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Author Topic: What is the Procedure of arrest and duties of arresting officer  (Read 1557 times)

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Offline advlaxmanadvani

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What is the Procedure of arrest and duties of arresting officer
« on: February 18, 2014, 11:52:46 PM »
Every police officer while making an arrest shall
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

(ii) Whenever Police intends to arrests any person, it is also obligatory upon police, among other things (a) to clearly inform him about the offence he is alleged to have committed – section 50 of CrPC 1973; (b) the Police are obliged to immediately inform to any of the friend or relative of the arrested person about the arrest of that person and the place of his custody – section 50-A (c) if the offence / offences alleged is/are defined as bailable offences, then, Police must inform the accused person about his right of immediate release on furnishing of Bail (Surety) (section 50-A) or by executing a Bond (Section 441 of CrPC, 1973) in lieu of Bail. The Police may also release a person on deposit of certain sum of money for accused person to arrange for the surety.

(iii) The arrested person or his relative / friend may record a Letter to the concerned Police station, stating therein about the position of law as regards to restrictions in powers of arrests, and that the Police officer effecting arrest is not following the mandate of law as set out in sections 157(1), 41(1)(b)(i)(ii), 41(2) r/w section 60-A of CrPC, 1973) and also knowingly disregarding the guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, for effecting arrests, and thereby advising the Police to release the arrested person forthwith. Also, it is within the powers of Police u/s 169 r/w 59 or section 437(2) of CrPC, 1973, to release the person who is arrested, on the execution of Bail Bond by the said person.

(iv) An oral / written complaint may be made before local Magistrates court within whose jurisdiction the person is arrested, thereby requesting to take immediate cognizance of the complaint, and alleging that the Police has wrongfully arrested the person and the Police has thereby committed the offence of (a) contempt of the Supreme Court in willful disobedience to guidelines framed in respect of effecting arrest; (b) sections 220 and 342 of IPC, 1860; and praying the Magistrate to issue search warrant for the arrested person and be produced before him immediately. Section 97 of CrPC, 1973, empowers the Magistrates court to issue search warrant for persons wrongfully confined.

(v) The SC binding guidelines, before making any arrest, is provided in the case of Joginder Kumar versus State of U.P. 1994 (4) SCC 260 : AIR 1994 SC 1349.

(vi) The relative / friend of the arrested person may file a Writ Petition of Habeas Corpus before respective High Court for the alleged illegal arrest and seek immediate release of the person illegally arrested.

(vii) Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest (Section 57 of CrPC, 1973). When the arrested person is produced before the Judicial Magistrates, the arrested person or his relative / friend may present a simple Bail Application, before concerned Magistrates Court and inform the Magistrate, among other things, that the said arrest is patently illegal, for being effected without following the due process of law and in wilful disregard / defiance of guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, and may pray for immediate release, on Bail on furnishing of Surety or execution of Personal Release Bond; and where court insists for surety, then, some reasonable time may be sought for furnishing of surety and release may be sought on depositing of reasonable amount of cash in lieu of furnishing surety thereof.

(viii) Where it is alleged that Police has inflicted violence, beaten / tortured the accused person in the Police custody, than the same must be informed to the Magistrate before whom the accused is produced and Magistrate should be requested to register offence u/s 330, 331 of the IPC and section 29 of the Indian Police Act 1861 against the respective Police officer for causing violence / beating / torture and also requesting the said Magistrate Court to make a reference to the High Court concerned that the said Police officer must be hauled up for Contempt of the Court, i.e. Contempt of the SC strictest guidelines given in DK Basu Vs State Of West Bengal case.

(x) However, where the arrested person is not produced before the Magistrates court within 24 hours of his arrest, then such confinement becomes illegal beyond 24 hours, and, an oral / written Application may be made u/s 97 of CrPC, before any magistrate court and requesting / praying the Magistrate to issue search warrant for the said person unlawfully confined, or Writ of Habeas Corpus may be preferred before the concerned High Court.

(xi) If one cannot go to High Court for Writ Petition of Habeas Corpus, then, one can (a) personally approach or make an Application to State Human Rights Commission, (b) National Human Rights Commission; (iii) make an Application to the Registry of the Supreme Court; (iv) to respective High Court, stating therein about the said illegal arrest effected, in willful disregard of the directions given by the SC in Joginder Kumar case, seeking their intervention for the release; followed by an RTI Application to the aforesaid four authorities, on steps taken by them in pursuance to said RTI Application. Life and Liberty clause under RTI may be invoked to obtain information within 48 hours.

(xii) Writ of Mandamus may be preferred before respective High court seeking exemplary Damages / Compensation from respective State Government, but only after the High Court in the Writ of Habeas Corpus, or the concerned Magistrates Court had released the accused, and recorded in its / his Order that the said arrests was illegal, or the concerned Human Rights Commission comes to the conclusion that the said arrest was illegal.

(xiii) A Contempt Petition (Civil) before respective High court can be filed alleging therein that the Police illegally arrested the Petitioner in willful disobedience / defiance to SC guidelines framed in aforesaid Joginder Kumar case.

(xiv) A Letter Petition may be recorded to the Chief Justice of the concerned High Court / Chief Justice of India, Supreme Court, requesting them to take Su Moto Cognizance of the alleged contempt of the Court, and the copy of said letter may be sent to the concerned Police officer. RTI application may be made to the said concerned High Court / Supreme Court, to know if the said Court has taken Su Moto cognizance of the said Letter Petition.

(xv) An FIR to Police, or complaint before Magistrates Court u/s 156(3) or u/s 200 of CrPC, 1973, may be preferred against the concerned Police officer who have illegally arrested and has thereby have committed the offence defined u/ss 220 and 342 of IPC 1860.

(xvi) A Civil Suit for exemplary damages can be filed for the Irregular exercise of powers / acts and omissions of Public authorities / Public officials, allegedly in the pretence / pretext / colour of provisions of an enactment. (Pls see Article 72 of the Limitation Act, 1963).

(xvii) A Complaint may be made to Commissioner of Police / Superintendent of Police against the concerned Police Officer of the concerned Police Station, seeking disciplinary proceedings for "Misconduct".


(xviii) Arrests during Public protests – Ordinarily, all the detainees are released on their execution of Bail Bond in the Police station. No money is required to be deposited while executing the Bail Bond.

(xix) Police Raids at Parties: There could be indiscriminate / mindless arrests by Police during such raids at parties. However, the procedure for arrests remains the same as stated hereinbefore. The persons present at such ―Party‖ should enforce the concerned Police officer to adhere to laws of the land before effecting any arrest or detention.

(xx) Complaints against police officers of and up to the rank of Deputy Superintendent of Police, may be made to ―Police Complaints Authority‖. The said authority may be Section 330 and 331 of IPC provide for punishment for voluntarily causing hurt and section 29 of Indian Police Act 1861 provides for imprisonment for offences including unwarranted personal violence to any person in his custody.

In the light of section 176 of CrPC 1973, Magistrate is bound to investigate every death in Custody. Even it is mandatory for police to inform State Human Rights Commission or National Human Rights Commission about every custodial death.

Failure to implement strictest of guidelines on law of arrests and on Tortures as laid down by the SC in DK Basu Vs State of West Bengal will render any Policeman to be hauled for Contempt of Court in any High Court of the Country.

(ix) Where the Bail is refused by the Magistrate, thereby committing the accused to either Police custody or to Judicial custody (Jail), then, immediately, a fresh Bail Application may be filed before Sessions Court or before High Court u/s 439 of CrPC.

situated at the Office of the Superintendent of Police of the concerned district or Commissioner of Police of the concerned metropolitan city. The said authority is constituted pursuant to Order of the Supreme Court in the famous Prakash Singh‘s case, in the year 2006.

(xxi) Complaints against Superintendent of Police or Commissioner of Police may be made to ―Police Complaints Authority‖. The said authority may be situated at the Office of the Director General of Police of the concerned State. The said authority is constituted pursuant to Order of the Supreme Court in the famous Prakash Singh‘s case, in the year 2006.
Advocate laxman Advani
 Ahmedabad legal Practitioner

 

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