REMANDS NLR 1991 Criminal 276. (Multan). S.167, 33 CrPC. Word “may” in S.167 & 344 CrPC is not without significance. It shows that magistrate/trial court is not obliged to send accused to jail while postponing commence of case or adjourning inquiry/trial. Court U/S 344 has judicial option to send accused to custody by a warrant or release him on bail on his executing bond with or without surety although no application for bail is made by him. NLR 1995 CrLJ 585. Tariq Javaid Butt V/S The State (Lahore). S.17/22 Emigration Ord. 1979. Accused would be entitled to bail when his detention has become illegal on account that police did not obtain remand order as required by S.344 CrPC. BAIL GRANTED KLR 1995 Sh.Cases 39. Sohail & another V/S The State (Karachi). S.17(3) OAP (EHO). Besides police official the magistrate who granted remand again and again also did not play an appreciable role as it could not be expected from any learned and responsible magistrate to grant remand for 14 days as such conduct being against the spirit and requirements of the words “time to time” used in S.167(2) CrPC. Moreover when the police officers were going on releasing these applicants U/S 169 CrPC in different cases one after the other then the magistrates were expected to be very careful in granting remand again and again instead of passing stereo typed orders as was observed by this court in the case of present applicants. Held: There was no other alternative left with this court but to believe that there were sufficient grounds for further enquiry into the guilt of all accused persons. BAIL GRANTED KLR 1984 Cr.C.334 + PLJ 1984 Cr.C. (Lahore) 1. Accused detention of. Grounds for. Remand. Grant of. Held: During first 15 days, magistrate to authorise detention of accused in judicial custody liberally but no detention in custody of police to be authorised except on strong and exceptional grounds for for shorter possible period. Held further: Reasons for grant of remand to be recorded by magistrate and copy of order to be forwarded to Sessions Judge concerned. KLR 1995 Cr.Cases 390. Muhammad Hussain V/S Ilaqa Magistrate (Lahore). Art.199 Constitution. S.63/167 CrPC. Instead of giving physical remand, the learned magistrate discharged the accused after recording the statements of three persons and after going through the Zimins. Challange to. Held: There is no embargo on the powers of the learned magistrate to refer the matter for further inquiry even u/s 156 CrPC. PETITION DISMISSED. 1995 PCrLJ 369. Sohail & another V/S The State (Karachi). S.17(3) OAP (EHO). Irregularities or illegalities committed by Investigating police officials ignored by magistrates highlighted: (1) I have no hesitation to say that most of the magistrates are responsible for irregularities or illegalities committed in broad day-light by the Investigating Officer e.g. it is known to every magistrate that: (I) No person is to be detained beyond 24 hours unless authorised by magistrate U/S 167). (ii) There must be reasonable grounds for believing that the accusation or information against accused was well-founded and (iii) I.O. is bound to transmit copy of entries in diary relating to the case. (2) It has been observed that most of the magistrates neither ask for the entires in diary nor take pain to go through the nature of accusation or information (3) Most of the magistrates usually write “the accused does not complain maltreatment against the police. He is remanded to police custody for.... days” or similar words as a routine. These two sentences mostly written inspite of their knowledge that the accused are never kept on the bed of roses. Even if the magistrates sight the visible signs of torture, most of them do not dare to refuse remand to the police. The magistrate must realise this fact that even if there is complaint against the I.O. it cannot be ground for granting or refusing remand. (4). The words “from time to time” in S.167(2) are also very important. If magistrates grant remand for fifteen days at a time, then the concept of these words is totally shattered. (5) The words “in whole” in S.167(2) do not permit the I.O. to get custody of accused for 15 days in each case. (6) S.167(4) provides that magistrate granting remand must forward a copy to the Sessions Judge to maintain the record of such order. 1995 MLD 771. Syed Mohsin Ali Shah V/S SHO Gard Maharaja (Lahore). S.49. 167/344 CrPC. Guidelines for Magistrates (1) During first 15 days magistrate may authorise detention of accused in judicial custody liberally but shall not authorise detention in police custody except on strong and exceptional grounds and that too for the shortest possible period. (2) Magistrate shall record reasons for grant of remand (3) Magistrate shall forward copy of his order to Sessions Judge (4) After expiry of 15 days, magistrate shall require police to submit complete or incomplete challan and in case challan is not submitted he shall refuse further detention and shall release him on bail with or without surety (5) After expiry of 15 days, no remand shall be granted unless application is moved by the police for grant of remand/adjournment U/S 344 CrPC. (6) Application so moved by prosecution/police after expiry of 15 days of the arrest, be treated as application for adjournment u/s 344 CrPC. (7) Before granting remand, magistrate shall assure that evidence sufficient to raise suspicion that accused has committed offence has been collected by police and that further evidence will be obtained after remand is granted. (8) Magistrate shall not grant remand/adjournment in absence of the accused. (9) Magistrate should avoid giving remand/adjournment at his residence. (10) Magistrate shall give opportunity to accused to raise objection on the grant of remand/adjournment (11) The magistrate shall record such objection and shall give reasons for rejection of the same (12) Magistrate shall examine police file before deciding the question of remand (13) If no investigation was conducted after having obtained remand, the magistrate shall refuse to grant further remand/adjournment (14) The magistrate shall not allow remand/adjournment after two months of the arrest of accused unless it is unavoidable. (15) In case complete challan is not submitted the magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list (16) In case of non-submission of challan within 2 months the magistrate shall report the matter to Session Judge and also bring the matter in notice of S.P. (17) Magistrate shall not grant remand mechanically for the sake of cooperation with prosecution/police (18) The magistrate shall always give reasons for grant of remand/adjournment. NLR 2000 CrLJ 554. Sameena Malik V/S SHO (Lahore). Police Rules 48, 49, 50 R/W Police Act, 1861. Detention of accused by police beyond 24 hours is violative of S.167 CrPC and cannot be approved. Police officers adopted this wrong track to grab money from parties. The reason behind is that in case arrest of accused is shown in daily diary of Police station and in the case diary, the accused has to be got discharged from court of competent jurisdiction i.e. Area Magistrate. In that case, discretion does not vest in hands of police officer who has to depend upon order of court. As such the effort is made to settle the matter out of court and for this reason number of filing of habeas petition u/s 491 CrPC is enhancing. 2: Practice of police to make accused persons sit in the police stations without showing their arrest in the case diary and the daily diary kept at police station. Reasons for adopting this practice enumerated in the judgement. 2000 PCrLJ 1576. Mst. Allah Rakhi V/S S.S.P. Faisalabad & 3 Others. (Lahore). S.395/412/109 PPC. S.167 CrPC. Order for grant of physical remand of accused. Essentials. Order for gant of physical remand of accused must be passed with all seriousness keeping in view the relevant law. Instructions about grant of remand to police custody incorporated in Chap.XXV of Police Rules, 1934 recorded. PLD 2001 Lahore 271. Ashiq Hussain V/S Sessions Judge, Lodhran. S.377, S.12 Zina Ord. Remand or discharge of the accused. Jurisdiction. Offence U/S 12 was admittedly not included in the Schedule appended with the Anti-Terrorism Act, 1997 whereas an offence U/S 377 PPC was a scheduled offence only “if the victim was below the age of twelve years and committed after the commencement of Anti-Terrorism Act, 1997. Occurrence though had allegedly taken place after the commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in the case being below twelve years at the relevant time was an asserted fact which was far from being established so far. Effect. Held: in the absence of any conclusive proof to the effect that the victim was definitely “below the age of twelve years” at the time of the alleged occurrence the Magistrate was not expected to readily abdicate his normal jurisdiction under the CrPC regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependant upon a fact which was far from being admitted or established. As long as jurisdictional facts, prima-facie, ousting the jurisdiction of Magistrate in respect of remand or discharge of an accused person were not established on the record, Magistrate was quite competent and justified in not abdicating his normal and general jurisdiction in that regard under CrPC in favour of a Special Court constituted under a special statute. Subsequent availability of some proof having a bearing on the matter could not be utilised for holding that the Magistrate had assumed the jurisdiction incorrectly at that stage. Principles. PLD 2002 AJK 20. AJK Ehtesab Bureau through Chairman V/S Khalil Ahmed Abbasi S.167 & 63. Judicial remand of co-accused. Supervisory and controlling powers of High Court. Judicial Officer while granting remand, had to weigh evidence to decide whether accused should be detained or not and they should not grant remand in mechanical manner and it was imperative for the court to apply its judicial mind. Was necessary that reasonable cause for remand should exist and if the Magistrate found that no reasonable grounds existed, then he should not grant remand. Magistrate had to scrutinize acts of police and ensure that there was substance in them. Magistrate had to consider evidence collected by police and ensure that the same justified detention of accused, because right of liberty is most precious right of a citizen. Detention of a person without any legal justification would create a sense of injustice and insecurity in society and mischief which could not be imagined. Should police fail to satisfy the Magistrate about accusation attributed to accused, then Magistrate had no jurisdiction to grant remand and he should discharge accused. Fundamental duty of Magistrate was to furnish reasons for obtaining remand. Basic object of S.167 (3) CrPC was that magistrate should not record order of remand in mechanical manner without examining record and reasons. If after considering the record and material produced by police and merits of case, Magistrate was not satisfied and did not grant remand, then his order would not be interfered by High Court while invoking powers U/S 46(1) of AJK Interim Constitution Act, 1974. 2003 PCrLJ 1282. Allah Bux V/S SHO Police Station Drigh & others (Karachi) S.61,154,156,157,159, 167 & 173 CrPC. Magistrate could grant further time to police on application of police showing reasons for grant of further period to complete investigation and such further time could be granted by magistrate on cogent grounds with direction to police to complete investigation within said period. Investigation should be completed within time fixed by law and should not be left at the mercy of police to their own sweet will to complete the same. If police failed to discharge their duties, then Magistrate should check police and compel it to submit challan or interim challan so that case should proceed expeditiously. Adequate remedy by approaching magistrate being available to petitioner/complainant, Constitutional petition was not maintainable. 2005 MLD 1883. The State through AG NWFP V/S Ubaidullah & Others (Pesh.DB) S.167 CrPC. If investigation in a case could not be completed within twenty four hours fixed U/S 61 CrPC, accused under arrest, was to be forwarded to a Magistrate along with diaries of proceedings in investigation. Magistrate could competently grant police custody irrespective of the fact as to whether he possessed or not the jurisdiction in the matter. Magistrate on examination of investigation diaries could authorize detention which would not exceed 15 days in all. If Magistrate was not satisfied with the diaries, submitted by Investigating Officer along with request for police custody and he had got no jurisdiction in the matter, he could refuse further detention and direct to produce accused before a Magistrate having jurisdiction in the matter.
Posted on: Tue, 30 Dec 2014 10:31:19 +0000
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