Discuss the procedure to be followed after a person is arrested by the Police, also discuss when an accused may be remanded to judicial custody and police custody with reference to the provisions contained in the Constitution of India and the Code of Criminal Procedure, 1973.

Question: Discuss the procedure to be followed after a person is arrested by the Police, also discuss when an accused may be remanded to judicial custody and police custody with reference to the provisions contained in the Constitution of India and the Code of Criminal Procedure, 1973.

Find the answer to the mains question only on Legal Bites. [Discuss the procedure to be followed after a person is arrested by the Police, also discuss when an accused may be remanded to judicial custody and police custody with reference to the provisions contained in the Constitution of India and the Code of Criminal Procedure, 1973.]

Answer

Article 22(2) of the Constitution of India provides that any person arrested and detained in custody must be produced before the nearest magistrate within 24 hours of his arrest and no person can be detained beyond the period of 24 hours without the authority of the magistrate.

Similarly, 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 without the special permission of a magistrate under section 167 of the CrPC. This special permission referred to in Section 57 is known as a remand. It can also be known as pre-trial detention.

After the legal arrest of a person, his rights are protected through the time period for which he may be held in custody. For the custody to be legal, a person may not be held in custody for more than 15 days. A Magistrate must be convinced that there are exceptional circumstances present to extend this custody for a maximum of 60-90 days depending on the nature of the crime being investigated. [Section 167 of CrPC]

A cautious reading of Section 167(1) of the code of criminal procedure makes it clear that the officer in charge of the police station or the investigating officer (if he is not below the rank of sub-inspector) can ask for remand only when there are grounds to believe that the accusation or information is well-founded and it appears that the investigation cannot be completed within the period of twenty-four hours as specified under Section 57.

Hence, Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his power of remand. The same was held in Raj Pal Singh v. State of U.P, (1983 Crl. L.J. 109) the case also said that the remand order sheet need not look like, a judgment delivered after full trial but the application of main must be evident.

It is the right of the accused that he be brought before a Magistrate within 24 hours of arrest, excluding the time taken in transportation from the place of custody to the Magistrate. If no judicial magistrate is immediately available then he may be taken before an Executive Magistrate who can remand him to custody for a maximum of 7 days following which he must be taken before a judicial magistrate.

The provisions for holding a person in custody for the purpose of furthering investigation, in India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows that a person may be held in the custody of the police for a period of 15 days on the orders of a Magistrate. A person may be held in the custody of the police or in judicial custody.

The major difference is the fact that the accused can be sent to police custody only within the first fifteen days of the presentation before the Magistrate after the arrest, as held by Supreme Court in State v. Dharampal, 1980 CriLJ 1394 as mentioned in proviso (a) to section 167(2).

But in the case of judicial custody, such a person can be sent to Prison, either within the first fifteen days or even thereafter. Such accused can be kept in judicial custody if its a case of a police investigation that is a police report or challan has not been filed to the magistrate, within 60 days (if the offence is punishable with 10 or less than 10 years) 90 days (if the offence is punishable with more than 10 years imprisonment) and even then the accused does not file bail bond, then he would continue with judicial custody.

But if the police report is filed within the aforementioned days then the accused won’t be released on default bail and thus will continue to be detained under judicial custody because after investigation the process of enquiry has started.

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