Report No. 268
B. Default or Statutory Bail and Remand
11.5 The non-completion of the investigation shall not, in the absence of a special order of a Magistrate, be deemed to be a sufficient cause for the detention of an accused person. A remand to police custody may be granted for compelling reasons when it is shown in the application that there is good reason to believe that the person accused of the offence can point out properly or otherwise assist the police in elucidating the case.268 A general statement by the officer applying for the remand that, 'the accused may be able to give further information', should not be accepted. The Courts should strictly enforce the rule that supplementary charge-sheet cannot be filed to fill up the gaps, but only to add information that becomes available subsequently. Thus, the courts must ensure that the supplementary charge-sheet is not filed with the intention to delay the trial but to provide substantial ancillary evidence that was not available before despite the due diligence exercised by the investigating authorities.
11.6 With regard to remands, it has come to the notice that, in practice, Magistrates authorize detention in a routine and casual manner. The Magistrate must examine and verify the Case Diary which is placed before him at the time of Remand. Some High Courts have framed rules regarding remand of accused persons to custody, which ought to gain wider acceptance for the sake of uniformity and consistency. Reference may be had to the Delhi High Court Rules, Vol. III, Chapter 11, Part B; more specifically Rules 3,4,5,6,7,8,10. Another concern is that there is inadequate priority given to the grant of bail despite guidelines framed as also some rules made by some High Courts. Reference may be made to Volume III Chapter 10, of the Delhi High Court Rules where the relevant Rules 1,2, 3, 4, 5, 7, 9, 15,16 must be included in the provisions of the Code. The relevant part of the aforesaid is annexed herewith as Annexure A.
11.7 Exacerbating the problem of undertrials in the country is inordinate time taken in disposing of trials. While s. 309 (1) of Cr.P.C. directs that "in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded", in reality, the Trial Courts in the country are overburdened and cannot expeditiously dispose of trials by holding them on a day-to-day basis.
11.8 Further with regard to s.309 (2) of Cr.P.C., this provision deals with remand of an person accused of an offence after cognizance of the offence has been taken by the court. Where the trail is postponed or adjourned, the Court may remand such accused if he is in custody. The provision does not mention that the Magistrate may also release the person from custody. As a result, the section appears to suggest that remand under the provision is the only outcome. To ensure that remand does not take place in a mechanical manner the Court should consider both the continuing need, if any, for the person to remain in custody, as well as the length of undertrial incarceration undergone by him, in determining whether the person should be released or remanded.
Amendment to this effect should be provided in s. 309 (2) of Cr.P.C explaining that upon postponement or adjournment of the trial the Court shall, if the person accused of an offence is in custody, release such accused person on bail, or for reasons to be recorded in writing, remand such accused to further custody. In special laws, investigating agencies should continually update the court as to the status of the investigation at every remand hearing. Recognizing the complex nature of some of the offences, investigating agencies may require more time for investigation, and therefore, it is necessary that discretion may be vested in the courts. However, if the court comes to the conclusion that the delay in investigation is caused not by the nature of the case under investigation, but is attributable to the investigating agencies, the court should consider releasing the accused person on bail.
11.9 Further with regards to s. 167 of Cr.P.C. the following factors may be considered in the context of remand:
a) The non-completion of the investigation shall not, in the absence of a special order of a Magistrate be deemed to be a sufficient cause for the continued detention of an accused person.
b) A remand to Police custody be granted only in cases of real necessity and when it is shown in the application that there is a good reason to believe that the person accused of an offence can point out properly or otherwise assist the Police in elucidating the case.269 A general statement by the officer applying for the remand that the accused may be able to give further information and aid the investigation cannot be deemed as sufficient reason for requesting remand.
c) The Magistrate shall examine in a thorough manner the Case Diary, which is placed before him at the time of application for remand.
d) The period for which the person accused of an offence is not in actual/physical custody (e.g. admitted in hospital) of the police, be excluded from the time prescribed.