Remand during Investigation under the | BNSS 2023

Remand during Investigation under the BNSS, 2023: the Magistrate’s Function, the Case Diary, the Kinds of Remand and the Consequence of a Defective Order

A remand is a judicial order authorising the detention of a person who has not been convicted of anything and, at that stage, has not even been charged. It is the most frequently made order in Indian criminal procedure and the least frequently reasoned. This topic is not about the periods — the fifteen days, the sixty and ninety days, the right to default bail — which are dealt with separately. It is about the function the Magistrate performs when he makes the order, what he must apply his mind to, and what happens when he does not.

The reason for treating that separately is that the remand hearing is the first, and in a great many cases the only, occasion on which a judicial officer examines what the police have done. Almost every safeguard in Chapter V — the memorandum of arrest, the communication of grounds, the information to a relative, the medical examination, the recorded reasons for arresting — is enforced at that hearing or is not enforced at all.

1. The Foundation: Section 187(1)

Section 187(1), BNSS 2023

Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.

Three things are required before a Magistrate is asked to remand anyone, and each of them is a condition and not a formality.

The investigation cannot be completed within twenty-four hours. The premise of the whole provision is that the ordinary period has proved insufficient. It is not a ground that the officer would prefer more time as a matter of convenience.
There are grounds for believing that the accusation or information is well-founded. The officer must have material. A person is not to be produced for remand so that material may afterwards be looked for.
A copy of the entries in the case diary is transmitted with him. This is the point that matters most in practice. The diary is the material on which the Magistrate is to decide. A remand granted without it is granted on nothing but the officer’s request.

⚠ The case diary is the whole of the Magistrate’s material

The Magistrate at a remand hearing has no evidence, no charge, no pleadings and no arguments beyond what counsel says. What he has is the entries in the case diary, transmitted under section 187(1), and the reasons recorded by the arresting officer under section 35(1)(b).

It follows that a Magistrate who does not call for and read the diary has not performed the function the section gives him. The diary is not a formality accompanying the production; it is the record on which the decision is to be made.

And it follows that an application for police custody which does not disclose, from the diary, what has been done and what remains to be done that requires the accused, is an application with nothing to support it.

2. What the Magistrate Must Apply His Mind To

Figure 1: The remand checklist

The question	The provision	What it requires
Is he before me?	s.187(4)	No detention may be authorised unless the accused is produced in person for the first time and every time thereafter while in custody. Production may now be through audio-video electronic means
Have I the diary?	s.187(1)	A copy of the entries in the case diary must be transmitted with the accused
Was the arrest lawful?	s.48(4), s.35(1)(b)	It is the duty of the Magistrate to satisfy himself that the requirements as to information to a relative and the station-register entry were complied with; and the officer’s reasons in writing for arresting are before him
Were the safeguards observed?	ss.36, 47, 53	The memorandum of arrest, the communication of grounds, and the medical examination with a copy of the report to the arrested person
Is the accusation well-founded?	s.187(1)	The officer forwards the accused on grounds for believing that it is. The Magistrate is not trying the case, but he must see that there is material
Is detention necessary at all?	s.187(2) and (3)	Detention is not automatic on production. The Magistrate must consider whether it is required, and may release the person
In what custody?	s.187(2), (3) and (5)	Judicial custody is the default; police custody requires a reason connected with the investigation, and cannot be authorised by a Magistrate of the second class unless specially empowered
Within which limit?	s.187(3)	Fifteen days of police custody in the whole, within the first forty or sixty days; sixty or ninety days of total detention
Have I recorded reasons?	—	A remand is a judicial order and must show that the Magistrate applied his mind. A printed form with a date entered is not an order

3. The Kinds of Remand

Figure 2: The three situations, and the provision each rests on

3.1 During the investigation, and after cognizance

Remand during the investigation is governed by section 187. Once the investigation has ended and the court has taken cognizance, the power to commit the accused to custody during the inquiry or trial comes from section 346, which permits the court to adjourn and, if the accused is in custody, to remand him by a warrant for a term not exceeding fifteen days at a time.

The distinction matters because the two provisions do different things. Section 187 exists to give the investigating agency time, and it is the provision under which police custody may be authorised. Section 346 exists to secure the presence of the accused during the proceeding, and police custody is not ordinarily available under it, the investigation having ended.

📖 State v. Dawood Ibrahim Kaskar, (1997) 5 SCC 253

Facts: After the charge sheet had been filed and the court had taken cognizance, further accused persons were arrested in the course of the further investigation. The prosecution sought their police custody. It was contended that once cognizance had been taken, the provision permitting police custody ceased to be available and the court could only remand under the provision for adjournments, which does not permit custody with the police.

Held: The Supreme Court held that the two provisions operate in different fields, and that the power to authorise police custody under the remand provision continues to be available in respect of a person arrested during a further investigation after cognizance has been taken. The provision for adjournment during an inquiry or trial is directed at an accused who is already before the court, and it cannot answer the case of a person newly arrested whose custody is required for the purposes of an investigation that is lawfully continuing. The Court held that the period of fifteen days of police custody, and the safeguards attached to it, apply to such a person as they would to any other; what the taking of cognizance does not do is extinguish the power where the investigation is properly continuing.

Ratio: The power to authorise police custody under the remand provision survives the taking of cognizance in respect of a person newly arrested during a lawful further investigation. The adjournment provision addresses an accused already before the court and does not cover him.

3.2 Custody, and what it means

📖 Sandeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623

Facts: An accused presented himself before the Court of Session and sought bail. It was contended that he was not “in custody”, that a person who has not been arrested by the police cannot apply for bail, and that in any event the Court of Session could not entertain an application for bail unless the accused had first moved the Magistrate.

Held: The Supreme Court held that a person is in custody for the purposes of the bail provisions the moment he surrenders before the court and submits to its directions; physical arrest by the police is not a precondition. It held further that the Court of Session and the High Court have concurrent jurisdiction with the Magistrate to grant bail, and that it is not necessary for an accused to exhaust the remedy before the Magistrate before approaching the Court of Session; the practice of insisting on that has no statutory foundation. The Court emphasised that custody and arrest are distinct concepts, and that the deprivation of liberty may arise from submission to the authority of a court as much as from the physical act of a police officer.

Ratio: Custody arises on submission to the control of a court and does not require a physical arrest. The Court of Session has concurrent jurisdiction in bail, and an accused need not first move the Magistrate.

4. A Defective Remand Order

The question that arises most often in practice is what follows where a remand order was made without the Magistrate applying his mind — on a printed form, without the diary, without reasons. Two propositions have to be held together, and they pull in different directions.

📖 Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314

Facts: The petitioner had been arrested and remanded to custody, and he challenged the detention by a petition for habeas corpus, contending that the arrest was illegal and that the remand order had been made mechanically without application of mind. The High Court dismissed the petition. The question was whether a writ of habeas corpus lies where the person is detained under an order of remand made by a competent Magistrate.

Held: The Supreme Court held that the act of directing remand is a judicial function, and that in passing an order of remand the Magistrate is required to satisfy himself that there are sufficient grounds for it and to apply his mind to the material; he is not to act mechanically. But it held that where a person is in custody under a judicial order of remand passed by a competent Magistrate, a petition for habeas corpus is not maintainable, because the detention is founded on an order of a court and is not detention without authority of law. The remedy of the aggrieved person is to challenge the remand order in the appropriate proceeding, or to apply for bail. The Court added that an illegality in the arrest does not by itself vitiate a subsequent judicial order of remand, which stands on its own footing.

Ratio: A remand is a judicial function requiring the Magistrate’s satisfaction and application of mind. But where a competent Magistrate has made a remand order, habeas corpus does not lie; the remedy is to challenge the order or to seek bail.

⚠ Where that leaves a defective remand

The writ will not lie. Once there is a judicial order of remand by a competent Magistrate, the detention is under authority of law, and habeas corpus is not the route. That is so even where the arrest that preceded it was irregular.

But the order is challengeable. A remand order made without the diary, without reasons and without any consideration of the matters the Magistrate is bound to consider is an order made without the satisfaction the section requires, and it may be set aside in revision or under the High Court’s inherent jurisdiction.

And the right course is to raise it at the time. Section 48(4) obliges the Magistrate to satisfy himself of compliance, and the reasons under section 35(1)(b) are before him. An objection taken at the remand hearing, and recorded, is worth a great deal more than one taken afterwards, when the order has already been made and the person is in custody under it.

Where the period has expired, the position is different again. Detention beyond twenty-four hours without any order, or beyond the sixty or ninety days without a report, is detention without authority of law, and there the writ does lie.

5. The Further Requirements in Section 187

Sub-section	Requirement
187(2)	The Magistrate to whom the accused is forwarded may, whether he has or has not jurisdiction to try the case, authorise detention for a term not exceeding fifteen days in the whole; and if he has not jurisdiction and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction
187(3)	The Magistrate may authorise detention otherwise than in the custody of the police beyond fifteen days if he is satisfied that adequate grounds exist for doing so, subject to the sixty and ninety day limits
187(4)	No Magistrate shall authorise detention unless the accused is produced before him in person for the first time and subsequently every time till he is in custody; and production may be through audio-video electronic means
187(5)	No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police
Summons cases	Where the investigation in a summons case is not concluded within six months from the date of the arrest, the Magistrate shall stop further investigation unless the officer satisfies him that for special reasons and in the interests of justice its continuation is necessary; and the Sessions Judge may, on an application, vacate that order

Sub-section (4) deserves particular notice. The requirement of production every time — not merely on the first occasion — exists so that a person in custody is physically before a judicial officer at regular intervals, which is the single most effective protection against ill-treatment in custody. The permission to produce through audio-video electronic means is new, and it cuts both ways: it removes the risk and expense of transporting prisoners, and it removes the opportunity for the Magistrate to see the person and to ask him, out of the hearing of the escort, whether he has any complaint.

6. Key Takeaways

The position stated shortly

1. A remand is a judicial function. The Magistrate must satisfy himself that there are sufficient grounds and must apply his mind; he does not act mechanically: Manubhai Ratilal Patel.

2. Section 187(1) requires three things before production: that the investigation cannot be completed within twenty-four hours, that there are grounds for believing the accusation is well-founded, and that a copy of the entries in the case diary is transmitted with the accused.

3. The case diary is the whole of the Magistrate’s material. A remand granted without it is granted on nothing but the officer’s request.

4. Section 48(4) makes it the duty of the Magistrate to satisfy himself that the arrest safeguards were complied with, and the officer’s reasons under section 35(1)(b) are before him.

5. Detention is not automatic on production. The Magistrate must consider whether it is necessary at all, and if so whether police or judicial custody is called for; judicial custody is the default.

6. Section 187(4): the accused must be produced in person the first time and every time thereafter; production may now be through audio-video electronic means.

7. Section 187(5): a Magistrate of the second class not specially empowered cannot authorise police custody.

8. Remand during the investigation is under section 187; remand after cognizance, during the inquiry or trial, is under section 346, for not more than fifteen days at a time.

9. The power to authorise police custody survives the taking of cognizance in respect of a person newly arrested during a lawful further investigation: Dawood Ibrahim Kaskar.

10. Where a competent Magistrate has made a remand order, habeas corpus does not lie; the remedy is to challenge the order or to apply for bail. But detention beyond the permitted period without any order is without authority of law, and there the writ does lie.

7. Frequently Asked Questions

What is remand during investigation?

The judicial authorisation of the detention of an arrested person beyond twenty-four hours, under section 187, where the investigation cannot be completed within that period and there are grounds for believing the accusation is well-founded.

What material does the Magistrate have at a remand hearing?

The copy of the entries in the case diary, which section 187(1) requires to be transmitted with the accused, and the reasons recorded in writing by the arresting officer under section 35(1)(b). A Magistrate who does not call for and read the diary has not performed the function the section gives him.

Must the accused be produced every time?

Yes. Section 187(4) forbids the authorisation of detention unless the accused is produced before the Magistrate in person for the first time and subsequently every time he is remanded while in custody. Production may be through audio-video electronic means.

Can a second class Magistrate remand a person to police custody?

No, unless he has been specially empowered in that behalf by the High Court: section 187(5). He may otherwise authorise detention in judicial custody.

Is habeas corpus available against a remand order?

Not where the order was made by a competent Magistrate, because the detention is then founded on a judicial order and is not without authority of law. The remedy is to challenge the remand order or to apply for bail. But where detention has continued beyond the permitted period without any order, the writ does lie.

Does an illegal arrest make the subsequent remand bad?

Not by itself. A judicial order of remand stands on its own footing, and an illegality in the arrest does not automatically vitiate it. But the illegality is a matter the Magistrate is bound to consider under section 48(4), and an objection taken and recorded at the remand hearing is far more effective than one taken later.

Related Topics

Section 187 BNSS: the Periods, Police Custody and Default Bail
Police Custody and Judicial Custody Compared
The Case Diary under the BNSS, 2023: Section 192
Rights of an Arrested Person under the BNSS, 2023
Arrest of Persons under the BNSS, 2023: Sections 35 to 62
Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196