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.

Compoundable and Non Compoundable offence in India

Introduction

Lawmakers classified offence into three categories on the basis of their nature, taking the reference of policy-making. These categories are: Firstly, cognizable offence and non-cognizable offence, secondly, bailable offence and non-bailable offence, and thirdly, compoundable and non-compoundable offence.

In actual, when a layman tries to understand the philosophy behind these terms he may think that basis of these classifications is based on seriousness or gravity of the offence, or on the gravity of the punishment.

Yes! He might be correct but not as a whole for the classification isn’t limited to these perspectives. It is the matter of policy-making to categorize the offences.  The sole purpose is to smoothen the criminal justice system.

To understand the scenario, we first look at the bare provisions regarding the first two categories in brief. Further, we’ll discuss the Compoundable and Non-Compoundable offences in details.

Bailable and Non-Bailable offences

According to Section 2(a) of CrPC:-

‘Bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is bailable by any other law for the time being in force.  ‘Non-bailable offence’ means any other offences. It clearly demarcates if an act which is an offence under the IPC is bailable or not, written in First Schedule. Whatever may be the nature of the offence, if the first schedule mentions it as bailable then it’s bailable. We can see in Section 147 of IPC, the offence of ‘rioting’ which sounds grave but it is a bailable offence, though it is cognizable.

Cognizable and Non-Cognizable offences

According to Section 2(c) of CrPC:-

‘Cognizable offence’ means an offence for which a police officer may in accordance with first schedule arrest without a warrant. We can see Section 466 of IPC, which says, Offence is Forgery of a record of a Court of Justice or of a Registrar of Births, etc., kept by a public servant. Although, it is grave and punishable with the imprisonment for 7 years and fine. It is ‘non-cognizable’ offence while it’s non-bailable in nature.

Compoundable and Non-Compoundable offences

A wrong against society and the state is a serious crime. Therefore, any compromise between the accused and the individual victim of the crime should not absolve the accused from criminal responsibility while some wrongs are of a private nature and are relatively less serious, CrPC considers it expedient to recognize some of them as compoundable offences while others as non-compoundable.

Compounding of Offences Under Ipc

‘Compoundable offences’ are those offences which are relatively less grave in nature in which compromise can be made between the individual and the accused while on the other hand ‘non-compoundable offences’ are those in which compromise can’t be made because of it affects society at large.

The compoundable offences are mostly non-cognizable but the vice-versa is not correct. Section 320 of CrPC deals with the general scheme of the compounding of offence.

Section 320 of CrPC

Offences mentioned in the table provided in section 320 of CrPC are of compoundable in nature. By the way of compounding the offence, the trial comes to end without complete disposal of the case.

Section 320 of CrPC reads as follows: 320(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table. In the table, 21 penal offences are listed, some of these are Sec 298,323,334 of IPC etc. Sec 334 of IPC is an offence of ‘voluntarily causing hurt on provocation’. Sec 323 of IPC is an offence of ‘voluntarily causing hurt’.

320(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of the table. In this table, 36 other penal offences are listed.

Briefly, Offences enumerated under section 320(2) are compoundable with the prior permission of the court. Offences under section 320(1)  are compoundable as a matter of right.

Special or local laws and ambit of section 320 CrPC

According to the scheme of the section, all offences under the special or local laws are simply non-compoundable. Further,  it is left to the wisdom of the legislature to decide as a matter of policy whether and to what extent offences under such laws should be compoundable.

Offences under IPC other than enumerated in Section 320 of CrPC

In the end, section 320(9) of CrPC makes it quite clear that offences not provided in this section are not compoundable. It means there is no effect of compromise on criminal liability of the offence other than this section.

However, the Supreme Court gave permission for compounding the offence under section 307,IPC (attempt to commit murder) in ‘Mahesh Chand v State of Rajasthan’ [1]. The Supreme Court in ‘Ram Lal v State of J&K’ [2], overruled its decision and held that an offence which law declares to be non-compoundable even with the permission of the court cannot be compoundable at all.

In ‘B.S. Joshi v State of Haryana'[3], Supreme Court held that in a situation of proceedings on the basis of non-compoundable offences like Section 498-A and 406, the High Court could quash them under Section 482 CrPC.

In ‘Gian Singh v State of Punjab’, [4], the Supreme Court upholding the decision of ‘B.S. Joshi v State of Haryana'[3], and observed that offences arising out of family disputes or matrimony relating to dowry, etc in which wrong is basically private in nature and parties have resolved their disputes, High Court may quash the proceeding under Section 482 of the Code. This power is different from the power of a criminal court to compound the offences.

Conclusion

Offences in which compromise can be made are compoundable otherwise non-compoundable. In non-compoundable offences, Court may compound the offence i.e. allowing the compromise. Basically, the offences in which criminal liability seizes at the stance of compromise are compoundable offences while criminal liability never comes to an end although compromise has been done between the parties are called non-compoundable offences.

However, in determining the quantum of sentence court considers the fact of compromise. All others special and local laws are non-compoundable if the option of compromise is not expressly provided in the statute.

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1. 1990 Supp (1) SCC 681

2. (1999) 2 SCC 213

3. (2003) 4 SCC 675

4. (2012) 10 SCC 303