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CHAPTER - XXXVIII (C)

POWERS OF POLICE TO ARREST, PROCEDURE OF ARREST, AND


DOCUMENTATION OF ARREST

POWERS OF ARREST

1653. Any Police officer may without any order from a magistrate and without a warrant,
arrest any person under the following circumstances:

(1) Section 41 Cr.P.C.

(a). a person concerned in COGNIZABLE OFFENCE;


(b). a person in possession of IMPLEMENT OF HOUSE BREAKING;
(c). a person who has been PROCLAIMED OFFENDER;
(d). in possession of STOLEN PROPERTY;
(e). a person who OBSTRUCTS A POLICE OFFICER;
(f). a person being a DESERTER FROM ANY OF THE ARMED FORCES;
(g). under any law relating to EXTRADITION;
(h). a person being a RELEASED CONVICT;
(i). and ARREST ON REQUISITION.

(2) Section 42 Cr.P.C.

Any person who, in the presence of a Police officer, has committed a non-cognizable
offence refused to give his name and address.

(3) Section 60 Cr.P.C.

If a person in lawful custody escapes or is rescued, the person from whose custody he
escaped or was received may immediately pursue and arrest him in any place in India.

(4) Section 129 (2) Cr.P.C.

Any officer in charge of a Police Station or in the absence of such officer incharge,
any Police officer, not below the rank of a Sub-Inspector, while dispersing any unlawful
assembly, if necessary, may proceed to arrest and confine the persons who form part of the
unlawful assembly in order to disperse such assembly or that they may be punished
according to law.

(5) Section 151 Cr.P.C.

Any person (or group of persons) designing to commit any cognizable offence can be
prevented by the arrest.
(6) Section 300 (3) Cr.P.C.

A person convicted of any offence constituted by any act causing consequences


which, together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the consequences had
not happened, or were not known to the court to have happened, at the time when he was
convicted.

(7) Section 432 (3) Cr.P.C.

If any condition on which a sentence has been suspended or remitted is, in the opinion
of the appropriate government, not fulfilled, the appropriate government may cancel the
suspension or remission, and thereupon the person in whose favour the sentence has been
suspended or remitted may, if at large, be arrested by any Police officer without warrant.

(8) Powers under the Police Act, 1861

(a). It shall be lawful for any Police officer to take into custody, without a warrant,
any person who within his view commit offences (under section 34 of the
Police Act 1861) like obstruction, inconvenience, annoyance, risk, danger or
damage of the residents or passengers on roads, etc.

(b). Section 35 B of the Police (Pondicherry Amendment) Act, 1966 empowers


any Police officer to arrest without a warrant any person committing in his
view any offence made punishable under sections 29 A, 34 A, 34 B, 34 C, 34
D, 34E, or 34 G.

(9). Every Police officer should be thoroughly conversant with the powers of arrest and
privileges of the Police including the provisions in various special and local laws.

1654. PROCEDURE OF ARREST

(1). The Police officer making the arrest shall actually touch or confine the body of the
person to be arrested, unless there be a submission to the Police custody (S. 46(1) Cr.P.C.)

(2). If any person resists the arrest or attempts to evade the arrest, the Police officer
arresting him may use all means necessary to effect the arrest. The Police officer is not given
right to cause the death of a person who is not accused of an offence punishable with death or
with imprisonment for life (S. 46 (2)(3) Cr.P.C.)

(3). Any Police officer to make an arrest may break open any outer or inner door or
window of any house or place in order to liberate himself or any other person who, having
lawfully entered for the purpose of making an arrest, is detained therein. (S. 47 (3) Cr.P.C.)

(4). A Police officer may, for the purpose of arresting without warrant any person whom
he is authorized to arrest, pursue such person into any place in India (S. 48 Cr.P.C.)
(5). The Police officer making an arrest shall follow the following:
(a). He may search the arrested person.
(b). He may place in safe custody all articles other than necessary wearing apparel
found upon the arrested person.
(c). If any article is seized from the arrested person, a receipt showing the articles
taken in possession by the Police officer shall be given to the arrested person
(S. 51 Cr.P.C.)
(6). Whenever it is necessary to cause a female to be searched, the search shall be made
by the Woman Police or Women Home Guards with strict regard to decency. (S. 51 (2)
Cr.P.C.)

(7). The Police officer making an investigation can depute any officer subordinate to him
to arrest without a warrant with an order in writing, specifying the person to be arrested and
the offence or other cause for which the arrest is to be made and the subordinate officer so
required shall, before making the arrest, notify the person to be arrested the substance of the
order. If required, he shall show the order to the arrestee. (P. 55 Cr.P.C.)

Note:-
The investigating officer shall record all steps in deputing the subordinate officer to
make the arrest in the following files / registers.

(a). General Diary


(b). Case diary
(c). Pocket note book of the subordinate
(d). A copy of the written order to arrest to be kept in the case diary.

(8). Any person arrested by any Police officer shall not be detained in the custody of the
Police more than twenty four hours (S. 57 Cr.P.C.)

(9). Officers in charge of the Police Stations shall report the Judicial Magistrate the cases
of all persons arrested in Form No. I F.3 “Arrest Court / Surrender Memo” u/s 58 Cr.P.C.
Besides, a memo of arrest, as laid down under clause ………… (Manual II) shall also be
sent.

(10). No person who has been arrested by a Police officer shall be discharged except on his
own bond or on bail, if the offences committed by the arrested are bailable. In non-bailable
cases, if the investigation cannot be completed in twenty four hours, the Police officer
making the investigation, if he is not below the rank of Sub-Inspector of Police, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary along
with a report under section 167 Cr.P.C. and shall at the same time forward the accused to the
Magistrate who may, whether he has or has no jurisdiction to try the case, authorize the
detention of the accused in such custody as he thinks fir for a term not exceeding fifteen
days. If he has no jurisdiction to try the case or commit it for trial and if considers further
detention unnecessary, he may order the accused to be forwarded to a magistrate having such
jurisdiction.
1655. The magistrate may authorize detention of the accused, otherwise than in custody of
the Police, beyond the period of fifteen days, if he is satisfied that adequate grounds exists for
doing so, but no magistrate shall authorize the detention of the accused person in custody
under section 167 Cr.P.C. for a total period exceeding 90 days where the investigation relates
to an offence punishable with death, imprisonment for life or imprisonment for a term of not
less than 10 years, and 60 days where the investigation relates to any other offence and on the
expiry of the said period, the accused person shall be released on bail if he is prepared to and
also furnish bail. Whenever an application for the remand of an accused person is made, the
investigation officer should invariably produce the accused before the Magistrate.

1656. If during the period of remand to Police custody, the Police complete the
investigation and find that there is no ground for sending up the accused to a magistrate for
trial or inquiry, it is not open to the Police to release him on bail under section 169 of the
Code of Criminal Procedure. The proper course for them is to send the accused back to the
magistrate concerned or request him to release the accused on bail under section 437 of the
Code of Criminal Procedure.

1657. If the investigation is too long or complicated to be finalized within the period
prescribed, a provisional charge sheet or preliminary charge sheet based on such evidence, as
has been collected should be sent to the magistrate having jurisdiction to try the case or to
inquire into it and continue his investigation to collect further evidence in support of the
charge. All fresh evidences collected should be produced before the conclusion of trial of
that case.

1658. An accused who has been produced before a magistrate for the purpose of making a
confession u/s 164 Cr.P.C. and has declined to make it or has made a statement which from
the point of view of the Police is unsatisfactory, is liable to be remanded to jail and the
investigation officer should not, except in the presence of the magistrate, see the accused
again or have any communication with him.

1659. An under-trial prisoner should not be removed from one place of confinement to
another for the purpose of identification. The attendance of any person believed to be
cognizant of the prisoner’s identity should be secured.

1660. Sundays and other holidays are not excluded from the time limit allowed under
section 61 of the Code of Criminal Procedure for production of the accused before a
magistrate for remand.

1661. The officer incharge of the Police Station or the Police official making the
investigation, if he is not below the rank of a Sub-Inspector may, where a judicial magistrate
is not available, transmit the accused and the remand papers under section 167 (2-A), to the
nearest Executive Magistrate or whom the powers of a Judicial Magistrate have been
conferred who may authorize as he may think fit for a term not exceeding seven days or
otherwise prescribed under the above provisions.
1662. The investigating officer shall remember that the investigation of certain cases
wherein the accused persons were already arrested shall be completed as expeditiously as
possible, because of the following reasons :

(a). If in any case triable by a Magistrate as a summon case, the investigation is


not concluded within a period of six months from the date on which the
accused was arrested, the Magistrate shall make an order for “STOP
PROCEEDINGS”, under section 167 (5) Cr.P.C.

(b). After the expiry of the period of limitation, no court shall take cognizance of
an offence of the category specified below (section 468 Cr.P.C.):-

(i). Six months - If the offence is punishable with fine only.

(ii). One year - If the offence is punishable with imprisonment


for a term not exceeding one year.

(iii). Three year - If the offence is punishable with imprisonment


for a term exceeding one year but not exceeding
three years.
Note
For the purpose of fixing the day for the period of limitation, it should be from the
date of the offence in general; or if the aggrieved party or the Police officer was not
aware of the commission of the offence, then the earliest day on which either of them
becomes aware of such offence; or the first day on which either of the aggrieved
person or the Police officer comes to know the identity of the accused (Section 469
Cr.P.C).

1663. For the purpose of arrest, there is a provision (section 45 Cr.P.C.) to protect the
members of the Armed forces. Accordingly, 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.

1664. Section 53 Cr.P.C. provides for examination of an arrested person by a registered


medical practitioner under certain circumstances. The Police officer should take action
accordingly when their circumstances warrant such an examination.

1665. Article 22 (1) of the constitution of India provides that every person placed under
arrest shall be informed, as soon as possible, the ground of arrest and shall not be denied of
the right to consult and be defended by a lawyer of his choice. Section 50 of the Code of
Criminal Procedure, 1973 requires a Police officer arresting any person to “forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds
for such arrest.”
1666. A large number of complaints pertaining to Human Rights violations are in the area
of abuse of Police powers, particularly those of arrest and detention. It has, therefore,
become necessary, with a view to narrowing the gap between law and practice, to prescribe
guidelines regarding arrest even while at the same time not unduly curtailing the power of the
Police to effectively maintain and enforce law and order and proper investigation. The
guidelines regarding the arrest issued by the National Human Rights Commission are
hereinafter enumerated for strict compliance.

1667. PRE-ARREST

 The power to arrest without a warrant should be exercised only after a


reasonable satisfaction is reached, after some investigation, as to the
guidelines and bonafides of a complaint and a reasonable belief as to both the
person’s complicity as well as the need to effect arrest [Joginder Kumar’s case
– (1994) 4 SCC 2006].

 Arrest cannot be justified merely on the existence of power, as a matter of


law, to arrest without a warrant in a cognizable case.

 After Joginder Kumar’s pronouncement of the Supreme Court the question


whether the power of arrest has been exercised reasonable or not is clearly a
justifiable one.

 Arrest in cognizable cases may be considered justified in one or other of the


following circumstances:

(i). The case involves a grave offence like murder, dacoity, robbery, rape,
etc., and it is necessary to arrest the suspect to prevent him from
escaping or evading the process of law.

(ii). The suspect is given to violent behaviour and is likely to commit


further offences.

(iii). The suspect requires to be prevented from destroying evidence or


interfering with witnesses or warning other suspects who have not yet
been arrested.

(iv). The suspect is a habitual offender who, unless arrested, is likely to


commit similar or further offences. (3rd Report of National Police
Commission).

 Except in heinous offences, as mentioned above, an arrest must be avoided if


a Police officer issues notice to the person to attend the Police Station and not
leave the station without permission [ see Joginder Kumar’s case (1994) 4
SCC 260].
 The power to arrest must be avoided where the offences are bailable unless
there is a strong apprehension of the suspect absconding.

 Police officer carrying out an arrest or interrogation should bear clear


identification and name tags with designations. The particulars of Police
personnel carrying out the arrest or interrogation should be recorded
contemporaneously, in a register kept at the Police Station.

1668. ARREST

 As a rule use of force should be avoided while effecting arrest. However, in


case of forcible resistance to arrest, minimum force to overcome such
resistance may be used. However, care must be taken to ensure that injuries to
the person being arrested, visible or otherwise, is avoided.

 The dignity of person being arrested should be protected. Public display or


parading of the person arrested should not be permitted at any cost.

 Searches of the person arrested must be done with due respect to the dignity of
the person, without force or aggression and with care for the person’s right to
privacy. Searches of women should only be made by other women with strict
regard to decency [ S. 51 (2) Cr.P.C.]

 The use of handcuffs or leg chains should be avoided and if at all, it should be
resorted to strictly in accordance with the law repeatedly explained and
mandated in Judgement of the Supreme Court in Prem Shanker Shukla V.
Delhi Administration [ (1980) 3 SCC 526] and Citizen for Democracy V.
State of Assam [(1995) 3 SCC 743].

 As far as practicable women Police officers should be associated where the


person or persons being arrested are women. The arrest of women between
sunset and sunrise should be avoided.

 Where children or juveniles are sought to be arrested, no force or beatings


should be administered under any circumstances. Police officer, may for this
purpose, associate respectable citizens so that the children or juveniles are not
terrorized and minimal coercion is used.

 Where the arrest is without a warrant, the person arrested has to be


immediately informed of the ground of arrest in a language which he or she
understands. Again, for this purpose, the Police if necessary may take the
help of respectable citizens. These grounds must have already been recorded
in writing in Police records. The person arrested should be shown the written
reasons as well and also given a copy on demand [ S. 50 (1) Cr.P.C.].
 The arrested person can, on a request may by him or her, demand that a friend,
relative or other person known to him be informed of the fact of his arrest and
the place of his detention. The Police should record in a register the name of
the person so informed. [Joginder Kumar’s case (supra)].

 If a person is arrested for a bailable offence, the Police officer should inform
him of his entitlement to be released on bail so that he may arrange for
sureties [S. 50(2) Cr.P.C.]

 Apart from informing the person arrested of the above rights, the Police
should also inform him of his rights to consult and be defended by a lawyer of
his choice. He should also be informed that he is entitled to free legal aid at
state expense [D.K. Basu’s case (1997) 1 SCC].

 When the person arrested is brought to the Police Station, he should, if he


makes a request in this regard, be given prompt medical assistance. He must
be informed on this right. Where the Police officer finds that the arrested
person is in a condition where he is unable to make such request but is in need
of medical help, he should promptly arrange for the same. This must also be
recorded contemporaneously in a register. The female requesting for medical
help should be examined only by a female registered medical practitioner ( S.
53 Cr.P.C.)

 Information regarding the arrested and the place of detention should be


communicated by the Police officer effecting the arrest without any delay to
the Police Control Room and District / State Headquarters. There must be a
monitoring mechanism working round the clock.

 As soon as the person is arrested, Police officer effecting the arrest shall make
a mention of the existence of non-existence of any injury(s) on the person of
the arrestee in the register of arrest. If any injuries are found on the person of
the arrestee, full description and other particulars as to the manner in which
the injuries were caused should be mentioned in the register, which entry shall
also be signed by the Police officer and the arrestee. At the time of release of
the arrestee, a certificate of the Police officer shall be issued to the arrestee.

 If the arrestee has been remanded to Police custody under the orders of the
court, the arrestee should be subjected to medical examination by a trained
Medical Officer every 48 hours during his detention in custody by a doctor on
the panel of approved doctors appointed by Director, Health Services of the
concerned State or Union Territory. At the time of his release from the Police
custody, the arrestee shall be got medically examined and a certificate shall be
issued to him stating therein the factual position of the existence or non-
existence of any injuries on his person.
1669. POST ARREST

 The person under arrest must be produced before the appropriate court within
24 hours of the arrest (Ss. 56 and 57 Cr.P.C.)

 The person arrested should be permitted to meet his lawyer at any time during
the interrogation.

 The interrogation should be conducted in a clearly identifiable place, which


has been notified for this purpose by the Government. The place must be
accessible and the relatives or friend of the person arrested must be informed
of the place of interrogation taking place.

 The methods of interrogation must be consistent with the recognized rights to


life, dignity and liberty and right against torture and degrading treatment.

1670. ENFORCEMENT OF GUIDELINES

(1). The guidelines must be translated in as many languages as possible and


distributed to every Police Station. It must also be incorporated in a
handbook, which should be given to every Policemen.

(2). Guidelines must receive maximum publicity in the print or other electronic
media, it should also be prominently displayed on notice board, in more than
one language, in every Police Station.

(3). The Police must set up a complaint redressal mechanism, which will promptly
investigate complaints of violation of guidelines and take corrective action.

(4). The notice board which displays the guidelines must also indicate the location
of the complaints redressal mechanism and how that body can be approached.

(5). NGOs and public institutions including courts, hospitals universities, etc.,
must be involved in the dissemination of these guidelines to ensure the widest
possible reach.

(6). The functioning of the complaint redressal mechanism must be transparent


and its reports accessible.

(7). Prompt action must be taken against errant Police officers for violation of
these guidelines. This should not be limited to departmental enquiries but also
set in motion the criminal justice mechanism.

(8). Sensitization and training of Police officers is essential for effective


implementation of these guidelines.
DIRECTIVES OF THE SUPREME COURT ON MATTERS RELATING TO
ARREST, DETENTION AND INTERROGATION OF A PERSON

1671. The Supreme Court of India has issued the following eleven directions to all state
governments on “preventive measures” that should be strictly followed to curb custodial
violence:

(1). The Police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name
tags with their designations. The particulars of all such personnel who handle
the interrogation of the arrestee must be recorded in a register.

(2). That the Police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by atleast
one witness, who may be either a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also
be counter signed by the arrestee and shall contain the time of arrest and the
case of arrest.

(3). A person who has been arrested or detained and is being held in custody in a
Police Station or interrogation centre or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and
is being detained at the particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative of the arrestee.

(4). The time, place of arrest and venue of custody of an arrest must be notified by
the Police where the next friend or relative of the arrestee lives outside the
district or town through legal organization in the District and the Police
Station of the area concerned telegraphically within a period of 8 to 12 hours
after the arrest.
(5). The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.

(6). An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names and particulars of
the Police officials in whose custody the arrestee is.

(7). The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his / her body, must be
recorded at that time. The “Inspection Memo” must be signed both by the
arrestee and the Police officer effecting the arrest and its copy provided to the
arrestee.
(8). The arrestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health Services of the concerned
State or Union Territory. Director, Health Services should prepare such a
panel for all tehsils and Districts as well.

(9). Copies of all the documents including the memo of arrest, referred to above,
should be sent to the village Magistrate for his record.

(10). The arrestee may be permitted to meet his lawyer during the interrogation,
though not throughout the interrogation.

(11). A Police Control Room should be provided at all district and state
headquarters, where information regarding the arrest and the place of custody
of the arrestee shall be communicated by the officer causing the arrest, within
12 hours of effecting the arrest and at the Police control room it should be
displayed on a conspicuous notice board.

INFORMAL DETENTION

1672. Informal ‘arrest’ of an accused person and compelling him to remain in attendance
are forbidden. If the presence of a suspect is secured, arrest must always be made in a formal
manner as prescribed by law and, if the arrested person is not sent for remand, he should be
released on bail.

1673. The Police cannot pursue their investigation by defying the provisions of law on the
pretext that no actual arrest has been made when, to all intents and purposes, a man has been
in their custody or in detention.

1674. RE-ARREST OF A PERSON ARRESTED BY PRIVATE INDIVIDUALS

(1). Section 43 of the Code of Criminal Procedure provides that a private person also can
arrest:

(a). an offender who has committed a non-bailable and cognizable offence in his
view or
(b). any proclaimed offender

(2). He should then, without unnecessary delay, make over the person so arrested to a
Police officer or, in the absence of a Police officer, take such person or cause him to be taken
in custody to the nearest Police Station.

(3). When the arrested person is brought before a Police Station, the Police Station shall
re-arrest him if he has reason to believe that such person comes under the provisions of
section 41 of the Code of Criminal Procedure.
(4). If there is reason to believe that the person produced has committed a non-cognizable
offence and if he refused, on demand by a Police officer, to give his name and residence or
gives name and residence which the Police officer has reason to believe to be false, the
person produced shall be dealt with under section 42 of the Code of Criminal Procedure.

PLACE OF CONFINEMENT

1675. When a person is arrested, he shall be taken at once to the nearest Police Station. He
should not be kept in a private house, temple, mosque or church.

HINTS FOR IDENTIFICATION OF THE ACCUSED TO BE ARRESTED

1676. When a Police officer proceeds to arrest a person and cannot identify him personally,
he should secure the services of a person who knows the person to be arrested and should
also provide himself, if available, with a photograph, a descriptive roll and the marks of
identification of that person, as far as possible.

1677. The Police officer should be in uniform or, if in plain clothes, discloses his identity.
He should arm himself with a revolver or other means of defence.

1678. Police parties engaged in anti-social operations or similar duties likely to lead to
arrests should carry handcuffs and leading chains to secure prisoners.

1679. The person to be arrested should be informed to the authority for making the arrest.

1680. The arrest should be effected without unnecessary violence or publicity.

1681. Police officer may break open any outer or inner door or window of such a place and
enter such place and search therein and make arrest, but before entering an apartment in the
actual occupancy of a woman (not being the person to be arrested) not appearing in public,
he shall give notice and afford every reasonable facility for her to withdraw (Section 47 (2)
of the Code of Criminal Procedure).

1682. The person arrested shall not be subjected to more restraint than is necessary to
prevent his escape (section 49 of the Code of Criminal Procedure).

USE OF FIRE-ARMS IN MAKING ARREST

1683. Where a person forcibly resists the endeavour to arrest him, or attempts to evade
arrest the Police officer making the arrest may use all means including the use of fire-arms,
necessary to effect the arrest. But according to sub-section (3) of section 46 of the Code of
Criminal Procedure, the Police have no right to cause the death of a person who s not accused
of an offence punishable with death or life imprisonment.
1684. However, Police officers are not prevented from exercising the right of private
defence of the body provided under section 109 of the Indian Penal Code, extending to the
voluntary causing of death or of any other harm to assailant, if the offence which occasions
the exercise of the right consequence of such assault or (b) such an assault as may reasonably
cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
In such a case, while exercising the right of private defence, the Police officers may use fire-
arms to overcome the resistance.

1685. When an accused person is placed under arrest, the investigation Police officer shall
ask him whether he has any complainant to make ill-treatment by the Police and shall enter
the question and answer in the case diary. If an allegation of ill-treatment is made, the
investigating officer shall then and there examine the prisoner’s body, if the prisoner
consents, to see if there are any marks of ill-treatment and shall record the result of his
examination. If the prisoner refuses to allow his body to be examined, the refusal and the
reasons thereof shall be recorded. While the allegation is being enquired into by a Magistrate
under the said order, the Police investigation into the main case need not be suspended but
may be carried on, provided no prejudice is caused thereby to the Magisterial inquiry.

SEARCH OF PRISONER

1686. Prisoners, who are not enlarged on bail, shall be searched immediately after the arrest
to ensure that they do not carry with them any weapon or drug. If any weapon or drug is
seized, it should be sent to court.

PRISONERS IN POLICE CUSTODY

1687. A prisoner in Police custody shall not be permitted to leave the lock-up after nightfall,
except in special and emergent circumstances and that with adequate escort, which shall be
recorded in the Station House Diary and the Sentry Relief Book.

1688. Whenever any punitive action is taken or contemplated against a foreigner, he should
be provided with facilities, if he so desires, to communicate over the telephone or by
telegram or letter, with the Consul or High Commissioner of his Country or his
representatives, as the case may be.

1689. The prisoner in Police custody should not at any time be allowed to talk to members
of the public. But he is entitled to see a pleader and his relations prior to remand.

1690. When other prisoners are in the lock up, the prisoner concerned in other department
shall be confined with them and the Police in charge of the lock up will be responsible for the
prisoner’s safe custody.

1691. In all circumstances, the duty of supplying the prisoner with food and guarding him
when outside the lock up, shall lie with the department which arrested the prisoner.
ESCAPES FROM CUSTODY – REPORTS

1692. Whenever an accused or other prisoner escape from Police custody, a report by Police
wireless or teleprinter / fax in addition to telephonic message shall immediately be sent by
the Superintendent to the Inspector General, with information to the Deputy Inspector
General and the concerned Senior Superintendent of Police.

1693. The wires or teleprinter message or fax shall immediately be followed by a detailed
report furnishing the circumstances under which the persons escaped, the action taken to
apprehend him, the person or persons responsible for the escape, the action taken against
them, and other relevant particulars.

BAIL IN NON-BAILABLE CASES

1694. Police officers are empowered to grant bail under sub-section (2) of section 42 and
under sections 169, 170, 436 and 437 of the Code of Criminal Procedure.

STATION HOUSE OFFICER ALONE CAN GRANT BAIL

1695. The Station House Officer is empowered to grant bail under sections 436 and 437 of
the Code of Criminal Procedure, but an Investigating Officer may send a person to him with
a recommendation to be released on bail. A Station House Officer or the investigating
officer is empowered to release an accused person under section 169 of the Code of Criminal
Procedure. Bonds under which accused are released on bail should be executed in favour of
government. Bail bond should be used. When, on investigation, there is no sufficient
evidence or reasonable suspicion to justify the forwarding of the accused to a Magistrate, the
Station House Officer or the investigating officer should release him on bail, if he is in
custody.

ANTICIPATORY BAILS

1696. Section 438 Cr.P.C. provides for grant of anticipatory bail. When any person has
reason to believe that he may be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of session for a direction under
this section, and the court may, if it thinks fit, direct that in the event of such arrest, he shall
be released on bail subject to certain conditions.

BAILABLE WARRANTS – PRODUCTION FOR REMAND

1697. In bailable cases, bail is a right and not a favour, detention in the lock-up is the
alternative, not the original order. The bail demand should never be excessive but should be
fixed with reference to the social status of the prisoner and the character of the offence.

1698. A person arrested under a bailable warrant should not be compelled to come to the
Police Station to give bail. The officer executing the warrant should take necessary bail bond
form with him and take bail, where offered, and release the warrantee.
1699. ARREST OF CERTAIN OFFICIALS
(1). If a RAILWAY official is to be arrested and if the immediate arrest of the railway
official would cause risk or inconvenience, the Police should make all arrangements
necessary to prevent his escape and apply to the proper quarter to have him relieved. The
fact of the arrest of a railway employee when off duty, or when not engaged in a duty which
renders his immediate arrest undesirable, should be reported at once to the local Head of the
Department to which he belongs.
(2). Arrest of employees of ORDNANCE factories owned or sponsored by the
government should be notified immediately to the Superintendent / officer-in-charge of the
factories concerned.
(3). When a Central Government or any Department or a State Government servant or a
village officer is arrested or removed by the Police it is desirable whenever practicable to
send prior intimation of the arrest of such an officer to his immediate superior or the officer
of the installation or department. This intimation must be treated as secret. Information of
arrest should be sent to his immediate superior officer concerned, if in any case, prior
warning cannot be given and this should be followed by a more detailed report of the offence
committed together with an indication as to whether the arrested person is being released on
bail or bond by the Police.

(4). In the event of the arrest of an employee of FOREIGN CONSULATE (not a


foreigner), intimation should be immediately be given to the consular officer concerned.

(5). The fact of the arrest of MILITARY personnel by the Police should be communicated
to the Commanding Officer of the Unit to which they belong and also to the concerned
Magistrate Court. Such communication should be sent within 24 hours from the time of
arrest. Such intimations should be directly sent by the concerned Superintendents of Police.

(6). When a reservist of the Indian Army is arrested and remanded on a criminal charge,
the facts of arrest remand will be at once reported to the Inspector General with information
as to the military unit to which the man arrested belongs. When the case is over its result and
the event of conviction, the period spent in Jail by the accused while under trial prior to the
conviction and the sentence awarded will be reported. The information so reported will be
communicated by the Inspector General to the appropriate military authority.

ARREST, DETENTION, RELEASE, ETC., OF MEMBERS OF PARLIAMENT /


MEMBERS OF RAJYA SABHA, MEMBERS OF LEGISLATIVE ASSEMBLY OF
OTHER STATES

1700. Information about the arrest, detention, release, etc., of the members of the Lok Sabha
and Rajya Sabha should be sent immediately by telegram wireless message to the Speaker /
Chairman, as the case may be, by the Senior Superintendent of Police concerned of this
territory. Similar information should be sent to the Ministry of Home Affairs, New Delhi.
Confirmatory report of the telegram / wireless message should be sent immediately by
registered post to all the above officers and the Inspector General of Police.
1701. This form in which such confirmatory communication to be sent is appended below:

FORM

Place:
Date:

To
The Speaker / Chairman
Lok Sabha / Rajya Sabha / Legislative Assembly / Council

Dear Thiru Speaker / Chairman

I am to inform you that I have found it my duty, in the exercise of my powers under
Section _________________ of the ___________________ (Act) to direct that Thiru.
__________________________ Member of the Rajya Sabha / Lok Sabha / Legislative
Assembly / Council, be arrested / detained / released for ____________________________
(reasons for the arrest or detention, as the case may be).

Thiru. ______________________ Member of the Lok Sabha / Rajya Sabha /


Legislative Assembly / Council was accordingly arrested / taken into custody / released at
_________________ (time) on _________________ (date) and is at present lodged in the
_________________ jail (place).

A similar procedure should be adopted to furnish information to the Speaker of the


Legislative Assembly, Puducherry, when an MLA is arrested, detained, released, etc., This
information shall be sent by the concerned Superintendent of Police. The Inspector General
of Police and the Senior Superintendent of Police concerned should also be informed in the
case of arrest, detention or release of members of the legislative assembly.

The form of communication to the speaker, legislative assembly is appended below: -


FORM OF COMMUNICATION REGARDING ARREST, DETENTION,
CONVICTION OR RELEASE, AS THE CASE MAY BE, OF A MEMBER OF
LEGISLATIVE ASSEMBLY, PUDUCHERRY.

Place …………….
Date ……………..
To

The Speaker,
Legislative Assembly,
Puducherry.

A
Dear Thiru Speaker,

I have the honour to inform you that I have found it my duty, in the exercise
of my powers under section …………………………………… of the
………………………… (Act) to direct that Thiru. …………………………………member
of the Legislative Assembly be arrested / detained for …………………………… (reasons
for the arrest or detention as the case may be).

Thiru. …………………………… M.L.A., was accordingly arrested taken


into custody at ………………..(time) on ………………… (date) and is at present lodged in
the ……………………………… Jail ………………………. (place).

B
I have the honour to inform you that
Thiru……………………………………..M.L.A., was tried at the
………………………………court before me on a charge ( or charges) of ………………..
(reason for the conviction)

On ………………………………………………………….(date) after a trial lasting


for …………………………….days I found him guilty of ………………………………….
and sentenced him to imprisonment for …………………………………..(period).
(His application for leave to appeal to ……………………………………………. is
pending consideration).

* Name of the Court.


C
I have the honour to inform you that Thiru.
………………………………………..M.L.A. who was arrested / detained /convicted on
………………………………..(dated), for ……………………………………… (reasons for
arrest/detention/conviction), was released on ……………….. (date) on
……………………………. (grounds for release).

Yours faithfully,

(Judge, Magistrate or Executive


Authority)

  

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