Police remand: Concept and procedure
Barrister Md. Abdul Halim
Put in very simple terms, a remand is another name for an adjournment of a case. However, in criminal justice system remand is known as having a particular meaning. When a case is adjourned, the court may have the power or duty to remand the accused in police custody or in jail, rather than simply adjourn the case for another day. It would be accurate to say that while all remands are adjournment, not all adjournments are remands. The difference between 'remanding' a defendant and simply 'adjourning' the case is that when the court remands a defendant, it is under a duty to decide whether the defendant should be released on bail or kept in police custody or in jail custody. Thus remanding the defendant may be of three types: remand on bail, remand in police custody, and remand in prison custody or jail.
In England there is a system of disposing of a criminal case within 24 hours where there is straight forward guilty plea by the accused. However, in Bangladesh even the simplest criminal case would not be completed in a year let alone a day. And this is mostly because of corruption by the police in investigation and lack of knowledge and lack of proper guidelines and training for magistrates in dispensation of criminal cases.
As mentioned above, remanding means committing the defendant into the custody or placing him in bail. The most objectionable remand in Bangladesh is remanding on police custody since police uses unlawful torture on the defendant on the pretext of extracting information from the accused.
Duration of remands
At the stage of investigation: Provisions are laid down in section 167 of the CrPC which are as follow:
(i) Not more than 15 days in a whole in police custody or jail custody.
(ii) When the investigation cannot be completed within 120 days from the date of receipt of information relating to the commission of the offence or the order of the Magistrate for such investigation, the Magistrate empowered to take cognisance of such offence or making the order for investigation may, if the offence is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail.
(iii) When the investigation cannot be completed within 120 days from the date of receipt of information relating to the commission of the offence or the order of the Magistrate for such investigation, the Court of Session may, if the offence is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail.
(iv) If the accused is not released on bail under this section, the Magistrate or the Court of Session shall record the reason for it.
Thus there is no maximum period fixed by law for order of detention in police custody by the Magistrate. For how many terms not exceeding 15 days can the Magistrate authorise detention? This is not mentioned. In Indian CrPC provisions have been made that the total period of detention in custody must not exceed 60 days and such detention must not be in police custody. It is to be noted that in England there is provision of remand in police custody for not more than three days in total. If the defendant is on bail, there is no statutory time limit for remand.
Police remand, use of force and extorting information from the accused
Section 167 of the CrPC implies two situations: (1) when an investigation can be completed within 24 hours; and (2) when investigation cannot be completed within 24 hours. The provision of section 167 also implies that while producing a person arrested without warrant before the Magistrate, the police officer must state the reasons as to why the investigation could not be completed within 24 hours and what are the grounds for believing that the accusation or information received against the person is well-founded. Second, the police officer also shall transmit to the Magistrate the copy of the entries in the case diary (B. P. Form No. 38) (B. P. Police Regulation No. 236). After examining information in the case diary and the reasons shown by the police officer, the Magistrate will decide whether the person shall be released at once or detained further. This is the mandatory law which the Magistrates have to follow.
However, in absence of any proper guideline unfortunately the Magistrates have been accustomed to follow a 'parrot like' order on the forwarding letter of the police officer authorising detention either in the police custody or in jail. And this non-application of proper judicial mind in view of sub-sections (1), (2) and (3) of section 167 of the Code by the Magistrates has ultimately resulted in so many custodial deaths and incidents of torture in police custody.
Application for remand and abuse of power
A police officer makes a prayer for 'remand' stating that the accused is involved in a cognisable offence and for the purpose of interrogation 'remand' is necessary. In sub-section (2) of section 167 though it is not mentioned that 'remand' can be allowed for the purpose of interrogation, at present, the practice is that an accused is taken on 'remand' only for the purpose of interrogation or for extorting information from the accused through interrogation. There is no proper guideline as to when such prayer should be accepted and when rejected by the Magistrate and this legal lacuna gives both the police officer and Magistrates power to abuse the same. Police officers being motivated or dictated by the executive organ or out of their personal conflict or aggrandisement seek unreasonable remand under section 167 of the Code. And the Magistrates in absence of any proper guideline, either being dictated by the executive organ or otherwise have been accustomed to follow a 'parrot like' order on the forwarding letter of the police officer authorising detention either in the police custody or in jail.
The views expressed in favour of police remand is that it is a civil necessity that if some force is not used, no clue can be found out from hard-nut criminals. On the other side of the spectra there is a widely held view that to send the arrested person to police remand prima facie upholds the idea that the accused person did not give the confession voluntarily. When the entire state machinery acts against him, he cannot confess voluntarily and as such the provision for granting police remand several times (although not exceeding 15 days in the whole) totally destroys the purpose behind it. This is because a person coming before the Magistrate has no guarantee that he will not be sent again to police remand unless he has already completed 15 days. It is therefore imperative on the Magistrate to give reasons for granting a remand.
Again, article 35(4) of the Constitution states that no person shall be compelled to be a witness against himself. So the provisions of the CrPC under section 167 are in direct contrast with the provisions of the Constitution. This CrPC was passed by the British government back in 1898 when there was no fundamental rights as we have now in our Constitution. In view of the present provision in article 26 this provision of police remand seems to be void and this is largely the decision of the High Court Division in the BLAST v State.
The author is an advocate of the Supreme Court of Bangladesh.