Assignment 7

1. We use the term ‘arrest’ quite often in our day to day business. Normally we see a
person who does or has done something against the law to be arrested. The term arrest
can be defined as, “a seizure or forcible restraint, an exercise of power to deprive a
person of his or her liberty”. In the criminal arrest of a person is an important tool for
bringing an accused before the court and prevent him from escaping.

Persons authorised to arrest:

Code of Criminal Procedure empowers three people to issue the process of arrest. They are:

 A police officer with or without a warrant depending on the nature and gravity of the
offence,

 A magistrate,

 A private person can arrest another person who in his presence commits a non-
bailable offence, cognizable offence or is proclaimed offender.

Arrest without warrant

The police officers may arrest a person without warrant under certain conditions. The
condition to arrest a person without warrant mentioned under Section 41 of the code are as
follows, any person:

1. Who has been involved in a cognizable offence such as murder, rape, theft or is
suspected to be so involved of having committed a cognizable offence punishable
with imprisonment of 7 years or more or against whom a complaint has been received
has been received of such involvement

2. Who has been in possession of any housebreakingweapon without any lawful excuse.

3. Who has been proclaimed as an offender either under Criminal Procedure Code or
any other order by state government or any law in force.
 4. Who obstructs any police officer while performing his duty or who have escaped or
make attempts to escape from lawful custody.

5. Who has been concerned in any law or against whom a reasonablecomplaint has been
made or credible information has been received, of his having committed involved in
an act committed at any place outside India, if committed in India would be
punishable of an offence and for which he is under law relating to extradition or
otherwise, liable to be apprehended or detained in custody of India.

2. (1) When a person is arrested on a charge of committing an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence as to the commission of
an offence, it shall be lawful for a registered medical practitioner, acting at the request of a
police officer not below the rank of sub-inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which may afford such evidence, and to
use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical practitioner.

1 
[Explanation.—In this section and in sections 53A and 54,—

(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case
of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of
modern and scientific techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possesses any medical
qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956
(102 of 1956) and whose name has been entered in a State Medical Register.]
MEDICAL EXAMINATION OF ARRESTED PERSON – Section 54 of CrPC provides
for compulsory medical examination by a medical officer in service of central or state
government, or by registered medical practitioner, upon non-availability of such medical
officer. Female arrestees can only be examined by female medical officer or registered
medical practitioner.

However, Section 53 & 53A of CrPC provide if there are reasonable grounds for believing
that an examination of arrestee, on a charge of committing rape or other offence, will afford
evidence so as to the commission of such offence, it shall be lawful to medically examine
blood, blood stains, semen, hair samples, finger nail clippings by use of modern & scientific
techniques including DNA and such other tests, which the medical officer thinks necessary in
a particular case, acting at the request of a police officer.

3. The procedure is laid down in CrPC to compel the attendance of the persons including the
accused and witnesses by issuing of summons, arrest warrant or in case of absconding,
declaring such person as proclaimed offender and attaching his properties.

Summons and How to serve: 

Summons are issued for the purpose of appearance or for production of document or thing.
Every summon issued by a court shall be in writing, in duplicate, signed by the presiding
officer of the court and shall bear the seal of the court. Every summon should be served by a
police officer personally on the person summoned by delivering a copy of summons after
taking a signature on the duplicate copy, when a person summoned is not present such
summons may be served on some adult member of the family. In case of a corporate body it
may be served to the secretary, local manager or to the principal officer of the corporation. In
case the above mentioned persons are not available for serving of summons the copy of the
summon shall be affixed to the out door of the house in which the person summoned
ordinarily resides. Where the person is summoned is a government servant summons could be
served through his employer. 

Warrant of arrest and How to Issue: 

An arrest warrant is a written order issued by a judge or other proper judicial officer, upon
probable cause, directing the police to arrest a particular person. Where a person has been
concerned in a non-cognizable offence he cannot (except in certain cases) be arrested without
a warrant. Every warrant of arrest issued by a court should be in writing and must contain the
signature of the preceding officer, name of the person who is to execute, name of the person
to be arrested and seal of the court. Every warrant shall remain in force until it is cancelled by
the court or until it is executed. Court may in its discretion make an endorsement
on warrant for the release of the person after executing a bond with sufficient sureties. Every
warrant issued by any Magistrate in India may be executed in any place in India or it may be
forwarded for execution outside its jurisdiction to any Executive Magistrate or District
superintendent of police or Commissioner of police within the local limits of whose
jurisdiction it is to be executed. 

4. Section 87 of CRPC. "Appeal from order rejecting application for restoration of attached
property"

A Court may, in any case in which it is empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-

(a) if, either before the issue of such summons, or after the issue of the same but before the
time fixed for his appearance, the Court sees reason to believe that he has absconded or will
not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in
time to admit of his appearing in accordance therewith and no reasonable excuse is offered
for such failure.
Section 88 of CRPC. "Power to take bond for appearance"

When any person for whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court, such officer may require
such person to execute a bond, with or without sureties, for his appearance in such Court, or
any other Court to which the case may be transferred for trial.

Section 89 of CRPC. "Arrest on breach of bond for appearance"

When any person who is bound by any bond taken under this Code to appear before a Court,
does not appear, the officer presiding in such Court may issue a warrant directing that such
person be arrested and produced before him.

Section 90 of CRPC. "Provisions of this Chapter generally applicable to summonses and

warrants of arrest"
The provisions contained in this Chapter relating to a summons and warrant, and their issue,
service and execution, shall, so far as may be, apply to every summons and every warrant of
arrest issued under this Code.

5,. Section 154 And 156 of CrPC

Hon’ble Apex Court, in the matter of “M. Subramaniam & Anr. Vs. S. Janaki & Anr[1], has
recently set aside a High Court order which directed the police to register an FIR and file the
final report on the basis of the complaint. Hon’ble Supreme Court placed reliance on its
previous decision in the matter of Sakiri Vasu v. State Of Uttar Pradesh And
Others[2] (“Case 1”) in which it has dealt with due process in connection with the non-
registration of FIR.

Beginning with the essential differences between the sections 154 and 156(3) of Code of
Criminal Procedure, 1973, this article culminates with the chronology of remedies to be
exhausted for registration of FIR through Court.

Section 154: Information in cognizable cases[3]

Section 154 (1) Cr.P.C elucidates that any information relating to the commission of a
cognizable offence if given orally to an officer in charge of a police station, shall be reduced
to writing by himself or under his direction, and all such information, whether in writing or
reduced to writing as aforesaid, shall be signed by the person who furnishes it.

Section 154 (3) Cr.P.C explicates that a complaint shall be given in writing or by post to the
Superintendent of Police if any person is aggrieved by a refusal on the part of an officer in
charge of a police station to record the information referred to in subsection.

The Superintendent of Police, upon receipt of such complaint if satisfied that such
information discloses the commission of a cognizable offence, shall either investigate the
case himself or direct an investigation to be made by any police officer subordinate to him, in
the manner provided by this Code.

Section 156 (3). Judicial magistrate’s power to investigate cognizable case[4]

Section 156(3) entails that any Magistrate empowered under Section 190 may order an
investigation by a police officer performing its duties under Chapter XII of Cr.P.C

The above-mentioned sections highlight the chronology/series of remedies available to a

person. Firstly, filing a complaint before the police official and secondly, in the event of
failure of the registration of the complaint by the official, one shall approach the SSP/SP for
the said purpose. However, if the complaint is not registered even after that, then the next
remedy is to seek help from the Judicial Magistrate.

Hon’ble Apex Court citing various judgments has clarified the right approach for registration
of FIR.

Court’s Observation

Hon’ble Apex court has observed that if any application under Section 156(3) is filed before
the Magistrate, the Magistrate can direct the FIR to be registered and an appropriate
investigation to be taken place, in the event where, according to the aggrieved person, no
proper investigation was done. Under the same provision, the Magistrate may monitor the
investigation to ensure a proper investigation.

Supporting Case Laws

1. In Mohd. Yousuf v. Afaq Jahan Hon’ble, Apex Court observed: (SCC p. 631, para
11)[5] that a Judicial Magistrate, before taking cognizance of the offence, may order
 investigation under Section 156(3) of the Code. If he does so, he should not consider
the complainant’s oath because he was not taking cognizance of any offence therein.

 This Court had taken the same view in Dilawar Singh v. State of Delhi (JT vide para
17).[6]

The honb’le Court clarified that even if an FIR has been registered and the police have made
the investigation, or is making the investigation, which the aggrieved person feels is not
satisfactory, such a person can approach the Magistrate under Section 156(3) Cr.P.C, and if
the Magistrate is satisfied he can order a proper investigation and may take other appropriate
actions.

Thus, in cases where the Magistrate finds that the police has not done its job or is not
satisfied with the investigation of the case, he can direct the police to supervise the
investigation and monitor it.

 In State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19)[7], Hon’ble Court held
that a Magistrate can order an investigation to resume even after the police have
submitted the final report.

Thus, Section 156(3) Cr.P.C although briefly worded, is very extensive and includes all such
incidental powers as are necessary to ensure a proper investigation.

 In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others,[8] it was

observed that if a person has a grievance that his FIR has not been registered by the
police, proper investigation is not being done, then the remedy available to the
aggrieved person is not to go to the High Court under Article 226 of the Constitution
of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C.

6. Police interrogation is a part of the police investigation. When an accused is

brought under the police custody either in cognizable offence or non-cognizable
offence, the Police has the right to question the accused. It helps the Police to know
about the essential facts and truths of the incident so that a case can be solved easily.

 
Rights during Police Interrogation

·         According to Section 161 (1) of the Code of Criminal Procedure, the accused is
advised to not make any statement or answer any question which may prove that the
accused is guilty of the offence.

·         The Police are not entitled to force the accused to make any sentence which
later can be used as a piece of evidence against the accused.

·         Section 24 of the Indian Evidence Act and section 316 of the Code of Criminal
Procedure states that Police cannot threaten or compel the accused to accept any
crime which he/she has been accused of.

·         Under section 330 and section 331 of Indian Penal Code, if the Police injure the
accused during police interrogation then the police officer is liable for punishment
under the law.

·         A police officer has no right to torture, ill-treat or abuse the accused during
interrogation or questioning round.

·         If an accused has any complaints regarding the interrogation, then he/she can
register a complaint with Superintendent of Police (S.P.) or other higher officers like
the Deputy Inspector General of Police (D.I.G.) or the Inspector General of Police
(IG).

·         The accused also has the right to file a complaint with the magistrate in a court
having jurisdiction.

·         A complaint can be sent to the Superintendent of Police (S.P.) by a registered

post. If the S.P. is satisfied with the matter of the complaint, he/she shall investigate
the case himself/herself or is likely to order an investigation to be made.

·         Complaints regarding Police interrogation are also registered by the State

Human Right Commission or the National Human Rights Commission when law
enforcement is not conducted by the Police or is done by the Police in a corrupt
manner.

 
Duties during Police Interrogation

·         It is the duty of the accused to provide correct and accurate information or
provide the information which is best known to him/her.

·         As per section 162(1) of Code of Criminal Procedure, It is not necessary to sign
any statement given by the accused during the process of interrogation.

·         Section 26 of the Indian Evidence Act states that any statement to the Police by
the accused cannot be held against him/her until the statement is made before the
magistrate.

7. The dictionary meaning of the word remand is to return or send back. However, in
the legal world, it has two different meanings. Firstly, it is used to send back the
accused in the custody of the competent authority. Secondly, it is used to send back
the cases from the appellate court to the lower court.

1. Types of Remand In Custody Under CrPc:

# On the basis of stage:

The power of sending back of the accused in the custody of competent authority is
given under 3 provisions of the CrPC. One under S. 167(2), S.209(b) and S.309(2) of
the CrPC. The difference lies in the stage at which it is ordered. While remand under
S.167(2) relates to the stage of investigation and is ordered for furthering the
investigation and can be either in judicial custody or police custody, remand under
S.209(b) relates to the stage when the magistrate commits the case, he can remand the
accused to the custody during and until the conclusion of the trial subject to the
provisions of bail under the code and finally remand under S.309(2) relates to a stage
after cognizance and can only be sent to judicial custody. The remand under S.209(b)
and S.309(2) is for securing the presence of the accused during the trial.

# On the basis of authority who orders it:

The power of remand under S.167 can be further classified into 2 heads on the basis
as to who is the authority ordering it. The one is given to the judicial magistrate under
S167(2) and the other is given to the executive magistrate under S.167(2A) which can
be exercised by him only in the absence of a judicial magistrate.

2. Object of S. 167

The object and scope of Section 167 is well-settled that it is supplementary to S. 57. It
is clear from S. 57 that the investigation should be completed in the first instance
within 24 hours and if cannot be done, the arrested person should be brought by the
police before a magistrate as provided under Section 167.
In other words, the object of this provision is two-fold; firstly, that the law does not
favor detention in police custody except in special cases and that too for reasons to be
stated by the Magistrate in writing, and secondly, to enable such person to make a
representation before a Magistrate.

3. The Term Magistrate Under The Sub Section:

Following implications can be drawn from the use of term under S. 167(2):

# The term magistrate in the sub section 2 implies judicial magistrate only and not the
executive magistrate because sub section 1 clearly provides that the police officer
would transmit the material to the nearest judicial magistrate and also special power
was given to the executive magistrate in the year 1978 by The Code Of Criminal
Procedure (Amendment) Act, 1978 with the insertion of S.167(2A) that can be
exercised only in the absence of the judicial magistrate.

# Also, the term used is magistrate and not judicial magistrate first class or judicial
magistrate second class or chief judicial magistrate, therefore it can be implied that
the right to order remand is conferred to all three of them under S.167(2). But there is
a limitation on this power of the judicial magistrate second class under proviso (c) of
S.167(2), which provides that he cannot authorize detention in police custody unless
specifically empowered by the High Court.

# Also, the provision provides for the word ‘nearest judicial magistrate and not the
term magistrate who has the authority to take cognizance of the matter. Also, under
S.167(2), expressly lays down that the magistrate to whom the accused is forwarded
and the materials are transmitted may have or not have the jurisdiction to try the case.
Hence, it is not necessary that the nearest judicial magistrate must have the
jurisdiction to try the case but it was held in the case of Bal Krishna v. Emperor[4]
that in the absence of any difficulties like long distance etc. the police should
approach for the purposes of remand to a magistrate having jurisdiction to try the
case.

4. Who Makes The Remand Application:

Remand application under S.167(1) is made by the officer in charge of the police
station or the person making the investigation, if he is not below the rank of the sub
inspector whenever he thinks that the investigation would not be completed within 24
hours as mandated by S. 57 and he has grounds to believe that the accusation or the
information is well informed. He must also forward the accused and the transit the
copy of the entries in the diary along with the application.

8. Section 125 Cr.PC

As to who is Eligible to Claim Maintenance?

When any person neglects or refuses to maintain-

(a) wife,
(b) children,
(c) parents,
they can claim maintenance by filing an application before the Magistrate.

Such maintenance is granted at such monthly rate, as the Magistrate thinks fit.

If you are a woman and have been divorced by your husband or you have
obtained divorce from your husband, you are entitled to maintenance.

However, a wife cannot claim maintenance in case she is living in adultery or she
without any sufficient reason refuses to live with her husband. If she remarries,
after the date of her divorce, she cannot claim any such maintenance. On any of
these grounds, a husband may apply for cancellation of any such order of
maintenance.

If husband and wife are living separately by mutual consent, even in that
situation wife is not entitled to claim any such maintenance.

Sufficient Means to Maintain - Satisfaction of Magistrate

Before any such order is passed in favour of the applicant, Magistrate is to be

satisfied that the person who neglects or refuses to maintain must have sufficient
means.

In case one claims maintenance in the capacity of wife, she must be unable to
maintain herself. In case of claim of maintenance in the capacity of a child,
legitimate or illegitimate minor children, whether married or not, they can claim
maintenance, if they are unable to maintain themselves.

Even if they have attained majority, they can still claim maintenance, but only
when they are unable to maintain themselves because of any physical or mental
abnormality or injury.

Married daughter is not entitled to claim such maintenance. In case of minor

married female child, she would be entitled to claim maintenance

from her father, if she is unable to maintain herself, until she attains majority, if
the Magistrate is satisfied that her husband is not possessed of sufficient means.

You as one of the parents are entitled to claim maintenance, when you are
unable to maintain yourself.

Are you Entitled to Claim Maintenance During Pendency of your Application

for Monthly Maintenance?
Decision of a petition or application for monthly maintenance takes sufficient
time. Therefore, there is provision for interim maintenance, meaning thereby
that during the pendency of an application for maintenance, Magistrate may
order the person liable to pay monthly allowance to the person so entitled.

Are you Entitled to Claim Litigation Expenses?

You as an applicant may have to bear litigation expenses incurred during

pendency of such an application for maintenance. Therefore, an order of
litigation expenses can also be passed in your favour if you are entitled to
maintenance and against the person who is liable to pay the interim
maintenance.

With a view to avoid any inconvenience to the claimant, law provides that
application for interim maintenance and expenses for proceeding shall be
disposed of within 60 days from the date of service of notice.

Where to File Such an Application for Maintenance?

An application for maintenance may be filed against any person, liable to pay the
same, in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of
the illegitimate child.

How to Get Order of Maintenance Changed?

Whenever there is a change in the circumstances of any person receiving or

paying such monthly allowance for maintenance or interim maintenance,
Magistrate may make such alteration, as he thinks fit.

Sometimes, parties are litigating on civil side as well. Decision of litigation on

 civil side may also call for change or variation in the order of maintenance.
Where it appears to the Magistrate that in consequence of any decision of a
competent Civil Court, any order of maintenance should be cancelled or varied,
he is empowered to cancel the order or vary the same accordingly. For example,
where your wife has been divorced by you and she has received whole of the sum
payable under any customary or personal law on such divorce, Magistrate may
cancel such order of maintenance.

Case law Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law that unlike
other matrimonial proceedings, a strict proof of marriage is not essential in claim of
maintenance under Section 125 of CrPC and that when the parties live together as
husband and wife, there is a presumption that they are legally married couple for claim of
maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available
on record allowed the appeal holding that there was a valid marriage between the parties
and moreover a strict proof of marriage was not a pre-requisite for claiming
maintenance under Section 125 of CrPC. The other observations made by the Apex Court
in the case are as under:

The Supreme Court also made reference to it’s judgment in the case of Dwarika Prasad
Satpathy v. Bidyut Prava Dixit, wherein it was held that the standard of proof of marriage
in a Section 125 proceeding is not as strict as is required in a trial for an offence under
Section 494 IPC. It was also noted in the case that an application under Section 125 does not
really determine the rights and obligations of the parties as the section is enacted with a view
to provide a summary remedy to neglected wives to obtain maintenance.