Therefore, the remand under Section 167 (1) of the Code of Criminal Procedure is an exception and not the rule. The law does not fasten judicial duty on Magistrate to record reasons for not granting remand to police custody
Jairajsingh Temubha Jadeja
State of Gujarat
Para 4: “The principle of granting or not granting remand is always depending upon the facts and circumstances of the case and collection of evidence by Investigation Agency. On that evidence, the Investigating Agency may ask for the remand of the accused persons for further investigation i.e., to say that the Investigating Agency has to make out a case that certain evidence is collected against the accused and without the custodial investigation no further investigation is possible and if the remand is not granted, the investigation would be throttled.
These are the ordinary principle of granting or not granting the remand and it depends upon the facts of each case to grant or not to grant the remand. After keeping in mind the legal principles established by the court, it will be useful to refer to a decision of this Court on which reliance has been placed by both the side in the matter of Siyaram Gopichand Gupta and Ors. v. State of Gujarat reported in 1990 (2) GLR 905 wherein after referring many decisions of the Apex Court, this court quoted in Para 23 the words of Lewis Mayer’s as under:
“To strike balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other hand, is a perennial problem of statecraft.”
It was observed by this court in the above said decision that the courts have to strike balance between the propositions above. Meaning thereby that courts will have to see that is there a case made out by Investigating Agency to hand over the accused on remand or on the pretext of remand, the liberty of a citizen is likely to be affected.
Therefore, the remand under Section 167 (2) of the Code of Criminal Procedure is an exception and not the rule. The law does not fasten judicial duty on Magistrate to record reasons for not granting remand to police custody, but it is imperative that Magistrate must record reasons for granting remand to the police custody; Section 167 of the Code of Criminal Procedure makes it obligatory on Police Authority to transmit a copy of the entries in the diaries relating to case along with the forwarding of the accused.