In case of Sandeep Kumar vs State of (NCT) Delhi, W.P
(Crl.) No.2189/2018 decided on 12/12/2019, expressing their serious concern the
Court directed for the implementation of guidelines proposed by the Committee
constituted by the court when it comes to the procedure of inter-state
investigation or arrest by the police and also directed to take action against
police officers violating the provisions of law and awarded compensation to the
petitioner
The procedure proposed is based, inter alia, on Sections 48, 77,
79 and 80 of the Code of Criminal Procedure (CrPC). The guidelines proposed by
the Committee include the following:
Primary procedure to be followed by
Police Officers
·
The Police Officer after assignment of the case to him,
must seek prior
permission/sanction of the higher/superior officers in writing or on phone (in
case of urgency) to go out of State/UT to carry out investigation.
·
In a case when the police officer decides to effect an arrest,
he must set out the facts and
record reasons in writing disclosing the satisfaction that arrest is necessary for
the purpose of investigation.
·
He should move
the Jurisdictional Magistrate to seek arrest/search warrants under Section 78
and 79 Cr PC except in emergent cases when the time taken is
likely to result in escape of the accused or disappearance of incriminating
evidence or the procurement of arrest/search warrant would defeat the purpose.
The Police Officer must record
reasons as to what were the compelling reasons to visit other State without
getting arrest/search warrants.
·
Before proceeding outside the State, the police officer
must make a comprehensive
departure entry in the Daily Diary of his Police Station. It should
contain names of the police officials and private individuals accompanying him;
vehicle number; purpose of visit; specific place(s) to be visited; time and
date of departure.
·
If the possible
arrestee is a female, a lady police officer be made part of the team.
·
The Police Officers should take their identity cards with them. All police officers in
the team should be in uniform; bear
accurate, visible and clear identification and name tags with their
designations.
·
Before visiting the other State, the Police Officer must endeavour to establish
contact with the local Police Station in whose jurisdiction he is to conduct the
investigation. He must carry with him the translated copies of the
Complaint/FIR and other documents in the language of the State which he intends
to visit.
·
After reaching the destination, first of all, he should inform the concerned police station of the
purpose of his visit to seek assistance and co-operation. The
concerned SHO should provide/render all legal assistance to him. Entry to this
effect must be made at the said police station.
·
After reaching the spot of investigation, search, if any should be strictly conducted
in compliance of the procedure laid down u/s 100 Cr PC. All
endeavour should be made to join independent public witnesses from the
neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50
and 51 Cr PC. The process of arrest carried out by the police
must be in compliance with the guidelines given in DK Basu case (Supra) and the
provisions of CrPC.
·
The arrested person must be given an opportunity to consult his lawyer before he
is taken out of State.
·
While returning, the police officer must visit the local police station and cause an
entry made in the Daily Diary specifying the name and address of the person(s)
being taken out of the State; articles if any, recovered. The
victim's name be also indicated.
·
On arrival at the police station, the police officer must make an arrival entry in the
record and indicate the investigation carried out by him, the person arrested
and the articles recovered. He should also inform his senior police officers/SHO concerned about
it immediately. The superior Police
Officer shall personally supervise such investigation.
·
Endeavor should be made to obtain transit remand after producing the arrestee before the nearest
Magistrate unless exigencies of the situation warrant otherwise
and the person can be produced before the Magistrate having jurisdiction of the
case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
Duties upon Magistrates
·
The magistrate
before whom the arrestee is produced, must apply his mind to
the facts of the case and should not grant transit remand mechanically. He must
satisfy himself that there exists material in the form of entries in the case
diary that justifies the prayer for transit remand. The act of directing remand
of an accused is fundamentally a judicial decision. The magistrate does not act
in executive capacity while ordering detention of the accused. He must ensure
that requirements of S. 41 (l)(b) are satisfied.
·
The police
officer must send the case diary along with the remand report so that the
magistrate can appreciate the factual scenario and apply his mind whether there is a
warrant for police remand or justification for judicial remand or there is no
need for any remand at all. The magistrate should briefly set out reasons for
his decision.
·
Another mandatory procedural requirement for the Magistrate
considering a transit remand application is spelt out in Article 22 (1) of Constitution of
India. This entitles the person arrested to be informed as soon
as may be the grounds of such arrest.
·
The Magistrate
has to ensure that the arrested person is not denied the right to consult and
to be defended by a legal practitioner of his choice. The
Magistrate should ask the person arrested brought before him whether in fact he
has been informed of the grounds of arrest and whether he requires to consult
and be defended by any legal practitioner of his choice.
Other directions
·
In terms of Section 41C, CrPC, control rooms be established in every district. Names
and addresses of the persons arrested and designation of the Police Officers
who made the arrest be displayed. Control
Room at State level must collect details of the persons so arrested.
·
The police officer must record all the proceedings conducted by
him at the spot and prepare an
'arrest memo' indicating time, date of arrest and name of the
relation/friend to whom intimation of arrest has been given. It must reveal the
reasons for arrest.
·
Since the arrestee is to be taken out of his State to a place
away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family
member/acquaintance to remain with him till he is produced before the
jurisdictional Magistrate. Such family member would be able to
arrange legal assistance for him.
·
The arrested
person must be produced before the jurisdictional Magistrate at the earliest,
in any case, not beyond 24 hours from the date of arrest
excluding the journey time so that arrest of such person and his detention, if
necessary, may be justified by a judicial order.
·
The 24 hours
period prescribed u/s 57 Cr PC is the outermost limit beyond
which a person cannot be detained in police custody. It does not empower a police officer to keep a
person in police station a minute longer than is necessary for the purpose of
investigation and it does not give him an absolute right to keep a person till
24 hours.
·
The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and
credible information. He must satisfy himself about the existence of
the material to effect arrest. There must be definite facts or averments as
distinguished from vague surmises or personal feelings. The materials before
him must be sufficient to cause a bona-fide belief.
·
To make the arrest, the Police officer cannot take shelter under another person's
belief or judgment. He must affect arrest at his own risk and responsibility as the effect
of illegal arrest could be commission of offence of wrongful confinement
punishable u/s 342 IPC. Burden
lies on the IO to satisfy the Court about his bona-fide. No arrest
can be made because it is lawful for the police officer to do so. Denying a
person of his liberty is a serious matter
·
Medical
examination soon after arrest to avoid possibility of
physical torture during custody should be conducted.
·
The IO must maintain a complete and comprehensive case diary indicating the
investigation carried out by him.
·
The log book of
the vehicle used for transportation must be maintained and
signed. The IO must indicate whether the vehicle was official or a private one;
name of its driver and how and by whom it was arranged. Only official vehicle
should be used for transportation to the extent possible.
·
MHA/Central Govt/Commissioner of Police must frame
suitable guidelines for police
officers to render all suitable assistance. The failure to adhere to
the rules/guidelines should render the police officer liable for departmental
action as well as contempt of the Court
·
The public
prosecutor should provide required assistance to the police
officer visiting his State at the time of seeking transit remand.
·
The MHA/State Government should circulate the
Rules/Guidelines/Notifications etc from time to time to the Police officers in
the State to create awareness. Periodically
training should be provided to the Police Officers to sensitize them.
·
Instructions/Guidelines of similar nature should exist in all
the States/UTs for speedy, smooth and effective inter-State investigation.
·
The delinquent
Police Officer can be directed to pay compensation under the
public law and by way of strict liability.
Guidelines to ensure adults are not
illegally and forcibly taken away against their free will
·
At the time of recovery of the prosecutrix, the police
officer, if he is satisfied
that she is adult, should ascertain from her at the spot, whether she was
present there with her free will.
·
If the victim/prosecutrix is not willing to accompany the police
officer or her relatives, the police
officer must not exert force on the prosecutrix to take her away against her
wishes. However, if the prosecutrix/victim of her own accord
expresses willingness to accompany the police officer/relatives, her consent in
writing should be obtained at the spot.
·
In case where the police officer finds the victim/prosecutrix to
be a 'minor', soon after recovery, she should be produced before the local Child Welfare
Committee for further decision regarding her custody. She must
not be made to stay in the Police Station during night hours.
·
Statement
of the prosecutrix u/s 164 Cr.P.C. must be recorded at the
earliest.
Guidelines for when it is not
feasible to inform the local police in advance
·
In case of urgency or other considerations in the interest of
investigation, it is not found
feasible to inform the police station encompassing the jurisdiction of the
search, seizure, arrest or investigation before the event, this should be done
soon after the search, seizure, arrest etc. has been conducted.
·
In all cases a
diary entry should mandatorily be made in the police station of jurisdiction.
