The police may wish to arrest an accused in a particular criminal matter. This desire to arrest can only be justified if it has a legally sustainable basis. One such legal basis is a warrant for arrest as we all know. Another legal basis can be found in those sections of the CrPC which enable a policeman to make an arrest without any warrant for arrest. The minimum requirements for the exercise of the powers held by policemen and policewomen are delineated in section 41 of CrPC. Magistrates are entitled and duty bound to issue arrest warrants to arrest persons responsible for crimes committed within their jurisdictions. Such arrest warrants can be executed anywhere within the territory of India. Magistrates are also entitled to issue arrest warrants against persons who have committed crimes in other jurisdictions as long as such persons are located within their own jurisdictions. They are also empowered in terms of being able to order execution of arrest warrants issued by judges from other jurisdictions.
Remand is a term which means detention after arrest. Police remand, judicial remand, and transit remand (police and judicial) are the three common types of remand. During the first 24 hours after a person is arrested, he can be held by the police without the need to produce him before a magistrate or a judge. In case he is held for 24 hours and the police is not able to produce him before a magistrate then he is to be released forthwith. If the police produces the arrested person before a magistrate within 24 hours (as is the norm), the magistrate is mandated to decide whether to commit the person to remand, and if to commit him to such remand then to which form of remand.
The 24 hour requirement is given in section 57 of CrPC, and it comes with two provisos. (Actually the maximum permitted time of detention before the arrested person is to be taken to a magistrate is dictated by the circumstances of the case, and it may be as short as a couple of hours, but this provision of section 57 is lightly enforced.) The first one is that the person may be detained for more than 24 hours without being produced before a magistrate if there is an order from the same magistrate under section 167 of CrPC. The second one is that the arrested person may be detained by the police for 24 hours plus the time taken to transport him to the magistrate.
Please note here that the magistrate in every case has to be the nearest one. For the purpose of illustration it may be said that the police cannot make the excuse that they arrested a person –who was wanted in Delhi– in Kanyakumari, and it took them more than 3 days to take him to a magistrate in Delhi. Their mandate is to take the arrested person to the nearest magistrate and seek police remand if they wish to do so. Otherwise the person may be consigned to judicial remand without any sort of arguments. Here it may be noted that the very fact that the police arrested a person makes them bound by the force of logic to seek remand of some sort.
In case a person is wanted in more than one location, then the police from the location where he is wanted but not in custody may go to the location where he is in police or judicial custody and seek transit remand to bring him to their area and interrogate him there in police custody. Here it may be asked that what is the need to bring a person to another location just for interrogation. The answer is that the police may need to take him to certain places in their area for the purpose of reconstruction of the crime, or for recovery of evidence; and this is also what the police invariably claim. Another situation where transit remand may be granted is when a person is wanted by law enforcement authorities in one location but is living in another location in a different state within India. Another possible situation is that wherein a wanted person arrives in India via an international airport or port located in one particular state, and the police of a different state arrests him and thereafter wishes to take him to their own state. Interstate travel is common to all these situations.
It is also possible that a magistrate may visit a police station for a remand hearing. This happens in serious matters usually, and is not a real probability in 498a or other dowry related cases. It is immaterial whether the arrestee is taken before the magistrate or the magistrate comes to him. This is like the mountain and Mohammad. To prove the fact or the 'fact' that the arrestee was taken before a magistrate before being remanded in custody, all that is required is the signature of the magistrate on the remand order. It goes without saying that such a provision is susceptible to misuse.
Even when a person is arrested subsequent to an arrest warrant or warrants issued by a judge, he cannot be detained by the police for more than 24 hours without producing him before the magistrate in whose jurisdiction the arrest was made. The justification for this provision is provided by Article 21 of the Constitution and the right to liberty therein, and (in a narrower and alternative sense) by the judicial logic that any investigation which cannot be completed within 24 hours needs to be referred to a judicial officer for assessment as to its merits in terms of necessity for continuation.
When the magistrate hears the police, he may permit police custody for not more than 15 days. Usually this is granted for one or two days maximum in the case of 498a, if at all it is granted. The police can then produce the person again before the magistrate for extension of police remand if it is required. Second requests are even more commonly refused than initial requests. This is a good thing, and takes India one step away from turning into a police state. After all the extensions, the judge has to send the arrestee to judicial custody within a maximum of 15 days. This also is to be done in case the judge is convinced that judicial remand is necessary to prevent adverse events.
Remand in total (including police remand as well as judicial remand) shall not be more than 60 days in most cases, and certainly not more than 90 days for arrests made under offences punishable by a term of not less than 10 years (or life, or death). This is not put in practice in a number of cases. But usually a person is set free upon execution of a bail bond at the end of such a period. This is done subsequent to a mandatory offer of bail to the accused. For this bail offer, there is no need to make any bail application. So it may be rightly said that the bail given at the end of the maximum period of detention is, strictly speaking, bail without the need for a bail application. It must be mentioned that normally an accused person cannot be set free even after being granted bail if he is not willing or able to execute a bail bond. This is of course subject to the jurisprudential provision about indigence which has been explained in detail elsewhere in this website, along with the details of bail bond execution.
A person may be subjected to police remand subsequent to judicial remand, or between episodes of judicial remand. Surprisingly this is permitted. But any confession given in the second or subsequent rounds of police custody are not be taken seriously at all, in case the arrestee was produced before a judge for a confession statement at the end of the first round of police custody, and he refused to confess. This is explained in more detail in the article about police investigation and interrogation.
Interestingly, the grounds for not permitting the police to hold an arrested person for more than 24 hours without etc. is based upon the premise that police custody can be misused to torture an accused person. What this logic seems to have missed out is that a person can be tortured very badly within 24 hours, and this has been a common occurrence throughout the history of India, although now things appear to have improved slightly. In any case, dowry accused persons do not ordinarily have to worry about torture (or even at all worry about torture) because the police invariably does such things only to people who are illiterate or from backward sections of society. You do not have much to fear in your 498a case, unless you decide to let vested interests scare you.
Written by Manish Udar
Published by Manish Udar
Page created on 24th October 2013
Last updated on 02nd February 2016