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Published : June 16, 2012 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 5258 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Remand should not be made Mechanically

'' A careful reading of S. 167(1), Cr.P.C. would show that an investigating officer can ask for remand only when there are grounds for believing that the accusation or information is well founded and it appears that the investigation cannot be completed within the period of 24 hours fixed by S. 57. Therefore, it follows that a remand by a Magistrate is not an automatic one and sufficient grounds must exist for the Magistrate to exercise their powers of remand.''

Article 22 (1) gives person arrested a twofold protection, viz. (1) that an arrested person shall not be detained in custody without being told the grounds of such an arrest and (2) that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Article 22 (2) gives yet another protection stating that every person who is arrested and detained in custody must be produced before the nearest Magistrate within 24 hours excluding the time necessary for the journey from the the place of arrest to the Court of Magistrate and that no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5) of the Constitution of India, enacts, that the persons arrested should be informed of the ground of arrest, and of right to bail. Section 57. Crl. P.C. which is also in consonance with Article 22 (2) of the Constitution of India, provides that no police officer shall detain, in custody a person arrested without warrant for a longer period than under all circumstances is reasonable and such period shall not in the absence of a special order of a Magistrate under Section 167 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. The precautions laid down in Article 22 (1) and (2) of the Constitution and Section 56. Cr P. C which requires a person arrested without warrant to be taken before a Magistrate or officer in charge of a police station without unnecessary delay and Section 57, Cr. P.C. seem to be designed to secure persons arrested without warrant to be produced before a Magistrate without unnecessary delay and in any case with an upper limit of 24 hours without a special order of the Magistrate, of course, excluding the time necessary for the journey to the Court from the place of arrest, Section 167. Cr. P.C. deals with the procedure when investigation cannot be completed in 24 hours. It is not necessary for the purpose of this case to elaborately go into the history behind the importance and object of the constitutional provisions as well as the other provisions of the general law.

It was held in the case '' Gulab Chand Upadhyaya Vs State Of U.P. And Ors.[3] ''Now about the powers of Magistrate to override the investigating agency even during pendency of investigation. Firstly, he can release the accused by refusing remand (Section 167). Secondly, he can grant bail to accused (Section 437). Thirdly, he can release seized property (Section 457). Fourthly, during progress of investigation by police, the Magistrate is empowered by Section 164 to record any confessional statement. He is also empowered by the same Section to record on oath any statement other than confession, and that statement would form an important part of investigation. Fifthly, if investigation is in progress and in the meantime a criminal complaint is filed the Magistrate can require the 'investigating officer' to submit a "report" under Section 210(1). The proposition that the word "report" in Sub-section (1) of Section 210 means a 'report' under Section 173, is supported by some precedents, with exceptions also. But I am of the view that it could only mean a charge-sheet or final report (under Section 173). This view is based upon Sub-sections (2) of Section 210 which expressly refers to Section 173; and also upon the fact that subsection (3) of Section 210 can come into play only if the police report called under Section 210(1) is a charge- sheet or final report. From all these provisions it is clear that though the Magistrate is not expected to intervene in day to day investigation but he is not completely deprived of his powers till the end of investigation.

-The Hon'ble Allahabad High Court in Gulab Chand Upadhyaya v. State of U. P. (2002 Cri LJ 2907) : 2002 (1) A Cr. R 644 held that the arrest is no doubt a part of investigation but the Magistrate can place restriction upon the power of arrest of police.

-In Raj Pal Singh v. State of U.P., it was observed that that remand order cannot be without application of mind and it must not be in a routine and mechanical manner. But all the same, it does not require that the order sheet should look like, a judgment delivered after full trial.

-It was observed in Laxmi Narain Gupta vs State[4] that '' Along with the present petition at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts coacerned, for admitting them to bail. They are in judicial customary because they have not been able to arrange a surety while the orders for their judicial remands are being passed in a routine manner.''

-In Kami Sanyal v Dist. Magistrate, Darjeeling the Supreme Court, reaffirming its earlier view taken in B. R. Rao v. State of Orissa , observed that only the time of the return and not the institution of the proceedings is the crucial date and that "while a person is committed to jail custody by a competent Court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted. See also A. K. Gopalan v. Govt. of India. 31. A Full Bench of the Patna High Court in Babunandan Mallah v. State 1972 Cri LJ 423 has taken the view that it is not a condition precedent for a valid order under Section 344 (1-A).. Cr. P.C. (1898) (corresponding to Section 309 of the new Code) that the accused must at the time of the passing of the order of remand be in valid custody. It has been held that the crucial date when the legality of the remand is to be looked into is the date when the petition comes up for hearing, in Kana v. State of Rajasthan 1980 Cri LJ 344 the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench decision of the Patna High Court, in Babunandan Mallah v. State 1972 Cri LJ 423 held that "if the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered." (See also the judgment in Nagalingam v. State rendered by a Bench of this Court consisting of Gokulakrishnan and Suryamurthy, JJ. in W. P, No. 1638/80 on 21-4-1980, wherein the said Bench dismissed the writ petition on the ground that on the date of the return there was a legal order of remand.)

-Mr. K.V. Sankaran, relying on the decision in In Re Madhu Limaye AIR 1969 SC 1014 : 1969 Cri LJ l440 has contended that as the arrest of Jeevakhan by the police is tainted with an illegality and as he had been kept under police custody for (far?) over the statutory period and as the remand by the Magistrate had also been passed in a patently routine and mechanical manner without applying his mind to all the relevant matters, the detenu is entitled to be set at liberty.

-After carefully going through the above decisions, we are of the view that the decision in In re Madhu Limaye AIR 1969 SC 1014 : 1969 Cri LJ 1440 cannot be availed of by the detenu Jeevakhan, since it is not his case that he did not know the nature of the alleged offences for which he was arrested or that the remand made by the Magistrate on 29-8-1981 was without any jurisdiction or that the facts and circumstances of the case did not warrant an order of remand by the Magistrate when Jeevakhan was remanded to judicial custody on 29-8-1981 or that the remand order was not passed by a competent Magistral having jurisdiction. On the other hand a thorough examination of the documents filed in this case inclusive of the remand report, discloses that Jeevakhan was committed to judicial custody by a competent court, by an order, which prima facie does not appear to be without jurisdiction or in any way illegal. It is patently clear in this case that there was a valid and legal remand order on the date of the return.

-It was held in G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu '' Under the provisions of the Criminal Procedure Code, the duty of the police officer is to produce the arrested persons before the concerned Magistrate within 24 hours along with their remand report and a copy of the diary maintained by him at the time of the remand as required under S. 167, Cr.P.C. Thereafter, it is for the concerned Magistrate to apply his mind and satisfy himself that the accused should be remanded to judicial or police custody.''

-A careful reading of S. 167(1), Cr.P.C. would show that an investigating officer can ask for remand only when there are grounds for believing that the accusation or information is well founded and it appears that the investigation cannot be completed within the period of 24 hours fixed by S. 57. Therefore, it follows that a remand by a Magistrate is not an automatic one and sufficient grounds must exist for the Magistrate to exercise their powers of remand. That is the reason why it is required that a copy of the entries in the diary should be forwarded to the Magistrate along with the arrested persons. This is the second stage in remanding the accused persons.

-In Elumalai v. State of Tamil Nadu, 1983 Mad LW (Cri) 121, a Bench of this Court pointed out that remand should not be made mechanically and as a matter of routine and such routines should be deprecated.

-In Elumalai's case (1983 Mad LW (Cri) 121) has clearly indicated the importance of the provisions contained in S. 167(2), Cr.P.C. In the following words :- "For a speedy trial, the prosecution agencies also must take a prompt step in completing their investigations and filing their final reports as contemplated under the Code as expeditiously as possible. In case the investigating officer fails to take speedy action in a case registered against any person arrested under S. 41(1), S. 151(1) or any other penal provision of the law, and keeps it in cold storage, forgetting his obligation to the society and in contravention of the principles of natural justice and allow, by his conduct, the arrested persons to be kept behind the bars, for months together and if the Courts without being conscious of the mandatory provisions of S. 167(2), mechanically authorise repeated detention and also do not show any diligence in completing the trial of the case speedily, the result would be that prisoners, especially those coming from the society of have nots, have to suffer untold physical and mental agony and spend their lives in the jail without having any ray of hope of their release."

-The decision in Krishna Iyer, J., in Mantoo Majumdar and Dasdev Singh v. State of Bihar, 1980 Mad LW (Crl) (SN) 17 : (1980 Cri LJ 546) (SC) wherein it was observed that the magistrate concerned have been practically authorising repeated detentions, unconscious of the provisions which obligated them to monitor the proceedings which warrant such detention. The Bench concluded its discussion by holding that all possible breach that may result, from delays between the time a prosecuting officer discovers sufficient evidence to proceed against tan accused person and the time of instituting those proceeding is to be guarded against by Courts which are obliged to the society.

Conclusion:
If the prima facie accusation or information is not well founded and sufficient grounds do not exist for the Magistrate to exercise his power of remand, in such cases, remand of accused can be refused. A fortiori, a remand by a Magistrate is not an automatic one and sufficient grounds must exist for the Magistrate to exercise their powers of remand. ''Judicial remands should not be passed in a routine manner.''
******
# 1990 CriLJ 2685 ; G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu
# 1983 CriLJ 1009 ;Jeevakhan And Ors. vs Officer-In-Charge Of 'Q' Branch Of Tamil Nadu Police
# 2002 CriLJ 2907
# ILR 1986 Delhi 635
# It was observed in 1983 CriLJ 1009 ;Jeevakhan And Ors. vs Officer-In-Charge Of 'Q' Branch Of Tamil Nadu Police
# 1983 CriLJ 1009 ;Jeevakhan And Ors. vs Officer-In-Charge Of 'Q' Branch Of Tamil Nadu Police
# 1983 CriLJ 1009 ;Jeevakhan And Ors. vs Officer-In-Charge Of 'Q' Branch Of Tamil Nadu Police
# 1990 CriLJ 2685
# 1990 CriLJ 2685 ;G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu
# 1990 CriLJ 2685 ;G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu
# 1990 CriLJ 2685 ;G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu




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