Declining to condone “lawlessness by police”: HC orders execution of guidelines on Inter-state investigation and arrest
Sandeep Kumar Vs State of Delhi
W.P (Crl.) No.2189/2018
About/from the judgment:
Taking serious note of repeated instances of the police having grossly violated the procedure for inter-state investigation or arrest of persons located in another state or union territory, the Delhi High Court recently ordered implementation of recommendations proposed by a Court-constituted committee in such cases.
The Committee - comprising retired High Court judge, SP Garg and IPS officer, Kanwaljeet Deol - was constituted last year.
The Committee had initially been tasked to inquire into the conduct of police officials from police stations in Delhi and Uttar Pradesh over the detention of a couple from their home in the campus of the Jawaharlal Nehru University (JNU), Delhi.
In view of the procedural irregularities from the part of police officials that emerged from the case, the Bench of Justices S Muralidhar and Talwant Singh noted,
Such practice is obviously contrary to the police manuals and if such actions go unchecked, it will amount to condoning lawlessness by the police force. In a country governed by the rule of law, this is simply unacceptable.Delhi High Court
The Court further noted,
"There are also instances of persons impersonating police officers, producing fake identity cards and taking away persons or property. It appears that the extant instructions on the procedure to be followed by police officers of one State seeking to arrest persons or conduct searches and investigation in another State or Union Territory are not being observed. It is time to revisit the procedures devised to ensure that the life and liberty of persons is not compromised on account of the lawlessness of the police force.”
The Delhi High Court was dealing with a Habeas Corpus plea filed by a man for the release of his wife after she was forcibly taken away by the Uttar Pradesh police from their JNU residence.
The woman had converted from Islam to Hinduism before her marriage to the Hindu petitioner. Her family had objected to the marriage, and later her brother filed a complaint with the Ghaziabad police alleging that his sister had gone missing.
A team led by SI Sharma, from the Loni Police Station, later entered the JNU campus with the assistance of certain Delhi Police officials, and took away the woman from the JNU residence. The woman was eventually taken to her family in Uttar Pradesh. The petitioner told the Court that he was detained in the Loni police station for three days and two nights without production before the Magistrate.
High Court queries why an adult woman was “simply handed over” to her parents
During the course of hearings, the Court noted that the woman, in any case, was an adult and capable of making her own decisions.
While this was the case, the Court queried how she was “simply ‘handed over to her parents by the investigating officer’ knowing fully well that she had married … of her own free will.”
In this backdrop, the Court also took critical note of the submission by the Delhi Police that they had no intimation of the visit by the Uttar Pradesh Police. The High Court observed, in an order passed in 2018,
“If that is the case, it begs the question as to why they did not insist on following the letter of the law and instead simply allowed the police officials from PS Loni to take away two adults from the JNU campus."
Delhi High Court
When affidavits filed by the police officials to explain their conduct were found unsatisfactory, the Court constituted an independent Committee to conduct an inquiry into the case. The Committee was constituted after also taking on record that such incidents of the police having transgressed procedure in cases involving two states is far from a one-off occurrence.
The Committee found that the marriage between the petitioner and his wife was conducted on mutual consent following Hindu rites and customs.
Inter alia, it found that after she was forcibly taken away by the Loni police officials, the woman was pressured to give a statement before a Magistrate that she had left home over a quarrel with her sister and that she wanted to reunite with her parents.
Further, it was found that SI Sharma had concocted a false story before the Magistrate that the woman had been recovered at the Uttar Pradesh border based on secret information, instead of acknowledging that she had been taken away from the JNU residence.
On the other hand, her husband was found to have been illegally detained and criminally intimidated before his release.
Overall, the Committee found that the power to arrest had been grossly misused by SI Sharma of the Loni Police Station, in tandem with the family of the petitioner’s wife.
Certain irregularities were also found on the part of some other officials of the Vasant Kunj (North) and Loni Police. The Court has directed that disciplinary action be initiated against the name police officers.
Further, the Court also directed that Rs 50,000 each be awarded as compensation to the petitioner and his wife for the ordeal they were put to. The DGP of the Uttar Pradesh police was further directed to write to the couple, apologising for the actions of the police.
The Court further directed for the implementation of guidelines proposed by the Committee when it comes to the procedure of inter-state investigation or arrest by the police. This was directed to be done within two weeks,
The procedure proposed was 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.
- 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.
The Committee had made the recommendation after also noting that,
“Extant instructions of various state forces such as Karnataka already include this provision of informing after the event. Section 166 Cr PC also relevantly requires that if a search has to be conducted in another police station, the SHO may require the SHO of that police jurisdiction to do the needful. In case there are chances of loss of evidence, he may himself get the search conducted and forthwith inform the officer of the concerned police station.”
The High Court has directed that the matter be listed for July 6, 2020, before which time the CP, Delhi and the DGP, Uttar Pradesh are expected to place compliance reports before the Court.
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