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Remand in police custody

The term ‘remand’ does not exist in Section 167 of Cr. P.C. However, under the Section, the concerned magistrate can send an arrested person to jail or police custody in specified circumstances.

Therefore, getting back the arrestee from magistrate to the police has long been termed as remand by police as well as magistrates. Although the main purpose of detention in police custody is to conduct investigation, as most of the researches suggest, police to elicit information or extract -confessions resort to physical and mental torture, which sometimes lead to death or physical deformity of the detainee. This kind of behavior of the police is in violation of the provisions of Article 35 of the Constitution, Article 5 of the United Nations Declaration of Human Rights, as well as Article 7 of International Covenant on Civil and Political Rights.

In Both BLAST and others v. Bangladesh and Saifuzzaman v. State the subject of torture was considered and the judges issued directives and guidelines with a view to prevent such heinous practices by the police.

            For the convenience of discussion the relevant directives and guidelines are briefly described below:

Not to arrest a person under section 54 of the CrPC to detain under Special Powers Act, 1974 and the magistrate shall not make an order of detention in that case.

In BLAST and others v. Bangladesh the petitioners ably established that police officers often arrest people without warrant under section 54 of the CrPC and seek remand under Special Powers Act, 1974. Lacking the necessary knowledge, magistrates often grant detention of arrestee in such cases. Clearly arrest under Special Powers Act is preventive in nature. A person is arrested under this Act not for his involvement in any offence, rather to prevent him from getting engaged with any prejudicial activity.[1] Therefore in this case the Supreme Court decided that, police officer cannot arrest a person under section 54 of the Code with a view to detain him under section 3 of the Special Powers Act, 1974. Such arrest is neither lawful nor permissible under section 54.[2]

2.Police officer to incorporate reasons in his forwarding letter as to why investigation could not be completed within 24 hours of arrest of a person and why he considers that the accusation or the information against the person is well founded along with transmitting a copy of the case diary.

            According to Section 61 of the Cr. P.C, police cannot detain a person arrested under Section 54 for more than 24 hours unless an order thereof has been made by a competent magistrate. Article 33 of the Constitution makes it mandatory for a police officer to comply with such requirement. The main objective of this provision is to ensure that a judicial mind is applied with respect to the legality of the arrests or detention made without warrant.

            Section 61 of the CrPC requires that police shall complete investigation with respect to an arrest without warrant within the permitted time limit of 24 hours. In certain circumstances investigation may not be completed within 24 hours. Section 167 (1) provides that a person arrested without warrant shall be produced before the magistrate (a) if the investigation cannot be completed within 24 hours and (b) if there are grounds for believing that the accusation or information received against the person is well founded. Fulfillment of this requirement will enable the magistrate to decide upon the legality of the detention.

To take an arrested person to the nearest hospital or government doctor for treatment if the police officer finds or discovers any marks of injury on him.

            The objective of this directive is to ensure that marks of injury, if any, found in the body of the accused persons are noted in the case diary so that the injury sustained before arrest cannot be alleged to have been inflicted in police custody. At the same time, it will also prevent the police to claim that such injuries were sustained before arrest.

In D.K. Basu v. State of West Bengal, the Supreme Court of India directed that if the arrestee requests so, he shall be examined at the time of his arrest, and injuries, if any detected shall be recorded in the “Inspection Memo”. Such Inspection Memo shall be signed both by the arrestee and the concerned police officer and its copy shall be provided to the arrestee for record.

4.To make detention order only if the magistrate is satisfied with the reasons stated in the forwarding letter of the police officer. Otherwise to release the person. To release the accused on taking a bond if the case diary, as prescribed, is not produced.
            As discussed earlier, the police officer is required to state reasons in its forwarding letter seeking detention of a person arrested under Section 54 so that a magistrate can apply judicial mind before granting or rejecting the prayer for detention. The forwarding letter shall be attached with the case diary. If the case diary does not include the required entries, the magistrate shall forthwith release the arrestee. lf the magistrate is satisfied with the reasoning and the entries of the case diary he shall order detention of the accused after recording the reasons (Section 167 (3) and (4) of the Cr. P.C) Irrespective of the explicit provisions under Section 167, in most of the remand cases magistrates hardly apply judicial mind or record reasons for detention. On the other hand, the Magistrate passes a parrot like order authorizing detention in police custody.

[1]               55 (2003) DLR 363.

[2]               Ibid., p 102

Posted from
Shoaib Rahman
LL.M. Advocate

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