LHC makes procedure to obtain physical remand more viable, transparent

In a bid to make the process of obtaining remand more viable and transparent, the Lahore High Court (LHC) has instructed magisterial courts not to grant remand in the absence of the accused.

The court directed to examine progress in the investigation and refuse to extend the physical remand if there is no strong reason placed by the investigation officers (IOs) of the cases.

The directive, issued by a division bench led by Justice Ali Zia Bajwa, outlines guidelines for magistrates and administrative judges to follow when deciding matters related to accused individuals on physical remand.

The bench emphasised that the accused should have a fair opportunity to oppose the IO’s remand request, either personally or through legal representation. It stressed the need for objections to be documented, with magistrates ensuring the accused's safety during police custody.

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According to the directives, magistrates are prohibited from issuing remand orders in the absence of the accused, emphasising the necessity for the accused to be present during remand proceedings.

“The Magistrate must pass a speaking order while dealing with the question of grant or refusal of physical remand, furnishing cogent and convincing reasoning as the grant of remand to police custody is not a rule, but an exception, therefore, the accused can only be handed over to investigating agency in cases of real necessity and that too for the shortest possible time required for investigation,” it added.

Before granting remand, LHC instructed that the magistrates must verify the existence of prima facie evidence connecting the accused to the alleged offence, highlighting the essential nature of physical custody for evidence collection.

“In case the Investigating Officer seeks an extension in physical remand, the magistrate should examine the progress since the previous order(s), as the longer the accused person has been in custody the stronger should be the grounds required for further remanding him to the police custody. If no investigation was conducted after having obtained the physical remand, further remand should be refused,” it added.

It tasked the magistrates to strike a balance between investigative needs and protecting citizens from potential oppression by investigating agencies.

It said that the duty of the magistrate is to independently apply a judicious mind to the case's facts and circumstances, reflected in the order by examining case diaries and relevant documents.

The bench also observed that provisions of sub-section (2) of section 21-E, ATA read with section 167 of the code and principles enunciated by the superior courts of the country on the subject were squarely overlooked by the administrative judge, which straightway require that further remand of the accused in police custody cannot be justified.