The Jammu & Kashmir High Court has held that a Public Prosecutor does not have an independent statutory authority to seek police custody remand of an accused unless the investigating officer has first made a corresponding request and articulated reasons for custodial interrogation. The court, while addressing a revision petition under Section 401 of the Code of Criminal Procedure, emphasised that the role of the Public Prosecutor in criminal proceedings is to assist the court and represent the case of the state, but this role does not empower the prosecutor to act on behalf of the police or to initiate custodial demands without the investigating agency’s formal requisition.
The revision petition arose in a case where the police sought remand of the accused for further investigation into offences involving cheating, forgery and offences under the Jammu & Kashmir Prevention of Anti-Social Activities Act. While the investigating officer initially applied for police custody remand and the magistrate granted a short period of custody, the magistrate later proceeded to extend or renew the prayer for remand on the basis of submissions made by the Public Prosecutor, even though no fresh written request had been filed by the police. Counsel for the accused challenged this before the High Court, contending that the continuation of custodial remand could not be justified merely on the oral submissions of the Public Prosecutor in the absence of a fresh request by the investigating officer specifying the reasons necessitating further custody.
The High Court examined the statutory scheme regulating remand in criminal procedure. It reiterated that custodial interrogation, whether under police custody or judicial custody, is an exception to the general principle of personal liberty and can be ordered only when there are compelling and specific grounds relating to the purpose of investigation, such as the necessity to recover evidence, prevent tampering, or secure the presence of the accused for interrogation. The court underscored that these grounds must be articulated in a formal application by the investigating officer, as the investigation is the domain of the police and the request reflects operational needs. The Public Prosecutor’s function, the court observed, is to present and argue the case of the prosecution; he does not conduct the investigation and therefore cannot independently advance a remand application without the investigative agency’s backing.
In its reasoning, the High Court noted that remand orders based solely on the Public Prosecutor’s submissions, without a corresponding written request from the police, lack the statutory foundation required under the Code. The court observed that remanding an accused to custody is a serious incursion on personal liberty, and courts must satisfy themselves that statutory conditions are met before granting custody. Reiterating well-settled legal principles, the bench held that where no police requisition was placed before the magistrate for further custodial interrogation, the magistrate erred in extending the custody period on the basis of the Public Prosecutor’s stance alone.
The High Court therefore allowed the revision petition, set aside the remand order insofar as it was predicated on the Public Prosecutor’s independent request, and directed that the accused be released forthwith on bail, subject to such conditions as the trial court may deem appropriate. The court’s decision reinforces the limited and defined role of the Public Prosecutor in criminal proceedings with regard to requests for custodial remand, stressing that such powers cannot be exercised independently of the investigating agency’s formal application. It affirms that custodial remand must be anchored in the investigative needs articulated by the police through proper requests, ensuring that the constitutional guarantee of personal liberty is not unduly infringed upon by procedural overreach.
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