JAMIA MILLIA ISLAMIA

REMAND

SUBMITTED BY
JIJO RAJ P
BA.LL.B (VIII Semester)
SECTION B
JAMIA MILLIA ISLAMIA

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 ACKNOWELEDGEMENT

This work on Remand would not became possible without the helping hands of my Professor Dr.
Asad Mallik and my fellow colleagues. I Thank Professor Dr.Asad Mallik and my fellow
colleagues for their helping hands.

I also thank my parents and all my friends who helped me in completing this work on Remand. I
hope this work will help you all in getting a better understanding on Remand.

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 TABLE OF CONTENTS

1. Acknowledgement. 2

2. Introduction. 4

3. Remand. 5

4. Purpose of Remand. 5-7

5. Kinds of Remand. 8

6. Police and Judicial Custody. 8

7. Laws of Custody in India. 9-12

8. Difference Between Section 167 and 309 of Cr.PC. 12-14

9. Conclusion. 15

10. Bibliography. 16

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 INTRODUCTION

Remand is a process by which a person keeps in the custody before its actual conviction process.
A person an accused can be held in remand in the custody till their trail or conviction in serious
crimes, like murder, rape etc. It is also known as a pre-trail detention of accused in the custody. A
remand in fact is an authorized detention in custody of a person arrested. The Magistrate exercise
his powers under the Code of Criminal Procedure, 1973 while grating the judicial or police
remand.

To check police from exercising powers in arbitrary manner, provisions have been provided in
Criminal Procedure Code. Detention of an accused arrested without warrant cannot cross the limits
of 24 hours. In fact, this provision has made police duty to complete investigation within twenty
four hours, if police fail to complete investigation within twenty four hours, police is to present
arrested person to magistrate who may pass for his order of remand.

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The dictionary meaning of the word remand is to return or send back. However, in the legal world,
it has two different meanings. Firstly, it is used to send back the accused in the custody of the
competent authority. Secondly, it is used to send back the cases from the appellate court to the
lower court. It means when a person an accused arrested by the police officer then the police
officer can’t keep the accused in its custody for more than 24 hours(sec. 57 Cr.PC), he has to
present the accused before the Magistrate after the completion of such period, for more detention
in the custody. Then the magistrate will order for more detention of the accused in the custody, it
is called remand. It is also known as “pre-trail detention”. Sections 56, 57, 167,and 309 of the code
deal with the procedure to adopted in relation to grant of remand (judicial remand as well as police
remand).

The word 'custody' means apprehending someone for protective care. In case, you are in charge of
a room with some kids and you find acts of one of those kids dangerous to other kids, you'll want
to tie arms of that kid and make him sit away from other kids. So this is the principal behind
arresting the suspect of a crime, to save other people in the society. The words "custody" and
"arrest" are not synonymous. It is true that in every arrest there is custody but vice versa is not
true. Mere utterance of words or gesture or flickering of eyes does not amount to arrest. Actual
seizure or touch of a person's body with a view to arresting is necessary.

PURPOSE OF REMAND

 The original purpose of remand in custody was to ensure that the accused attends the court
as required

 Protection of victims

 Final disposition of matters for which accused is remanded in custody.

Some legal cases are not solved in the trial courts and the defendants have to go to the appellate
court. But if the appellate court finds that there are some mistakes made in the trial court, it again
sends the case to the trial court and the case is said to be a remanded case.

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A very common mistake made in the trial court is that sometimes it does not allow some evidence.
Then the appellate court ordered the trial court to allow the evidence and the person who is going
to be free is remanded for further few days of 14 or 15 days which can be extended to 60 days.

In India, the Code of Criminal Procedure deals with judicial and police custody under Section 167.

When a man accused of an offense (here the word offense by and large means a non bailable
offense as in bailable offense he would be discharged on bail, so no need of arresting him through
detention) is arrested and kept an officer in charge of the police station feels that the investigation
process cannot be finished in 24 hours of such arrest and detainment, at that point he will forward
to the nearest judicial magistrate(competent to take cognizance of the offense or not) or in his
absence to an executive magistrate the transmitting of a duplicate copy of case diary and the
forwarding of the accused in person. In any case, regardless of whether it is a non bailable offense
then additionally if the officer in charge for the police station sees no reason of forwarding the
accused to the magistrate reason being the insufficiency of proof or evidence against him, only
then he can release such accused on bail himself and later on can file closure report with the
magistrate.

Now when such accused creates the impression that is, surrenders before the magistrate or brought
before such magistrate after arrest and confinement or detention, at that point such magistrate can
either send the accused to judicial custody that is to the prison jail.

In strict legal theory, people held on remand are held only to guarantee that they are present for
their trials. The relevant provision of the ICCPR (International Covenant on Civil and Political
Rights) provides that remand and sentenced prisoners should be held in separate facilities. Despite
what remand prisoners themselves may feel, the law does not regard their confinement as
punishment, and therefore allows them a fuller set of rights – and imposes fewer restrictions on
them – than it does in the case of convicted prisoners. If they are eventually convicted, the time
spent in prison on remand may be credited as part of the sentence served.

In general, remand prisoners are held in special remand facilities or in different sections of prisons
from those of other prisoners. There may, in practice, be a degree of intermingling between remand
and convicted prisoners, especially when the prison system is overcrowded. Intermingling can also

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occur, as appropriate, in specialist prison units, such as for young adults and vulnerable prisoners,
to cater to the needs of the individual prisoner.

KINDS OF REMAND

There are two kinds of Remand.

1. Police Remand or Police Custody:-

In police custody the accused is send to the police station’s jail. In this police seeks custody of an
accused to interrogate him or for recovery of booty etc..

2. Judicial Remand or Judicial Custody:-

In judicial custody the accused is send to the local jail or some other establishment under the
watchful eyes of the judiciary. In simple language, its mean the custody of the accused in the hands
judiciary.

POLICE CUSTODY

When following to the receipt of an information/complaint/report by police about a crime, an

It is actually the custody of a suspect with the police in a jail at the police station, to detain the
suspect. During this detention, the police officer in charge of the case, may interrogate the suspect
and this detention is not supposed to be longer than 24 hours.

The officer in charge of the case is required to produce the suspect before the appropriate judge
within 24 hours, these 24 hours exclude the time of necessary journey from the police station to
the court.

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JUDICIAL CUSTODY

Police Custody means that police has the physical custody of the accused while Judicial Custody
means an accused is in the custody of the concerned Magistrate. In former, the accused is lodged
in police station lockup while in latter, it is the jail. When Police takes a person into custody, the
Cr.P.C kicks-in and they were produced him/her before a Magistrate within 24 hours of the arrest.

POLICE CUSTODY AND JUDICIAL CUSTODY IN CRIMINAL

When a person accused of a cognizable offence is arrested and detained by the police and produced
within 24 hours(excluding travelling time from the place of arrest),or he himself surrenders before
the nearest Magistrate. Then the Magistrate can either release him on bail or he can either send
him to judicial custody or to police custody. If the accused is juvenile, his age is to be ascertained
and if he finds that he is juvenile, then he be directed to be produced before Juvenile Justice Board.

 A suspect under Police Custody or Judicial Custody is assumed to be a suspect. A suspect

 These types of custodies are preventive measures.

 A police officer in charge of a suspect may treat the suspect arbitrarily. In case of arrests by
police and pending the investigation, the lawyer of a suspect generally prays for Bail or Judicial
Custody. In Judicial Custody, suspect becomes responsibility of Court.

 Police Custody with permission to interrogate - During Judicial Custody, the police officer in
charge of the case is not allowed to interrogate the suspect. However, the court may allow the
interrogations to be conducted if it opines the interrogation being necessary under the facts
produced before the court.

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LAWS OF CUSTODY IN INDIA

The provisions for holding a person in custody for the purpose of furthering investigation, in India
are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows
that a person may be held in the custody of the police for a period of 15 days on the orders of a
Magistrate. A Judicial Magistrate may remand a person to any form of custody extending up to 15
days and an executive magistrate may order for a period of custody extending up to 7 days. A
person may be held in the custody of the police or in judicial custody. Police custody may extend
only up to a period of 15 days from the date custody begins but judicial custody may extend to a
period of 90 days for a crime which entails a punishment of death, life imprisonment or period of
imprisonment exceeding 10 years and 60 days for all other crimes if the Magistrate is convinced
that sufficient reasons exists, following which the accused or suspect must be released on bail.

The Magistrate has the authority to remand the person into judicial or police custody. The
detaining authority may be changed during the pendency of the detention, provided that the total
time period does not extend 15 days. If a person is transferred from police to judicial custody the
number of days served in police custody is deducted from the total time remanded to judicial
custody.

The most important difference is of the fact that the accused can be sent to police custody only
within first fifteen days of the presentation before the Magistrate after the arrest, as held by
supreme court in State v. Dharampal, 1982 as mentioned in proviso (a) to section 167(2). But in
case of judicial custody ,such person can be sent to Prison, either within first fifteen days or even
thereafter.

Such accused can be kept in judicial custody if its a case of police investigation that is police
report or challan has not been filed to the magistrate, within 60 days (if offence is punishable with
10 or less than years) 90 days (if the offence is punishable with more than 10 years imprisonment)
and even then the accused does not file bail bond ,then he would continue with judicial custody.

If the police report is filed within aforementioned days then then the accused wont be released on
default bail and thus will continue to be detained under judicial custody because after investigation
the process of enquiry has started.

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As per Section 436A of the code of criminal procedure, If the accused is undertrial and has under
judicial custody, undergone half of the maximum punishment awardable for the offence, then he
can be released on default bail. So the maximum period of judicial custody can be upto half of the
maximum period awardable for the offence.

The rights of the accused begin from the time of his arrest. The Constitution of India under Article
22 provides for the protection of the arrested person to the extent that he has a right to be informed
of the reason for arrest and he must be produced before the nearest Magistrate within a period of
24 hours. Article 22 (1) also provides that he shall be entitled to consult and to be defended by a
legal practitioner of his choice (Constitution of India, Article 22 (i). 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.

After the legal arrest of a person, his rights are protected through the time period for which he
may be held in custody. For the custody to be a legal, a person may not be held in custody for more
than 15 days. A Magistrate must be convinced that that there are exceptional circumstances present
to extend this custody for a maximum of 60-90 days depending in the nature of the crime being
investigated. A cautious reading of S.167(1) of the code of criminal procedure makes it clear that
the officer in charge of the police station or the investigating officer (if he is not below the rank of
sub-inspector) can ask for remand only when there are grounds to believe that the accusation or
information is well founded and it appears that the investigation cannot be completed within the
period of twenty-four hours as specified under Section 57. Hence, Magistrate’s power to give
remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his
power of remand. The same was held in Raj Pal Singh v. State of U.P (1983 Crl.L.J. 109) the case
also said that the remand order sheet need not look like, a judgment delivered after full trial but
application of main must be evident. It is the right of the accused that he is brought before a
Magistrate within 24 hours of arrest, excluding the time taken in transportation from the place of
custody to the Magistrate. If no judicial magistrate is immediately available then he may be taken
before an executive Magistrate who can remand him to custody for a maximum of 7 days following
which he must be taken before a judicial magistrate.

In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni
(AIR 1992 SC 1768) the question regarding arrest & detention in custody was dealt with it was

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held that the Magistrate under S.167(2) can authorise the detention of the accused in such custody
as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially
should not exceed fifteen days in the whole. The custody can be police custody or judicial custody
as the magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days in whole” are very
significant. On a combined reading of S.167(2) and (2A) it emerges that the Judicial Magistrate to
whom the Executive Magistrate has forwarded the arrested accused can order detention in such
custody namely police custody or judicial custody under S.167(2) for the rest of the first fifteen
days after deducting the period of detention order by the Executive Magistrate. The detention
thereafter could only be in judicial custody.

There are also specific rights during arrest and custody, governing the right of medically unfit
prisoners. These are that women accused of any offence, if arrested so soon after child birth that
they cannot at once be taken before the Magistrate without personal suffering and risk to health
should not ordinarily be removed until they are in a proper condition to travel.

They should be allowed to remain under proper charge in the care of their relations, or be sent to
the nearest dispensary, and suffered to remain there until the officer in charge of the dispensary
certifies that they are sufficiently recovered. In such cases, sanction must be obtained by the police
from the nearest Magistrate for their detention at their homes, or in the dispensary, beyond the
period of 24 hours as allowed by section 57 of the code of criminal procedure 1973. The same
procedure should be followed in the case of other accused persons who are too ill to travel.

If the arrest is invalid on account of breach of procedure or violation of any other right or if the
custody is not passed within the framework of the law by a competent Magistrate who has
jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article 32
or 226 of the Constitution of India. However, it must be noted that a writ does not lie against a
legal custody, no matter what rights may have been violated before the lawful custody.

In Kami Sanyal v Dist. Magistrate (1990 Crl.L.J. 2685), Darjeeling the Supreme Court observed
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”. It has been held that the crucial date when the legality of the

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remand is to be looked into is the date when the petition comes up for hearing, in Kana v. State of
Rajasthan (1980 Crl.L.J. 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 Crl.L.J. 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.”

DIFFERENCE BETWEEN SECTIONS 167 & 309 OF CR.P.C.

In case of State through C.B.I. -v- Dawood Ibrahim Kaskar and others, the hon'ble apex court held
that there cannot be any manner of doubt that the remand and the custody referred to in the first
proviso to S. 309(2) are different from detention in custody under Section 167. While remand
under the former relates to a stage after cognizance and can only be to judicial custody, detention
under the latter relates to the stage of investigation and can initially be either in police custody or
judicial custody. Since, however, even after cognizance is taken of an offence the police has a
power to investigate into it further, which can be exercised only in accordance with Chapter XII,
there is no reason whatsoever why the provisions of Section 167 thereof would not apply to a
person who comes to be later arrested by the police in course of such investigation.

If Section 309 (2) is interpreted - to mean that after the Court takes cognizance of an offence it
cannot exercise its power of detention in police custody under Section 167, the Investigating
Agency would be deprived of an opportunity to interrogate a person arrested during further
investigation, even if it can on production of sufficient materials, convince the Court that his
detention in its (police) custody was essential for that purpose. Therefore, the words "accused if in
custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when
cognizance was taken or when enquiry or trial was being held in respect of him and not to an
accused who is subsequently arrested in course of further investigation.

So far as the accused in the first category is concerned he can be remanded to judicial custody only
in view of Section 309 (2), but he who comes under the second category will be governed by
Section 167 so long as further investigation continues. That necessarily means that in respect of
the latter the Court which has taken cognizance of the offence may exercise its power to detain
him in police custody, subject to the fulfillment of the requirements and the limitation of Section

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167. Following the above ruling in case of C.B.I. vs Rathin Dandapath and others, the Hon'ble
Supreme Court reiterated that police remand can be sought in respect of accused arrested even
after filing of charge-sheet.

When a person is in Judicial custody the interrogation by police is permissible magistrate can
direct the place and manner. Mere interrogation by Police, during such custody by permission of
the Magistrate, cannot change the nature of custody ( Gian Singh Vs. State (Delhi Administration)

In Nijamuddin Mohd. Bashir Khan...vs .State of Maharashtra, it has been held that in every case
in which offence is punishable with imprisonment for a term which may extent to ten years,
provisions of section 167(2)(a)(ii) of Cr.P.C, will be attracted and if investigation in such case is
not completed within period of 60- days, no Magistrate shall authorise detention of accused beyond
the said period.

Mithabhai Pashabhai Patel and others Vs. State of Gujarat, it was held that the accused who has
been granted bail cannot be taken into police custody for further investigation unless bail is
cancelled.

In Pralhad Singh Bhati ..vs.. N.C.T. Delhi, it was held that when the accused is released on bail
for offence under section 306 of IPC and later on offence under section 302 is added, it was wrong
on part of Magistrate to say that for every addition of offence, police can not arrest him. With the
change of the nature of the offence, the accused becomes disentitled to the liberty granted to him
in relation to a minor offence, if the offence is altered for an aggravated crime.

The provisions for holding a person in custody for the purpose of furthering investigation, in India
are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows
that a person may be held in the custody of the police for a period of 15 days on the orders of a
magistrate. A judicial magistrate may remand a person to any form of custody extending up to 15
days and an executive magistrate may order for a period of custody extending up to 7 days. A
person may be held in the custody of the police or in judicial custody. Police custody may extend
only up to a period of 15 days from the date custody begins but judicial custody may extend to a
period of 90 days for a crime which entails a punishment of death, life imprisonment or period of
imprisonment exceeding 10 years and 60 days for all other crimes if the magistrate is convinced
that sufficient reasons exists, following which the accused or suspect must be released on bail.

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The magistrate has the authority to remand the person into judicial or police custody. The detaining
authority may be changed during the pendency of the detention, provided that the total time period
does not extend 15 days. If a person is transferred from police to judicial custody the number of
days served in police custody is deducted from the total time remanded to judicial custody.

The difference between judicial and police custody apart from the difference in custodian
authority, is that under police custody, the suspect may be interrogated by the police but under
judicial custody interrogation is not permitted except in exceptional circumstances, police custody
starts when a person is taken into custody by the police and his rights are read out to him along
with the explanation for reasons for custody but judicial custody starts when a judge orders for
judicial custody. The first thing that happens to a suspect on arrest is that he is taken into police
custody, following which he is taken before a magistrate and he may either be remanded to judicial
custody or be sent back into police custody. He may also gain temporary relief by posting bail.

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 CONCLUSION

Section 167 of the Criminal Procedure Code governs the custody of an accused person during the
investigation of the case. On the other hand provisions related to custody of accused under section
309(2) of Cr.PC come into play only after taking cognizance of an offence or after commencement
of trial. Thus, section 309(2) grants the power of the court to grant custody of the accused after
filing of the chargesheet and after taking cognizance of the offence. Therefore, these powers
operate in different domains.

Under section 309 of the Criminal Procedure Code, only judicial custody is permissible. Whereas,
under section 167, both police custody and judicial custody is permissible subject to the time limits
mentioned therein.

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 BIBLIOGRAPHY

 Kelkar R.V , Criminal Procedure, Eastern Book Publication, Sixth Edition, 2018, Delhi.
 Laws of Custody in India, An analysis of Section 167 of Code of Criminal Procedure by
Hariharan Kumar.
 Essential Judicial Rulings for Police Officers (Published by Maharashtra Police
Academy, Nasik).
 www.Live Law.in.
 Academike.
 www.Lawctopus.in.

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