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Views & Reviews

Law in Motion – 11

By EMN Updated: Sep 13, 2020 10:47 pm

Arrests – Miscellaneous

Arrest is a voluminous topic with many intricacies. However, our attempt is to keep things simple. Some other issues are:

1. Section 41C of CrPC – Control room at districts

It is mandatory for the State Governments to establish police control rooms at:

(a) every district; and

(b) State level.

It is mandatory for State Governments to display on the notice boards kept outside the control rooms:

(a) names and addresses of the persons arrested and

(b) name and designation of the police officers who made the arrests.

The control room at the Police Headquarters at the State level are mandated to

(a) collect details about the persons arrested,

(b) nature of the offence with which they are charged and

(c) maintain a database for the information of the general public.

These amendments in the CrPC were incorporated to fill the loopholes which had led to arbitrary arrests/detentions and custodial torture/deaths. Initially, the Supreme Court had passed a slew of directions which remained operative till amendments were made.

It is imperative that the Control Rooms and Notice Boards be maintained. However, the infrastructure at most district headquarters and State Headquarters has not geared up for this. In today’s times, besides physical notice boards, the police units can maintain ‘electronically enabled’ display boards at district and State level to display information. This is an area where substantial improvements in infrastructure are required so that the public can be kept informed about the arrests being made and persons in police custody.

2. Section 45. Protection of members of the Armed Forces from arrest.

This is an over-riding provision which provides that notwithstanding anything contained in the CrPC, no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

The State Government may, direct that the same provisions shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified by it and they would be accorded the same protection from arrest as Armed Forces of the Union.

However, this does not provide any immunity from arrest by the police to any member of the Armed Forces who has acted in a personal capacity or beyond the call of duty or where the act is not in furtherance of an official duty. The immunity is only available for acts done in discharge of official duties.

3. Section 48. Pursuit of offenders into other jurisdictions

“A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.”

This is a peculiar provision in India and enables police and law enforcement officers (with police powers) to pursue a suspect or an accused or a criminal to any part of the country, not the world, to arrest him.

In the United States, police cannot pursue criminals for arrest. There is a procedure of inter-state or inter-province extradition of criminals. Although the Indian system is simple but it has also resulted in practical and legal problems between police forces and sometimes, even the policemen coming under attack. It is usually swift but some people have raised questions over the viability of the current system given the diversities in culture in the country.

4. Section 52. Power to seize offensive weapons

The officer or other person making any arrest may take possession of any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before whom the arrested person is to be produced.

5. Section 53A Examination of person accused of rape by medical practitioner

When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, a request for medical examination may be made by

(a) police officer not below the rank of a sub-inspector, and

(b) any person acting in good faith in his aid and under his direction,

The medical examination may be conducted preferably by a registered medical practitioner (RMP) employed in a hospital run by

(a) the Government or

(a) a local authority.

If such a practitioner is not present within the radius of sixteen kilometres from the place where the offence has been committed, by any other registered medical practitioner.

The RMP shall, without delay, examine such person and prepare a report of his examination giving the following particulars:

(i) name and address of the accused and of the person by whom he was brought,

(ii) age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

In his report, the RMP shall state precisely the reasons for each conclusion arrived at.

The exact time of commencement and completion of the examination shall also be noted in the report.

The RMP shall, without delay, forward the report to the investigating officer/officer making the request, who shall forward it to the Magistrate.

6. Institutional Checks and Balances against Arrests:

Police powers are vast and since there is discretion involved, there can be abuse too. The CrPC provides for the following mechanisms as checks and balances:

(a) Senior police officers’ powers to supervise, inspect, monitor, control and issue directions in matters of policing;

(b) Duty of the OCs to report to the District Magistrate, or Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, and whether such persons have been admitted to bail or otherwise (Section 58 CrPC);

(c) Discharge of person apprehended – No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

Therefore, it is illegal if a police officer says that he is arresting anyone and then after detaining him for some time, allows him to go without a PR Bond or on bail (with or without sureties). This measure helps contain arbitrary arrests and detentions.

There are instances where public has grievances with the police, either at the police station level or even higher officers. There is this distinct channel of hierarchy which can be approached to get your grievances redressed. Thus, the following in-house redressal channels are available besides magistrates or courts or even district magistrates or agencies like human rights commission etc :

Complaints against any Police Station staff – to OC or SDPO/ACP or Addl SP or SP or DIG or IGP (Range) or ADGP (Law and Order) or DGP

In every case of a complaint against any subordinate functionary, the next senior level can be approached by anyone.

Some of the issues on which complaints can be addressed to supervisory officers can be as follows:

• Illegal arrest or detention

• GDEs not being made at the police station/outpost level

• Copy of GDE not being given free of cost

• FIRs not being registered by PS

• Copy of FIR not being given free of cost

• Inconsistencies in ‘memorandum of arrest’ or seizure list prepared

• Torture in police custody

• Asking for fine or money or penalty without receipt

• Delay in registration of Complaint or FIR

• Police officer asking for money for investigation or inquiry from complainant/victim/accused

• Police officer asking money for helping seize proceeds or crime or articles used in crime or recovery of mobile/vehicles etc which may have been stolen

• Money/Expenses for articles of office stationary etc

• Cost of examination by doctors at the request of police

• Requests for sending regular patrolling parties to a colony/area not attended to be PS level

• Release of persons on custody on PR Bond and/or sureties

• Instances of adverse police conduct etc

However, it is also requested that any good act or work by police should also be acknowledged and reported to senior officers so that they can be appropriately rewarded and encouraged by supervisory officers. Such acknowledgments can help the seniors identify the good staff from the rest and help them in their promotional, transfer/posting avenues and decisions.

Rupin Sharma IPS

By EMN Updated: Sep 13, 2020 10:47:52 pm