Arrest – Frequently Asked QuestionsPosted: November 18, 2013
“Ignorance of law is no excuse unless of course you’re a lawyer” – anonymous
Around 8 pm, on a Sunday. My friend is waiting to board a train at an awfully jammed Dadar station. One bulky police officer in uniform approaches my friend and tells him that he wants to check his bag and mobile. Before my friend could even respond, the police officer snatches both.
The officer finds few pornographic videos saved in his mobile. He tells my friend that carrying pornographic videos in mobile is a crime and that he is going to arrest him.
Completely unaware of what has caught him in a new place, my friend requests for his mobile phone to be returned so that he could call any of his friends. The officer refuses to return the phone and tells him that he has to stay put in the station for a day. After almost 10-15 minutes of begging and unwarranted explanation of how those videos have actually got into his mobile, the officer shows an easy way-out. Win-win situation for both.
The officer guards my friend to a nearby ATM. He makes him withdraw the entire amount from his account and double-checks the same with the printed balance receipt. Takes the entire money and sends my friend off to his destination, Bangalore.
(i) The police officer, though has the right to check your belongings on suspicion; he has no right to check your mobile phone for no reason whatsoever; (ii) Possession of pornographic videos in your mobile is not a crime; (iii) The police officer had no right whatsoever to arrest or detain you in that situation; (iv) Whatever has happened is nothing but an extortion.
I explained my friend when he called me after boarding the train. So furious I was, I asked my friend to get down at next station, come back to Dadar, identify the police officer and file a complaint against him. I was fast reaching Dadar. He said, “I have an office to attend tomorrow”.
This happened a year back.
It’s not just about my friend. There is a general lack of awareness amongst the common public, including highly educated people, as to when can a police arrest and what legal rights we have as citizens. Law and order is equally overwhelming these days that people are being arrested for drawing cartoons, updating facebook status, tweeting about minister’s son and even drinking tea suspiciously.
So as a small step forward – FAQs on arrest. I thank my friend @suo_motu for helping me with framing the questions from a non-lawyer perspective.
1. What is the difference between: (a) police station lock up, (b) jail and (c) prison? When is a person sent to (a) / (b) / (c)? And, where is a person sent after arrest?
Police station lock up
- Place where police generally keeps custody of an arrested person for interrogation purposes.
- Upon arrest, a person is considered to be taken into police custody. He has to be produced before the nearest Magistrate court within 24 hours of arrest.
- Magistrate would thereafter direct either police custody or judicial custody considering the facts and circumstances of the case.
- In any event, police custody cannot be extended for more than 15 days.
- Place where undertrials (people who are awaiting trial in a competent court) are kept when the court directs judicial custody of the accused.
- Generally followed by police custody.
- Persons who have been convicted for minor offences are also sometimes kept in ‘jail’.
- Place where convicts (people who are sentenced by a judge) of major crime are generally kept.
However in India, the term ‘Jail’ is misleadingly used to mean both ‘Jail’ and ‘Prison’.
2. When can a person be arrested? only for charges filed under IPC? or can someone be arrested for charges filed under civil law also? (for e.g. Ramalinga Raju of Satyam was arrested for fraud I think)
Arrest happens generally for criminal offences, which not necessarily have to be embodied under Indian Penal Code (IPC). IPC is not an exclusive Act under which all the criminal offences are defined. There are plenty of criminal minor Acts, including Information Technology Act, Prevention of Money Laundering Act, Prize Chits and Money Circulation Scheme (Banning) Act, Arms Act, NDPS Act, and etc.
Though there is a provision for civil arrest under law, the same is exercised very rarely by courts and as a last resort in case of execution of a civil decree.
[Ramalinga Raju was arrested for various criminal charges but not for any civil case. He was charged under various charges including fudging of account books, forgery, fabricating of invoices and fixed deposit receipts, and falsifying of Income Tax returns.]
3. How long can a person be arrested for? (before he has to be produced in court)
A person who is arrested and detained in custody has to be produced before the nearest magistrate within a period 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate.
4. What is the difference between complaint / FIR / chargesheet?
First Information Report (FIR) is the basic report that is registered by police authorities upon receipt of complaint. FIR would generally have following details: (i) Name & address of the complainant, (ii) Sections for which FIR is registered, (iii) Place & date of occurrence, (iv) Name & address of the accused, (v) Particulars of properties involved, (vi) Brief contents of the complaint and (vii) Reasons for delay in filing FIR, if any.
Chargesheet is a report filed by the investigating authorities upon investigation. This report would generally have post investigation findings along with the witness statements and affidavits. The chargesheet names the persons against whom the charges are framed. The trial starts after filing of chargesheet.
Complaint is commonly used to refer complaint filed by an individual with the police authorities before registration of FIR and also a private complaint filed by an individual before the Magistrate.
5. Which organizations have the authority to force an arrest? Police, CBI, anybody else?
Besides police agencies and CBI, following authorities have the power to arrest:
(i) Enforcement Directorate (under Section 19 of Prevention of Money Laundering Act, 2002 – see here)
(ii) SEBI (under the ordinance of September, 2013 – see here)
(iii) Central Excise and Customs (see here)
(iv) National Investigation Agency (see here)
(v) Income Tax authorities (see here)
(vi) Sales tax authorities (see here)
(vii) Serious Fraud Investigating Office (SFIO) will have the power to arrest under Companies Act, 2013. However, provisions with respect to the same are yet to be notified.
6. Is there a maximum time before which a crime should be reported? for example this Asaram Bapu case: some woman has complained about rape after some 10 years. Isn’t there a limit before which you should report a crime?
According to Section 468 of the Criminal Procedure Code, no court shall take cognizance of an offence after the expiry of the period of limitation and the limitation periods are as follows:
(i) 6 months – if the offence is punishable with fine only;
(ii) 1 year – if the offence is punishable with imprisonment for a term not exceeding one year;
(iii) 3 years – if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years
In effect, there is no limitation period if the offence is punishable with imprisonment for a term exceeding three years.
For all practical purposes, there is no strict rule followed with respect to limitation. Reasons for delay in filing complaint, if any, are generally recorded in the FIR. However, if there is an inordinate and unexplained delay to file an FIR, the same may be taken as a ground for seeking quashing of such FIR.
7. Can a police officer arrest without warrant?
Yes, if in case of cognizable offences, a police officer can arrest without warrant. Some of the cognizable offences are murder, robbery, theft, rioting, counterfeiting etc. Non-cognizable offences are less serious offences.
Schedule I to the Criminal Procedure Code classifies the offences under IPC as cognizable and non-cognizable.
8. What is the procedure to be followed while making arrest?
(i) While making an arrest, every police officer should bear an accurate, visible and clear identification of his name which will facilitate easy identification.
(ii) He should prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made counter-signed by the person arrested.
(iii) The police officer should also inform the person arrested (unless the memorandum is attested by a member of his family) that he has a right to have a relative or a friend named by him to be informed of his arrest.
[For all practical purposes, nobody cares.]
9. Do you have the right to meet an advocate during interrogation?
Yes, when a person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.
10. What is the difference between bail and anticipatory bail?
Bail is post-arrest and anticipatory bail is pre-arrest.
If a person apprehends that he might be arrested in a particular case, he may approach sessions court or high court seeking anticipatory bail.
After a person is arrested, he may apply for bail. In all bailable offences, bail is a matter of right and in non-bailable offence, bail is discretion of court. Though it is the discretion of the court, there are well settled principles as to when a bail has to be granted or rejected.
11. Why most of the accused despite having committed serious crimes come out of bail? Why can’t they be just jailed for longer term?
Because, the criminal law in India on this aspect works on following basic principles:
(a) There is a presumption of innocence in favour of the accused till he is found to be guilty.
(b) The bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning that bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused.
(c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must be taken into consideration.
(d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and willingly available to submit himself to the custody of the Court at any given point of time.
(e) The grant of bail ought not to be denied only on the perceived apprehension by the Court that the petitioner, if restored to a liberty, he will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused he is going to misuse his liberty or so as to create
I am hoping to write a Part – II with few more questions soon.
If you have anything further to add/ ask, please write in as comments. Thanks.