Explainer: Inter-State Arrest, Transit Remand & Right To Legal Representation

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 ...

Explainer: Inter-State Arrest, Transit Remand & Right To Legal Representation

Radhika Roy

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