GUIDELINES FOR POLICE OFFICERS ON MAKING ARRESTS

Compiled By Aravinda Kosaraju

Commonwealth Human Rights Initiative B-117, Sarvodaya Enclave, 1st Floor New Delhi - 110 017 Tel. : 91-11-26528152/26850523, Fax : 91-11-26864688 E-mail chriall@nda.vsnl.in
website: http://www.humanrightsinitiative.org

GUIDELINES FOR POLICE OFFICERS IN INDIA. ON MAKING ARRESTS One of the most important powers, possessed by the police under law, and exercised by it on a day to day basis, is the power of arrest. The exercise of this power involves discretion, which makes it liable to misuse. In fact, it is known to be often misused. The National Police Commission [NPC] examined this subject in its Third Report (January, 1980) and came to the following conclusions: A large number of discretionary and unnecessary arrests are made by the police, mainly on minor grounds. This gives rise to corruption, highhandedness and other malpractices, thereby adversely affecting police image. It also leads to overcrowding in prisons, and unnecessary expenditure on maintaining arrested persons. Because the exercise of arrest powers can seriously restrict individual rights, a number of guidelines have been issued in respect of arrest. These guidelines have a direct bearing on the image of the police in the community; they also enable police officers to use their powers judiciously, in a manner that safeguards human rights, without diluting effectiveness to curb crime or maintain order. The guidelines listed below have been prepared with this objective in view. When can Arrest be carried out? The Criminal Procedure Code, allows a police officer to arrest a person if s/he: 1 i. is involved in a cognizable offence: a reasonable complaint has been made against her/him; or credible information has been received about her/him; or a reasonable suspicion exists regarding her/his involvement in a cognizable offence; ii. unlawfully keeps implements of housebreaking in her/his possession; iii. is a proclaimed offender; iv. is found to be in possession of property which may reasonably be suspected to be stolen; or is suspected of having committed an offence in relation to stolen property; v. obstructs a police officer from lawfully discharging her/his duties or escapes or attempts to escape from lawful custody; vi. is suspected to be a deserter from the Armed Forces; vii. commits or is suspected of committing an offence outside India, which is punishable in India and for which s/he can be detained in custody2;

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Section 41 Code of Criminal Procedure, 1973. Under an extradition treaty or any other law

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being a released convict, commits a breach of any rule made by the State Government under Section 356 Code of Criminal Procedure, 1973 requiring a previously convicted offender to notify her/his change of residence; requires to be arrested on the request of another police officer and sufficient grounds for arrest have been shown by the police officer requesting the arrest; belongs to one or more categories of persons specified in Sections 1093 or 1104 of the Code of Criminal Procedure, 1973.

A police officer can arrest a person who commits or is accused of committing a noncognizable offence in her/his presence and refuses to give her/his name and address or gives a name and address that appears to be false.5 A police officer can arrest a person without warrant, if it appears that the person is making a design to commit a cognizable offence. 6

Guidelines to be followed before Arrest: An arrest should be made only after a reasonable satisfaction is reached about the complaint being genuine and bonafide. This satisfaction must be reached on the basis of some preliminary investigation. The officer making the arrest must be convinced about the persons involvement in the offence and the need to make an arrest.7 Arrests are not to be made in a routine manner on mere allegations that a person has committed an offence. Arrest should be avoided if notice can be given to the suspected person to come to the police station and not leave the area without permission. 8 Arrests in cognizable cases should be carried out only if: 9 The case involves grave offences like murder, dacoity, robbery, rape etc. and it is necessary to restrain the movements of the accused person to infuse confidence among terror stricken victims. The accused is likely to abscond or evade the processes of law. The accused is prone to violent behaviour and is likely to commit further offences unless her/his movements are restrained. The accused is a habitual offender and it is likely that s/he will commit further offences.

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Persons taking precautions to conceal their presence with a view to committing a cognizable offence. Habitual offenders, desperate or dangerous persons 5 S. 42 Code of Criminal Procedure, 1973. 6 S. 151 Code of Criminal Procedure, 1973. 7 Joginder Kumar v State of U.P and others, 1994 (4) SCC 260. 8 Ibid 9 National Police Commission: Third Report (1979-81), P. 32, Para- 15.48.

 When a police officer proceeds to arrest a person, whom s/he cannot identify personally, s/he should either carry a photograph of the person or take the help of someone who can identify the person to be arrested This reduces the number of wrongful arrests. 10 When a Station House Officer (SHO) deputes a junior officer to arrest a person without a warrant, the SHO must give a written order specifying the person to be arrested and the grounds of such arrest. The deputed officer has to notify the substance of the order to the person being arrested and if the person wants to see the order, even show her/him the order of arrest. 11 A police officer can break open the door / window of a house to arrest a person if s/he is denied free access. However, due notification of such intention should be given, especially when entering a house resided by a woman who does not appear in public. The police officer should also give such woman every reasonable facility to withdraw, except when the lady herself is to be arrested.12

Guidelines during Arrest: An arrested person must be informed as soon as possible about the grounds of arrest and her/his right to be represented by a lawyer. 13 As a rule, use of force should be avoided while making an arrest. In case the person being arrested offers resistance, minimum force should be used and care should be taken to ensure that injuries are avoided.14 Police officers, carrying out arrest or interrogation must bear accurate, visible and clear identification and name tags with their designations. 15 The particulars of the officers handling arrest and interrogation must be recorded in a register.16 The police, while arresting a person must make a memo of arrest, which should be attested by at least one witness who is either a family or a respectable member of the locality. The arrested person should also sign the memo and a copy of the memo should be given to her/him. 17

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Rule. 188 of the Bombay Police Manual (1959) Vol. III. S. 55 Code of Criminal Procedure, 1973. 12 S.47 Code of Criminal Procedure, 1973 13 Article 22 (1), Constitution of India 14 National Human Rights Commission guidelines on arrest 15 D. K. Basu v State of West Bengal, AIR 1997 SC 610 16 Ibid. 17 Ibid.

Guidelines after arrest: An arrested person must be produced before the court within twenty-four hours of arrest. The police should produce the arrested person before the court within twenty-four hours after arrest, excluding journey time. 18 But, the time spent on making inquiries while taking the arrested person to the court is not excluded from the 24-hour period.19 Reasons for arrest and complete description of the arrested person must be recorded in the case diary. 20 In case a person is arrested for a bailable offence s/he must be informed about her/his right to get bail.21 An arrested or detained person is entitled to inform a friend, relative or any other person interested in her/his welfare about the arrest and place of detention as soon as practicable. The arrested person must be made aware of this right as soon as s/he is arrested or detained.22 An entry must be made in the diary at the place of detention indicating the person to whom information of arrest has been given and also the names of the persons in whose custody, the arrested person is being kept.23 A friend or relative of the arrested person must be notified by the police about the time, date, place of arrest and the place of custody. If that relative or friend lives outside the district or town, information should be communicated telegraphically within 8-12 of the arrest through the District Legal Aid Organisation and the concerned police station.24 Fetters or handcuffs are not be used as a matter of routine or for convenience of the arresting or escorting officer.25 The police should not handcuff a person merely to humiliate or harass her/him. The arrested person should not be handcuffed unless there is a clear and present danger of her/him escaping and s/he is:26 a) involved in serious non-bailable offences and has been previously convicted of a crime; or b) is of desperate character; or c) is likely to commit suicide; or d) is likely to attempt escape.
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S. 56 and 57 Code of Criminal Procedure, 1973. Rule. 198(4) of the Bombay Police Manual, 1959, Vol.III; Article 9 International Covenant on Civil and Political Rights, 1966; S. 56 of Criminal Procedure Code, 1973. 20 National Police Commission: Third Report 1980, P.32, Para-22.28 21 S.50(2) Code of Criminal Procedure, 1973 22 D.K Basu v State of West Bengal AIR 1997 SC 610 23 Ibid 24 Ibid 25 Sunil Batra v Delhi Administration (1978) 4 SCC 494 26 Prem Shankar Shukla v Delhi Administration (1980) Cri LJ 930

If for any reasons the use of handcuffs is resorted to, such reasons should be recorded in the Daily Diary Report. An accused person must not be handcuffed to and fro from custody to the court, without permission of the magistrate.27 Handcuffing is not necessary to prevent a prisoner from escaping. There are other ways to prevent escape of persons in custody such as increasing the strength of the armed escort or transporting them in wellprotected vans. The officer conducting the search of an arrested person should prepare a memo of articles seized. A copy of the memo should be given to the arrested person.28 Arrested persons should be held only in officially recognised places. 29 Care should be taken to ensure the safety and well being of the detained person. Proper arrangements must be put in place to provide subsistence, shelter and toilet facilities to those in custody. Detained persons should be provided with adequate food, shelter, clothing as well as easy access to medical services, exercise and items of personal hygiene. 30 While a police officer can get an arrested person medically examined by a registered medical practitioner to get evidence about the commission of an offence, s/he must ensure that examination of women and girls should only be carried out by a woman medical practitioner.31 The substance of the medical examination report should be entered in the police station diary. All major and minor injuries on the arrested person should be recorded in a memo.32 Suitable arrangements must also be made for the treatment of any illness or injury. Medical examination of an arrested person should be carried out by a trained doctor, who is on the panel of approved doctors appointed by the Director, Health Services of the concerned state or union territory.33 The police officer should allow the arrested person to consult a lawyer of her/his choice. The lawyer can remain present during interrogation, if not for the whole but for a reasonable period of time.34 The police may be present at the time of the consultation, but sufficient privacy of conversation should be provided to the arrested person.
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Ibid S 51 (1) Code of Criminal Procedure, 1973 29 United Nations Humanitarian Affairs Division: UN Blue Book for Law Enforcement Officials Rule-5.2, U.N Blue Book for Law Enforcement Agencies http://meltingpot.fortunecity.com 30 Rule 5.10, U.N Blue Book for Law Enforcement Agencies http://meltingpot.fortunecity.com 31 S. 53 Code of Criminal Procedure, 1973 32 D. K. Basu v State of West Bengal AIR 1997 SC 610 33 Ibid. 34 Ibid.

 No one (including arrested persons) should be subjected to torture, inhuman or degrading treatment.35 Accused persons cannot be forced into confessing guilt, or testifying against themselves.36 An arrested person cannot be made to sign any statement given to the police in the course of investigation. 37 An arrested person should not be photographed unless it is absolutely necessary. Permission of the Superintendent of Police or prior sanction of the Deputy Inspector General of Police or the Criminal Investigation Department must be taken before photographing the arrested person. 38 Copies of all documents including the memo of arrest should be sent to the Area Magistrate.39 The nearest Legal Aid Committee should be informed as soon as an arrest is made so that the arrested person can take legal assistance.40 Information about the arrest and about the place where the arrested person is being detained must be sent to the State Police Headquarters within 12 hours of the arrest. This information should be prominently displayed in the police control room at both district and state headquarters.41 Guidelines on Arrest of Women o As far as practicable women police officers should be associated where females are being arrested. Arrest of women between sunset or sunrise should be avoided. 42 o Women and girls should not be called to the police station or to any place other than their place of residence for questioning. 43 The time selected for questioning should not be intended to harass or embarrass the person being questioned. o It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station. 44 In case there is no separate lockup, women should be kept in a separate room.
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Article 7 International Covenant on Civil and Political Rights, 1966 Article 20(3), Constitution of India 37 S.162 Code of Criminal Procedure, 1973 38 Rule 199 of the Bombay Police Act, 1959, Vol.III 39 D.K Basu v State of West Bengal AIR 197 SC 610 40 Sheela Barse v State of Maharastra, 1983 2 SCC 96 41 D.K Basu v State of West Bengal AIR 1997 SC 610 42 National Human Rights Commission guidelines on arrest 43 S. 160(1) Code of Criminal Procedure, 1973 44 Sheela Barse v State of Maharastra, 1983 2 SCC 96.

o Girls and women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen. 45 Body searches of females should only be carried out by women and with strict regard to decency. 46As far as possible, one of the two or more witnesses to the search must be women. o Medical examination of women/girls should be carried only under the supervision of female medical practitioners 47 o All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour.48 Guidelines on Arrest of Judicial officers49 i. The police should inform the District and Sessions Judge/High Court before arresting a judicial officer. If facts and circumstances necessitate immediate arrest of a judicial officer, the police should only carry out a technical or formal arrest. Information about the arrest should be immediately communicated to the District and Sessions Judge and to the Chief Justice of the High Court. It should also be recorded in the police station diary. The judicial officer so arrested should not be taken to the police station without prior order or directions of the District and Sessions Judge. The judicial officer must be immediately allowed to communicate with her/his family members, legal advisers and fellow judicial officers, including the District and Sessions Judge. No statement of a judicial officer under arrest should be recorded. The panchnama and medical tests should not be conducted except in the presence of the Legal Adviser of the judicial officer concerned or another judicial officer of equal or higher rank if available. The police must not handcuff a judicial officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such a case, immediate report should be made to the District and

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45 46

Ibid S. 51(2) & S. 100(3) of Code of Criminal Procedure, 1973 47 S. 53(2) of Code of Criminal Procedure, 1973. 48 10 Basic Standards for Law Enforcement Officials Proposed by Amnesty International. (http://www.amnesty.org/torture/resource/10HRSofficials.html) 49 These guidelines were laid down by the Supreme Court of India in its judgement in a Writ Petition (Criminal) no. 517,518and 523-27 of 1989- Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat and others.

Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish the necessity of effecting physical arrest and handcuffing the judicial officer. If it is established that the physical arrest and handcuffing of the judicial officer was unjustified, the police officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court. Guidelines on the Arrest of a Member of Parliament / Legislative Assembly: The Speaker of the House must be informed if an M.P/MLA/MLC is arrested on a criminal charge or detained under an executive order of a magistrate.50 As soon as any arrest, detention, conviction is made, intimation should be sent to the concerned government and to the Speaker/ Chairperson of the Lok Sabha/ Rajya Sabha/ Vidhan Parishad. This should be sent through telegrams and also by post.51 A detailed entry in this regard should be made in the police station diary. Any transfer from the place of custody should be notified to the Speaker/Chairperson of the house of which the arrested person is a member. The police should not arrest any member of legislature, nor should they serve any legal process, civil or criminal, within the precincts of the legislature without obtaining the permission of the Speaker/Chairperson. Guidelines on Arrest of Children: Children should not be arrested except as a last resort. If for some reason they are arrested, the detention must be for the shortest possible time. Force should never be used while arresting children or juveniles. Police officers should take the help of respectable citizens to ensure children and juveniles are not terrorised, and the need to use coercive force does not arise.52 As soon as a juvenile is arrested by the police, s/he is to be placed in the charge of a special juvenile police unit or a designated officer who must immediately report the matter to a member of the Juvenile Justice Board.53 Parents or guardians must be informed immediately on the arrest of children or juveniles. 54 .

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Rule 229 of the Procedure and Conduct of Business in Lok Sabha Ibid. 52 National Human Rights Commission guidelines on arrest 53 S 10, Juvenile Justice Act, 2000 54 S 13, Juvenile Justice Act, 2000

 Juvenile detainees must be kept separately from adults. They should be protected from torture and ill treatment, including rape and sexual abuse, whether by officials or other detainees. Children below the age of 15 years must not be called to the police station or to any place other than their place of residence for questioning by the police.55 Guidelines for arrest of Armed Forces personnel and Government employees56 The police officer arresting a person belonging to the armed forces [Military, Navy and Air Force] for the commission of a criminal offence, should as early as possible inform her/his commanding officer about such arrest. The police officer making the arrest should take care not to arrest member of the armed forces for overstay in genuine cases. The police should not arrest those who are in possession of railway passes/warrants and in no case should they take away those passes from armed forces personnel. An officer making an arrest must inform the nearest regimental centre or the military unit that s/he has arrested a member of the armed forces. Arrested members of the armed forces should not be produced before a magistrate or kept in jail without intimating their commanding officer about the arrest. In case a government employee is arrested, her/his immediate superior should be informed.

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S 160(1) Code of Criminal Procedure, 1973 Rule 200 & 201 of the Bombay Police Manual, 1959, Vol. III

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