Introduction
Introduction
Introduction
NIRANJAN SINGH
VS .
THE
FULL
BENCH
Distinguished the same on an observation made by this Court
that equivocatory quibbling that the police have taken a man into
informal custody but have not arrested him, have detained him in
interrogation but have not taken him into formal custody, were
unfair evasion of the straightforwardness of the law. This Court
went onto observe further that there was no necessity of dilating
on the shady facet as the Court was satisfied that the accused
had physically submitted before the Sessions Judge giving rise to
the jurisdiction to grant bail. Taking refuge in the said observation,
the Full Bench observed that the decision rendered by this Court
could not be availed of by the learned counsel in support of his
contentions that the mere taking of a person into custody would
amount to arrest. The Full Bench observed that mere summoning
of a person during an enquiry under the Customs Act did not
amount to arrest so as to attract the provisions of Article 22(2) of
the Constitution of India and the stand taken that the persons
arrested under the Customs Act should be produced before a
Magistrate without unnecessary delay from the moment the
arrest is effected, had to fail.
REMAND IN CONSTITUTION
The Constitution of India through Article 22 (2) mandates that
every person who is arrested and detained in custody shall be
produced before the nearest Magistrate within a period of 24
hours of such arrest excluding the time necessary for journey
from the place of arrest to that court and that no person shall be
detained in custody beyond that period without the authority of
the Magistrate. Personal liberty of a citizen guaranteed by Article
21 of the Constitution of India is concerned, the Hon'ble Supreme
Court, in KALYAN CHANDRA SARKAR V. RAJESH
"It is trite law that personal liberty cannot be taken away except
in accordance with the procedure established by law. Personal
liberty is a constitutional guarantee. However, Article 21 which
guarantees the above right also contemplates deprivation of
personal liberty by procedure established by law. Under the
criminal laws of this country, a person accused of offences which
are non bailable is liable to be detained in custody during the
pendency of trial unless he is enlarged on bail in accordance with
law. Such detention cannot be questioned as being violative of
Article 21 since the same is authorised by law."
The Constitution of India as well as the Code of Criminal
Procedure expect that an arrested person, who has been detained
in custody, shall not be kept in detention for any unreasonable
time and that the investigation must be completed as far as
possible within 24 hours. Where the investigation of the offence
for which accused has been arrested cannot be completed within
24 hours and there are grounds for believing that the accusation
or information against the accused is well- founded, the police is
obliged to forward the accused along with the case diary to the
nearest Magistrate for further remand of the accused person
under section 167 of the Cr. P. Code. Before a Magistrate
authorizes detention under section 167, Cr. P. C., he has to be
first satisfied that the arrest made is legal and in accordance with
law and all the constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does not
satisfy the requirements of Section 41 of the Code, Magistrate is
duty bound not to authorize his further detention and release the
accused. In the case of RAM DOSS V/S STATE
OF
TAMIL NADU,
1993 CR.L.J 2147 M ADRAS HIGH COURT has held that while
granting remand U/sec.167 Cr.P.C. a Magistrate has to see: (i) The
grounds why detention beyond 24 hours is sought for (ii) If there
is a report disclosing cognizable offence. (ii) If case has been
registered for investigation. But a Magistrate cannot question why
such case has been entertained in absence of material therefore.
V.
STATE
OF
AND OTHERS
V.
STATE
OF
OF
ARNESH
KUMAR
VS
The police officer shall forward the check list duly filed and
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
excluding the time necessary for the journey from 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 Cr. 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 that 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 Magistrates Court.
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.
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. 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
5. The arrested person is entitled to get legal aid on his arrest from
the nearest Legal
Aid Committee, and such committee has to provide legal assistance
to the arrested
10. While remanding the accused to police custody the Magistrate has
to take note that
(i) Such custody should not be granted for more than 15 days on the
whole, (ii) reasons
For remanding the accused to police custody should be mentioned
in the order and
(iii) Copy of the order and reasons should be sent to the Chief
Judicial Magistrate.
11. Before remanding the accused to police custody the Magistrate
should first get
Satisfied that the accusations against the accused are well
founded, and for that
Purpose he should not only go through the case diary and the
statements of the
Witnesses, he should scrutinize the record and decided as to
whether the
Prescribed formalities are followed and complied.
12. In case of the female accused, they should not kept in the police
lock up in which
Male suspects are detained. Female accused should be kept in
separate lock ups
And guarded by female constables. Interrogation of female
accused should be
Carried out only in presence of female police officers.
PAGE
Court has observed that Sec. 167 (2) provides that at a time
accused can be remanded for 15 days. If further detention of
accused is necessary on satisfaction of the Magistrate but
further detention in Magisterial custody can be allowed.
Magistrate may authorize detention of the accused beyond the
period of 15 days if he is satisfied that adequate grounds exist.
However there is further limitation for detention of accused
persons in such custody. Accused can be so detained for the
AND ORS
V/S STATE
OF
ANDHRA
VS.
OF
1997 SC 610, the Honble Apex court has issued the following
11 procedural guidelines in the case of arrest, detention and
interrogation of any person.
1}
examined at the time of his arrest and major and minor injuries, if
any present on his/her body, must be recorded at that time. The
Inspector Memo must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided to the
arrestee.
8}
CASE OF
RAKESH KUMAR
V.
made under section 167(2) terminates the instant the chargesheet is filed and cognizance is taken. Such an order would be
valid till the duration for which it is made does not expire or till it
is replaced by a remand order under section 309 CrPC, whatever's
earlier in point of time.
"In cases of grant of bail, the validity of the earlier orders of
remand can certainly be taken into consideration. In such cases if
there was illegality in the earlier orders of remand, it cannot be
validated by a subsequent valid order of remand, KUDAL J.
RATI RAM
V.
STATE
OF
IN
IN
NARAYAN
V.
STATE
OF
ON
VS.
STATE (NCT OF
PAGE
V.
STATE
OF
MAHARASHTRA:
Transit remand:
authorized
by
him,
by the Special
Provided therein are satisfied and are complied with. The conditions
provided
Are:
(1) A report of the public prosecutor,
(2) Which indicates the progress of the investigation, and
(3) Specifies the compelling reasons for seeking the detention
of the Accused
Beyond the period of 180 days, and
(4) After notice to the accused.
(3) Section 268 of the Code shall apply in relation to a case involving
an offence
Punishable under this Act subject to the modification that- (a) the
reference in
Sub section (1) thereof(i) To "the State Government" shall be construed as a reference to
"the Central
Government or the State Government"
(ii) To "order of the State Government" shall be construed as a
reference to "order
Of the Central Government or the State Government, as the case
may be"; and (b) the
Reference in sub-section (2)thereof, to "the State Government"
shall be construed
As a reference to "the Central Government or the State
Government, as the case
May be".
(4) Nothing in section 438 of the Code shall apply in relation to any
case involving the
Arrest of any person accused of having committed an offence
punishable under this
Act.
(5) Notwithstanding anything contained in the Code, no person
accused of an offence
Punishable under Chapters IV and VI of this Act shall, if in
custody, be released on
Bail or on his own bond unless the Public Prosecutor has been given
an opportunity of
Being heard on the application for such release:
Provided that such accused person shall not be released on bail or
on his own bond
If the Court, on a perusal of the case diary or the report made under
section 173 of
The Code is of the opinion that there are reasonable grounds for
believing that the
Accusation against such person is prima facie true.
CONCLUSION
The Magistrate must record the complaint of ill-treatment made
by accused. Police are duty bound to conduct the medical
examination of accused prior to arrest. The Magistrate must if
consented by the accused examine the person of the accused and
note the injuries if any. The Magistrate must then send the
accused for medical examination to a registered medical
practitioner. On receipt of the report from the medical officer,
Magistrate can compare both the reports and reach to conclusion.
If substance is found in the allegation of the accused he is to be
taken in magisterial custody. The complaint lodged by the
accused must be treated as a private complaint and it must be
sent to the Magistrate having jurisdiction to take cognizance. The
Magistrate is also duty bound to send the report (giving
information about the allegation and not to send the entire
complaint) to Hon'ble Sessions Court. If
the Magistrate having jurisdiction to take cognizance has not
proceeded in accordance with Chapter XV, the Session Court may
direct the Magistrate accordingly.
1.
2.
1994 (1)
MAH.L.J. 220
3.
4.
(2013) 1
SCC 314,
5.
6.
Court Cases
page 266,
7.
Pradesh
8.
2001 SC
1010
The Congress Party introduced the UAPA at a time when the State
of India was in turmoil. Indira Gandhis grip on power was under
threat. India had only just emerged from wars with both China,
and Pakistan, the economy was in crisis, the political system was
in crisis, and the Congress Party itself was in crisis. There were
new strands of opposition emerging, and gaining in strength. The
Congress Party could not see how to avoid their inevitable failure
at the next election, so they created an atmosphere whereby,
anyone who raised a voice was labeled as an enemy of the State,
and then could be booked under the UAPA.