CHAPTER-1
INTRODUCTION
Arrest in criminal jurisprudence signifies the detention of a person under the authority of
law in connection with an alleged or expected violation of the law. Police officers area entrusted
with wide powers of arrest under different circumstances, so are several other classes of officers
who are entrusted with the enforcement of penal enactments. Magistrates have powers of arrest
in certain circumstances and even private persons have the power to arrest in extraordinary
circumstances. But the power to arrest has to be exercised with intelligent discretion and caution.
More over, arrest is undoubtedly a serious interference with fundamental right of the
personal liberty of the citizen, which includes an arrestee or an accused, guaranteed under
Articles 21 and 22 of the Constitution of India and it has to be strictly in accordance with the
law, so as to be escaped the arresting authority from the punishment.
(A)MEANING OF ARREST:-
The term arrest is not defined in any Statute. However, the Dictionary of Law of Lexicon
has given a meaning of the term arrest as ‘an apprehension of a person by legal authority
resulting in depreviation of his liberty’. In English law, arrest consists of the actual seizure or
touching of a person’s body with a view to his detention. Further, in State of Punjab Vs Ajaib
Singh, AIR 1953 SC 10, the Supreme Court has defined the term arrest occurring in Article 22
of the Constitution of India as ‘indicating physical restraint of a person under the authority of
the law in respect of an alleged accusation or default or violation of the law.’
In ordinary parlance the terms arrest and custody are using as synonyms. But literally
they suggest a different meaning. Arrest means restraint of liberty of the person. It is a mode of
taking a person into custody. Custody means immediate charge and control exercised by person
under authority of law. Taking a person into custody is followed after arrest of the concerned
person. In, Directorate of Enforcement Vs Deepak Mahajan AIR 1994 SC 1775, the Supreme
Court laid down that taking of a person into judicial custody is followed after the arrest of the
person by the Magistrate on appearance or surrender. In every arrest there is custody but not
vice-versa and custody and arrest are not synonymous terms.
(B) PURPOSE OF ARREST:-
The purposes of arrest are twofold: the first land main purpose is to ensure the presence
of the accused at trial; the second is to prevent him from committing a serious crime (cognizable
offence).
Arrest of the offender especially of the dangerous and violent type does have a highly
beneficial effect on the morale of the society. Timely arrest of the accused persons in serious
cases is essential step in investigation; failure in this regard considerably weakens the position of
the prosecution.
(C) HUMAN RIGHTS VIS-À-VIS INDIAN CONSTITUTION ON
ARREST
(i) CONCEPT AND PHILOSPHY OF HUMAN RIGHTS:-
Universal Declaration of Human Rights by the U.N. on 10th December,1948 attach
importance to the protection of life and liberty of the individual and put emphasis on respect for
human dignity. It is now an International Law and Constitutional provision of protecting civil,
political, social and cultural rights of the individual and community without discrimination of
race, colour, religion and caste under the umbrella of the U.N. and the Indian constitution.
As per the provisions of human rights, life and dignity of the individual can not be
encroached to taken away by the Government or by its machineries or by any dominant group
excepting by the due procedure established by law. All are equal before law. No one will be
subjected to arbitrary arrest or detention. No accused or person should be subjected to inhuman
and cruel treatment in the hands of police, Magistrate and Jail administration. Thus, provisions
of human rights are concerned with the rightful attitudes in the administration of criminal justice
as well as humanitarian approach in the administration of the Criminal law.
There are as many as 30 articles in the Universal Declaration of Human Rights by the
U.N. Articles 3-21 deal with the civil and political rights of the individual, Articles 22-27 deal
with economic, social and cultural rights of the individual and groups of the individuals.
(ii) INDIAN CONSTITUTION AND HUMAN RIGHTS ON ARREST:
Our Constitution – makers through part – 111 and 1V of the Constitution gave expression
to the concept of human rights by providing fundamental rights to the citizen and even to the
accused in certain cases [e.g.; Article 20 (3)]. As a matter of fact, out of 30 articles of the
Universal Declaration of Human Rights, 1948, at least 23 Articles have been covered and
incorporated in the Constitution of India.
(iii) PROTECTIONS OF AN ARRESTEE UNDER THE INDIAN CONSTITUTION AS
WELL AS UNDER THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
(1948)
Safeguards and protections of an arrested person have been incorporated in the Indian
constitution under Articles 21 and 22 as well as in the Universal Declaration of Human Rights
(1948) under Articles 3, 5 & 9.
(a) PROTECTION OF AN ARRESTEE UNDER THE INDIAN
CONSTITUTION
Articles 21 and 22 of the constitution of India are the essence of the fundamental rights
with respect of the personal liberty of a citizen which includes an arrestee or an accused. These
two articles are discussed as follows:-
As per article 21, protection of life and personal liberty has been granted to every one
without any discrimination on ground of caste, race, religion, language and sex. Accordingly, no
one shall e deprived o f his life or personal liberty except by adopting due procedure established
buy law. No one will be compelled to live a subhuman condition. Every one has right to live as
human being, necessary for his physical and human existence.
Article 22 provides safeguards and protects individual from arbitrary arrest and detention.
It’s various clauses declare clearing that-
1) No person who is arrested shall be detained in custody without being informed the grounds
of such arrest nor shall he be detained the right to consult, and to be defended by a legal
practitioner of his choice.
2) Every person who is arrested and detained in custody shall be produced before the nearest
court of Magistrate within 24 hours excluding the journey time and no such person shall be
detained in custody beyond the said period without the authority of a Magistrate.
In, State of Maharastra Vs. Shoba Ram, Air 1966 SC 1910, the Supreme Court held
that as soon as an arrest is made in respect of citizen, operation of Article 22 of the Constitution
of India starts operation and he may take immediate step to regain his freedom.
(b) PROTECTION OF AN ARRESTEE UNDER THE UNIVERSAL
DECLARATION OF HUMAN RIGHTS (1948)
Article 3 says ‘everyone has the right to life, liberty and security of person’.
Article 5 says ‘no one shall be subjected to torture or to a cruel in human or degrading
treatment or punishment’.
Article 9 lays down, that ‘no one shall be subjected to arbitrary arrest, detention or
exile’.
CHAPTER- II
PROCEDURE FOR EFFECTING ARREST
Section 46, Cr.P.C. lays down the procedure for effecting of an arrest. According to
section 46, whether the arrest to be made is with a warrant or without a warrant, it is necessary
that in Making such an arrest the police officer or another person making the same actually
touches or confines the body of the person to be arrested unless there be a submission to the
custody by word of arrest is not an arrest, unless the person sought to be arrested submits to the
process and goes with the arresting officer. Any attempt by it self punishable under section 223
I.P.C.
The importance of the precise arrest – procedure becomes obvious while determining the
question as to whether at a particular time a person was under arrest or not.
Under section 46 (2), the police officer or any other person arresting may use all means
necessary to effect arrest if the person to be arrested evades or forcibly resists the arrest. “use all
means” is a very wide term and recognising this aspect section 46[3], sets the limit at this, i.e.
the arresting authority will not have the right to cause the death of the person to be arrested
unless the latter is acused of an offence punishable with death or imprisonment for life.
The words “may use all means” appearing in section 46 (2), are to be read with section
49, which say that an arrested person shall not be subjected to more restraint than is necessary to
prevent his escape.
As mentioning the words “may use all means” in section 46(2) the escorting police party
is caused some times for use of hand cuffing, particularly, when the party is brining the under
trail prisoners from jail to the court and vice-versa. In this context, the escorting police party
shall be know the guidelines of the Supreme Court on use of hand cuffings.
(A)GUIDELINES OF THE SUPREME COURT ON HAND CUFFINGS:
The Hon’ble Supreme Court has given its Judgments in the following cases on the subject
of hand cuffings as to when they are to be used and not be used.
(i) WHEN TO USE THE HAND CUFFINGSIn
Prem Shankar Shukla Vs Delhi Administration, AIR 1980 SC.1535, the Supreme
Court held that the handcuffs can be used by the escorting police party if the prisoner is
dangerous and desperate, or if the prisoner is likely to break out of custody or play the vanishing
tricks. The escorting party must from the opinion on the basis of antecedents of the prisoner.
Further, in Sunil Gupta Vs State of M.P. 1990 SCC (Cr.) 440, the Supreme Court held
that the escorting authority should record contemporaneously the reasons for hand cuffing under
trial prisoner even in extreme cases and intimate the court, so that the court may consider the
circumstances and issue necessary direction to the escort party.
(ii) NO HAND CUFF IN GENERAL –
In Sunil Batra Vs Delhi Administration, AIR 1978 SC 1675, the Supreme Court
maintained that the hand cuffs should not be used in routine manner. The minimum freedom of
movement which even on under trail prisoner is entitled to under Article 19 of the constitution,
can not be cut down cruelly by application of handcuff or other hoops.
Further, in Prem Shankar Shukla Vs Delhi Administration, AIR 1980 SC 1535,
Supreme Court held that the person can not be handcuffed only because he is charged with grave
offence not only for the convenience of the escort party. The rules, regulation and manuals of
various statutes authorizing the Police to use handcuff have been struck down as violative of
Article 14 of the Indian Constitution.
In the same above mentioned case (Prem Shanker Shukla) the Supreme Court has laid
down certain alternatives of handcuffs so as to abolish the practice of use of handcuffs: The
alternatives are;
i) Increase in the number of escorts;
ii) Arm the escort party, if necessary;
iii) Give special Training to escort party;
iv) Transport of prisoners in protected vehicle.
By adopting the above methods, the handcuffing is virtually abolished in the State of
Tamil Nadu.
CHAPTER -III
POWER TO ARREST
Arrest may be effected with warrant or without warrant. Arrest with warrant is dealt with
in chapter –VI under sections 70 to 81 of Cr.P.C. so, the scope of the present chapter is broadly
confined to arrest without warrant. The following officers/personnel are empowered to arrest
without warrant Viz.(A) Any Police officer , (B) The officer-in-Charge of a Police Station (C)
Private person (D) Magistrate (E) Armed force Personnel.
1.(A) Any Police Oficer, of whatever rank , may without an Order from a Magistrate and
without a warrant, a person on fulfillment of the conditions laid down in section, 41,42, 123 (6),
151 and 432 (3) of Cr. P. C.
(1) Under Section 41 ( i );
(a) any person concerned in cognizable offence or against whom reasonable
complaint made or credible information received or reasonable suspicion exists.
(b) any person having implement of house of house breaking without excuse.
(c) any proclaimed offender.
(d) any person suspected to be in possession of stolen property.
(e) any person who obstructs a police officer on duty , or who has escaped or
attempts to escape from custody.
(f) any deserter from Army , Navy or Air Force .
(g) for commission of offence out side India , if it is an offence in India .
(h) any released convict committing a breach of rule made under section 356 (5)
Cr.P.C.
(i) for whose arrest requisition has been received from another police officer.
(2) Under section 42, when a non – conizable offence is being committed by the accused in
his view and the accused refuses to give his name and address or gives a false name or
address.
(3) Under section 123 (6), when the person released violates the condition of releases .
(4) Under section 151, to prevent the commission of a cognizable offence, if designed by the
person.
(5) Under section 432 (3), any person whose suspension of remission of sentence has been
cancelled by State Govt.; owing to his failure to fulfil any condition.
(6) Under the Local and Special Laws which authorize the arrest without warrant, e.g. U/s 34
of the police Act 1861, U/S 64 of the Forest Act 1927, U/S 20 of the Arms Act 1959, U/S
30 of the Explosive Act 1884, U/S 59 ( 2 ) and 3 of the Delhi Police Act 1978, U/S 14 of
the Foreigners Act, 1946 and U/S 128 of the Motor Vehicles Act 1939.
(B) THE OFFICER – IN – CHARGER OF POLICE STATION Can arrest or
cause to be arrested without warrant under the following circumstance :-
(1) Any habitual offender or any person who is taking precaution to conceal himself
with a view to commit cognizable offence (Sec. 41 (2) )
(2) To dispurse any member of unlawful assembly (Sec. 129 (2)),
(3) In the interest of Investigation of a cognizable offence (Sec. 157)
(4) When witnesses refuse to attend court or execute a bond (Sec. 171)
(5) In exercise of the powers as mentioned at “A”.
(C) PRIVATE PERSON:-Under section 43 any private person can make an arrest or
caused to be arrested without warrant any person who in his presence commits a nonbailable
and cognizable offence or any proclaimed offender.
(D) MAGISTRATE:-Under Section 44 any Executive Magistrate or Judicial Magistrate
can arrest or cause to be arrested a person without warrant on fulfillment of the following
conditions(
1) Offence (any) must be committed in his presence;
(2) It must be within his local Jurisdiction;
(3) The Magistrate is competent to issue warrant of arrest for the arrest of such person.
(E) ARMED FORCE OFFICERSIn
the absence of Executive Magistrate any Commissioned officer or Gazetted officer of
the Armed Forces can arrest any person in order to disperse any unlawful assembly for public
security (Secs. 130(2) & 131)
II PROTECTION FROM ARRESTThe
following personnel have been protected from being arrested under the Indian
Constitution as well as under the provisions of the Cr.P.C.
1. The president and Governors are immuned from arrest in any process issued by any
court during their tenure of office (Art.361 (3) of the Indian Constitution).
2. Members of the Armed Forces can not be arrested without sanction of the Central
Govt. for any thing done by them in discharge of official duty (Sec. 45 of
Cr.P.C.).
3. The Judicial officers can not be arrested without approval of either the District
and Session Judge or Chief Justice of the High Court as the case may be.
(Judicial officers’ Service Association Vs State of Gujarat, AIR 1991 SC (2176))
4. Members of the Parliament or Assemblies can not be arrested without prior
permission of the speaker when they are in the precincts of the houses business
(Proceedings). If arrest is outside precincts, then send intimation to the speaker.
(III) PROCEDURAL SAFEGUARDS OF A FEMALE ACCUSED ON
ARREST AND SEARCH.
The Criminal Procedure Code, 1973 has provided certain safeguards under the following
circumstance to protect the honour of the female accused in respect of arrest and search.
1) If ingress to the place (search of place entered by person sought to be arrested) can
not be obtained under sub section (1) and such place is an apartment in the actual
occupancy of a female (not being the person to be arrested) the Police officer before
search of that place shall give a notice to the said female to withdraw [Sec.47 (2)].
2) The search (personal) of a female shall be made by a female with strict regard to
decency [Sec.51 (2) &100(3)].
3) A female accused shall be examined only under the supervision of a female registered
medical practitioner [Sec.53 (2)].
4) A District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may
give immediate relief of restoration to a female, above or below18 years, who is in
un-lawful detention for unlawful purpose (Sec.98).
In, Christian Community welfare council of India vs. Govt. of Maharastra, 1995 Cr.
L.J.4223 (Bom.), The Bombay High Court has directed to the State Govt. to constitute a
committee to see that females be not arrested without presence a lady Constable and no female
be arrested after sun-set and further separate lock ups be provided for them
CHAPTER-IV
PROCEDURE AFTER ARREST
The procedure to be followed after arrest is laid down in different circumstances by
different sections of the Cr.P.C. The procedure is as follows:-
1) The Police officer making arrest has to inform the arrested person of the grounds of arrest
(Art. 22 of the constitution & Sec. 50 of the Cr.P.C. )
2) He has to inform the arrested person of his right to be realized on bail if the offence is a
bailable one (Sec.50).
3) The Police officer making arrest, if no bail is given, shall conduct a personal search on
arrestee and prepare a memo about it. He shall take all articles other then necessary wearing
apparel into possession. A receipt showing the articles so seized shall be given to such an
arrestee. Where an arrestee is a woman the search shall be made by an other woman with
strict regard to decency (Sec.51). If the articles so seized are offensive weapons, he has to
send them to the court before which an arrestee is to be produced (Sec.52).
4) He can get an arrestee medically examined to afford evidence of commission of offence and
can use necessary force for such examination (Sec.53).
5) He has to produce the arrested person before a Magistrate without unnecessary delay and not
to detain an arrestee beyond 24 hours (excluding journey time) without obtaining order of the
Magistrate (Secs. 56&57).
6) An arrestee shall not be subjected to more restraint than is necessary to prevent his escape
(e.g. handcuffs is one method of restraint)-(Sec.49).
7) Officers–in–charge of Police Station shall report to the District Magistrate or Sub- Divisional
Magistrate of all arrests made without warrant(Sec. 58).
8) The person arrested by Police shall not be discharge except on his own bond or on bail or
under the orders of a Magistrate (Sec.59).
The Police officer making arrest has an obligation to adopt the above mentioned
procedure after arrest
CHAPTER-V
RIGHTS OF ARRESTED PERSON
The following are the rights of an arrested person guaranteed under the Indian
Constitution as well as under the Criminal Procedure Code, 1973,
(1) RIGHT TO BE INFORMED OF THE GROUNDS FOR ARREST:-
In every case of arrest with or without a warrant the person arresting shall communicate
to the arrested person, without delay, the grounds for his arrest (Art, 22 (1) of the Constitution of
India, Secs. 50 (1), 55, 75 of Cr.P.C.).
(2) RIGHT TO BE INFORMED OF RIGHT TO BAIL:-
The arrested person must be informed of his right to be released on bail when he is
arrested without warrant in a bailable offence (Sec. 50 (2) & (436)).
(3) RIGHT OF NOT BEING DETAINED FOR MORE THEN 24 HOURS
WITHOUT JUDICIAL SCRUTINY:-
In case of every arrest the person making the arrest is required to produce the arrested
person before the Magistrate within 24 hours from the time of arrest. The time required for
journey from the place of arrest to the court of magistrate will be excluded in computation of the
duration of 24 hours (Art. 22 (2) of the Constitution and section 57),
(4) RIGHT TO CONSULT A LEGAL PRACTITIONER:-
Both the Constitution and the provisions of Cr.P.C. recognize the right of every arrested
person to consult a legal practitioner of his choice (Art. 22 (1) and Sec. 303)
(5) RIGHT OF AN ARRESTED INDIGENT PERSON TO FREE LEGAL
AID AND TO BE INFORMED ABOUT ITIn,
Khatri (II) Vs, State of Bihar, (1981) I S.C.C. 627, the Supreme Court has held
that the State is under a constitutional mandate (implicit in Art,21) to provide fee legal aid to an
indigent accused person, and that this constitutional obligation to provide legal aid does not arise
only when the trial commences but also when the accused is for the first time produced before
the Magistrate as also when he is remanded from time to time.
The Supreme Court has gone a step further in, Suk Das VS Union Territory of
Arunchal Pradesh, (1986)2 S.C.C 401, where in it has been categorically laid down that unless
refused, failure to provide free legal aid to an indigent accused would vitiate the trial, entailing
setting aside of the conviction and sentence. The accused shall be assigned a pleader for his
defence, by the court, at the expense of the state when he has not sufficient means to engage a
pleader (Sec. 304).
(6) RIGHT TO BE EXAMINED BY A MEDICAL PRACTIONERThe
Magistrate can direct for medical examination of the arrested person on fulfillment
of the following conditions; (a) the medical examination will disprove the commission of any
offence by him or (b) establish the commission of any other offence against his body (Sec. 54)
CHAPTER-VI
CONSEQUENCES OF ILLEGAL ARREST AND USE OF THIRD
DEGREE METHOD BY THE POLICE
(A) CONSEQUENCES OF ILLEGAL ARREST:- An arrest which is not
authorized by the Law is an illegal arrest . The following are the consequences of illegal arrest.
1) If the arrest is illegal, the person who is being so arrested can exercise the right of private
defence in accordance with , and subject to, the provisions contained in sections 96 to
106 of the I.P.C.
2) If the public servant having authority to make arrests, knowingly exercises that authority
the contravention of Law and effect and section 220 of IPC. Apart from this special
provision , any person who illegally arrests another is punishable under section 342 of
the I.P.C. for wrongful confinement.
3) A civil suit for damages may be instituted against the arresting officer for illegal arrest,
false imprisonment, illegal confinement etc. after giving notice to the Government and
the concerned officer under section 80 of the Code of Civil Procedure.
4) A trial will not be void simply because the provision relating to arrest have not been fully
complied with.
5) A writ of Habeas Corpus can be filed either in the Supreme Court under Article 32 or in
the High Court under Article 226 of the Indian Constitution for release of the person
illegally arrested or detained in custody by any authority .
(B) USE OF THIRD DEGREE METHOD BY THE POLICE AND ITS
EFFECTS:
Use of third degree method in course of interrogation and investigation means ‘obtaining
confession from the accused under coercion and physical torture’. Police is no doubt, under a
legal duty and has legitimate right to arrest a criminal and to interrogate him during the
investigation of an offence but law does not permit use of third degree method or torture of
accused in custody during investigation and investigation with a view to solve the crime.
Frequent threats and insistence on answering is a form of pressure, especially in the atmosphere
of police station (under physical torture) is an example of third degree method.
EFFECTS:
1) As per sections 330 and 331 of IPC Physical torture of an accused during interrogation is
an offence and hence punishable from 7 to 10 years imprisonment.
2) Article 5 of the Universal Declaration of Human Rights and Article 20(3) of the Indian
Constitution, Section 29 of the Police Act, 1861 and Rule 3 of the Police code of Conduct
forbid such physical torture on the accused.
CHAPTER: VII
OBSERVANCE OF Dos AND DON’T s BY THE POLICE
OFFICER REGARDING ARREST
(A) Dos:
The police officer who makes an arrest has an obligation and a duty to observe the
following mandatory provisions, soon after arrest is made, under the Criminal Procedure Code,
1973:-
1) The Police Officer making arrest; shall conduct a personal search on arrestee and shall
take all articles other than necessary wearing apparel and place them in safe custody. The
Police Officer should prepare a receipt showing the articles so seized and a copy of the
same shall be given to an arrestee. Where an arrestee is a woman the search shall be made
by another woman with strict regard to decency (Sec.51).
2) When the articles seized, u/s 51, are offensive weapons the arresting officer has to send
them to the Court before which an arrestee is to be produced (Sec.52).
3) Arrest should be entered in an arrest card by the person who made the arrest. It should
also be noted in the general diary with all particulars. Time of arrest should be
particularly noted. Any articles found on the person also should be entered.
4) The Police Officer making arrest has to inform an arrestee of the grounds of arrest and of
his right to be released on bail if the offence is a bailable one (Sec.50).
5) Arrestee should be produced before the magistrate within 24 hours from the time of arrest
(Sec.57).
6) The Police officer making arrest has a reason to believe that on examination of an
arrested person body, by the registered Medical Practioner, which will afford evidence as
to the commission of an offence he should send the arrested person to medical
practitioner for examination (Sec.53).
7) The person arrested by police shall not be discharged except on his own bond or on bail
or under the orders of a Magistrate (Sec.59).
8) In, Joginder Kumar Vs. State of U. P.-AIR 1994 SC. 1349 the Supreme Court issued
the following guidelines for the police officers to observe for effective enforcement of the
fundamental rights guaranteed under Articles 21 and 22 (1) of the Indian Constitution.
i) The Police Officer shall inform the arrested person when he is in custody that is
entitled if he desires to have one friend; relative or other person, who is known to
him or likely to take an interest in his welfare; told as far as practicable that he has
been arrested and where he is being detained.
ii) The entry shall be required to be made in the general diary of Police Station as to
who informed of the arrest.
(B) DONT ’S:-
A survey conducted by the police commission and research studies reveal that the police
invariably employ methods (which should not be in practice), such as-
1) Employ unfair methods to elicit confessions;
2) Use third degree methods in police lock-ups;
3) Detain the arrested persons beyond the statutorily permitted 24 hours in their custody;
4) Refuse the arrested persons to get in touch with legal practitioners of their choice;
5) Make informal, illegal and arbiter arrest;
6) Commit custodial torture, rape and murder;
7) Humiliate people and degrade persons in custody;
8) Make the detainees to starve and make them to resort to an undesirable option of committing
suicide;
9) Handcuff the arrested and chain them in lock-ups or parade them in public in chains when
they are taken to courts etc.
It is needless to say that these ways of exercising authority are wholly opposed to human
rights and human dignity.
CHAPTER: VIII
RECENT CASE- LAW ON ARREST
(1) In, SHEELA BARSE Vs. STATE OF MAHARASHTRA, (1983) 2 S.C.C. 96; the
Supreme Court held that the arrested accused person must be informed by the magistrate
about his right to be medically examined in terms of sections 54 of the Cr.P.C.
(2) In, ARVIND SINGH BAGGA Vs. STATE OF U.P & OTHERS,1995(1) 173, The
Supreme Court has deprecated the high handedness, illegal arrest and illegal detention of
female witness (named as Nidhi) in custody and the state of U.P. was directed to take
immediate steps to launch criminal prosecution against all the Police Officers involved in
the sordid affair. The Supreme Court has also directed the state of U.P. to pay
compensation of Rs. 10.000/-to Nidhi and Rs. 5.000/- to each of the other persons, who
were illegally detained and humiliated for no fault of theirs.
(3) In, ANUP SINGH Vs STATE OF HIMCHAL PARDESH, AIR 1995 SC 1941. The
Supreme Court held that the Officer In charge of Police Station, who was not physically
present all the time during confinement of deceased in the police station, can not escape
his criminal liability by passing the buck on the constables ( who were actually
responsible for the death of the deceased), because criminal deeds committed by the
constables are deemed to have been committed with his tacit consent and connivance.
Accordingly, officer in charge of police station, (Aunp Singh, ASI) was convicted along
with the two constables.
(4) In, D.K. BASU Vs STATE OF WEST BENGAL, 1997 (1) J.T, (SC) I, The Hon’ble
Supreme Court has given the following guidelines, for the police officers regarding arrest
of persons, when the Executive Chairman, Legal Aid Services, West Bengal addressed a
letter to the Chief Justice of India drawing his attention to certain news items published in
various news papers relating to custodial violence. The letter was treated as a writ
application under Article 32 of the Constitution and the case was treated as a public
interest litigation. The guide lines are as follows:-
I. 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 police personnel’s who handle interrogation of the arrestee must be
recorded in a register.
II. 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 arrested by at least 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 countersigned by the arrestee and shall contain the time and date
of arrest.
III. A person who has been arrested or detained and is being held in custody in a police statione
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 him self such a friend or a relative of the arrestee.
IV. The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives out side the district or town through the
Legal Aid Organization in the district and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
V. The person arrested must be made aware of this right to have some one informed of his arrest
or detention as soon as he is put under arrest or is detained.
VI. 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.
VII. 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 the 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.
VIII. The arrestee should be subjected to medical examination by a trained doctor every 48 hours of
his detention in custody by a doctor on the panel of approved doctors appointed by Director,
Health Service of the concerned State or Union Territory. Director, Health Services should
prepare such a panel for all Tehsils and Districts as well.
IX. Copies of all the documents including the memo of arrest referred to above, should be sent to
the IIIaqa Magistrate for his record.
X. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
XI. A police control room should be provided at all district and state headquarters, where
information regarding the arrest and the place of the 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.
XII. Failure to comply with the requirements herein above mentioned shall apart from rendering the
concerned official liable for departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of court may be instituted in any High
Court of the Country, having territorial jurisdiction over the matter.
These requirements are in addition to the Constitutional and statutory safeguards and do
not detract from various other direction given by the courts from time to time in connection with
safeguarding all the rights and dignity of the arrestee.
Further, the Supreme Court has directed that the amount of compensation, to the victim,
as awarded by the writ court and paid by the state to redress the wrong done, may in a given case
be adjusted against any amount which may be already paid to the claimant by way of damages in
civil suit.
CHAPTER – IX
CONCLUSION
Police Officers are entrusted with wider powers of arresting a person without warrant.
But this power of arrest must be in accordance with Law not otherwise. Arrest is undoubtedly a
serious interference with the fundamental right of the personal liberty of the citizen, which
includes an arrestee or an accused, guaranteed under Articles 21 and 22 of the Constitution of
India and it has to be strictly in accordance with the Law so as to be escaped, the arresting
authority, from punishment.
In order to exercise effectively the power of arrest by a police officer, he must be well
versed with legal provisions relating to arrest, Supreme Courts guidelines and its decisions on
arrest up to date, particularly, when arresting women, children, judicial officers, M.L.A’s &
M.Ps and public servants etc. Moreover, the police should enforce the provisions relating to
arrest firmly and impartially without fear of favour, malice or vindictiveness. And also the
police should project their image as the protector of Human Rights.
BIBLIOGRAPHY
TEXT BOOKS
Ratan Lal & Dhiraj Lal : The Code of Criminal Procedure
R. S. Verma : Custodial Death & Human Rights
K. Krishna Murthi : Police Diaries & Statements etc.
ARTICLES
Justice K. Jayachandra Reddy : Human Rights perspectives-day-today
Policing (C.B.I. Bulletin, June
1997).
Dr. B. R. Sahay : Human Rights and Indian Constitution
(C.B.I. Bulletin, March 1999).
REFERENCE OF CASE – LAW
(1) State of Punjab Vs. Ajaib Singh, AIR 1953 SC 10.
(2) Directorate of Enforcement Vs. Deepak Mahajan, AIR 1994 SC 1775.
(3) State of Maharastra Vs. Shoba Ram, AIR 1966 SC 1910.
(4) Prem Shankar Shukla Vs. Delhi Administration, AIR, 1980 SC 1535.
(5) Sunil Gupta Vs. State of M.P. 1990 SCC (Cr.) 440.
(6) Sunil Batra Vs. Delhi Administration, AIR 1978 SC 1675.
(7) Christian Community Welfare Council of India Vs. Govt. of Maharastra, 1995 Cr. L.J.
4223 (Bom.)
(8) Judicial officers Service Association Vs. State of Gujarat, AIR 19991 SC 2176.
(9) Khatri (II) Vs. State of Bihar, (1981) 1 SCC 627.
(10) Suk Das Vs. Union Terrority of Arunachal Pardesh (1986) 2 SCC 401.
(11) Joginder Kumar Vs. State of U.P., AIR, 1994 SC 1349.
(12) Sheela Barse Vs. State of Maharastra, (1983) SCC 96.
(13) Arvind Singh Bagga Vs. State of U.P. and others 1995 (1) SCJ 173.
(14) Anup Singh Vs. State of Himachal Pradesh, AIR 1995 SC 1941.
(15) D.K. Basu Vs. State of West Bengal, 1997 (1) J.T. (SC) 1.
QUESTIONS
1. What is meant by arrest and custody? Is arrest different from Custody?
2. What are the safeguards of on arrestee under the Indian Constitution as well as under the
universal declaration of human rights (1948)?
3. Write a critical note on ‘hand cuffings’.
4. Who are empowered to arrest a person without warrant under the Cr.P.C. 1973?
5. What are the procedural safeguards of a female accused on arrest and search?
6. Can An M.P. or M.L.A. be arrested? If so, state procedure of it?
7. Explain the rights of an arrestee?
8. What are the consequences of illegal arrest and use of third degree method by the Police?
9. Explain the procedure after arrest?
10. What are the Do’s and Dont’s on the part of police officer, to observe, regarding arrest?
11. What are the guidelines for the police officers regarding arrest, which are enumerated by
the Supreme Court in D.K. Basu Vs State of West Bengal?
Annexure – 1
1. FORM OF ARREST WARRANT
(See Section 70 Cr. P. C.)
To (name & designation of the person or persons who is or are to execute the
warrant).
Whereas (name of accused) of (address) stands charged with the offence of
(state the offence), you are here be directed the said ……………… and to produce
him before me. Herein fail not.
Dated, this …………………… day …………………………. 19……….
(Seal of the court) (Signature)
Annexure – 11
ENDORSEMENT OF ARREST WARRANT
( See Section 71 )
This warrant may be endorsed as follows :-
If the said ______________________ shall give bail himself in the sum of
rupees _____________________________ with one surety in the sum of rupees
______________________________ (or two sureties each in the sum of rupees
__________________________) to attend before me on the __________________
Day of _________________ and to continue so to attend until otherwise directed
by me, he may be released.
Dated this ____________________ day of ________________ 19_______.
(Seal of the Court) (Signature)
------------------------------------------------------------------------------------------------------------
THE SUPREME COURT OF INDIA
JOGINDER KUMAR
Vs.
STATE OF U.P.
DATE OF JUDGMENT: 25/04/1994
BENCH:
VENKATACHALLIAH, M.N.(CJ)
MOHAN, S. (J)
ANAND, A.S. (J)
CITATION:
1994 AIR 1349 1994 SCC (4) 260
JT 1994 (3) 423 1994 SCALE (2) 662
Judgement
ORDER
1. This is a petition under Article 32 of the Constitution of India. The petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as an advocate. The Senior Superintendent of Police, Ghaziabad, Respondent 4 called the petitioner in his office for making enquiries in some case. The petitioner on 7-1-1994 at about 10 o'clock appeared personally along with his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others before Respondent 4. Respondent 4 kept the petitioner in his custody. When the brother of the petitioner made enquiries about the petitioner, lie was told that the petitioner will be set free in the evening after making some enquiries in connection with a case.
2. On 7-1-1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of Respondent 4, sent a telegram to the Chief Minister of U.P. apprehending his brother's implication in some criminal case and also further apprehending the petitioner being shot dead in fake encounter.
3. In spite of the frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of 7-1-1994, it came to be known that petitioner is detained in illegal custody of 5th respondent, SHO, P.S. Mussoorie.
4. On 8-1-1994, it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. So far the petitioner has not been produced before the Magistrate concerned. Instead the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for release of the petitioner.
5. On 9-1-1994, in the evening when the brother of petitioner along with relatives went to P.S. Mussoorie to enquire about the well being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the present petition has been preferred for the release of Joginder Kumar, the petitioner herein.
6. This Court on 11-1-1994 ordered notice to State of U.P. as well as SSP, Ghaziabad.
7. The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994. According to him, the petitioner has been released. To question as to why the petitioner was detained for a period of five days, he would submit that the petitioner was not in detention at all. His help was taken for detecting some cases relating to abduction and the petitioner was helpful in cooperating with the police. Therefore, there is no question of detaining him. Though, as on today the relief in habeas corpus petition cannot be granted yet this Court cannot put an end to the writ petition on this score. Where was the need to detain the petitioner for five days; if really the petitioner was not in detention, why was not this Court informed are some questions which remain unanswered. If really, there was a detention for five days, for what reason was he detained? These matters require to be enquired into. Therefore, we direct the learned District Judge, Ghaziabad to make a detailed enquiry and submit his report within four weeks from the date of receipt of this order.
8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.
In People v. Defore Justice Cardozo observed:
"The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Aclams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass."
10. To the same effect is the statement by Judge Learned Hand, in Fried Re3:
"The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise."
The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.
11. This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p.1032) quoting Lewis Mayers stated: (SCC p. 433, para 15)
"The paradox has been put sharply by Lewis Mayers:
‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.' "
Again (in AIR para 2 1, at p. 1033) it was observed: (SCC p. 436, para 23)
"We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting law-breakers. Currently, the trend in the American jurisdiction according to legal journals, is that 'respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws...'. (Couch v. United State). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice."
12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
"It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all."
As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.
13. Whenever a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is effected.
14. Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is effected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.
15. With regard to the apprehension of juvenile offenders Section 58 of the Code of Criminal Procedure lays down as under:
"Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise."
16. Section 19(a) of the Children Act makes the following provision:
"The parent or guardian of the child, if he can be found, of such arrest and direct him to be present at the Children's Court before which the child will appear;"
17. In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act,' 1984 based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1).
18. It is worth quoting the following passage from Police Powers and Accountability by John L. Lambert, p. 93:
"More recently, the Royal Commission on Criminal Procedure recognized that 'there is a critically important relationship between the police and the public in the detection and investigation of crime' and suggested that public confidence in police powers required that these conform to three principal standards: fairness, openness and workability." (emphasis supplied)
19. The Royal Commission suggested restrictions on the power of arrest on the basis of the "necessity of (sic) principle". The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure Sir Cyril Philips at p. 45 said:
"... we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria:
(a) the person's unwillingness to identify himself so that a summons may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons or property;
(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
(e) the likelihood of the person failing to appear at court to answer any charge made against him."
The Royal Commission in the above said report at p. 46 also suggested:
"To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case......
20. In India, Third Report of the National Police Commission at p. 32 also suggested:
"An arrest during the investigation of a cognizable case 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 accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India.
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides:
"Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there."
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
22. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
23. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
----------------------------------------------------------------------------------------------------------
Guidelines not to arrest 498a
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010
Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi
Hon'ble Amar Saran,J.
Hon'ble Shyam Shankar Tiwari,J.
On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length.
An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor 'Sahyog.'
This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the well-intentioned provision is not misused.
In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: "....In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points:
1.Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section � D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations.
2.Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged.
3.Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties.
4.What is the appropriate place where mediation should be conducted.
5.Should a time frame be laid down for concluding the mediation proceedings.
6.Who should be the members of the mediation cell in the district.
7.What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed.
8.Is training of mediators desirable and who should conduct the training?
9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.
Discussions on the points requiring formulation by the Court.
1. Whether registration of an FIR is mandatory?
Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer.
In paragraph No. 30 and 31 in State ofHaryana
(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of "information relating to the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a "reasonable complaint," or "credible information" or "reasonable suspicion" of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest.
The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case.
Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.
A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.
Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife.
It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner.
(3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made
Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report.
The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife's side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future.
4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised.
Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre.
5.Need for time frame for concluding the mediation proceedings.
The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre.
6.Who should be the members of the mediation cell in the district?
The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.
7.Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported
The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the 'Mahila Thana' especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from theCompetent Court
8.Necessity of training to mediators.
We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be co-ordianation between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts.
We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties.
The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders.
(9) Should offences under section 498-A IPC be made compoundable?
We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question.
TheApex Court M.P.
In Rajeev Verma v. State ofU.P.
The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi:
"There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts."
In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court.
A good option for providing recompense to the maltreated woman is "The Protection of Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). "Custody orders" (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent.
The Act also provides under section 14 for the Magistrate to send a matter for "counselling" before a registered "service provider," who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman.
In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable.
Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionaire regarding section 498-A of Indian Penal Code:
"While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution ? legislative or otherwise."
List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar Saran J)
The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance.
Order Date :- 30.9.2011
HSM
?Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010
Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi
Hon'ble Amar Saran,J.
Hon'ble Shyam Shankar Tiwari,J.
On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length.
An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor 'Sahyog.'
This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the well-intentioned provision is not misused.
In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: "....In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points:
1.Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section � D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations.
2.Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged.
3.Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties.
4.What is the appropriate place where mediation should be conducted.
5.Should a time frame be laid down for concluding the mediation proceedings.
6.Who should be the members of the mediation cell in the district.
7.What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed.
8.Is training of mediators desirable and who should conduct the training?
9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.
Discussions on the points requiring formulation by the Court.
1. Whether registration of an FIR is mandatory?
Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer.
In paragraph No. 30 and 31 in State of
(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of "information relating to the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a "reasonable complaint," or "credible information" or "reasonable suspicion" of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest.
The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case.
Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.
A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.
Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife.
It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner.
(3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made
Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report.
The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife's side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future.
4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised.
Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre.
5.Need for time frame for concluding the mediation proceedings.
The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre.
6.Who should be the members of the mediation cell in the district?
The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.
7.Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported
The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the 'Mahila Thana' especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the
8.Necessity of training to mediators.
We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be co-ordianation between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts.
We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties.
The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders.
(9) Should offences under section 498-A IPC be made compoundable?
We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question.
The
In Rajeev Verma v. State of
The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi:
"There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts."
In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court.
A good option for providing recompense to the maltreated woman is "The Protection of Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). "Custody orders" (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent.
The Act also provides under section 14 for the Magistrate to send a matter for "counselling" before a registered "service provider," who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman.
In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable.
Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionaire regarding section 498-A of Indian Penal Code:
"While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution ? legislative or otherwise."
List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar Saran J)
The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance.
Order Date :- 30.9.2011
HSM
No comments:
Post a Comment