 (Allahabad) (DB), it was held that any illegality committed by the court in issuing the custody order is cured if a legal custody order is subsequently issued. The detention of the accused is not illegal.
In the case of Arshad v. State of UP, 2008 (61) ACC 863 (all), it was held that the magistrate is not bound to act on the opinion of the investigating officer in the case diary and he can amend or add new penal sections to a remand order given under section 167 CrPC.
In the case of Smt. Rahmat Jahan v. State of UP, 1998 (37) ACC 718 (All), it was held that surrender of the accused can be taken in hospital and remand order under section 167 CrPC can be passed by the magistrate at the time of the accused being in hospital.
In the case of State represented by Inspector of Police and Ors v. N.M.T. Joy Immaculate, AIR 2004 SC 2282, it was held that detention under section 209(b) and section 309 (2) CrPC serve to ensure the presence of the accused person during the trial. During this period of detention, the accused remains in jail custody, not in a police cell.
In the case of Joyanta Borbora v. State of Assam, 1992 (Cri LJ 2147 at p. 2148: (1992) 1 CCR 902, it was held that the Investigating Officer, by praying for remand of the accused person in army custody, not only acted in contravention of the provisions of the CrPC but also abdicated the powers of the police in connection with the investigation as provided by the Legislature in CrPC.
The action of the Addl. District Magistrate in passing the order for remand of the accused in army custody and the prayer of the Investigating Officer for that remand were highly improper, illegal and ultra vires of the Constitution. The members of the armed forces had absolutely no power to investigate, interrogate, while coming to the aid of the civil authority to maintain public order. This court hoped and trusted that this practice would not be repeated in future.
In the case of K.K. Girdhar v. MS Kathuri, 1989 Cri LJ 1094 at p 1096: (1988) 35 D: LT 392: 1988, it was held that whenever an application for the remand of the accused is made on behalf of the police, the accused must be given the opportunity to oppose the same and pray for his release on bail. For this purpose, anti-remand and bail application can be moved immediately even if any bail application moved earlier is pending and posted to a future date. The magistrate was required to deal with the remand application and the bail application together at one time and without further adjournment of either of them.
Torture in police custody
Torture in police custody is a very old phenomenon. Complaints of torture in police custody in India and around the world are numerous and cause for concern. There are also many examples of deaths in police custody due to physical and mental torture. Such deaths are called custodial deaths.
Now another symptom has emerged in the form of death in police custody which was not caused by the police and that is the death caused by some criminals or the mob while the accused was in police custody outside the police station and outside the court premises during the transportation of the accused to the court, prison or hospital. The Supreme Court has termed custodial death as one of the worst crimes in a civilized society governed by the rule of law.
Despite this, there are reports of a high number of deaths in custody. The legislature and the judiciary have repeatedly created mechanisms to deal with the large number of custodial death cases. The National Human Rights Commission has drawn up guidelines for the process to be followed in cases of custodial deaths. All such deaths must be reported to the NHRC within 24 hours.
According to the guidelines, the autopsy must be videotaped in the case of a custodial death and within two months of the incident all reports including the autopsy report, videotape of the autopsy and the Magistrate's Inquest Report must be sent to the NHRC. The Supreme Court also directed that all police stations and investigating agencies must have CCTV cameras installed. However, there are a number of loopholes in the implementation of the NHRC guidelines and the Supreme Court order.
In such cases, there is also the provision of compensation to the deceased's next of kin. In 2005, section 176(1A) was inserted into the CrPC, which mandates the investigation of custodial deaths, rapes and disappearances by a judicial magistrate or metropolitan magistrate; such investigations were conducted by executive magistrates before 2005. India recorded a total of 88 custodial deaths in 2021, compared to 76 in 2020. The data indicates a 53 percent increase from 15 custodial deaths in 2020. Gujarat recorded the highest number of custodial deaths.
Of the 23 custodial deaths in Gujarat, 22 were reported as deaths in police custody or inside jails when people were not in custody. There are also allegations of custodial deaths not being shown as such and treated as normal suicide or death due to natural disease. A court can issue a writ of habeas corpus against any public authority that has a person unlawfully detained and order the authority to bring the person to court.
In this way, the court ascertains the circumstances of any person's detention and may issue the necessary judgment against unlawful restraint. A complaint may also be filed with the police station, court having jurisdiction, State Human Rights Commission or National Human Rights Commission for torture in police custody.
Conclusion:
In the early days people used to dread the mention of the term 'police custody' due the notion of physical and mental torture associated with the name itself. It is also true that police would allegedly inflict torture upon the arrestee in its custody to extract some information or to make the accused confess his crime even if he had not committed the same.
But times have changed since after a spate of court orders and guidelines protecting the rights of the arrestee except in some states of the country where torture in police custody is still a fashion. Remands of accused persons to police custody are generally granted for helping police in interrogation of the accused persons to ferret out more information from him regarding the crime, his associates, place of occurrence, mode of operation, motive of the crime, recovery and seizure of the stolen articles and to verify his statement.
The grant or non-grant of remand to police custody of an accused person to a large extent depends on the decision of the magistrate hearing the prayer of remand, but he has also been directed to grant remand in police custody based on the materials produced to him by the police officer and not in a mechanical manner without application of his mind. Though remand of an accused person to police custody is necessary in some cases in the interest of proper investigation, it may also turn into a tool of humiliation and harassment of the accused by keeping him in a dingy room called police lock up.
References:
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565
Remand to police custody under section 167 CrPC is a sensitive matter and a part of police investigation in a case and cannot be taken lightly. The investigating officers sometimes need to take the accused person on police remand for making further headway in a case by proper interrogation, as police cannot keep an accused person in its custody for more than 24 hours without the order of the magistrate and it is very difficult to complete an interrogation or investigation within 24 hours. Remand may be police, judicial or transit. Police remand is normally avoided by the accused persons for alleged fear of torture and forceful confession of crime.
The courts have issued various orders and guidelines to protect the interest and safety of the accused persons taken in police custody in particular and have granted several rights to the accused persons and ensured various duties and responsibilities on the police officers, but the gap between rules and guidelines and their implementation remain.
Introduction
According to Merriam-Webster dictionary, 'remand' means 'to order back', such as to send back (a case) to another court or agency for further action or to return to custody pending trial or for further detention. Remand is also when higher courts send cases back to lower courts for further proceedings. The general meaning of remand is to return or send back, but it has two different meanings in the legal world. First, it means returning the accused back to the custody of the competent authority, and second, it means returning the cases from the appellate court back to the lower court. Remand to police custody implies returning the accused person back to the custody of the police.
Different types of remand
In general, remand can be divided into police remand and judicial remand.
Transit remand is another type of remand. The three types of remand have been described below:
Transit remand: In transit remand the accused is arrested in a place outside the jurisdiction. Therefore, a request to ensure transit is filed with the relevant court. Under Section 167 of the Code, provision of transit is implied. Transit remand is also a type of police custody. However, transit custody is meant to transport the accused from one place to another for the purpose of production before the court which has jurisdiction.
Judicial remand: In judicial remand, the accused is either sent to a local jail or other facility that is under the supervision of the judiciary. It follows that custody of the accused is in the hands of the magistrate. To send the accused person to judicial or police custody is under the power of the magistrate according to section 167 (2) CrPC.
In the case of Gian Singh v. Government of Delhi, it was held that interrogation of an accused in judicial custody does not affect the nature of custody.
Police remand: Here the accused is sent to the remand to the lock up at the police station. The accused is under police surveillance. Generally, police custody is requested for the purpose of investigation or questioning of the accused. The accused is prevented from destroying evidence in police custody. Section 57 of the Code states that the police cannot detain an accused for more than 24 hours without special permission from the magistrate, hence permission of the court is required for keeping the accused person in police custody beyond 24 hours in the interest of investigation of the case.
The authority of the court to take the accused into custody is governed by a number of provisions of the CrPC viz. section 167(2), 209(b) and 309(2) CrPC. Each provision is independent of each other and comes into play at different stages of criminal trial. Custody under Section 167(2) relates to the investigation stage and is ordered to continue the investigation and may be in judicial custody or in police custody.
Remand as per section 209 (b) applies to the stage when the court commits the case and can takes the accused into judicial custody during and until the end of the main trial, subject to the provisions of bail according to the CrPC, and finally taking into judicial custody according to Section 309 (2) refers to the stage after the cognizance.
In the case of Mohammad Daud @ Mohammad Saleem v. Superintendent of District Jail, Moradabad, 1993 Cr LJ 1358 (All-DB), it was held that sections 267 and 270 of the CrPC together contain a clear legislative mandate that if a prisoner already confined in a prison is brought before another criminal court to answer to a criminal charge and is detained for that purpose in such court or in its vicinity, he must be transported back to the prison from where he was brought for such attendance.
Grounds for granting remand
Generally, police custody is required for:
- effective interrogation of the accused to know about other accomplices;
- know the details of the offence;
- performing recovery or collecting physical evidence;
- recovery of stolen items, etc.;
- ascertaining the exact place of occurrence;
- ascertaining the truth of the statements of other accused persons involved in the case.
Objective and procedure of remand
The objective of remand is to help police in interrogation of the accused person to know about the details of the case, the place of occurrence, the other accused persons, the stolen property, the motive of the crime and other details of the crime for proper investigation of the case.
If the investigation cannot be concluded within 24 hours and if further detention of the accused by the police is necessary in the interest of the case, the officer-in-charge of the police station or the investigating officer not below the rank of a sub-inspector should request in writing the nearest judicial magistrate to order such detention in the police custody of the accused u/s 167 (1) of the Code of Criminal Procedure, 1973, with a clear indication of the reasons thereof and producing the accused person before the magistrate. An extract of the case diary should be enclosed with the prayer of the police officer seeking the remand to police custody. The power of remand is also given to the executive magistrate (conferred with this power) under section 167 (2A) of CrPC if the judicial magistrate is absent.
In other words, the objective of this provision is twofold; first, that the law does not favour detention in police custody except in special cases, even for reasons to be stated in writing by the magistrate, and secondly, that such a person should be allowed to represent himself before the court.
The accused should not be subjected to any kind of torture in police custody. An accused person should not be taken in police custody just to humiliate and torture him. While an accused is in police custody, his lawyer should be permitted by the police authorities to visit him. Identification Tests Parades after police remand are of very little value.
Principle of granting remand
The principle of granting or not granting remand to police custody always depends on the facts and circumstances of the case and the collection of evidence by the investigating agency. On the basis of this evidence, the investigating agency may ask for the remand of the accused persons for further investigation, i.e., to state that the investigating agency has to prove that certain evidence has been collected against the accused, and without custodial interrogation and investigation, no further investigation is possible and in case of refusal of police custody, the investigation would be spoiled. This is a general principle of whether or not to grant police custody and whether or not to grant custody depends on the facts of each case.
Article 22(2) of the Constitution of India states that every 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 for more than 24 hours without the permission of the magistrate. Similarly, section 57 of CrPC provides that a police officer who arrests a person without a warrant shall not detain him in custody for more than 24 hours without the special permission of the magistrate under Section 167 CrPC. This special permission referred to in section 57 is called remand in police custody. It may also be known as pre-trial detention.
Power of police to arrest in cognizable cases
A police officer is empowered under section 41 to arrest a person who has committed a cognizable offense or is suspected of having been involved in the commission of a cognizable offence. This means that a police officer can arrest without a warrant. Given that the person was detained without a warrant, the police officer, as stated in Section 57 of the CrPC, does not have the right to detain the arrestee for more than 24 hours. Only with special permission from the magistrate can the arrestee be detained after the expiry of the specified time.
If the investigation cannot be completed within 24 hours of arrest of the accused, the investigating officer or the police officer should hand over the accused to the magistrate's court, according to section 167 CrPC.
This period of 24 hours does not include the time required to transport the accused from the place of detention to the magistrate's Court. An arrested person cannot be held in police custody for more than 15 days. Further, the accused may be remanded in judicial custody until he gets bail.
However, in the case of Arnesh Kumar v. State of Bihar, a direction was given by the Supreme Court saying that no arrest is required in cases where the offence is punishable with imprisonment of less than 7 years or up to 7 years, with or without fine.
Difference between police custody and judicial custody
Police custody of an accused person if the investigation is not completed within 24 hours is called Remand. In remand to police custody the accused is in the physical custody of the police and is normally lodged in the lock up of the police station or lock up of any other investigating agency.
In judicial custody the accused remains under the custody of the magistrate and is normally incarcerated in jail. Arrangement should be made for medical examination of an accused person in police custody by an independent and approved panel of doctors, every 48 hours during detention. This type of medical examination is not required in respect of a person in judicial custody.
Police custody can be extended for a maximum of 15 days. Judicial custody can be extended to a maximum of 90 days for offenses punishable by imprisonment of more than 10 years, and to 60 days for all other offences. The primary difference between the two types of custody is that two different authorities are responsible for custody of the accused person. During police custody, the police have the accused person in their custody and can interrogate and investigate him.
During judicial custody, the accused person is in custody of the magistrate or judge and is held in jail or prison pending trial or bail. In judicial custody, the police cannot question an accused person without the permission of a judge or magistrate, but in police custody, no such permission is required.
Relevance of the provisions of Chapter XXXIII of CrPC
Chapter XXXIII of the CrPC deals with various provisions relating to bails and bonds. It sets out when bail is a right of the accused, when bail is at the discretion of the court, under what circumstances this discretion can be exercised, what are the conditions that the accused would have to comply with if he was released on bail and what powers the court havein the event of the accused committing default of bail order.
In addition to Chapter XXXIII, sections 436 to 439 CrPC, another provision that deals with the concept of bail is section 167 of the CrPC, which is generally referred to as "Guarantee". Both of these provisions must be examined in their context when considering the aspect of bail.
Clause (a) of Section 167(2) again provides that every person released on bail under this sub-section shall be deemed to have been released under the provisions of Chapter XXXIII, i.e., the bail and bond provisions. Once bail has been granted under this provision, the provisions of Chapter XXXIII shall apply to subsequent proceedings relating to matters of bail.
This means that bail under this provision also remains valid until it is cancelled. Filing of charges by itself is not a valid reason for cancellation of bail.
It also implies that the special powers of High Court and Court of Sessions under section 439 CrPC are applicable in this case also. The special powers are to release a person on bail and direct that any person released be arrested and re-committed to custody.
Who can apply for police custody?
Section 167 of the CrPC states that an application for detention of the accused person in police custody is submitted either by the officer-in-charge of the police station, or the investigating officer of the case. The officer submitting the prayer for police custody should not be below the rank of a Sub-Inspector. The request is submitted by the police officer if he is of the opinion that the investigation cannot be completed within 24 hours and there are cogent reasons and evidences to take the accused person in police custody in the interest of investigation of the case.
Right of the arrested person
Some of the rights of the arrested person are given below:
In the landmark case of Khatri v. State of Bihar, Hon'ble Justice P.N. Bhagwati ordered that Sessions Judges must compulsorily inform the accused of their rights to free legal aid and advise individuals if they cannot retain a lawyer to defend themselves due to indigence.
In Sheela Barse v. Union of India, the Supreme Court held that the fundamental right of a person to speedy trial is enshrined in Article 21 of the Constitution of India.
No arrested person shall be denied the right to consult a lawyer of his choice under Article 22 of the Constitution of India.
In the case of Huissainara Khatoon vs. Home Secretary, State of Bihar, the Hon'ble Court held that the State cannot evade its constitutional duty to provide speedy trial to the accused by pleading financial or administrative incapacity. The state has a constitutional mandate to ensure a speedy trial and whatever is necessary for this purpose must be done by the state.
In the landmark judgment in Joginder Kumar v. State, it was held that although the police had absolute legal power to arrest a person in criminal proceedings, any arrest had to be justified. Arrests could not be made routinely, only on accusations or suspicions of participation in a crime.
Section 75 of the CrPC stipulates that a police officer or other person executing an arrest warrant shall inform the person to be arrested of the nature of the offense and, if required, show the warrant to him.
Section 55A of the CrPC deals with the health and safety of the arrested person; the duty of the person who has the accused in custody is to adequately care for the health and safety of the accused defendant.
Magistrate's Duty And Authority While Granting Remand
In Ram Doss v. State of Tamil Nadu, the court held that before granting custody under section 167, the Magistrate must keep in mind:
- The reason for detaining the accused even after 24 hours and on the basis of which material the accused should be placed in a police cell.
- Whether an offense is apparent in the report.
- Whether the case has been registered for investigation purposes.
The provision of section 167 of the CrPC is applicable only during the period of judicial proceedings. After the expiry of the mentioned period, the accused is released on bail according to the provisions of grating bail. However, if the police officer or investigator completes the investigation within the given period, the accused will be deprived of the default.
In the case of Jairajsinh Temubha Jadeja v. State of Gujarat, October 2001, it was held that detention according to section 167(2) CrPC is an exception, not a rule. The law does not impose a duty on the magistrate to record the reasons for not remanding in police custody, but it is imperative that the magistrate records the reasons for remanding; section 167 of the CrPC obliges the police authority to hand over a copy of the diary entries relating to the case together with handing over the accused.
The passing of mechanical orders of detention by the magistrate's court was excluded by law, as section 167(3) of the CrPC imposes on the magistrates' court the duty to exercise a judicial opinion in this matter. The magistrate must first satisfy himself that the charge is justified. The magistrate will also ensure the presence of the accused as his presence during hearing of the prayer for grant of remand in police custody is absolutely necessary.
Right To Default Bail
In case the investigation is not completed within 24 hours, the procedure to be followed are enshrined in section 167 CrPC. Section 167(2) further enshrines the right to bail in default, according to which, if the investigating authority does not file charge sheet u/s 173 of the CrPC by the end of the set period, the accused immediately becomes eligible to apply for bail. The exclusive provision to this section in this regard states that the magistrate has the power to remand the accused for a maximum period of 60 days (for crimes not punishable by death, life imprisonment or imprisonment exceeding 10 years). After this period, the accused will be released on bail.
In the case of Enforcement Directorate of India v. Kapil Wadhawan and anr etc., a three-judge bench comprising of Justice K.M. Joseph, Hrishikesh Roy and B.V. Nagarathna on March 27, 2023 ruled that the moment the stipulated 60 or 90 day remand period, as the case may be, expires, an indefeasible right to default bail accrues to the accused and added that the remand period under section 167 (procedure when investigation cannot be completed within 24 hours) of theCrPC ought to be computed from the date when a magistrate authorises remand.
Right Of Arrested Person To Be Brought Before A Magistrate
This was held in the case of Mohd. Suleman v. King Emperor that the right to be brought before a judge within a period not exceeding 24 hours of arrest was created with regard to:
- 1. Prevent arrest and detention for the purpose of obtaining confessions or as a means of coercing people to provide information.
- 2. Prevent police stations from being used as prisons.
- 3. Allow a court officer independent of the police to assist in all bail or release matters in a timely manner.
Change in custody
The magistrate is empowered under Section 167 CrPC to remand a person in police custody. He can also order a change of custody from police custody to judicial custody. In such a situation, the period of police custody is deducted from the total period of judicial custody.
In the case of State v. Dharampal (1982), it was held that a person must be sent to police custody within 15 days from the date of his production before a magistrate under Section 167 of the Code of Criminal Procedure, 1973. If the accused is in policecustody, he can be sent to jail either within 15 days or even after that.
When remand cannot be granted?
The remand of the accused may be refused if prima facie the allegations or information are not substantiated and there are insufficient grounds for the Magistrate to exercise his power of remand.
An accused who has been brought before a magistrate to testify and who has refused to confess or has given an unsatisfactory statement will not be sent to remand or police custody.
An accused who has been released on bail cannot be sent to remand i.e., taken back into police custody, even to secure the recovery of stolen articles.
The approver cannot be sent on remand to police custody.
The power of granting remand cannot be exercised under section 167 (2) CrPC once charge sheet is filed and cognizance of the offence is taken.
Beyond 15 days police custody cannot be extended except under extreme circumstances.
Police custody granted in one case cannot be a bar for invoking a fresh remand to police custody in respect of an altogether different case involving the same accused.
In the case of CBI v. Anupam J. Kulkarni, the Supreme Court had observed that there cannot be police custody beyond 15 days from the date of arrest and in the case of MithabhaiPashbhai Patel and others v. State of Gujarat, the Supreme Court had ruled that the accused who has been granted bail cannot be taken into police custody for further investigation unless bail is cancelled. However, in the case of CBI v. Vikas Mishra @ Vikash Mishra(2009) 6 SCC 332, a bench of Justice MR Shah and Justice CT Ravikumar on 10.07.2023 permitted the CBI to take the accused on remand even though the accused had been released on bail and 15 days from the date of arrest had elapsed.
How Remand Is Granted
In case the police officer wants to take the accused person in police custody, the Case Diary should be written up-to-date and submitted to the magistrate's court with the accused along with the prayer for remand so that the magistrate can decide on the matter. Magistrates do not grant police custody of the accused persons unless they are satisfied that there are good reasons for doing so.
The reasons for detention must be specifically stated by the investigating police officer in the application supported by entries in the Case Diary in order to help the judicial magistrate to pass necessary order.
The accused must be brought before a magistrate. The purpose of requiring the presence of the accused before the magistrate for the purpose of detention is to enable him to represent what he wished to say in the matter.
If the magistrate authorizing detention in police custody happens to be a magistrate other than a Chief Judicial Magistrate, he shall forward a copy of his order with reasons to the Chief Judicial Magistrate.
A request by the investigating officer for the accused to be taken into police custody should not be considered a routine matter either by the police or by the judicial magistrate.
The time of police detention of the accused person should be as short as possible.
The High Courts have made the following orders relating to police custody:
The attention of all magistrates' courts is called to the provisions of Section 167 of the Code of Criminal Procedure, 1973 and the importance of exercising sound judicial discretion in the matter of granting or refusing police custody under it. Orders under this section should be made in the presence of the prisoner and after hearing any objection he may have to the proposed order, if further detention is deemed necessary, detention should be for as short a period as possible.
A request for police custody should be carefully scrutinized and generally granted only if it is shown that the accused person's presence with the police is necessary for the identification of persons, the discovery or identification of property, or a similar special reason. In particular, the court is of the view that applications for the remand of a prisoner who has not made an expected confession or statement, if ever made, should not be granted.
Prayer for remand should be made to the nearest ACJM / CJM through the Zonal DySP/SDPO/Superintendent of Police. A prayer for remand should be made at the earliest opportunity requiring the presence of the accused before the magistrate.
If there are conditions justifying taking the accused person into police custody, the O.C. or the investigating officer should hand over the accused to the nearest magistrate's court (whether or not it has jurisdiction to hear the case), together with a copy of the statement of the accused and an extract from the C.D.
The reasons for which detention is necessary must be clearly stated in the application submitted to the court.
A request by the police officer for the accused to be taken into police custody is not considered a routine and unimportant matter; it is submitted to the Chief / Additional Chief Judicial Magistrate through the Senior Police Officer present at the District or Sub-Divisional Headquarters.
Whenever an application is made to take an accused person into police custody, it should always be submitted to the magistrate. Such an application should be made as soon as possible and subsequent applications for further police custody should be made after the first, if necessary. A detained prisoner cannot remain in police custody after 15 days from the date of his first appearance before a magistrate.
In the case of Jigar alias Jimmy PravinchandraAdatiya v. State of Gujarat, AIR 2022 SC 4641, it was held that the presence of the accused, whether physically or virtually, is sine qua non at the time of taking the accused into custody under Section 167 CrPC and the accused has an inalienable right resisting the prayer for extension of custody. Failure to present the accused before the court during the assessment of the request for an extension of the investigation period constitutes a violation of his fundamental rights.
Remand To Police Custody From Jail Custody
When an accused in judicial custody is to be taken into police custody, the investigating officer should first pray to the concerned CJM / ACJM for questioning the said accused in jail and if from his statement recorded under Section 161 CrPC in jail,anything incriminating comes up, a prayer of taking the accused person in police custody may be made to the concerned magistrate along with the statement of the accused person recorded under section 161 CrPC and extract from the C.D. and the magistrate may remand the accused in police custody in such case.
Court Judgments Regarding Remand:
In the case of Ahamed Basheer and another 11 v. Sub Inspector of Police 2014 Cr.L.J. 137 (Ker), it was held that if non-bailable offence is added later on after release of the accused person on bail in a bailable offence, then he can be arrested again by the police without cancellation of his bail by the court.
In the case of Sharifbai v. Abdul Razak, AIR 1961 Bom 42, it was held that if a police officer fails to produce an arrested person before a Magistrate within 24 hours of his arrest, he will be charged with wrongful detention.
In the case of Alim A. Patel v. State of Maharashtra 2011 (2) AIR BOM R 271, it has been held that if the accused is not in jail for the whole of first 15 days, then he can be remanded in police custody even after a lapse of 15 days.
While deciding the case of Central Bureau of Investigation v. Rathin Dandapath, AIR 2015 SC 3285, it was held that even after a charge sheet is filed in a case, police remand can be sought under Section 167 (2) CrPC.
In the case of State of Gujarat v. Swami Amar Shyam, it was held that there is no duty on the part of the Magistrate to grant reamnd as a matter of course and the police have to convince the court for it after making out a case.
In the case of State of T.N. v. V.K. Naidu, AIR 1979 SC 1255, it was held that a Special Judge can exercise the powers of magistrate under section 167 CrPC under Criminal Law (Amendment) Act, 1952.
In the case of Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Others AIR 2013 SC 313, it was held that the magistrate should apply his mind and not pass an order of remand automatically or in a mechanical manner, as it is his duty to apply his mind while granting remand of an accused person
In the case of Ramesh Kumar Ravi v. State of Bihar, 1987 CrLJ 1489 (Patna) (Full Bench), it was held that even if the investigating officer does not file a request or application for further remand, the magistrate can grant further remand of the accused under Section 167 of the CrPC.
In the case of Raj Narain v. Superintendent, Central Jail, New Delhi, AIR 1971 SC 178 (Seven Judge Bench), it was held that although the physical production of the accused before the magistrate is desirable, failure to do so would not in itself vacate the order of remand if the circumstances of the non-production were beyond the control of prosecution or the police. A remand order passed under Section 167 or 309 of the CrPC in the event of failure to produce the accused would not be illegal.
In the case of Budh Singh v. State of Punjab, (2000) 9 SCC 266 (Three Judge Bench), it was held thatafter the expiry of the period of 15 days of detention by the police, the order of detention for another 7 days was held as a violation of Section 167 of the CrPC.
In the case of Umakant Yadav v. Superintendent, District Jail, Azamgarh, 1995 CrLJ 906 (Allahabad) (DB), it was held that any illegality committed by the court in issuing the custody order is cured if a legal custody order is subsequently issued. The detention of the accused is not illegal.
In the case of Arshad v. State of UP, 2008 (61) ACC 863 (all), it was held that the magistrate is not bound to act on the opinion of the investigating officer in the case diary and he can amend or add new penal sections to a remand order given under section 167 CrPC.
In the case of Smt. Rahmat Jahan v. State of UP, 1998 (37) ACC 718 (All), it was held that surrender of the accused can be taken in hospital and remand order under section 167 CrPC can be passed by the magistrate at the time of the accused being in hospital.
In the case of State represented by Inspector of Police and Ors v. N.M.T. Joy Immaculate, AIR 2004 SC 2282, it was held that detention under section 209(b) and section 309 (2) CrPC serve to ensure the presence of the accused person during the trial. During this period of detention, the accused remains in jail custody, not in a police cell.
In the case of Joyanta Borbora v. State of Assam, 1992 (Cri LJ 2147 at p. 2148: (1992) 1 CCR 902, it was held that the Investigating Officer, by praying for remand of the accused person in army custody, not only acted in contravention of the provisions of the CrPC but also abdicated the powers of the police in connection with the investigation as provided by the Legislature in CrPC.
The action of the Addl. District Magistrate in passing the order for remand of the accused in army custody and the prayer of the Investigating Officer for that remand were highly improper, illegal and ultra vires of the Constitution. The members of the armed forces had absolutely no power to investigate, interrogate, while coming to the aid of the civil authority to maintain public order. This court hoped and trusted that this practice would not be repeated in future.
In the case of K.K. Girdhar v. MS Kathuri, 1989 Cri LJ 1094 at p 1096: (1988) 35 D: LT 392: 1988, it was held that whenever an application for the remand of the accused is made on behalf of the police, the accused must be given the opportunity to oppose the same and pray for his release on bail. For this purpose, anti-remand and bail application can be moved immediately even if any bail application moved earlier is pending and posted to a future date. The magistrate was required to deal with the remand application and the bail application together at one time and without further adjournment of either of them.
Torture in police custody
Torture in police custody is a very old phenomenon. Complaints of torture in police custody in India and around the world are numerous and cause for concern. There are also many examples of deaths in police custody due to physical and mental torture. Such deaths are called custodial deaths.
Now another symptom has emerged in the form of death in police custody which was not caused by the police and that is the death caused by some criminals or the mob while the accused was in police custody outside the police station and outside the court premises during the transportation of the accused to the court, prison or hospital. The Supreme Court has termed custodial death as one of the worst crimes in a civilized society governed by the rule of law.
Despite this, there are reports of a high number of deaths in custody. The legislature and the judiciary have repeatedly created mechanisms to deal with the large number of custodial death cases. The National Human Rights Commission has drawn up guidelines for the process to be followed in cases of custodial deaths. All such deaths must be reported to the NHRC within 24 hours.
According to the guidelines, the autopsy must be videotaped in the case of a custodial death and within two months of the incident all reports including the autopsy report, videotape of the autopsy and the Magistrate's Inquest Report must be sent to the NHRC. The Supreme Court also directed that all police stations and investigating agencies must have CCTV cameras installed. However, there are a number of loopholes in the implementation of the NHRC guidelines and the Supreme Court order.
In such cases, there is also the provision of compensation to the deceased's next of kin. In 2005, section 176(1A) was inserted into the CrPC, which mandates the investigation of custodial deaths, rapes and disappearances by a judicial magistrate or metropolitan magistrate; such investigations were conducted by executive magistrates before 2005. India recorded a total of 88 custodial deaths in 2021, compared to 76 in 2020. The data indicates a 53 percent increase from 15 custodial deaths in 2020. Gujarat recorded the highest number of custodial deaths.
Of the 23 custodial deaths in Gujarat, 22 were reported as deaths in police custody or inside jails when people were not in custody. There are also allegations of custodial deaths not being shown as such and treated as normal suicide or death due to natural disease. A court can issue a writ of habeas corpus against any public authority that has a person unlawfully detained and order the authority to bring the person to court.
In this way, the court ascertains the circumstances of any person's detention and may issue the necessary judgment against unlawful restraint. A complaint may also be filed with the police station, court having jurisdiction, State Human Rights Commission or National Human Rights Commission for torture in police custody.
Conclusion:
In the early days people used to dread the mention of the term 'police custody' due the notion of physical and mental torture associated with the name itself. It is also true that police would allegedly inflict torture upon the arrestee in its custody to extract some information or to make the accused confess his crime even if he had not committed the same.
But times have changed since after a spate of court orders and guidelines protecting the rights of the arrestee except in some states of the country where torture in police custody is still a fashion. Remands of accused persons to police custody are generally granted for helping police in interrogation of the accused persons to ferret out more information from him regarding the crime, his associates, place of occurrence, mode of operation, motive of the crime, recovery and seizure of the stolen articles and to verify his statement.
The grant or non-grant of remand to police custody of an accused person to a large extent depends on the decision of the magistrate hearing the prayer of remand, but he has also been directed to grant remand in police custody based on the materials produced to him by the police officer and not in a mechanical manner without application of his mind. Though remand of an accused person to police custody is necessary in some cases in the interest of proper investigation, it may also turn into a tool of humiliation and harassment of the accused by keeping him in a dingy room called police lock up.
References:
- Law of Remand u/s 167 CrPC S.S. Upadhyay, https://lawhelpline.in/PDFs/CRIMINAL_LAWS/Remand_us_167.pdf
- Ramdoss And Others vs State Of Tamil Nadu And Another on 29 September, 1992, https://indiankanoon.org/doc/1931285/
- Rights Of Accused Before and After Arrest in India, 04 July 2022, by Vijay Pal Dalmia, https://www.mondaq.com/india/crime/1207678/rights-of-accused-before-and-after-arrest-in-india
- Judicial custody vs police custody, June 18, 2022, I Pleaders, https://blog.ipleaders.in/judicial-custody-vs-police-custody/
- Remand by Judicial Magistrate if Investigation is not completed within 24 hrs, By Dimple Garg, https://www.legalserviceindia.com/legal/article-573-remand-by-a-judicial-magistrate-if-investigation-is-not-completed-within-24-hrs.html
- NCRB report: Gujarat records highest custodial deaths in India, August 30, 2022, https://www.deccanherald.com/national/ncrb-report-gujarat-records-highest-custodial-deaths-in-india-1140709
- Understanding The Concept Of Remand - Lead India Law, https://www.leadindia.law/legal-
- Custodial Death - Drishti IAS, https://www.drishtiias.com/daily-news-analysis/custod
- Probe all custodial deaths, rules NHRC, By Neeraj Chauhan, Jan 14, 2021, https://www.hindustantimes.com/india-news/probe-all-custodial-deaths-rules-nhrc-
- Torture in Police Custody: What Are Your Rights?, https://nyaaya.org/guest-blog/torture-in-police-custody-what-are-your-rights/
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565
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