Report No. 268
4.12 Sections 56, 57, 167 and 309 of Cr.P.C. deal with the procedure related to the grant of remand. The difference between judicial and police custody is not simply the custodian, but under police custody, interrogation by the police is permitted, whereas under judicial custody interrogation is not permitted except in exceptional circumstances.
Law is a zealous protector of the liberties of the subjects and generally does not permit detention unless there is a legal sanction for it86. Section 56 Cr.P.C. requires the police officer making the arrest without warrant to forthwith produce the person accused of an offence before a Magistrate, while s. 57 prohibits the police officer from detaining the arrested person for a period exceeding 24 hours. Section 167 Cr.P.C provides for custody of a person by the police for a period of 15 days on the orders of a Magistrate.
4.13 The detaining authority may change during the pendency of the detention, provided that the total time period does not exceed 15 days.87 To extend the custody up to 60-90 days, a magistrate must be certain that exceptional circumstances exists. Remand must be requested when the investigation cannot be completed within the stipulated 24 hours under s. 57 of Cr.PC and there are reasonable grounds to believe that there is a prima facie case or the accusation is well founded. The magistrate must ensure that there are rational and credible grounds to grant custody.88
While granting custody to the police, the Magistrate must believe that the granting custody will assist the police in some discovery of evidence and for such a discovery the presence of the accused person is indispensable. Explanation I to s. 167 (2) (c) of Cr.PC allows such accused to remain in custody until he is able to furnish bail. However, it was observed by Delhi High Court in Laxmi Narain Gupta v. State89 that where the accused person is in judicial custody, and is poor, direction must be passed for admitting him to bail.
4.14 The Supreme Court has frowned upon a mechanical attitude towards detention, and has clearly stated that if public justice is to be promoted, mechanical detention should be demoted,90 yet, casual approach to remand remains the norm. Bail hearings happen only when the person accused of an offence moves a bail application. If the accused does not have legal representation,91 or the lawyer does not move for bail, the person continues to remain in custody and is denied liberty without cause.
Similarly, post-cognizance, the Court is empowered to remand the accused for periods not exceeding 15 days at a time.92 Normally, the trial should take place on a day-to-day basis, but since this is rarely the case, Courts grant adjournments and postponements to the next date of hearing and remand the accused person in the meantime.93 The section does require the court to record reasons for postponement or adjournment however, in cases where the court does record reasons, it is rather superficial and perfunctory.
4.15 Legislative authority for the detention of persons in prison for a suspected offence is provided under section 167 and 309(2) Cr.P.C. The Code, however, makes a clear distinction between detention in custody before and after taking cognizance. The former is covered by s. 167 of the Cr.PC, and the latter by s. 309 Cr.P.C.94 The two are mutually exclusive. Judicial elucidation of these provisions can be found in the case Dinesh Dalmia v. CBI.95 In State through C.B.I v. Dawood Ibrahim Kaskar 96, the court further elaborated upon the scope and extent of remand under sections 167 and 309 of Cr.PC:
"If Section 309(2) is to be 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 of the Code, 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."
4.16 Remand under sections s. 167 and s. 309 of Cr.PC was also discussed in Dinesh Dalmia97 and C.B.I. v. Rathin Dandapath.98In Dinesh Dalmia the Court held that High Court is not justified in upholding refusal of remand in police custody by the Magistrate, on the ground that person accused stood in custody after his arrest under s. 309 Cr.P.C. Since arrest, remand and bail constitute vital parts of investigation, application for bail by the accused has to be decided in light of settled principles after giving reasonable opportunity to the prosecution99.