Remand

Remand

What is Remand?

The dictionary meaning of remand is to order back or to return or send back. The word's general meaning also signifies the procedure in which the accused is sent back to jail. Remand is the authorized detention of an accused person in custody during the process of investigation or during the trial as the case may be.

Official definition of Remand

The MODEL PRISON MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF PRISONS IN INDIA defines REMAND PRISONER as ‘A person who has been remanded by the court to prison custody, pending investigation by the police’.

Section 57 of the Code of Criminal Procedure, 1973 (CrPC) states that the police officer who arrests a person without a warrant shall not detain him in his custody for more than 24 hours (not including the time of travel) without the special permission of a magistrate under section 167 of the CrPC. This special permission referred to in Section 57 is known as remand. The term ‘remand’ is also used in Section 309(2) to mean detention of the accused to custody in a magisterial lock up or jail during postponement or adjournment of an enquiry or trial.

Types of Remand

Transit Remand

In case an accused is arrested in a state other than the one in which the FIR or complaint is registered such that transportation of the accused has to be arranged and the period of transportation may go beyond a 24-hour period, court can pass order granting “transit remand” to allow the police to transport an accused from one sState to another. The Supreme Court has  noted that transit remand cannot be judicial custody because the police is exclusively entrusted with the accused in order to allow them to produce him before a Magistrate having jurisdiction to try the case. It was clarified that transit remand must therefore be police custody. Transit Remand is implicit under Section 167 of CrPC.

Remand u/s 167 CrPC

The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody.  Though there is no explicit mention of the word remand in the said section, the word remand can be traced from the meaning of the said provision which states that the accused may be remanded to judicial custody or police custody if the magistrate determines that there are sufficient grounds for further incarceration. Only the officer in charge of the police station or the investigation officer who is not below the rank of sub-inspector can make the remand application. The remand application is made by the officer when the officer is of the opinion that the investigation cannot be completed within 24 hours. The Judicial Magistrate may either refuse to detain the accused or he may direct the detention of accused in police custody or judicial custody. The police can interrogate the accused even after his remand to judicial custody.

The nature of custody may be altered from police custody to judicial custody and vice versa, by the magistrate during the first 15 days period. But on expiry of 15 days period, the accused can only be ordered to be kept in judicial custody, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to statutory bail or default bail.

Section 167 of the Code operates only at the investigation stage i.e. pre-cognizance stage and ceases to operate after the completion of the investigation. Then comes the cognizance stage wherein the court after perusing the final report and material, can extend the remand of the accused to custody under other provisions of law. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.

It is to be noted that the time limit for custody during investigation stage is higher for the crime mentioned under NDPS Act i.e  “one hundred and eighty days”[section 36A(4) of NDPS Act], The Unlawful Activities Prevention Act (UAPA) provides that an accused can be kept in remand for a period of 180 days [ 43D  2(b) of The Unlawful Activities ( Prevention) Act, 1967.  etc.

Remand u/s 309 CrPC

This section authorizes a Magistrate, after taking cognizance of the offence or commencement of trial, to remand an accused person to jail for reasonable cause and with the objective to secure the presence of accused during the trial. This provision relates to the adjournment of proceedings in inquiries and trials and has nothing to do with the police investigation and, it contemplates a remand to jail and not to police custody. The remand here, relates to a stage after cognizance and can only be to judicial custody. The custody under this section is intended for under-trial prisoners.  This section requires a Magistrate, if he chooses to adjourn a case, “to remand by warrant the accused in custody”.  This section does not permit remand to custody for an indefinite period, but it should coincide with the duration of adjournment and not beyond it. However, the magistrate court shall not remand the accused to custody for a term exceeding 15 days at a time, but no limit has been set to the number of such successive remands.  

Remand u/s 209 CrPC

Section 209 of the Code authorises the Magistrate to remand an accused to custody while committing a matter to the Court of Sessions if the matter is triable exclusively by the Court of Sessions. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial, subject to the provisions of bail under the code.

Further, For further understanding on grounds of remand and procedure Ram Doss v. The State of Tamil Nadu may be referred to. In State v. Dawood Ibrahim Kaskar. The Court further elaborated upon the scope and extent of remand under Ss. 167 and 309 of CrPC.

Regional Variations

While judicial custody may be awarded for a predetermined amount of time, usually no longer than 15 days at first, subject to additional extensions in cases where remand is sought u/s 167(2) of CrPC.

• In Punjab, this time period is for 30 days.

While the total time period of detention (including the time period of initial detention of 15 days) shall not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days where the investigation relates to any other offence.

• The state amendments of Manipur and Tripura provide for a total time of 180 days offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 120 days where the investigation relates to any other offence.
• The state amendment of  Orissa, provides for a total time of 120 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years.

Appearance in Official Database

Prison Statistics Report

Prison Statistics Report prepared by the National Crime Records Bureau does a yearly statistical analysis of prisons, including prison inmates. The Report also tracks the number of inmates taken on remand for each state and mentions it under the head ‘movement of inmates outside the jail premises’.

Movement on inmates outside the jail premises during the year 2020 including inmates taken on remand in each state

Crime in India

The Crime in India report (Volume III) prepared by the NCRB tracks the number of deaths in police custody/lock-up state wise. It gives data on the case status and the enquiries setup against such deaths. It separately covers persons in remand (i.e.  persons in police/ judicial remand) and persons not on remand (i.e. persons arrested and yet to be produced before courts).

The Crime in India report (Volume III) tracks the number of deaths in police custody/lock-up state wise.

Reasons for such custodial deaths (of person on remand and person not on remand) in each state

Research That Engages with Remand

Magistrates & Constitutional Protections: An Ethnographic Study of First Production and Remand in Delhi Courts

The study by Project 39A of NLUD, uses observations of Delhi's magistrate courts' courtrooms to examine how magistrates conduct themselves in public during first production and remand hearings. First Production and Remand refers to the due process procedures by which the magistrate may examine the accused's constitutional guarantees (life, liberty, dignity, and safety) under Article 22(2) of the Indian Constitution.

Through three months of courtroom observation, from November 2022 to February 2023, the eight-person study team was able to look at how courts are operating at this point rather than just whether or not procedural rules are being followed. Researchers examined the roles played by various court actors and noted how social hierarchies and courtroom dynamics influenced the participants' experiences.

Also Known as

1. Remand also relates to the way in which the cases are sent back to lower courts by the appellate court which is covered under Section 107 (1)(b) of the Code of Civil Procedure empowers an appellate court to remand a case. Specifically, remand is dealt with in Order 41 Rules 23, 23A and 25 of CPC.
2. The Remand under S.167(1) CrPC is also called ‘parcha’ remand as it arises out of the application by police for the purpose of interrogation.
3. Remand u/s 167(1) CrPC is called as pre cognizance remand and Remand u/s 309 CrPC is called as post cognizance remand.