The concepts of 'transit remand' and 'norms for inter-state arrests' are being widely discussed in the wake of the arrest of 21-year old climate activist Disha Ravi by the Delhi Police from her Bengaluru resident in the 'toolkit' case.
Many legal experts have questioned the Ravi's custody saying that it was not accompanied with a 'transit remand order' from Bengaluru and norms for inter-state arrest were violated. The Delhi Commission for Women has taken suo moto cognizance of the issue in the wake of widespread criticism against Ravi's arrest and remand.
In this backdrop, this piece is an attempt to explain the concepts of 'transit bail' and the 'guidelines for inter-state arrest'.
What is a Transit Remand Order?
In practical terms, 'transit remand order' means on order passed by a Judicial Magistrate remanding an arrested person to police custody for the purpose of his transit to another state. By issuing such a 'transit remand order', the local Magistrate certifies that the police personnel from the outside state had the authority to arrest the person, and that such arrest was done legally. Further, the local Magistrate authorizes the other-state police to take the arrestee out of his home state.
'Transit remand order' acts as a valuable layer of protection in cases where a person is taken out of his familiar circumstances to an alien place.
While the term "transit remand order" is not categorically defined in Indian criminal law, it finds its roots in Section 167 of the Code of Criminal Procedure.
Section 167 lays down the procedure when the investigation cannot be completed in 24 hours as fixed by Section 57 and requires the police officer to transmit to the nearest Jurisdictional Magistrate a copy of the entries in the diary relating to the case, The Magistrate in turn may authorise detention of the accused for a term not exceeding 15 days, and if he has no jurisdiction, then he may order the accused to be forwarded to a Magistrate having such jurisdiction.
From the aforementioned provisions, it is evident that in order to retain an accused in custody for a period exceeding 24 hours, the order of the Jurisdictional Magistrate is required and, for that, the police officer needs to produce the accused as well as copies of the case diary. A good reference point to understand the importance of these requirements is the 2018 Delhi High Court decision in the case Gautam Navlakha vs Union of India, in which a bench comprising Justices Dr S Muralidhar and Vinod Goel quashed the transit remand order on the ground that the Magistrate did not follow the requirements of Section 167..
In 2019, a Division Bench of the Delhi High Court had reiterated the detailed suggestions of a Committee constituted by it and had stated that in cases of inter-state arrest, an "endeavour should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of Sections 56 and 57 of CrPC within 24 hours"(Sandeep Kumar v State, Justices Dr S Muralidhar and Talwant Singh).
In a 2009 judgement, the Delhi High Court had astonishingly observed that the Gujarat Police had come all the way from Ahmedabad to Delhi, beyond their jurisdiction, did not seek any assistance from the local police and had whisked away the accused to Gujarat – "Such practice is obviously contrary to the police manuals and if such actions go unchecked, it will amount to condoning lawlessness by the police force. In a country governed by the rule of law, this is simply unacceptable". Further, the Court had noted that by snatching away the accused from his parental home and home environment, there had been a blatant infringement of his rights and would render a mental scar which had the potential to never heal.
The High Court observed that the Gujarat police was bound to produce the accused before the nearest Magistrate who was in Delhi.
"Article 22 (2) of the Constitution prescribes that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of the magistrate. Once, we have determined that the factum of picking up Shamim from Delhi amounted to his ‗arrest' and detention in custody, albeit illegal, it became incumbent upon the officials of the Gujarat police to produce him before the nearest Magistrate within a period of 24 hours. The nearest Magistrate was located in Delhi, but, obviously, he was not produced before any such Magistrate in Delhi", the HC observed in that case while ordering compensation for illegal arrest.
In the 1964 case of RK Nabachandra Singh v. Manipur Administration, it had been observed by the Gauhati High Court that the police should produce the arrested person before the Magistrate if investigation cannot be completed within 24 hours.
"Unless a police officer considers that he can complete the investigation within a period of 24 hours, it is his duty to produce the accused forthwith before a magistrate and he should not wait for 24 hours", the High Court observed.
The concept of 'transit remand', though not expressly mentioned in the CrPC, flows from Section 167 of the CrPC and Article 22 of the Constitution of India, as per which a person cannot be detained by the police for over 24 hours without the authorization of a judicial magistrate. With the aim of ensuring protection of the personal liberty of an individual, the Courts have evolved the concept of 'transit remand' in cases where the person is sought to be taken out of state by police from a different states. In such cases, the person ought to be produced before the nearest Magistrate soon after the arrest, and ought to be taken out of the arrestee's home state only on the strength of a 'transit remand order' issued by such Magistrate.
Application of Judicial Mind
In the 2012 case of Manubhai Ratilal Patel v. State of Gujarat, the Supreme Court had held that the act of directing remand of an accused was fundamentally a judicial function and while exercising this function, it was obligatory on the part of the Magistrate to "satisfy himself whether the materials placed before him justify such a remand".
Therefore, there lies a responsibility on the Magistrate to apply his mind and not pass an order of remand automatically or in a mechanical manner.
Guidelines for Inter-State Arrest
In the aforementioned 2019 case(Sandeep Kumar v State), a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest.
Relying on Sections 48, 77, 79 and 80 of the CrPC, the guidelines stated the following guidelines for inter-state arrest:1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/search warrants.
3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
4. If the possible arrestee is a female, a lady police officer be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
5. Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim's name be also indicated.
10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314)
12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon'ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
13. In terms of S. 41C, control rooms be established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. Control Room at State level must collect details of the persons so arrested.
14. The police officer must record all the proceedings conducted by him at the spot and prepare an 'arrest memo' indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be able to arrange legal assistance for him.
16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
17. On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-fide belief. He cannot take shelter under another person's belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-fide. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicle should be used for transportation to the extent possible.
22. At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
23. In case where the police officer finds the victim/prosecutrix to be a 'minor', soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
24. Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
25. MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
26. The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
27. The MHA/State Government should circulate the Rules/Guidelines/Notifications etc from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
28. Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
29. The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
30. If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.
Right to Legal Representation
Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice. Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.
In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the "seriousness of the offence and the urgency of the situation" may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – "the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced". Moreover, mere representation by a legal aid lawyer, without ensuring whether accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely "cosmetic".
Two parapraphs from the judgment are worthy of being quoted here :
"Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority ("NALSA‟), the statutory body under theLegal Services AuthoritiesAct, 1987(LSAA), wasshown representing the person arrested, i.e. the present Petitioner. However, the Magistrate does not appear to have asked the arrested person,as mandated by Article 22 (1) of the Constitution whether he wasinformed about the grounds of arrest and whether he wish to consult and bedefended by a legal practitionerof his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand".
"There is no mention of thelegal aid lawyer having been made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in thetrue spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody."