 welcome those of you who have been with us for a long time now as well as those who are new to the group study circle and beyond law CLC. Today's topic is remand, section 57 and 167 CRPC is going to be the relevant sections and our resource person is Mr. Sundar Mohan, second generation lawyer, son of Mr. Sundar, senior advocate. He joined the office of Mr. Habibullah Basha, senior advocate and a former advocate general. There he was trained in handling cases relating to customs and educational matters before the Madrasai Court. In 1994, he joined with Sushant M. Sundaram, presently the advocate general of Tamil Nadu, gained experience in criminal side high court and also trial court. He was appointed by the special court for Tata cases as counsel to appear for accused in Bhatnavamadur case. In 1996, he joined the office of Mr. N. Narrajan, senior advocate, a doin of the criminal bar and he assisted him in many landmark cases, including Jain Hawala case at Delhi High Court and Bombay Blast case. Few other cases are Tansi case which was reported in 2004 and of course Rajiv Gandhi assassination case, he appeared for defense and justice. Bhadwa has made a reference about Mr. Sundar Mohan in his judgment. Apart from the above, he is a resource person of Tamil Nadu judicial academy and delivered several lectures on various topics in criminal law in Chennai and Madurai for trainee civil judges and district judges. He is also a resource person for Tamil Nadu Police Academy. Thank you friends. A recorded version of this webinar will be available and the link will be posted. We would love to hear from you for those who just joining can join our study separate group and beyond law CLC through the links that will be posted in the chat box. Go over to the resource person. Thank you Mr. Raj for those nice words of introduction. Thank you Mr. Vikas. Thank you Mr. Om Pukash. Good afternoon friends. Today's topic as you all can see is about remand. When you're talking about remand, it is preceded by arrest. So, one must understand the concept of arrest. Before you understand what remand means, you must try to understand what arrest and why an arrest should be made. All of us know that there is a presumption of innocence and until a person is proved guilty, he is presumed to be innocent and you cannot punish a person before a trial takes place and before he is found guilty. Why then arrest? This is a question that we must try to answer. Why should there be an arrest? Now let me illustrate it this way. Now forget the law, forget all the procedure that you have learned so far. Supposing you see a crime being committed in your presence, what do you do naturally? Naturally you go and catch hold of that person and then what do you do? You ask his name, you ask his address and you ask him where does he come from and these are some of these natural questions that you ask and then you hold him till you hand him over to the police. This is exactly what the police does. This is exactly what the police does and this is how the concept of arrest evolved. Therefore arrest and detention prior or during investigation is only for these three purposes to fix the identity of the accused. That is the first purpose. So, you must first ask what is it? Who are you and therefore fix the identity of the person who is accused of the crime? The second is to ensure that the investigation is done in a proper manner. When I say investigation is done in a proper manner for collection of evidence, investigation includes it actually means collection of evidence. So, for that purpose you need to detail it. So, for the purpose of a collection of evidence and also to prevent destruction of evidence. So, this is another important reason why arrest is made pending investigation and the third reason is to ensure that is available for trial. So, these are basically the reasons for arrest pending investigation and otherwise this this concept of arrest goes contrary to the established canon of criminal jurisprudence namely that you cannot punish a person or detain somebody without a trial. So, that is the concept of arrest. So, if once you understand this concept of arrest, you will naturally understand the subsequent detention. So, once this arrest is made, be about how an arrest should be made and what are the considerations for arrest, we will do it on some other period. But now we are all dealing with remand. Now, once arrest is made, what happens next? Let us assume that arrest is made properly in terms of chapter 5, all the rules are followed. What happens next? The constitution says under article 22 subcross 2 that an arrested person shall be produced before the nearest magistrate and the time taken for transfer shall be excluded. Now, you see article 22, this is a fundamental right, a fundamental right of a person who is arrested to be produced before, I will just read the separation for you. Every person who is arrested and detained in custody shall be 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 the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the set period without the authority of a magistrate. Therefore, it is now a constitutional right. This constitutional right, how does this came in there? All of us know that in 1950, we got this constitution and therefore, it became a constitutional right since 1950. But prior to that, CRPC was enacted and what we have now is the 1973 court. The earlier court of 1898 had a similar provision which was section 60, which is similar to section 56 and 57 of the present court. So, that court had a similar provision which said, no police officer shall detain custody, a person arrested, I am reading of 57, no police officer shall detain custody, a person arrested without warrant for a longer period than at all circumstances in the case reasonable and such periods shall not the absence of a special order magistrate under 57 exceed 24 hours. Now, you have 24 hours in section 57, which was in the earlier court of 1898. The similar provision was in section 60 of the 1898 court. Now, what was a statutory provision became a constitutional right, a fundamental right after the constitution. Now, what is the effect of it being incorporated into the constitution as a fundamental right is now the legislature cannot abrogate this particular provision. Now, by means of by virtue of it becoming a fundamental right under the fundamental right in incorporated section article 22 subprose 2, the legislature cannot abrogate this particular provision. Therefore, you can now understand how important this particular provision of a no person shall be detained without an order of a magistrate authorizing further detention beyond the period of 24 hours by any person who was arrested, not only the police police. Now, this is fundamental. Now, you see under in section 57, he talks about an arrest made without warrant. Now, what if an arrest is made with warrant as the provision is found in section 76 of CRPC. There also you will find the after the arrest is made, the accused shall be produced before the magistrate within 24 hours. Now, you will see in all these places right from constitution 56, 76, this 24 hours is mentioned, we will presently see the significance of this 24 hours. Now, what happens after this production of the accused person before the magistrate. Now, you saw now the purpose of arrest. Now, once arrested, he has to be produced before the magistrate. What will the magistrate do now? That is the next question that we are now going to present the topic for today is exactly what we are going to discuss about. Now, what will the magistrate do is found in section 167 of CRPC. Now, 167 subclass 1 is with the police officer. The procedure, if the investigation is not completed within 24 hours is the heading of that section. And in that process, what will the police do? The first class deals with what the police should do. The police, if they are not able to complete the investigation within the 24 hours given to them, they shall, if there are grounds for believing that the accusation or information is well-founded, they will produce them before the nearest judicial magistrate. Please note this word. They will, they shall forthwith transmit to the nearest judicial magistrate a copy of the entries and, and that shall at the same time forward the accused to such magistrate. So, the court specifically says they can be produced before the nearest judicial magistrate, thereby meaning that he did not be the magistrate who is competent to try the case. Now that you will find in 167 subclass 2 also. Now, 167 subclass 2 deals with the power of the magistrate. Now, what is the power of a magistrate? The magistrate to whom an accused person is forwarded on this section may, whether he has or has not jurisdiction to try the case. So, this is very important. So, a magistrate need not be competent to try the case. The accused can be produced before any magistrate. That magistrate can authorize the detention. Now, please note these words also. Can authorize the detention. Nowhere the word remand is used here. Remand is something which is commonly used as a common parlance by the lawyers. And in a couple of other provisions, CRPC uses it, but not in 167. But there is no significant significance attached to it. But then we will have to first understand how this section is coined and worded. 167 does not say anywhere about remand. It only says authorizing the detention of accused in such custody. Please note these words also. This is very important. It says in such custody as such magistrate thinks with for a term not exceeding 15 days in the world and if you have no tried so and so and then. Then you have provisos which says it can go up to 90 days for serious offense which is punishable for life death and about 10 years not less than 10 years and 60 days in other cases. So, let us ignore that for the time being. Now, two things are important in this. The first one is the magistrate, the magistrate whether or not he has jurisdiction to try the offense can authorize detention. That is the first thing that you have to understand. The second thing is that for a term exceeding 15 days and the magistrate can put him in such custody as he deems fit. Now, that is very, very important. Such custody as he deems fit. So, they understand these two things. Now, what these words such custody as he deems fit mean is what we are going to discuss now. And we are also going to discuss about magistrate whether or whether he has or has not jurisdiction to try the case. Now, all of us saw here that the magistrate can extend the report during the investigation for a period of 90 days in whole and every time the remand can be only for 15 days at each instance of remand and it can go up to 90 days in case of serious offenses and it can go up to 60 days in case of other offense. Now, what is the legislative history of this 167th? One must understand. Now, as you all saw, the provision reads like this. If investigation cannot be completed within 24 hours, that is how the process the heading of the provision starts with. Now, here you saw the 24 hours being used in four places. One is article 222, which is which incorporates in a way the old CRPC, which is now found in section 57. And also, we find the 24 hours used in section 76 of the CRPC. What is the significance of this 24 hours? Why can't it be 12 hours? Why can't it be 36 hours? Now, the reason being the legislative expectation was that any investigation should be completed within 24 hours. That was the legislative expectation. So, under the 1898 court, they said if investigation for some reason is not able to be completed within 24 hours, then the magistrate can authorize detention for a period of 15 days. That was the original 1898 court. There was nothing like 90 days for serious offenses, nothing like 60 days for lesser offenses. So, that was the 1898 court. So, the framers felt that 15 days for a pre-trial detention is good enough. You can't detain a person for more than 15 days because you are actually detaining or taking away somebody's liberty without trial. Therefore, they said 15 days is the maximum limit. In 1969, the law commission felt that the offenses have become very complicated and people are adopting various modern techniques to commit all kinds of offenses. Therefore, the police are finding it difficult to investigate and find out the truth and investigate the collect evidence within 15 days. Therefore, they are adopting a very interesting method of filing an interim chart sheet or interim report within 15 days and thereby preventing the accused from coming out on bail or preventing the magistrate from releasing on bail. Therefore, this practice must be stopped. So, they said at the same time, you must also give some reasonable time for the police officers to investigate. Therefore, they suggested that make it 60 days for investigation and that shall be the limit for pre-trial detention during investigation. So, in 1973, they incorporated the recommendation of the law commission and they made it 60 days instead of 15 days that was there in 1898 court. Now, what happened was in 1978, once again, they found it difficult and said that serious offenses, they are unable to complete university like murder and there are huge conspiracy, international conspiracy, national level conspiracy, they are unable to unearth within 60 days. So, we must give some more time. So, what they did was they amended the section and this is the section that we have now which says that offenses which are punishable with death, life imprisonment and offenses which are punishable with not less than 10 years, the magistrates are empowered to authorize the detention for a period of 90 days and for other offenses, magistrates are empowered to authorize the detention for 60 days. Now, we are now talking about the time limit for detention. Now, what does the magistrate normally has to do? What is he supposed to do when the police officer produces him? Can he mechanically remand an accused? The court says no. In fact, as I said, it says authorizing the detention. When you say authorizing the detention, there must be some kind of a judicial application of mind. It is what the court says. So, a remand is not given or authorizing of detention is not granted on mere asking. The police officer's report cannot be the only basis. The magistrate has to independently apply his mind on the report of the police officer and then decide whether the authorization is justified, of detention is justified. Mere if she exit of the police officer is not sufficient is what the court says. Now, what are the observations of the Supreme Court you will find? There are two aspects the learned magistrate has to satisfy himself. The first aspect is whether there are grounds for believing that the accusation or information was well founded. So, that basic grounds of whether the accusation is well founded, that the learned magistrate has to first satisfy himself, that is the first condition. And even if that condition is satisfied, the second condition that he has to satisfy himself is whether the police officer has exercised his discretion properly with regard to the necessity of arrest. So, there are two aspects. One is some prima facie evidence to show about the commission of the offense. Even if that is there to see if the arrest was necessary or else was properly affected for when all these provisions of the chapter 5A are completed. So, these are the basic things that magistrate is supposed to. So, as lawyers we are entitled to object to the remand saying that these two conditions are not satisfied. Even at the stage of remand you are entitled to go and tell the learned magistrate stating that the prima facie case is not found out, see for XYZ reasons it is not found out or for XYZ reasons the police officer has not exercised his discretion properly in effective arrest. So, you are entitled to say that. Now, what does the Supreme Court says goes one step further and says that in the CRPC 167 as it just said out the learned magistrate has to just see whether police officer has satisfied himself properly or affected others properly. But he need not record reasons under 167 you see it is not mandated on the magistrate to record reasons for remanding. The magistrate can remand, but the courts Supreme Court went one step further and said that in Arnaish Kuma's case that it is desirable and the magistrate shall record in brief the reasons for his satisfaction for remanding. Now, I will just read there are four important paragraphs on this aspect in Arnaish Kuma's case which is reported in 2014 8 SCC page 273 in paragraphs 8.1 to 8.4. I will just read a couple of sentences in these four paragraphs. In 8.1 the learned judges say during the course of investigation of a case an accused can be kept in detention beyond a period of 24 hours only when it is authorized by the magistrate in exercise of power and 167. The power to authorize detention is very is a very solemn function. It affects the liberty and freedom of citizens and needs to exercise with great care and caution. Our experience tells that it is not exercised with the seriousness it deserves. This was in 2014. In many of the cases detention is authorized in a routine casual and a cavalier manner. Now then the in paragraph 8.2 they say before a magistrate authorizes a detention at a 167 he has to be forced to satisfy that the arrest made is illegal and in accordance with the law and all the constitution rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of 41 the magistrate is duty bound. Please underline these words duty bound not to authorize is for the detention. So if the police officer has violated any of the provisions relating to arrest the magistrate is duty bound not to authorize. So this is first point. Then 8.3 the learned magistrate, the honorable supreme court says magistrate before authorizing a detention will record his own satisfaction may be in brief but the set satisfaction must reflect from his order. It shall never be based upon the ipsy this discreet of the police officer. For example, in case the police officer considers us as necessary to prevent such persons from committing any further offense or for proper investigation case or for preventing an accused from tampering evidence or making use when the police officer shall furnish to the magistrate the facts. The reasons and meetings on the basis of which the police officer resists conflict. Therefore, this particular observation of the law honorable supreme court is not found in 167 yet the honorable supreme court felt that it shall record the reasons for sending authorizing the accused in custody further custody. Now therefore, two things as we saw first whether arrest was done properly and the secondly whether there is prima facie case and third is the magistrate's own satisfaction and he has to record it. Now this is about authorizing a person in custody further all right. Now what does what do you mean by custody authorizing a person in custody what do you mean by this 167. Now let us go back to 167 again. We saw those particular sub cross two says the magistrate to whom an accused person is forwarded and at this section may whether he has or has not jurisdiction to try the case from time to time authorize the detention of accused in such custody. Now please mark these words in such custody as such magistrate thinks fit for the term not exceeding 15 days. Now in such custody can mean police custody in the custody of the police and in jail custody what we normally call it as judicial custody and now the in the latest supreme court judgment they have also authorized a custody in the house or house custody in the house also has been authorized as permissible by the learner magistrate while demanding under 167 sub cost two. So these are three types of custody. Now in the honorable supreme court's latest judgment reported in 2021 2021 21 SCC online Supreme Court 382 Gautam Navlaka versus national investigation agency very interesting questions were raised in the that case and the honorable supreme court says the accused can also be detained in such custody as he thinks fit as the magistrate thinks fit which includes custody in the house so that the question that was raised was the Delhi police the Maharashtra police go to Delhi arrest this person and ask for transit remand they're saying that we now need to take him to Bombay and we take more than 24 hours to produce before the competent magistrate therefore give us transit remand. Now Bombay CJM grants him transit remand by the time they move the honorable I court of Delhi and then they ask for stay of this as a condition the Delhi I court says stays the transit remand order and then says keep him in custody in his house the then the question arose was whether this should be treated as custody within the meaning of 167 or for the purpose of calculating for 90 days or 60 days mandate event that the court said this can't be treated as custody under 167 then the very interesting discussion goes on what they mean by custody under 167 so wherever there is a detention under section 167 there must be an application of mind not only for the magistrate even superior courts can detail under 167 but there must be an application of mind to detain him under whatever custody they deem fit now here we have in such custody whether it can be both police and judicial custody now if it isn't police custody now we have we all know that it can be only during the first 15 days of remand where do you get it now if you find proviso proviso to this 167 that you see on the screen provided that first proviso the magistrate may authorize the detention of the accused person otherwise in the custody of the police beyond the period of 15 days now this particular sentence came to be interpreted by the honorable supreme court and said because the process the magistrate can authorize the detention of the accused person otherwise than the custody or period beyond the 15 days if it has to be custody of the police it has to be within the first 15 days so the honorable supreme court in anupam kotli kukulkanis case was a cbi in 1992 3 sec 141 1992 3 sec 141 while interpreting this particular sentence says that the police custody can be only within the first 15 days now this amendment came in the year 1978 now prior to that there was no necessity to make this distinction because as i told you these see prior to 1973 was that whether it is judicial custody or police custody it can be only for 15 days now that for judicial custody the extension came in after 1973 made a 60 days in 1978 they made it uh split it into two 90 and 60 days 94 series after the 60 for lesser efforts now therefore the so far as police custody is concerned custody of of the police concern it must be in the first 15 days of remand so that's the first thing that you must understand about police custody now i told you for judicial custody 167 does not say any specific about recording reasons we have it only in our next case para 8.3 18 8.3 all right now for the purpose of police custody you will find interestingly the the court specifically mandates the magistrate to record reasons that you will find in 167 sub cost 3 a magistrate authorizing under the section detention in the custody of police shall record his reasons for so doing so this is a specific mandate the learned magistrate has to record reasons for sending a person in police custody now you'll find that in sub cross four the magistrate not only should record his reasons but but must immediately forward a copy to the chief judicial magistrate that is another safe card provided and you therefore police cannot custody it is all the more difficult to get police custody the police have to go one step further to convince the learned magistrate for getting police custody see the subjective satisfaction so far as judicial custody let us say it is at in a scale of 10 it's at 7 for police custody it must be 10 out of 10 so therefore we must give reasons and then you have you see the reasons must be sent to the chief judicial magistrate now we have in Chennai criminal rules of practice they both under the old the criminal rules of practice and in the new criminal rules of practice a specific provision is provided for how police custody can be given now under the new rules of criminal practice rule six sub cost six says that the police officer who is seeking police custody must file an affidavit saying that it is distinction why should there be a police custody it will be the next question that one may ask now the courts have throughout felt that a person in custodial when he is in a custodial interrogation is likely to tell the truth that is the object and principle or if he is in custodial interrogation taken out of his normal environments taken out of his regular environment where he lives he is likely to tell the truth that is the principle on which this custom principle of custody interrogation evolved so they say when you take him to a police station he is likely to tell the truth when he is because he is not in his normal environment it is not for the purpose of adopting any thirdly method to extract information so that is the purpose of custody interrogation now you will see now this is about police custody now what happens if it is not in police custody so normally what happened you send him to prison a prison normally we when a person is sent to prison under trial prison we normally call it judicial custody now if you see the CRPC under 167 does not say anywhere about judicial custody except in one place where a recent amendment in 2009 that came about where they talk about judicial custody in section 2 in subclass B where this came this provision came in 2009 they talk about so judicial custody police custody or words or phrases that is commonly used by us and is not found in the CRPC they say authorizing detention remind us not found custody of the police and custody of otherwise then in the custody of police is what is mentioned now what we commonly call as judicial custody how long can a person be detained during investigation in judicial custody this we saw these three we saw it was 15 days prior to 73 and 90 and 60 days what happens if the investigation is not completed on the expiry of this either 90 days or 60 days now what we call as we have this concept of what we commonly call as default bail now the magistrate shall release him on bail provided the accusers willing to offer bail now that is the condition therefore on the expiry of this 90 days from the date of remand or 60 days in lesser offenses the magistrate shall inform the right or right to the accused of his right of being released and then he can ask for and he shall ask him whether he is willing to offer bail so that is a mandate and the magistrate shall do it is what the Supreme Court says in a number of cases there are any number of cases I will only refer to two cases M. Ramindran was the director of revenue in religions 2021 to SCC 485 and then Rakesh Kumar Paul was the state of Assam in 2017-15 SCC 67 then there is Uday Umesh Banerjee and number of cases so Uday Mohan Lal I think there are number of cases so wherever whenever they say it is a it is mandated the magistrate first must inform the accused of his right to be released on bail and if he is to try to offer he shall be released and any further detention will become illegal after the accused as is willing to offer his bail now there are some interesting controversies and case laws on this what if they the charge sheet and the 90th day also falls on the same date and what if the during the period before the accused offers his bail the charge sheet is fine now they say the the moment accused is as offered his bail and then a charge sheet is filed then he will be entitled to bail supposing the accused has not offered his bail and charges is filed in the internal then he will not have the benefit of 167 sub cost to release now this is we are now talking about remand up to the stage of investigation now let us assume a case where the remand is the investigation is completed say for example on the 50th day in lesser offenses on the 18th day in a series of offenses what happens now the magistrate does not have the power to remand under this section under section 167 so magistrate gets the power to remand under section 309 of the CRPC now the remand during after the courtness is taken is under 309 of the CRPC every inquiry or trial the proceedings shall be complete from day to day until all the witnesses have been examined unless the court finds it just so and so here sub cost to if the court after taking cognizance of crimes or come and try finds it necessary advisable to postpone the commencement or adjourn anyway it may from time to time record postpone or adjourn same as it is for such time as it is considered provided no much has remand and accused person for a term exceeding 50 days so remand the right to remand comes from this section now this is for a magistrate who has got the power who is trying the offenses now supposing if it is a murder case and it is the accuses produced before a committal magistrate that you will find under section 209 so these are provisions which gives the magistrate power to remand after the cognizance of the offenses taken so power to remand prior to cognizance that you will find in 167 and after cognizance it says that under 209 for the committal magistrate and 309 for the magistrate who is trying or the judge who is trying the offense now now we are we would like to know why this word then remand is used now you find that in 209 and 309 alone the word remand is used what is remand there is no significance about it authorizing the detention and remand mean the same that is why we commonly called as judicial remand in 167 and police remand police custody etc now what does remand mean the plain English meaning says to send back someone or something re re means back and something or someone that is why you see when our case is remanded from the appellate court to the trial court they say for the x y isn't it reasons we remand this case to the trial court for fresh constitution so therefore it means send it back therefore here the word therefore means to send back the person to custody that's what it means therefore that's a plain English language meaning of remand now what may what one may ask is what do you mean by this transit remand now let's go back to 167 again now all of we saw that in article 222 that the time taken to take it to the magistrate can be excluded but for the protection of the police if I may say so they normally take it take the person to the nearest magistrate and then ask for transit remand now you see subclass 2 the magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case now if he does not have jurisdiction to try the case he also has the power to remand this is very important so his remand is called the transit remand so which will enable the police to get an order and then go to the magistrate who has who's competent to try the case so what is the power of a magistrate who does not have jurisdiction he has got the same powers now and he has to exercise the same description as that of a magistrate who's competent to try the case so there is no distinction between a magistrate who just gives a transit remand or a magistrate who's competent to try the case this magistrate also has to exercise the same kind of description and and has to be cautious while reminding an accused and he also shall not remand on the mere ipsidix of the police he also also to see whether the arrest has been properly done whether there is prima facie case as you just saw in Arneshma's case now this has been explained again in this Gautama Navlaka's case which is a recent case where they talk about the importance of the magistrate applying mind even for a transit remand so this is trans again transit remand is not something that we find in the word transit or the phrase transit remand it's not found in CRPC but we commonly use it at transit remand if it is remand is done by a magistrate who has no jurisdiction to try the case so this is broadly about the the power of remand power of and the meaning of the words that we commonly use these words like I told you like words such as remand words such as police custody versus judicial custody is not normally found and subsequently they've all been incorporated while amending because legislature also is aware of the fact this is being commonly used and then in subsequent amendments which came later like after 2000 they all use these words so ultimately what we have to know is the police has to follow certain rules while making an arrest and the magistrate while authorizing detention either in police custody or judicial custody has to form an opinion and has to independently come to the conclusion that the police have followed the procedure correctly and also whether to see if there is a prima facie case and the police custody can be granted only in the first 15 days of remand and CRPC says specifically that reasons should be recorded and reasons should go to the magistrate should send the reasons to CJM so far as judicial custody also is concerned the magistrate has to exercise judicial discussion and the reasons must be recorded and his satisfaction must be recorded so even with respect of judicial custody and the other type of custody that is now being recognized by the Honorable Supreme Court is house custody because the CRPC does not say in which custody it says in such custody as the magistrate thinks so that is also recognized even for that the same principle has to be adopted so after that if it is 60 days for lesser offence and 90 days to see the circumstances and the investigation is not completed the person shall be released provided the accused is prepared to offer bail and in the case of transit remand also the same logic applies he doesn't it is not that for it is just a transit and you need not apply the same even if his remand order is legal it can be challenged before the higher court and these are some of the broad principles and now it since it has become this 24 hour rule this becomes a constitutional right the legislature cannot operate so with this I'll close the session I'm I'll answer the questions of the participants thank you yeah Mr. Sonsa it was quite an engaging session and people were talking about that we should discuss yes of the quantum case and you have taken us a bird eye view of that also yes yes yeah discuss all aspects they've discussed about the legislative history of 160 is a judgment worth reading the legislative history of 167 what is that transit remand how the magistrate should apply his mind and they also discuss about the difference between a police custody and judicial custody and and the interesting thing about house custody usually what happens in other countries house arrest or house imprisonment it comes after conviction but in our country we do it even during pending trial that's that's the distinction they've made for us here in the general rather we will take one session only on this topic yeah we'll do that and once they've heard that they will always be able to connect it if there any chance of giving police custody under first demand period this is my book it should be yes police custody can be given during the first remand yes we can be and in fact in one judgment they say during the first 15 days the remand can be alternated between judicial custody and police custody the police can say first two days let me examine this person and then send them back to judicial custody and after they collect further material they can ask for one more session of police custody so it is only during the first period of remand that is why i read to you that proviso which says 167 and this came to be interpreted in cba versus sadafum kulkarni 1992 was the end of the interim case related to n dps offense and i don't know i let me check there's the latest one is it and then see it's the end of the case it's the end of the case meanwhile whether committal magistrate has this mission to reject the police report i didn't get anything is that whether committal magistrate has this mission to reject the police report no we are now talking on a different subject we are not talking about remand now committal magistrate a police report means it is done after investigation a committal magistrate has got power to reject because a police report need not be accepted in total by a committal magistrate it can reject and it can say you can you have to delete particular offense add few offenses and it can direct even further investigations section 167 does not differentiate between bailable and non-bailable offenses so police so whether police can seek custody in bailable offenses no way bailable offense means it has to bail up can be released that is you will find in 436 answer is found in 436 the moment is produced before the man state and is the person is willing to offer bail he must be released answer is in 436 or CRPC can you get bail on remand yes after remand you we are entitled to bail remand is one aspect bail is another aspect the court says even after remand is made bail can be applied and for that the different consultation bail can be granted third degrees can be used in police custody and if yes what after what extent no third degree can be used and what is the purpose of judicial custody after 15 days can police again question the accused who is now in judicial custody no police cannot question why they are in judicial custody the police cannot question and what is the purpose is as I told you the purpose of detention during investigation is three one is identity of the accused second is collect evidence and prevent destruction of evidence so the court the police can say now we are the evidence collection is in a formative phase if this person is released on bail there's a likelihood of his destruction and the third reason is there's a likelihood of his absconding supposing the person has no permanent roots in society there's a likelihood of his absconding and not being available for time so that is the reason purpose for judicial remand after 15 days so if they they're able to convince that you know he's likely to abscond or is likely to tamper with the evidence or distract the evidence then they can detain him this is by what he will when a accused is produced before the magistrate who is not having power who is not having power for remand can bail application be filed and does that magistrate have the power to entertain the bail so here under 437 the magistrate has got power to entertain bail even if he's not competent to try let me read 437 when any person accused of a suspect or commission of any non-believer persons is arrested or detained without warranted by an officer in charge of person or appears on his board before a court other than high court or sessions he may be at least on bail so he doesn't say that magistrate must be competent can superior court exercise powers under section 167 what is your view I didn't get you come again can superior courts exercise powers of section 167 yes that's what Gautam Navlaka clarifies that later Supreme Court says even superior courts can authorize detention under 167 but provided they apply the same yardstick that is applicable to magistrate that they must see the case study case records and satisfy themselves about the remand that's the city of remand that's for the Quran which period is included and which period is excluded as per the provision of CRPC which one as per latest judgment which one which period is included and excluded as per the provision of CRPC as per the latest judgment as I told you the latest judgment the facts are very interesting at the stage of the magistrate granting transit remand the high court delhi high court says that transit remand and says all right let him we'll keep him in his house let him we'll keep him under house arrest so that he's not he doesn't abscond so that ultimately after we decide this repetition he will be available for ultimately if you hold that arrest of this transit remand is valid then he can take him to Bombay this is what the high court said so high court by the time the high court decided the impression 34 days lapse so the accused is submitted that this 34 days must be counted as days authorizing detention under 167 so that they'll be able to get this default bail after 90 days now the state submitted now this particular detention was a kind of a condition for granting stay it was a it was something that was in favor of the accused and therefore it cannot be counted as detention under 167 that apart the writ court did not apply its mind that is supposed to do for remand under 167 therefore it shall not be counted as custody within the meaning of 167 and ultimately the court holds that it is a house remand pursuant to an order and in a repetition and it was not an order under 167 therefore they excluded that period for counting in that particular case that is what i'm saying let us not restrict it to whether judicial police etc it says in such custody as the magistrate thinks it can be in any place the magistrate can say all right keep him in court can be judicial custody it can be his custody therefore judicial custody is something common powers where whenever he sent to prison we say it is in judicial custody so that is why they say house custody is a separate thing that is for the manager got power to keep him in house custody so it is neither the police custody nor judicial custody as we commonly refer to judicial custody that we commonly refer to is prison custody therefore let's not confuse that with judicial custody so it can be any custody as a magistrate thinks to is the order passed on remand advisable appealable or what what is the remedy order of remand they say it's not appealable you have to move the 480 to court for channel and in avlaka in gautam avlaka's case they say you can file a writ of a ps corpus where the remand is totally illegal in the delay totally illegal without jurisdiction with a non application of mind they say you can move a writ of a ps corpus so since a lot of questions are emanating from gautam's judgment i feel that we will have to take one part on this also or that we do yeah this is on the youtube practically speaking no is any choice of recused to send him to the house is there any choice given to the accused in respect of the house custody no it is it is a discussion of the magistrate and it shall be done only in exceptional cases what they say and those exceptional cases are old age security etc and they say and interestingly they found very uh they extracted some statistics they say almost all the jails in india the occupancy occupancy is more than 100 percent it is either 110 percent or 120 percent and then they suggested so it doesn't matter in some cases if house custody is made but only difficulty is the expenses are more so you will have to have a policeman in the house every time and therefore it will cost the state for money therefore they said that is the only dessert point otherwise there's no harm in keeping him in house custody but there's no choice for the accused the accused cannot demand but he can only make a request for and the court makes the discussion of that matter this is by devlogan uh is there any difference between an illegal and an improper arrest it's all the same actually all the same now i'm taking all questions from the youtube all right so police can question any person at a section 161 crpc including the accused so why doesn't question or interrogate accused under the judicial custody yes so that is why i said it becomes the exclusive control of the court they can after seeking permissions from the court they can they can go and examine the accused but provided they get permission because it is exclusively the custody of the court it seemed to be in the custody of the court they can provided they get permission from the court could you explain the difference of the word forwarded in the first line of section 167 sub clause 2 167 2 sorry what is what did you want for explain the word forwarded in the first line of section 167 sub clause 2 yes forwarded means you'll see the previous line in sub clause 1 it says transmit to the nearest my state copies of the entries in the diary and shall at the same time forward the accused forward means produce it really means produce so the magistrate whom an accused is forwarded under this section so forwarded in the sense is made when he is produced before the magistrate that's what it means thank judicial custody the demand be extended beyond 90 days if the accused as is not as not offered they and after 90 days if the charge sheet is filed the remand power comes under 309 not under 167 not under 167 the power comes under either 209 or 309 and even if the charge sheet is not filed and cognizance has not been taken remand can be extended if the accused as is not willing to offer be and punish you it is can be done last question at least i am not able to get what does he want to say if you can understand or you will ask them to express it again where is it last question what action taken on police while the accused is beaten by police is that the question yeah yes the power the the learn my state can take action on the police officer the department inquiry it is an offense they can even be prosecuted if if it is proved the police officer can be prosecuted we have a lot of custodial violence that's what we are talking about custodial violence it can sometimes it leads to death and when it leads to injuries the punishment is minor if it leads to death it's it can be prosecuted for murderers Anisha which day is included while calculating 60 slash 90 days whether it is a day of arrest or when the remand is granted by the day of remand whether it is the transit remand or the regular remand by the competent my state it is the day of remand or not day of arrest day of remand the last question is by the answer it if a police officer voluntary doesn't complete the investigation within 90 days so that the accused can get the bail that that is the police officers do that sometimes it happens accused will have to be released on bail see we have to trust these people at some stage accused asked to be released accused cannot be detailed endlessly see as I told you detention pending trial pending investigation was only 15 days prior to 1973 now some concession has been given making it 60 and 90 days so if they're not able to complete between that 90 days he's entered to bail and you ultimately have to punish him after trial this can be taken equated with punishment is there any time period to present the charge sheet though the accused is on bail yes for some offenses that you'll have to see section 468 that we what we call as limitation for filing charge sheet 468 where we have limitation period for different offenses thank you Mr. Sundar Mohan and we are so happy that Mr. Om Prakash had helped you to connect with us and the session is also doing very well on the youtube and before we part for the day thank you to all our participants who have been watching us live on the youtube facebook and on this platform and so it's often said keep on wearing your masks contain social distancing and get yourself vaccinated if not done if you've got first one then also getting for the second one and tomorrow do stay connected with us for an interesting facet under the theft with always the unauthorized connection under the electricity act this is by SS Nagaland senior locate from Kanadagai court and we are also glad that Mr. Suresh has also joined us and do the Lex legal studies as well as the study circle for connecting with us to make the reach better as they say that one is singleness and one is illness and we is wellness so the together that combination of beyond law CLC as well as the Lex legal circle is doing its wonders I will ask Mr. Om Prakash the mentor of the study circle to share his thoughts. Yes sir thank you Mr. Vikas it's been a nice journey we have been seeing many of your lectures series you had a variety of people speaking on various topics pan india it was really a pleasure being part of the series and as you said the Mr. Sundar Mohan has done a great justice in terms of his knowledge sharing and I hope all the participants have been benefited to a large extent and as I could see the number of questions which are coming up in chat box as well as in YouTube the people have been engrossed with this speech as well as the sharing of knowledge thank you Mr. Sundar Mohan thank you Mr. Vikas thanks Mr. Suresh for having been with us thanks for all the participants for having a nice day thank you thank you all thank you Mr. Vikas we have been following your webinar for quite some time and thank you for giving me an opportunity to participate today thank you all thankfully it is only you following it's not stopping