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 person is involvement in the offence and the need to make an arrest.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.Arrests in cognizable cases should be carried out only if:
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.
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 y 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.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.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. But, the time spent on making inquiries while taking the arrested person to the court is not excluded from the 24-hour period.Reasons for arrest and complete description of the arrested person must be recorded in the case diary.In case a person is arrested for a bailable offence s/he must be informed about her/his right to get bail.Fetters or handcuffs are not be used as a matter of routine or for convenience of the arresting or escorting officer. 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: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.
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.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. Suitable arrangements must also be made for the treatment of any illness or injury.
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.
o Women and girls should not be called to the police station or to any place other than their place of residence for questioning. 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. In case there is no separate lockup, women should be kept in a separate room.
o Girls and women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen. Body searches of females should only be carried out by women and with strict regard to decency. As 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
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.
Guidelines on Arrest of Judicial officers
i. The police should inform the District and Sessions Judge/High Court before arresting a judicial officer.
ii. If facts and circumstances necessitate immediate arrest of a judicial officer, the police should only carry out a technical or formal arrest.
iii. 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.
v. 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.
vi. 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.
vii. 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 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.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. 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.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.Parents or guardians must be informed immediately on the arrest of children or juveniles.
To conclude the rights of arrested persons are increasingly being guaranteed on paper and less in reality. Yet there is good amount of public awareness in this regard which is facilitating various human rights agencies and non profit organizations like the NHRC to ensure compliance with procedure. However as compared to international standards of implementation and guarantee of newer any more comprehensive rights, much remains to be done. Some suggestions for reform may be made in the nature of the following:
o There needs to be a strict regime of education and monitoring of police officials especially at lower levels In remote areas. Today most of the violations occur as much out of ignorance. Separate body should be set up solely for the purpose of initiating departmental enquiries and vigilance in this regard.
o Civil society should bear a greater responsibility and be vigilant about any Instances of violation of human rights in this area and report the same to the nearest judicial officer.
o The burden of proof should be shifted on the police to show before the Magistrate 24 hours after arrest that he injury marks were not due to their manhandling. This and constitutionalisation of rights like examination of the arrested would be a deterrent to police brutality.
Therefore, to strike a balance between individual liberty and community interest is never easy or without their own problems. But to strengthen the foundations of our democracy and to make true the spirit of our Constitution the two opposing considerations need to be balanced on the fine scale of justice, equity and good conscience.
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