Difference Between Police Remand and Judicial Custody

Remand implies an act of sending and keeping an accused in the judicial custody particularly when a trial is going on. The term Remand likewise incorporates the circumstance when custody of the accused is with police authority.

In general, there are two kinds of remands in law:

1. Police remand
2. Judicial Custody

Police remand

In general police, remand comes first out of the above two. When an accused person is sent back to the police station for further inquiry and investigation, it is called police remand.

Judicial custody

Judicial remand often called remand refers to a procedure whereby the higher court sends back cases to the lower court for further action.

It also refers to a situation where the accused is sent back to jail for further investigation.

Purpose of Remand

• The original purpose of remand in custody was to ensure that the accused attends the court as required
• Protection of victims
• The final disposition of matters for which accused is remanded in custody.

Some legal cases are not solved in the trial courts and the defendants have to go to the appellate court. But if the appellate court finds that there are some mistakes made in the trial court, it again sends the case to the trial court and the case is said to be a remanded case.

A very common mistake made in the trial court is that sometimes it does not allow some evidence. Then the appellate court ordered the trial court to allow the evidence and the person who is going to be free is remanded for further few days of 14 or 15 days which can be extended to 60 days.

In India, the Code of Criminal Procedure deals with judicial and police custody under Section 167.

When a man accused of an offense (here the word offense by and large means a non bailable offense as in bailable offense he would  be discharged on bail, so no need of arresting him through detention) is arrested and kept an officer in charge of the police station feels that the investigation process cannot be finished in 24 hours of such arrest and detainment, at that point he will forward to the nearest judicial magistrate (competent to take cognizance of the offense or not) or in his absence to an executive magistrate the transmitting of a duplicate copy of case diary and the forwarding of the accused in person. In any case, regardless of whether it is a non bailable offense then additionally if the officer in charge for the police station sees no reason of forwarding the accused to the magistrate reason being the insufficiency of proof or evidence against him, only then he can release such accused on bail himself and later on can file closure report with the magistrate.

Now when such accused creates the impression that is, surrenders before the magistrate or brought before such magistrate after arrest and confinement or detention, at that point such magistrate can either send the accused to judicial custody that is to the prison jail.

In strict legal theory, people held on remand are held only to guarantee that they are present for their trials. The relevant provision of the ICCPR (International Covenant on Civil and Political Rights provides that remand and sentenced prisoners should be held in separate facilities. Despite what remand prisoners themselves may feel, the law does not regard their confinement as punishment, and therefore allows them a fuller set of rights – and imposes fewer restrictions on them – than it does in the case of convicted prisoners. If they are eventually convicted, the time spent in prison on remand may be credited as part of the sentence served.

Read Also: All About Retirement Age of Judges in India

In general, remand prisoners are held in special remand facilities or in different sections of prisons from those of other prisoners. There may, in practice, be a degree of intermingling between remand and convicted prisoners, especially when the prison system is overcrowded. Intermingling can also occur, as appropriate, in specialist prison units, such as for young adults and vulnerable prisoners, to cater to the needs of the individual prisoner.

Recently, in India the CEO and editor-in-chief of Samachar Plus was on Monday sent to judicial remand till November 8 for allegedly conducting sting operations on prominent persons in Uttarakhand with the intent to extort money, officials said.

Umesh Sharma was arrested from his Ghaziabad residence on 28 October after a journalist with the channel accused him of forcing him to conduct sting operations on prominent politicians in Uttarakhand, including a former CM.

“He was produced before the Additional Chief Judicial Magistrate in Dehradun on Monday,” Dehradun Senior Superintendent of Police Nivedita Kukreti said.

The channel, headquartered in Noida, has a presence in Uttarakhand and UP.

This article aimed to look at the meaning of judicial remand, the difference between police and judicial remand, cases of judicial remand and different aspects of judicial remand.

Everything You Need to Know About Criminal Law In India

Criminal law in India

In India, crime is an offense against the State. The law has given a massive status to crimes, so much so that punishments could range from fine to the death penalty. Crime is against the welfare of society, and therefore, there are many legislations against the same in our country. The prominent ones include the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. Besides these significant acts, there are acts such as the Dowry Prohibition Act, 1961, the Juvenile Justice Act, 2000, the Indecent Representation of Women (Prohibition) Act, 1986, the Narcotics drugs and psychotropic substances Act, 1985, etc.

The Three main legislations

The Indian Penal Code (IPC)

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860. It’s objective is to provide a general penal law for the country. It has 511 sections across 23 chapters, containing the list of crimes along with their definitions and punishments. The IPC has been amended several times and is now supplemented by other Acts. Its jurisdiction extends to the whole of India except the State of Jammu and Kashmir.

The Code of Criminal Procedure (CrPC)

The Code of Criminal Procedure is the primary legislation on the procedure for the regulation of criminal law in India. The CrPC details the procedure for the investigation of the crime, presenting criminals before the court of law, collection of evidence, determination of guilt or innocence of the accused, imposition of penalties or punishments, etc. It further lays down the hierarchy of the courts competent to try criminal lawsuits. In descending order it is the High Court at the top followed by Sessions Court, First Class Judicial Magistrate, Second Class Judicial Magistrate and Executive Magistrate. There is a limit affixed for sentences which these courts can pass against the accused. The Supreme Court is the apex court, and it has the ultimate power. The code was enacted in 1973. At present, the CrPC contains 484 sections cut across 37 chapters. It also has two schedules and 56 forms.

The Indian Evidence Act

The Indian Evidence Act, 1872 contains a set of rules and allied issues which governs the admissibility of evidence in the law courts of India. It comprises 167 sections cut across 11 chapters. Types of evidence mentioned under the Indian Evidence Act, 1872 includes – Oral evidence, documentary evidence, primary evidence, secondary evidence, real evidence, hearsay evidence, judicial evidence, non-judicial evidence, direct evidence, and indirect evidence or circumstantial evidence.

Some other criminal legislation

Dowry Prohibition Act, 1961

The Dowry Prohibition Act was enacted in the year 1961 with the main motive to criminalize the practice of dowry in India. It consolidated the anti-dowry laws which had been passed in certain states of India. If any person gives or takes or abets dowry, then according to Section 3 of the Act he is liable for imprisonment for a minimum period of 5 years and fine of more than INR 15,000 or the value of the dowry received, whichever is higher. The Act also provides for penalty for directly or indirectly demanding dowry which involves a prison term of 6 months or more which is extendable up to 2 years along with a fine of INR 10,000.

Juvenile Justice (Care and Protection) Act, 2015

This Act allows for juveniles within the age bracket of 16-18 who are in conflict with the law and are involved in heinous offenses, to be tried as adults, i.e. above the age of 18. The Act was enforced on 15 January 2016. The Act has put in place a Juvenile Justice Board, which includes psychologists and sociologists, to decide if a juvenile within the age bracket of 16 to 18 should be tried as an adult or not. The Act also aims to make the adoption process of the orphaned, abandoned and surrendered children more smooth. The Act introduced the foster care and Judicial Waiver System in India.

Narcotics drugs and psychotropic substances Act, 1986

Also, referred to as the NDPS Act, this Act came into being on 14 November 1985 and has been amended thrice till date. Until 1985, India had no legislation regarding narcotics. This Act attempts to prohibit production, manufacture, cultivation, possession, selling, purchasing transporting, storing and/or consumption of any narcotic or psychotropic substance in India.

Indecent Representation of Women (Prohibition) Act, 1986

The Act was enacted to prohibit indecent representation of women through ads, publications, writings, paintings, figures or any other such manner.

CONCLUSION

India has a very sophisticated criminal legal framework. It has innumerable legislations covering various crimes and their punishments. It also lists down how the cases must be dealt with, provisions on investigation and evidence can also be found. Besides, the case laws or judicial precedents also play a significant role when judges pronounce the judgment. The decision of the Supreme Court is final and binding on all the criminal and civil courts of India. There is a hierarchy among criminal courts as well. A robust criminal law framework is essential to deter the perpetrators from committing crimes and also makes justice easy, feasible and quick.

Section 302 of the Indian Penal Code

Section 302 of the Indian Penal Code talks about punishment for murder.

302. Punishment for murder

Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine. Murder is the unlawful killing of one human being by another without any justification or valid excuse and with malice intended.

Section 300 of the IPC talks about murder.

300. Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

Secondly, If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

Thirdly, If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in­flicted is sufficient in the ordinary course of nature to cause death, or—

Fourthly, If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 302 makes murder a cognizable and non-bailable offense.

Rajesh v. State (NCT of Delhi)

This is a case in Delhi High Court, a Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. dismissed a criminal appeal filed against the order of the trial court whereby the appellant was convicted under Section 302 IPC. The appellant was alleged to have murdered his wife. It was proved that the deceased was last seen with the appellant. The prosecution examined 45 witnesses before the trial court. Based on the testimonies of witnesses and findings of the court, the appellant was convicted for the murder of his wife under Section 302 and sentenced accordingly. Aggrieved thus, the appellant filed an appeal against his conviction and sentence.

The High Court perused the record and took note of the findings as made by the trial court. The Court noted that the mother of the appellant (PW 1) deposed that the appellant and the deceased slept together and also that she saw the appellant with the deceased on the night of the incident. Further, the post-mortem report clearly showed that the death of the deceased was a result of serious injuries which were caused by the sharp-edged weapon, maybe a farsa. In the Court’s opinion, the prosecution proved that the death was homicidal. Moreover, the Forensic Science Laboratory (FSL) Report proved that the death was caused inside the jhuggi where the deceased was sleeping with the appellant. The Court observed that there was no alternative theory to suggest how the deceased may have suffered the injuries in the facts and circumstances of the case. For the reasons aforestated, the Court was unable to reach a conclusion different from that of the trial court. Resultantly, the conviction of the appellant was upheld and the appeal was dismissed.

Arjun and ANR. Etc Vs State of Chattisgarh

On 19.11.2006 at about 9:45 AM, deceased Ayodhya Prasad had gone to his field alongside Bajrang Manjhi, Borri Verma, Gilli Raout and Makunda Raout. The deceased was cutting a tree with the help of the persons along with him and at that time, the appellants came in the field and they stopped the deceased and his labor from cutting the tree. Deceased Ayodhya Prasad told the appellants that he was the owner of the tree, therefore he was cutting the tree. Some quarrel took place between them and the appellants assaulted the deceased with a knife and stone. The deceased fell down and sustained injuries on his head. His head was severely injured, he was taken to Bilaspur for treatment, but, he died on the way near Mahanadi Bridge. Shivprasad, the brother of the deceased lodged a First Information Report.  The post-mortem was conducted, the cause of death was a hemorrhagic shock due to head injuries and the death was homicidal in nature. The investigation was completed and a charge sheet was filed against the appellants in the Court of Judicial Magistrate, who committed the case to the Court of Session  Raipur, from where it was received on transfer by Second Additional Sessions Judge, Balodabazar, who conducted the trial and convicted and sentenced the appellants.

The appellants approached the Supreme Court for relief. The division bench of the Supreme Court dismissed the appeals and upheld the judgment of the Additional Sessions Judge. The appellants were held liable for punishment under Section 302/34 of the Indian Penal Code.

This article aimed to define the meaning of Section 302, the nature of Section 302, the punishment of murder and also some landmark judgments on Section 302.

Top 5 Advantages and Disadvantages of Section 498A IPC

Section 498A of the Indian Penal Code was introduced in the year 1983. This section was added to protect a married woman from subject to cruelty from her husband or her in-laws. The term “cruelty” here refers to any harm caused to the person both mentally or physically. Section 498A IPC protects a woman from harassment related to dowry or any marital issues. According to this section, the accused is subjected to 3 years of punishment or fine. Though this section was introduced to protect women from exploitation, it has got some disadvantages too, which we shall see in this article.

What is Section 498A IPC?

Here’s the text of the Article 498A IPC as mentioned in the Indian Penal Code:

Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Advantages of Section 498A IPC

• Prevents the Exploitation of Women:

The exploitation of women has always been a critical issue since for years. One of the major advantages of introducing this section is protecting women from getting exploited.  If any woman is being subjected to cruelty as explained in the section, then it would be taken as a punishable offense. And whoever subjects her to cruelty shall be punished for three years or pay a penalty fine.

• Empowers the Women:

Section 498A seems to have empowered women in Indian. It has encouraged women to come forward and file complaints. Initially, women hesitated to raise voice against the harassment with the fear of not being heard.  With the increased number of cases under this section, women do not feel hesitated any more to register their complaints. Women are now voicing against her husband or in-laws rather than staying silent in such gravity situations.

• Effectively Controls the Suicide Rates:

Given increased cases of cruelty on women by her husband or her in-laws, 498A was introduced. The number of suicidal cases due to cruelty has decreased greatly after the introduction of 498A IPC. Before the introduction of this section, it was found that about 40% of women deaths were suicidal cases. Reduction of suicidal cases is one of the main objectives behind introducing this law, which has been carried out effectively.

• The Deaths due to Dowry have been Reduced:

If a person has caused dowry death to a woman, then he would be taken in custody or may be punished. Increase in the number of dowry deaths is a serious concern for Indian Law. Therefore, 498A was introduced to reduce the cases of dowry deaths. If a woman is mentally or physically abused for not bringing a dowry with her, she has all the rights to register a complaint and seek justice. This provides them with an option to seek their right to live instead of committing suicide.

• Makes the In-Laws More Responsible:

All the cases registered under this section and the punishment given to them has set an example for others. Husbands and his relatives are now becoming more concerned about their responsibility and non-negligible towards their duties. The section 498A IPC thereby ensures that every woman needs to be treated with respect and care.

Disadvantages of Section 498A IPC

Apart from having so many advantages for the women there, the article 498A IPC has a huge number of shortcomings which need to be addressed to soon. There are several disadvantages of this Act which are making the premise redundant. The top 5 disadvantages of the section 498A IPC are:

• Easily Misused:

Many women use this power as a weapon against their husbands and their relatives. There are many cases under 498A, which involves wrong allegation cases. Many times, the women put false allegations on her husband of being beaten or getting exploited to instill in them a fear. In many cases, the husband is the victim but still ends up getting punished, and his family is left at the mercy of an ill-minded woman.

• Lack of Investigation increases Blackmails:

There is no proper investigation made on the complaints registered by the woman. In most of the cases, the husband is directly taken into custody without even investigating if that allegation is right or not. Therefore, it cannot be guaranteed completely that all the cases registered by the women under 498A are entirely true. This is misused by the privileged women in most of the cases.

• Too Complex a Process:

From registering a complaint to availing justice, section 498A involves a complicated process. It includes a lot of paperwork to finish the formalities. Moreover, it includes a lot of time and efforts. This discourages many women as they feel uneasy taking their time out, go to the police station, and file complaints. Furthermore, they feel the whole process testing their patience level to get justice, which is a clear violation of the saying Justice Delayed is Justice Denied.

• Unreliable Evidence:

When women resister their case, many times, they are asked for evidence to prove their point.  In many cases, women fail to find evidence in to file the case. There have been many cases which are declined due to no evidence presented. Not only women, but it happens in the case of men too. If they want to prove the allegation put on them wrong, they are asked to bring the evidence. And failure to present the evidence may lead to non-consideration of the complaint. This makes the law heavily biased, which is against the fundamental principle of equality as guaranteed by the Constitution of India.

• Social Discouragement Enhanced:

In most of the cases, it was found that women gather all their courage to raise voice against the harassment but don’t file a case. The reason behind this is the discouragement of her family members, mainly in rural areas. Therefore, the real victims do not get to use the act at all while it is being misused by the privileged ones. The society is yet to accept this and hence shames the women raising their voices. Hence, due to a fear of social boycott, women are discouraged from taking any actions. 

Conclusion

Section 498A IPC has helped many women to get justice against the atrocities committed by their in-laws. However, it has got a few negative points too. Although women empowerment is a need of the hour, it is mandatory to make sure that no injustice is done to the men as well. A reformation in the act is required at the earliest to reap the benefits of this act by the last person of the pyramid.