POWER OF REMAND AND REFUSAL QUA SUBJECTIVE SATISFACTION OF

MAGISTRATE: STATE v . Tr. NAKKEERAN GOPAL 2019 (1) CTC 497 – AN

ANALYSIS

C.E. Pratap, Advocate, High Court, Chennai

Introduction

The provisions under Section 167(2) of Code of Criminal Procedure, 1973 confers
power upon the Magistrate to order for remand of an accused person produced before him by
the police to authorize the detention of the arrested person in to judicial custody. The said
power of remand cannot be exercised by a Magistrate in a mechanical fashion. Before
passing an order for remand of a person the Magistrate has to satisfy himself upon perusing
the entire materials and Case Diary pertaining to the arrest of such person produced by the
police and he must be justified in holding that ordering for remand will facilitate the police in
further investigation. If the Magistrate while ordering for remand of the accused person to
judicial custody found that there is any non-compliance of the statutory provisions of arrest as
contemplated under Section 41 of Cr.P.C. are not complied with by the police officer, he
would be justified in refusing to remand the accused to judicial custody, and the Magistrate
has the power to direct that the accused be released on his own, with or without sureties, with
an undertaking that he shall appear before the Investigating Officer as and when required.
The object of this provision is to avoid unnecessary arrest of the accused by the police. A
legal conundrum has arisen recently with reference to the refusal on the part of the Magistrate
to order for remand of an accused who came to be produced before him on 09.10.2018 for
alleged offences under Section 124 of Indian Penal Code. This has opened the way for
discussion from all quarters questioning the power of the Magistrate from refusing to remand
the accused who is arrested in connection with an offence. The answer to this issue was
judiciously given by the Madras High Court in a vivid manner elaborating on the power of
the Magistrate to refuse remand by touching upon various salutary provisions of
Criminal Procedure Code in the recent judgment of State v. Tr. Nakkeeran Gopal reported in
2019 (1) CTC 497. While reading through the judgment cited supra this author was
enlightened on the various aspects of the procedure relating to arrest qua the subjective
satisfaction to be exercised by the Magistrates insofar as the remand of the accused. This has
culminated into writing of this petite article for sharing of the academic understanding which
the author has gained inasmuch as the provisions of arrest and remand of an accused.

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Mandatory procedure to be followed by police while arresting a person

The provisions under Section 41 of Cr.P.C. empowers the police officer to arrest a
person without an Order from a Magistrate. This interalia authorizes the police officer to
even arrest a person without a warrant if the police has a reason to believe that the person so
arrested has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned. 1 Pursuant to the arrest of a person the
pertinent legal issue arises qua the taking the said arrested person into custody. The
immediate next step in every arrest will be on the taking into custody of the person arrested
under the authority of law. The judgment cited supra at paragraph 16 while making
discussion on Issue “a” has categorically held that the word “custody” and “arrest” are not
synonyms. It is true that in every arrest, there is a custody but vice versa is not true.2

It is time and again reiterated by the Hon’ble Apex Court that the accused should be
arrested only in a serious offence and the police officer carrying out such arrest must satisfy
the grounds contained in Section 41 of Cr.P.C. and the only he should arrest the accused. The
police officer who is carrying out the arrest of a person must with all circumspection shall
take into account that if the procedure mandated for arrest is not duly complied with by him it
shall entail into gross violation of the most inviolable Fundamental Right of person liberty of
the said arrested person as guaranteed under Article 21 of the Constitution of India. 3 The
Hon’ble Supreme Court in the landmark case of D.K. Basu v. State of West Bengal4 has
issued detailed guidelines to the police officer regarding the procedural requirements to be
mandatorily followed in case of arrest of a person. Pursuant to the D.K. Basu’s Case the
Parliament has amended the Code of Criminal Procedure in the year 2009 5 and inserted
Sections 41-A to 41-D and codified the various procedures to be followed by the police and
the rights of the accused persons at the time of arrest. The provisions under Section 50 of
Cr.P.C. specifically provides for the right of the person arrested to be informed of the grounds
of arrest and of right to bail. The police officer upon arresting a person has to prepare an
arrest intimation form and issue the same to the arrested person.

1
Section 41(1)(a).
2
2019 (1) CTC 497 at p.511.
3
Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure
established by law”.
4
AIR 1997 SC 610.
5
Act 5 of 2009. Notified on 01.11.2010.

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Procedural violation in carrying out the Arrest

In the case in hand, the arrest intimation form that was issued by the police to the
arrested person does not state the reason for arrest. According to Section 50 of Cr.P.C. every
police officer arresting any person shall forthwith communicate to him full particulars of the
offence for which he is arrested or the other grounds for such arrest. But the arrest intimation
form produced by the police before the Court below in the instant case does not state the
name of the police station which has undertaken the process of arrest or the materials seized
by the police from the accused and the vital material facts are missing in the arrest intimation
form. These instances alone per se vitiate the arrest on the sole ground of procedural
irregularities in carrying out the arrest. The Magistrate upon receipt of the material particulars
given by the police at the time of producing the accused after his arrest, for the purpose of
remand, on a subjective satisfaction found that the arrest intimation from lacks sine qua non
elements for carrying out a lawful arrest had consequently refused to order for remand of the
arrested person produced before him. Therefore it is a trite proposition of law that whenever a
Magistrate finds that the procedural requirements are missing in any arrest can refuse to
remand an accused inasmuch as the reason being the very arrest itself is wholly vitiated for
non compliance of the statutory procedure prescribed under Section 50 of Cr.P.C. The arrest
thus made by the police officer in contravention of the provisions of Section 50 of Cr.P.C.
would be ipso facto not sustainable in the eye of law and eventually the same is against the
Constitutional ethos guaranteed under Article 21.

The High Court in paragraph 16 at point iv6 has categorically held that on a
prima facie consideration of the materials available on record, this Court is not satisfied with
the manner in which the arrest has been taken place in this case. It is specifically held by the
High Court that the Arrest Intimation Form given to the respondent in the instant case does
not even reveal the reasons for arrest, which is a very fundamental requirement before a
person is arrested in a case. The judgment also pointed out that only when the accused was
produced by the police for the purpose of remand it is the Magistrate who has read out the
gist of the offence alleged to have been committed by accused in the open Court. This is the
first time the accused came to know the reason for his arrest. This conspectus of the matter
thus makes the entire process of arrest to be totally vitiated. Now coming to the other side of
the riddle that the learned XIII Metropolitan Magistrate Court, Egmore upon careful perusal
of the Arrest Intimation Report furnished by the police having satisfied subjectively and on
6
2019 (1) CTC 497 at p.515.

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careful scrutiny of the procedure contemplated under Section 167(2) Cr.P.C., had refused for
ordering remand of the accused produced before him on the sole reason that the police has
failed to mention the name of the police station which is involved in the arrest, and that is the
reason why, the Magistrate has stated in the Order that the very jurisdiction of the Court is
not clear, since, no police station has been mentioned in the Arrest Intimation Form. This is
directly against the guidelines of the Hon’ble Apex Court in D.K. Basu’s Case cited supra
which mandates that every police officer arresting a person shall forthwith communicate to
him full particulars of the offence for which he is arrested or such other grounds of arrest.

In the instant case, the process of arrest carried out by the police is not in strict
compliance with the guidelines given in D.K. Basu’s Case and the Magistrate is justified in
not receiving the accused for the purpose of passing an Order of remand. It is also pertinent to
note that in each case of remand, the police shall file a Remand Application enabling the
Magistrate to pass an Order upon subjective satisfaction that there are justifiable grounds to
detain the accused who is already arrested and produced before him to judicial custody.
While filing such Remand Applications, the police is required to bring to the notice of the
Magistrate who is vested with the power of writing a remand note so as to persuade the Court
to pass an Order for remand of the accused to custody for the purpose of further investigation.

Application for Remand vis-à-vis Subjective Satisfaction of Magistrate

The provisions under Section 57 of Cr.P.C. cast a primary duty upon the police officer
who is carrying out the arrest of a person without a warrant to forthwith produce the person
so arrested within 24 hours to the nearest Magistrate, if he is not able to complete the
investigation within that time. The procedural framework relating to the arrest of a person as
stated under Section 167 of Cr.P.C. mandates that whenever any person is arrested and
detained in custody, and it appears that the investigation cannot be completed within the
period of 24 hours as stipulated by Section 57 of Cr.P.C., the police officer making the
investigation shall forthwith transmit to the nearest Judicial Magistrate, a copy of the entries
in the diary relating to the case, and shall at the same time forward the accused to such
Magistrate. This is where the vital role of the Magistrate starts upon producing the accused by
the police before him, the Magistrate who even before passing an Order for remand of the
accused into judicial custody must be first satisfied that the arrest made is legal and in
accordance with law. The Magistrate to peruse the entire records produced by the police and
to get himself acquainted with the progress of investigation which would appear from the

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case diary. This has to be done so by the Magistrate for the purpose of discharging his
fundamental judicial function. Thereafter upon a thorough perusal of the case diary, if the
Magistrate is satisfied that there are reasonable grounds available based on the materials
place before him can order for the remand of the accused. The Magistrate has to apply his
mind independently to the facts of the case and has to go in to the records available and
satisfy himself whether the remand of a person is required under law. Therefore the
Magistrate shall not pass a remand order automatically or in a mechanical fashion at once the
accused is brought before him by the police for the purpose of detaining the accused to
judicial custody.

The Magistrate may be called upon to discharge his elementary judicial function in
connection with remand of an arrested person in to judicial custody. The remand of an
accused person may be required for various purposes. The accused during the period of
remand may have to be taken to custodial interrogation by the police and have to be
questioned in detail regarding the various facets of the crime and the involvement of other
persons, if any, in the crime. There are certain circumstances where the accused may provide
information leading to discovery of material facts.

It is pertinent to have a look at the judgment of the Hon’ble Supreme Court in Arnesh
Kumar v. State of Bihar7 wherein it is categorically held that an accused arrested without
warrant by the police has the Constitutional right under Article 22(2) of Constitution of India
and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and
in no circumstances beyond 24 hours excluding the time necessary for the journey. During
the course of investigation of a case, an accused can be kept in detention beyond a period of
24 hours only when it is authorised by the Magistrate in exercise of power under Section 167
of Cr.P.C. The power to authorise detention is a very solemn function. In many of the cases,
detention is authorised in a routine, casual and cavalier manner. Before a Magistrate
authorises detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made
is legal and in accordance with law and all the Constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does not satisfy the requirements of
Section 41 of Cr.P.C., Magistrate is duty bound not to authorise his further detention and
release the accused. Therefore Section 167 Cr.P.C. is a guiding provision whereby the
Magistrate is permitted to exercise his subjective satisfaction in case of ordering remand of an
arrested person. The Magistrate under Section 167 Cr.P.C. may also refrain from his judicial
7
AIR 2014 SC 2756.

5
duty, otherwise to say the Magistrate if he is satisfied that the condition precedent for arrest
under Section 41 of Cr.P.C. is not properly complied with by the police officer carrying out
the arrest, then the Magistrate upon recording the reasons in writing and may pass an Order to
that effect of his refusal to remand a person to judicial custody.

Power of Refusal to Remand: Application of Judicial Mind by Magistrate

The Magistrate before refusing to order for remand of an arrested person has to
necessarily go through the entire material records forwarded by the police officer carrying out
arrest for his perusal. Thereafter the Magistrate has to record the reasons of his own
subjective satisfaction which shall be reflected in the said Order of refusal to remand. In order
to clearly understand the scope of jurisdiction and power exercised by a Magistrate at the
time of remanding an accused person it is relevant to rely upon the judgment of Sanaul
Haque v. State of U.P.8 wherein it was held that the judicial remand shall be passed on the
subjective satisfaction of the Magistrate on the basis of the relevant police papers, in such
circumstances, the perusal of the relevant police papers is essentially required for the
application of the judicial mind of the Magistrate concerned, in such process the learned
Magistrate concerned is under obligation to accept the report of the investigation officer
without applying the judicial mind for passing the Order of judicial remand, it may be
accepted or it may be rejected or it may be altered by adding some more offence or deleting
some offence.

The power of refusal to remand on the part of the Magistrate can be invoked by him
when in case the Magistrate is of the opinion that the arrest has not been made in a bona fide
manner, or the grounds for arrest mentioned do not conform with the criteria set out in
Section 41(1)(b) or 41-A Cr.P.C. If the Magistrate is of the opinion that there is no material to
substantiate the reasons for arrest, he may refuse to remand the accused to judicial custody
and may release the accused on personal bond with or without sureties after taking an
undertaking from the accused to appear before the investigation officer or the Court when
required. The Supreme Court in Surendra Kumar v. State of Uttar Pradesh9 has held that the
Magistrate has the power to refuse for order remand if he is of the subjective satisfaction that
the arrest is not carried out in the bona fide manner as required under Section 41-A of Cr.P.C.
Such refusal on the part of the Magistrate is legally justifiable and sustainable in law. The
reason being the Magistrate before passing such Order qua refusal to remand or detention of
8
2008 Cri.LJ 1998.
9
2014 SCC Online All 895.

6
the accused to judicial custody is satisfied himself regarding the adequacy of grounds for the
said purpose. As in the instant case, where the police officer who carried out the arrest has
blatantly failed to mention certain vital material particulars in the Arrest Intimation Report,
which necessitates the Magistrate to get into a close scrutiny of the material papers and Case
Diary connected with the arrest which came to be produced by the police. The Magistrate
upon perusal of those records is of the view that the arrest carried out by the police per se is
not in tune with the procedural requirements as enunciated under Sections 41(1)(b) or 41-A
of Cr.P.C. and he finds that there is no material to substantiate the reasons for arrest.

It is clear that the learned XIII Metropolitan Magistrate, Egmore is justified in

refusing to remand the accused only on the ground that no sufficient material is available nor
the police officer who carried out the arrest has failed to produce substantial proof to justify
the remand. As held by the Hon’ble High Court of Madras, the learned Magistrate has in fact
perfectly applied his mind and he has given scope for the police to collect further materials
and for this purpose he has got an undertaking from the accused to appear for interrogation as
and when required. The issue ‘e’ as discussed in this case that whether the procedure adopted
by the learned Magistrate, who on the one hand rejected the remand of the Respondent and
on the other hand directed the Respondent to execute a Bail Bond, by itself shows uncertainty
in the mind of the Magistrate and consequently, will amount to non-application of mind? is
thus answered in negative by holding that the learned Magistrate has not closed his mind and
the openness in his approach is very clear from the fact that he has given liberty to the
Investigating Officer to again approach the Court after collecting sufficient materials. The
Magistrate while doing so has scrupulously applied his mind and duly followed the procedure
laid down under Section 59 of Cr.P.C. which provides that once the accused is arrested by the
Police Officer, he shall not be discharged except on his own Bond or on Bail, or under a
Special Order. In the instant case since the arrest if found to be illegal, no question arise as to
releasing of the accused on his own Bond or on Bail and the only proper Order would be an
Order of Discharge i.e., the Order of his release by passing of the Special Order, as
contemplated in the latter part of Section 59 of Cr.P.C. Therefore the learned Magistrate
thought it fit to direct the Respondent to execute a own Bail Bond for Rs.10,000.

Concluding Remarks

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 Thus a close and careful reading of the recent judgment would throw before us
various pertinent questions on the power of a Magistrate to refuse Ordering for remand of a
person who is produced for judicial custody. The learned Magistrate has incisively applied
his judicial mind in to the law and followed the procedures thereby passed a judicial Order
refusing to entertain the application for remand on the premise that the manner and procedure
of arrest are in not in conformity with the legal provisions laid down under the Code of
Criminal Procedure. The learned Magistrate deserves a special mention for the reason that
despite the fact that the proceedings in the instant case were conducted in a charged
atmosphere which is otherwise not conducive, had maintained the demureness throughout the
proceedings. In fine, the law is now settled that it will not open the Pandora’s Box in the
future regarding the procedure to be followed by the Magistrates in cases of arrest where the
procedural requirements are not duly complied with by the police officer effecting arrest of a
person, the Magistrate on perusal of the materials produced before him by the police, is at
liberty to exercise his subjective satisfaction within the scope of his powers as conferred
under Section 167 Cr.P.C. and certainly refuse the remand of the accused and consequently
can come forward to reject the remand of an accused person by recording his subjective
satisfaction in writing which is well within his purview of discharge of judicial functions.