Custody In Transit - A Critical Study Of Judicial Innovation Under Constitution And BNSS

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T19:07:59.105Z

Updated: 2026-08-30T07:06:18.983Z

CUSTODY IN TRANSIT: A CRITICAL STUDY OF JUDICIAL

INNOVATION UNDER CONSTITUTION AND BNSS Ajinkya Misal, B.A.LL.B. (Hons.), Maharashtra National Law University, Chhatrapati, Sambhajinagar (MNLUCS)1

ABSTRACT

The doctrine of Transit Remand, though not explicitly mentioned in the criminal statute, has gradually evolved though the judicial precedents in India. Apart from serving only the procedural aspect of criminal justice delivery system, it is an important core stone protecting the fundamental rights of the arrested person. The constitution in its Part III, sheds light over the Fundamental Rights and also act as a guardian for individuals who are arrested with such set of rights. Article 21 and Article 22, constitutionally protects the Liberty of individual including the protection against arrest and detention. The primary function of Transit Remand is to keep an eye on the actions of the police, ultimately protecting the fundamental rights of the arrested individual.

Transit remand is crucial so as to monitor that the individual’s fundamental rights are not violated under the shadow of geographical constrains or commutation difficulty. This procedure mandates that the arrested entity should be produced before the nearest magistrate if it is not possible to produce the person before the magistrate of original jurisdiction, and in accordance take the permission for the time of transit ultimately avoiding the exploitation of rights of arrested through illegal detention. This paper explores the origin and true essence of Transit remand while undertaking its constitutional as well as statutory mentions backed by precedents. Constantly emerging issues and answers to pace today’s problems emphasizing its role in upholding constitutional values and human rights, is the direction of this paper.

Keywords: Transit, Remand, Magistrate, Twenty-four hours, Jurisdiction. * Ajinkya Misal, B. A. LL. B. (Hons. ), Maharashtra National Law University, Chhatrapati, Sambhajinagar

(MNLUCS)

INTRODUCTION

A person is arrested in a north-eastern state for his crime committed in the southern part of the country. Even though it may sound odd or not real, but is a very practical problem and occurs very commonly across the country. It is quite easy to move from one place to another in India, and particularly after committing crime, individuals typically flee the spot and try to relocate as distant as possible under the false belief of getting under eyed by the police. But fortunately, this is not the case. Once such person is arrested at any place irrespective of the jurisdiction within India, the time lapse of twenty-four hours starts immediately as the arrested person gets protected with certain constitution rights and the duty to protect those rights in handed down to the police. The Criminal procedural law governing across India being Bharatiya Nagrik Surakshya Sanhita i. e.

BNSS, has laid down standard procedure to be followed after the arrest. Section 58, requires the arrested person not to be detained more than twenty-four hours 2. This is well backed by the Article 22 of the Indian Constitution reading the rights of arrested individual and their detention. 3 The soul of Transit Remand tires only to the vast territorial aspect of the Indian geography. The main intent behind this type of remand is to avoid illegal detention which will otherwise become casual under the reason of time-consuming transit. Police will be at a leverage to exploit the arrested by illegally detaining them by making false records of arrests to maximise the time of detention and hence watering down the well laid provision under Section 58 of BNSS.

4 Even though a certain individual is arrested for any crime committed at any place in India, he should be produced before the nearest magistrate of power,5 to obtain the Transit remand. Now, in order to bring the accused before the magistrate of original jurisdiction, a certain time is required for travel which normally exceeds twenty-four hours due to topographical constrains. It is the duty of the magistrate in such cases to see whether police are not misusing their power and only proportionate time is given which is required for travel, avoiding the deprivation of liberty of the arrested one. Constitutionally this is protected under Article 22(2), requiring the timely production of the arrested before the nearest magistrate. 6

2 Bharatiya Nagarik Suraksha Sanhita, 2023, § 58.

3 India Const. art. 22.

4 Police custody under CrPC & BNSS

A paradigm shift in balancing liberty and investigation, CJP (Jan.7, 2025) https://cjp.org.in/police-custody-under-crpc-bnss-a-paradigm-shift-in-balancing-liberty-and-investigation/.

5 India Const. art. 22, cl. (1).

6 India Const. art. 22, cl. (2).

GENESIS AND FRAMEWORK OF TRANSIT REMAND;

The Republic of India, being governed by democratic principles, relies heavily over the constitutional values it cherishes. 7 Every individual, irrespective of any differences is exposed to the same system of justice without any prejudice against the individual. When any individual is arrested, it is the duty of the governing system to expedite the process and deliver the justice as soon as possible. Under such conditions, it will be much unfair for a certain individual to be detained by the police or any other government agency under the reason of any act which is still questionable by law. It would be very unfair to cite the cause of travel or commutation to the place of court, to cover the act of detention of certain individual. However, there is no straight-jacket rule to fit a certain category of act.

However, a duty is casted over the police by our criminal justice system to investigate a crime, find the guilty party, and produce the accused before a court within twenty-four hours of arrest. Section 58 of BNSS reframes this by stating for non-detention of the arrested beyond twentyfour hours. 8 In correspondence to this, further it is the duty laid under Section 57 over the police officer so arresting to take the arrested before the magistrate without any unnecessary delays. 9 The procedure under BNSS has prescribed for the completion of the investigation should be done within twenty-four hours and in case, this doesn’t make up, Section 187 of BNSS speaks of the procedure to be followed otherwise.

When a person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58 and subject to the accusations being well informed, the police officer making the investigation is obliged to send such arrested person to the nearest magistrate. 10 The foundation of the concept of Transit Remand could be interpreted after understanding the procedure of BNSS under Section 58 and 187. Specifically, 187(2)11 has the crux of Transit remand, speaking of such situation when the magistrate to whom the accused is forwarded lacks the jurisdiction to try such person, may order the accused to be forwarded to a Magistrate having original jurisdiction. Ultimately, this protects the fundamental right of the accused, i. e.

to be produced before the magistrate within twenty-four hours and also upholds the spirit of criminal justice system be respecting the jurisdiction of concerned state.

7 D.D. BASU, Introduction to the Constitution of India at 21, (8th ed. 2008).

8 BNSS, supra note 2, § 58.

9 Bharatiya Nagarik Suraksha Sanhita, 2023, § 57.

10 Bharatiya Nagarik Suraksha Sanhita, 2023, § 187.

11 Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2).

The jurisprudence of Transit remand doesn’t have its core structure embedded in any law or constitution of the land, but has evolved through ages by way of judicial precedents. 12 Taking statutes as base and by undertaking the principle of natural justice, Transit Remand draws the attention of both these aspect and hands down the task of interpreting it over judiciary. THE EVOLUTION AND FUNCTION OF TRANSIT REMAND; The law on Transit Remand in India remains a vital link in protecting the constitutional rights of the detainee or the arrested person. Ranging from fundamental rights enshrined in Article 22, it also sees for the procedural aspect entailed in the criminal code of India. Without such constitutional check posts, the inter-state arrests will only remain as a leverage in the hands of police to exploit the arrested under the name of travel.

However, due to the involvement of magistrate, it serves a point of balance which equally sees the protection of the arrested as well as providing a time bounded ignition for the trial before the authority has the proper jurisdiction. To trace the origin of this remand, required for the purpose of transit, there is no mention of the same in any of the statutory commentary or even in the constitution, but rather is a guardian born out of court rulings and precedents over the years and is still developing in progress. The law governing Transit Remand in India requires to court to apply judicious mind as it is upon the court to decide the time which may vary according to the situation.

Apart from only the application of the law, it has mandated some of the duties over the concern magistrate which includes verifying the legality of the arrest, ensuring compliance with statutory safeguards, like informing grounds of arrest, medical examination, etc. 13 It is mandatory to comply with the guidelines given in the judgement of Arnesh Kumar14. Even in the case where standard procedures are not followed by the magistrate, there are instances where the higher court has set aside the order declaring the arrest to be illegal. In the matter of Rahul Lunia, the Delhi High Court had set aside an order of the duty magistrate ordering transit remand of an accused who was arrested in Delhi by Mumbai Police15. The reason for cancellation of the same was

12 Concept of Transit Remand, iPleaders (Sept. 12, 2023),

https://blog.ipleaders.in/concept-transit-remand/?utm_source=chatgpt.com. 13 Smt. Dr. E. Prasuna, Duties and Powers of Judicial Magistrates to Examine Prima Facie Case and Compliance of Section 41-A Cr.P.C/Section 35(3) to 35(6) of BNSS by Magistrates at the Time of Remand with Reference to Arnesh Kumar’s Case (2025), https://cdnbbsr.s3waas.gov.in/s3ec03333cb763facc6ce398ff83845f22/uploads/2025/10/2025100720.pdf.

14 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India).

15 Rahul Lunia v. State – Govt. of NCT of Delhi & Ors., 2023 SCC OnLine Del. 3641 (Del. HC).

the case diary and other files related to the matter being in Marathi and the Magistrate passed the remand order in a mechanical manner without naturally understanding its essence. 16 In another landmark case, commonly known as Toolkit case17, the importance of before twentyfour hours production before nearest magistrate was highlighted. Here, the accused, Disha Ravi was arrested and bought from Bengaluru to Delhi without obtaining a Transit remand. However, police were able to produce the arrested before the Magistrate in Delhi within twentyour hours of her arrest.

The Delhi High Court, in the judgement had held that an “endeavour” should be made by the police to obtain a transit remand order by producing the accused before the nearest Magistrate, but at the same time also held that transport of the accused without a transit remand order would not be in violation of Section 57 CrPC18 (i. e. if the person can be produced before the Magistrate having jurisdiction in the case within 24 hours of the arrest), thus upheld the arrest. 19 However, this shows the persisting difference of opinion varying from court to court, as no standard statute or provisions exist for the same. PROBLEMS AND SUGGESTIVE REFORMS; The concept of Transit Remand, while is a vital constitutional safeguard, is also prone to certain problems as well as legal fallows which undermines the efficiency of protecting the fundamental rights of the arrested.

The problems range from mechanical judicial practice to potential police abuse. The most anticipated part being the passing of orders in an automated way by the magistrates without application of judicial mind by the magistrate. What is meant by judicious mind differs from case to case and always vary to situations. The Magistrate in first case is intended to scrutinise the arrest in a judicial manner and if thinks fit, then only to grant the order for transit remand, which should be only what is required as to be not more or less in any case, otherwise it may lead to potential abuse by the police. However, it has been severely noted by the higher courts that the Magistrates have limited their role for merely authorising the arrest. The essence, which is to protect the rights of arrested are often ignored, leading to arbitrary detention by the police.

This turns the judicial process into a mere ministerial formality. In the landmark case of Gautam Navlakha v. National Investigation 16 Delhi High Court cancels transit remand since case diary was in Marathi which Magistrate could not understand, Bar & Bench (June 20, 2023), https://www. barandbench. com/news/litigation/delhi-high-court-cancels-transitremand-case-diary-marathi-magistrate-not-understand. 17 Disha A. Ravi v. State (NCT of Delhi), CRL. M. C. 5914/2023 & CRL. M. A. 22214/2023, Delhi High Court (Sept. 26, 2023).

18 Sandeep Kumar v. State (Govt. of NCT of Delhi), 2019 SCC OnLine Del 11901

19 What Is Transit Bail and Transit Remand? The Indian Express (Feb. 17, 2021),

https://indianexpress.com/article/explained/explained-what-is-transit-bail-and-transit-remand-7192786/.

Agency20, the Delhi High Court initially set aside the Transit Remand order passed by the Chief Metropolitan Magistrate (CMM), for the reason being the documents were in Marathi, a language the Delhi Magistrate may not be familiar with. 21 This prima facie shows the lack of judicious application by magistrates, by merely restricting their order in mechanical form. Transit Remand is intrinsically linked to the legality of the initial arrest, which the duty magistrate is bound to check with. The Magistrate must be satisfied that a prima facie case exists against the accused and that the arrest itself was necessary and lawful. Failing this, the transit remand sanctions illegal custody.

But, ignorance by the magistrate in checking the arrest records, diaries, or whether the standard procedure as laid by the guidelines of Arnesh Kumar judgement22, leads to material fault in the assessment leading to the custody which may stand as illegal detention due to failure in following legalities. The very purpose of Transit remand is to prevent the police from using the travel time to detain the accused illegally for unreasonable duration. However, as a result of aforementioned reasons, this infringement of the rights of the arrested has become common. Even though constitution and criminal statute have laid down the guidelines for the same in a very judicious manner, which are cherished brightly by court rulings, like D. K. Basu guidelines or Arnesh Kumar guidelines, still a lack of enacted definition and proper judicial education leads to a difficulty of interpretation.

Every court finds their own reasoning, which even though works on the line of constitution, but still differs for a standard procedure which must be set for the working of Transit Remand in an effective manner. While the Judiciary has consistently stepped in to reform the process and hold the authorities liable, the Magistrates and the police should also act in accordance as to uphold the sanctity of constitution by understanding the essence of this provision. Magistrates must scrutinize the FIR, the Case Diary, and the arrest memo. They must record their satisfaction in writing that the materials justify detention and the travel time requested. Alongside, the police must ensure the arrested person is informed of the grounds of arrest, made mandatory by D. K. Basu guidelines,23 and their right to legal counsel, and the Magistrate must verify this compliance.

20 Gautam Navlakha v. National Investigation Agency, AIRONLINE 2021 SC 246.

21 Anuj Berry, Anusha Ramesh, Bhargavi Vadeyar & Vinayak Chawla, Enlarging ‘Custody’ under Section 167: An Analysis of the Concepts of ‘House Arrest’ and ‘Transit Remand’ in Light of the Supreme Court’s Judgment in Gautam Navlakha v. NIA, SCC Times (Sept. 28, 2021), https://www.scconline.com/blog/post/2021/09/28/enlarging-custody-under-section-167-an-analysis-of-theconcepts-of-house-arrest-and-transit-remand-in-light-of-the-supreme-courts-judgme/.

22 Arnesh Kumar judgement, supra note 13 and 14.

23 D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

In the present times, due to the growing interconnectedness of the states and transportation, it is very much anticipated that, the use of this provision is going to be used in multiplied time as compare to today, and hence needs a concrete statute to govern such cases effectively without legal differences. CONCLUSION; The concept of Transit Remand, born out of judicial necessity to fill the gap between liberty guaranteed by constitution and geographical reality, stands in a position to serve a critical checkpoint for inter-state arrests bearing geographical lacuna. This mechanism, implicit in Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and deep downed in Article 22(2), successfully converted a potential loophole for illegal detention into a judicially supervised custody process.

However, how much legal and rule bound this process might look like, but the practical problems including the reluctancy by authorities and unkept record, piles up in contrary for this action. The persistent problems like mechanical grant of order for Transit Remand and the failure of Magistrate to act judiciously, threatens the very spirit of this doctrine, intended to protect the fundamental rights of the arrested. However, it is very much evident that the apex court has timely paid attention in this matter and have guided as well as asked for explanations from the magistrate as well as police authorities making them more accountable and, in a way, creating precedent for future actions. Efforts are evident in guidelines like one laid in Arnesh Kumar judgement and landmark case like Gautam Navlakha v. NIA.

Ultimately, the integrity of Transit Remand rests less on the law's existence and more on its strict enforcement. Reforms must focus on continuous judicial education to prevent the "rubber stamp" approach, mandatory written compliance with D. K. Basu guidelines, and ensuring every hour of custody during transit is justified, legally documented, and reviewed. 24 Only through unwavering vigilance by the judiciary can this vital doctrine fully realize its purpose as a guardian of fundamental rights.

24 Gautam Navlakha v. NIA, supra note 20.