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This article has been written by Varun Bhandari.

Introduction

When Vikas Dubey, the Gangster accused of killing 8 police officers in Kanpur was arrested on 9th of July 2020 in Ujjain(M.P), a term that came up recurrently in the news was “Transit Remand” and there was conjecture that the police would seek transit remand of the accused before taking him to Kanpur.

Whether or not the Police actually produced Dubey before a court in Ujjain and sought transit remand is still unclear and there are several conflicting news reports in this matter. Even in their official statement released after Dubey’s encounter, the S.T.F have vaguely stated that they intended to take the accused from the Ujjain Court to the Kanpur Court without specifically mentioning that he was produced before any magistrate or even stating clearly about having obtained an order for transit remand. However after the encounter, this question which may now seem virtually redundant is still being asked by the reporters to get an insight into the mindset of the U.P Police before the encounter as it seems.

Despite being a term which is neither directly referred to nor defined in the Cr.P.C, “Transit Remand” is extensively used in practice and is a term all lawyers practicing on the criminal side are familiar with. This article shall analyse the concept of Transit Remand as contemplated in section 167 Cr.P.C with special reference to the Vikas Dubey case. It shall further analyse with the help of case laws, the requirements for seeking transit remand and what the court needs to consider before granting it and if in such cases there is a legal obligation upon the Police to seek transit remand from the court or whether it is their discretion.

What is remand?

The article 22(2) of the constitution of India requires any person arrested and detained in custody to be produced before the nearest magistrate within 24 hours of his arrest and no person can be detained beyond the said period without the authority of the magistrate. Similarly, section 57 of Cr.P.C states that the police officer who arrests a person without a warrant shall not detain him in his custody for more than 24 hours without the special permission of a magistrate under section 167 Cr.P.C. 

This above mentioned special permission referred to in section 57 Cr.P.C is commonly referred to as remand. As per section 167, when a police officer has arrested any person without a warrant and he believes that the investigation cannot be completed within 24 hours but there are grounds for believing that the accusation is well-founded, he shall forthwith produce the accused before the jurisdictional magistrate or the nearest magistrate as the case maybe, along with copies of the case diary. It is here that the process of remand comes into play and the magistrate decides whether to remand the person into judicial custody or in police custody or alternatively to set him free.

Remand is the authorized detention of an accused person in custody during the process of investigation or during the trial as the case maybe. Remand of an accused is contemplated in two stages; pre-cognizance stage (section 167 Cr.P.C) and post cognizance stage (Section 309 Cr.P.C). We shall only be dealing with the remand in pre cognizance stage granted under section 167 Cr.P.C since the said provision relates to Transit Remand.

In the pre-cognizance stage i.e when the person has been arrested by the police and forwarded to the magistrate, but the matter is still under investigation and the chargesheet has not been submitted, in such a situation, there are two kinds of remands which can be granted by the magistrate. One is Police Custody Remand wherein the arrested person is sent in the custody of the police for the purpose of further investigation and is kept in the police lockup and the second is Judicial Custody Remand where the person is sent to the local jail.

What is Transit Remand?

The term “Transit Remand” is neither mentioned nor defined in the Cr.P.C and is rather a term that has evolved through its usage in common parlance. To put it simply, transit remand can be said to be the remand of the accused, sought by the police, for taking the accused from one place to another in their own custody, usually for the purpose of producing him before the concerned magistrate who has jurisdiction to try/commit the case (Jurisdictional Magistrate). Therefore the primary purpose of such a remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated and tried. The concept of Transit Remand is implicit in section 167 Cr.P.C and it can also be said to be a special type of or a subspecies of police custody remand as contemplated under section 167 Cr.P.C which is given for the particular purpose of the transit of the accused from one place to another to be presented before the jurisdictional magistrate. Needless to say that when the police present the accused before the jurisdictional magistrate they have to move a fresh application if they want police custody remand since the purpose of the transit remand stands extinguished/discharged.

Taking the example of the case of Vikas Dubey, the crime was said to have been committed in Kanpur, as such the courts in Kanpur shall ultimately have jurisdiction in the matter. As such, when the accused was arrested in Ujjain, it would have been necessary for the U.P Police to take the accused to Kanpur for further investigation and trial. Now in order for the police to have kept the accused in their own custody beyond 24 hours and themselves produce him before the Jurisdictional magistrate at Kanpur, the police would have had to seek the permission of the court at Ujjain for transit remand. 

Another instance when a transit remand is sought is when the accused person is in jail(either during the investigation, during the trial or after conviction), and he is also an accused in a case which has to be investigated and tried in a different district. In such a case, a request maybe made by the police authorities to the concerned court which may grant such permission, if it deems fit, to transfer the accused person and produce him before the court where he has to be tried for the other case. In such a case the accused would be formally arrested by the police and such an order would be in terms of section 167(2) Cr.P.C.

Although, in practice, the most commonly sought transit remand is the one as contemplated in section 167 Cr.PC, however the same being a generic word is also used in other situations. For instance, transit remand may also be sought under Section 80 Cr.P.C. The main difference in both the situations is that Section 80 is applicable only where the accused is arrested under a warrant issued by a court in a district which is different from the district where the accused is arrested. However in cases like Dubey’s, where the police officer arrests without a warrant, the transit remand which has to be sought is the one contemplated under section 167 Cr.P.C.

What are the various prerequisites for the grant Transit Remand as laid down in section 167 Cr.P.C?

The entire scheme of section 167 Cr.P.C is intended to place checks and balances upon the powers and the authority of the police to detain an individual as well lay down the manner in which police remand or judicial custody remand of a person may be granted and the said provision also limits the period for which the accused can be kept in custody during the investigation and the same principles and the requirements of this section shall apply when the police seek transit remand of an accused under this section.

Section 167 (2)(b) clearly states that it shall be mandatory to produce the accused before the magistrate in person while seeking police custody remand, as such the same principle shall be applicable while seeking transit remand and the arrested person needs to be produced before the magistrate and no transit remand can be granted without the arrestee being present in person.

Further section 167(1) states that the copy of the case diary needs to be forwarded to the magistrate and the police officer applying for remand must not be an officer below the rank of Sub Inspector and as per section 167(3), the magistrate granting a police custody remand shall record his reasons for so doing.

Although normally, a police custody remand or a transit remand may only be sought from and granted by a Judicial Magistrate, however section 167 (2A) provides for an exception to this rule that in the event that a Judicial Magistrate is not available, the accused may be forwarded to an Executive Magistrate upon whom the powers of a Judicial Magistrate/Metropolitan Magistrate have been conferred and such magistrate may grant custody (Judicial or police custody) for a period not exceeding seven days, after the expiry of which the accused must either be produced before the competent magistrate or be released on bail.

Case laws related to Transit Remand

Gautam Navlakha vs. the State of Delhi

In this case, the petitioner was arrested by the Maharashtra Police in New Delhi for an offence alleged to have been committed and FIR said to have been registered in Pune. The petitioner was placed under house arrest by the police and application for Transit remand (to take the accused from Delhi to Pune) was filed by the Investigation Officer before the court of C.M.M Saket in New Delhi which was allowed by the said court. In the meantime, the petitioner filed a writ of Habeas Corpus before the Hon’ble Delhi High Court and one of the questions under consideration was the legality of the above-mentioned order granting the transit remand to the Maharashtra police.

The Hon’ble High Court set aside the order granting the transit remand on several grounds including non-furnishing of the copies of case diary as required u/s 167, not informing the accused about the grounds of arrest as required under Article 22 of the Constitution of India and no record of having provided free legal aid in the form of a lawyer to represent the accused before the court or record of any such lawyer having made any submissions before the court. The Hon’ble High Court further held that as a result of the remand order having been set aside and in the absence of the remand order, “the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, the house arrest of the Petitioner comes to an end as of now.”

In regard to the requirement of furnishing copies of case diary, the Hon’ble High Court held as follows-

Therefore, even before a Magistrate before whom a transit remand application is filed, the mandatory requirement of Section 167 (1) Cr PC is that a copy of the entries in the case diary should also be produced. It is on that basis that under Section 167 (2) such nearest Judicial Magistrate will pass an order authorising the detention of the person arrested for a term not exceeding 15 days in the whole.

Thus it is clear that even Magistrate before whom a transit application is filed is not required to merely satisfy himself that an offence has been committed and that the police officer seeking a remand is properly authorised. Such Magistrate is required to apply his mind to ensure that there exists material in the form of entries in the case diary that justifies the prayer for transit remand.”

Another relevant observation was made by the Hon’ble High Court in regard to a contention raised by the respondents. While considering whether it is mandatory to abide by all the requirements as mentioned in section 167 Cr.P.C and article 22 of the constitution while seeking Transit Remand it was held that-

“There may be a rare instance where such requirement cannot be fully complied with. But the concerned Magistrate will, have to be satisfied with the explanation offered for the non-compliance and take a call whether it is serious enough to not immediately grant the transit remand. The departure from the mandatory requirement of the Constitution and the Cr PC ought not to be lightly countenanced.”

Iqbal Kaur Kwatra vs The Director General Of Police

In this case, (Writ of Habeas Corpus), the respondent police officers had come all the way from Jaipur to Hyderabad in a van, to arrest petitioner’s husband, on the early morning of 25.10.1994 and it was alleged that he had committed a crime for which the courts in Jaipur had Jurisdiction. The respondent police officers without producing the said person before a magistrate in Hyderabad and without obtaining any transit remand from the court in Hyderabad proceeded towards Jaipur taking the said person along with them and on their way they halted at a town in Maharashtra and sought transit remand from a magistrate which was refused and then they further proceeded in their journey despite the refusal and reached Jaipur on 27.10.1994 where they again produced the accused before a magistrate and sought a remand of 10 days which was again refused.

It was inter alia held by the Hon’ble court that the act of keeping the person in custody and not producing him before a Magistrate in Hyderabad knowing fully well that further investigation was left to be done and that more than forty-five hours would be occupied in travelling, amounts to a denial of the protection of liberty. It was observed that he should have been produced forthwith before a Magistrate in Hyderabad without waiting for twenty-four hours, which time is prescribed as the outermost limit beyond which a person cannot be detained in police custody. It was further observed in this regard that when the police officer has reason to believe that the investigation cannot be completed within twenty-four hours, he must produce the accused forthwith before the Magistrate and cannot wait for twenty-four hours.

R.K. Nabachandra Singh vs Manipur Administration 

On the question whether the police officer should wait for the 24 hours deadline to end as stipulated under section 57 and 167 before producing the arrestee before the magistrate, it was held that:

“Unless a police officer considers that he can complete the investigation within a period of 24 hours, it is his duty to produce the accused forthwith before a magistrate and he should not wait for 24 hours.”.

Another remarkable observation made in this Judgment was in regard to the impression prevailing in the mind of police authorities that remand should be granted by the magistrate as a matter of course. It was observed that the magistrate should insist on strict compliance of section 167 and if there is non-compliance, then they may straightaway release the arrested person by an order under section 59( 63 of the old act) even without taking any bond from him or even without bail (Paras 26,27).

Exclusion of the time of journey for reaching the magistrate

Another question which may come up in such a situation is that since section 57 provides that the time limit of 24 hours for producing the arrestee before the magistrate is “exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court”, can the police in such a case claim the exemption of the travelling time as contemplated u/s 57 and contend that excluding the travelling time the arrestee has been brought before the court within 24 hours?

As provided in Article 22(2) of the constitution of India as well as implicit in section 167 Cr.P.C, this travelling time exclusion is for the purpose of presenting the accused before the nearest magistrate and not for taking him before the jurisdictional magistrate who is in a different district.

Conclusion

Even though there is no specific provision in the Cr.P.C defining or referring to Transit Remand and making it mandatory for transferring an arrested person from one place to another, still it’s concept is implicit in section 167 Cr.P.C as well as article 22 of the Indian Constitution and it has been further fortified by years of usage in practice as well as by various judgments of the Hon’ble Supreme Court and High Courts.

It is based upon the concept that the maximum time for which a person can be detained by the police without orders of the magistrate is 24 hours after which the detention becomes illegal and if the police have reason to believe that the investigation cannot be completed within 24 hours at the place of arrest and wants to take the accused to the court having jurisdiction to further investigate the matter and it is not a realistic and a plausible expectation to reach the jurisdictional magistrate in 24 hours, they must take the accused to the nearest magistrate and seek transit remand as permission to legally detain the accused of the period granted in the order and take him to be presented before the jurisdictional magistrate. Even in practice, transit remand is taken by the investigation agency in virtually every case where the accused is taken from one city to another and exceptions to this convention are rare.

While seeking transit remand, it is also important for the investigation agency to comply with the various requirements as stipulated under section 167 Cr.P.C and article 22 of the Constitution of India otherwise there is a risk of the legality of the detention or the remand order being questioned before a higher court through a writ of Habeas Corpus which may declare the arrest to be illegal and order the person to be set free and may even pass an order for grant of compensation for illegal detention or wrongful confinement. Further, the defence counsel can even object to the grant of remand (verbally or in writing) if there is non-compliance of the said provisions at the time when the application for transit remand is presented.

Having said that, it is relevant to note that every case has its own peculiar facts as well as different circumstances surrounding the arrest and a mere irregularity in the arrest or in the order granting remand will not render the arrest illegal or call for interference by a higher court in every case.

Further as even observed in Gautam Navlakha(supra) there maybe cases where it is not possible to fulfil all the requirements of section 167 Cr.P.C and article 22 of the constitution and it is for the magistrate to see if the omission is serious enough to refuse remand and it would also depend upon the gravity and the magnitude of the allegations in the case and in a case where allegations are grave and serious for example Vikas Dubey’s case, it is highly unlikely that the jurisdictional magistrate would refuse the grant of remand or that any other Higher Court would interfere with an order of remand granted by a lower court based on a technicality. Moreover, there are several cases wherein it has been held that once the arrestee is in judicial custody and Remand has been granted, no petition for Habeas Corpus would lie as such the only remedy left in such a case would be to seek compensation.


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