Cover page

About the Book Your Laws Your Rights book is especially meant for BA Programme and BA(Honours)
Political Science and LLB syllabus. It will be useful for all those who are generally interested in studying
Law. The object of the book is to introduce the basic concepts of Laws and Rights in India. More often
than not, when we talk of laws we mean authoritatively sanctioned rules, which are considered essential
for a well ordered society. Yet laws in a democracy are also about constituting a society marked by
equality, freedom, and dignity. The rights approach to law has assumed importance in democracies,
precisely because of people's struggles to broaden the understanding of law as something which reflects
the will of the people. As such law becomes an important source of rights and duties, which develop and
strengthen alongside institutions of representative democracy, constitutional norms, and the rule of law.
This book aims to understand law as a source of rights, as a progressively widening sphere of substantive
justice, welfare, and dignity. The book covers the basic themes like Rule of Law Criminal Justice System
in India, FIR, Detention and Bail, Human Rights, Consumer Rights, Labour Laws, Right to Information,
Laws related to crime against women etc.

Dr Vijay Kumar Bhatia is an Assistant Professor of Political Science at Ramlal Anand College,
University of Delhi is a renowned academician and a prolific researcher. He has been teaching Political
Science for more than decade. He worked as Research Officer at LNJP Institute of Criminology and
Forensic Science and Indian Institute of Public Administration. He has contributed more than dozen
articles and research papers in various national and international journals and books. He has presented
more than dozen research papers at various International Conferences in India and abroad. Dr Bhatia
obtained his MA, MPhil and PhD from Jawaharlal Nehru University and LLB from Faculty of Law
University of Delhi. His research interest includes Human Rights, International Relations, and Politics of
Central Asian Republics. Beside this Dr Vijay Kumar Bhatia is a member of editorial board of many
journals.

ISBN 938384829-4

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Your Laws and Your Rights
Edited By
Vijay Kumar Bhatia

Pinnacle Learning
New Delhi
ISBN: 978-93-83848-29-4

Your Laws and Your Rights

© Authors

All rights reserved. No part of this book may be reproduced or utilized in any form or by means,
electronic or mechanical including photocopying, recording etc. without permission in writing from the
publisher.

First Printed in 2017

Price: 550/-

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 CONTENTS
Foreword

Preface

Acknowledgement

Chapter 1 - Law: Meaning and Concept 01

Dr Vijay Kumar Bhatia and Dr Kshama Sharma

Chapter 2 - Introduction to Human Rights 05

Dr Vijay Kumar Bhatia

Chapter 3 - Human Rights and Indian Constitution 16

Dr Ramesh Kumar

Chapter 4 - Rule of Law And Criminal Justice 45

In India

Alok Kumar

Chapter 5 - Procedure to file complaint: Role of 61

First Information Report

Jasper Vikas George

Chapter 6 - Criminal Justice: Arrest, Detention 109

and Bail
Chapter 7 - Rights of Consumers under Consumer 166

Protection Act, 1986

Prem Chand

Chapter 8 - Class Segregation by Wage Categories 205

and Prerogative of Minimum Wages:

Analysis of Right in reality

Dr. K.J Sophy

Chapter 9 - Right to Information Act 2005: 243

Challenges and Prospects

Dr. Triranjan Raj

Chapter 10 - Disability and Equality of Participation 279

and Opportunity

Jasper Vikas George

Chapter 11 - Caste Inequality and Laws related 300

to Abolition of Untouchability and Protestation against Atrocities

Sitaram Kumbhar

Chapter 12 - Legal System for Women: Laws related 340

to Domestic Violence, Rape and Sexual Harassment

Dr Mehnaz Najmi

Chapter 13 - Rural Employment Guarantee and the 380

Role of MGNREGA

Sitaram Kumbhar
Chapter 14 - Rights of Forest Dwellers 414

Superna Priyadarshini

Annexure 438

1 Preface

2 Fundamental Rights

3 Directive Principles of State Policy

4 Fundamental Duties

5. Classification of Offences

About Authors 473

Page 45

Chapter 4
Rule of Law and Criminal Justice In India: A study
Alok Kumar

INTRODUCTION

When society came into existence, there was hardly any rule which could regulate the behaviour of the
person constituting the society. There was a need for a system that could regulate human behaviour and
minimise the friction among them on the basis of a set principle that was in consonance with justice and
fair play. Many tools were developed for the development of the society and its betterment. In furtherance
of this objective, i.e., the betterment of the society, many principles were developed with the development
of the complex relation of state and its citizens and rule of law is among them. The principle of rule of
law required that laws be adopted in accordance with established procedures and that they are enforced
consistently and even-handedly. The rule of law is intended to ensure that a government exercises its
authority fairly, and it is crucial to securing liberty and justice for the people of any nation. The rule of
law signifies that nobody is deprived of his rights and liberties by an administrative action; that the
administrative authorities perform their functions according to law and not arbitrarily; that the law of the
land are not unconstitutional and oppressive; that the supremacy of courts is upheld and judicial control of
administrative action is fully secured.

The existence of rule of law in any country can be ascertained through many denominators factors and
one and important among them is the situation of criminal justice of the concerned country. The
objectives of criminal justice are prevention and control of crime, maintenance of public order and peace,
protection of the rights of victims as well as persons in conflict with law, punishment and rehabilitation of
those found guilty of committing of crimes, and generally the protection of life and property against crime
and criminality.
Page 46

The rule of law must be evaluated in two distinct realms: criminal justice and civil justice. As the chapter
has limited the scope to the rule of law with respect to criminal justice only hence the discussion revolves
accordingly.

CONCEPT OF LAW

Law affects all aspects of our life. It rules us from cradle to grave. It plays an important role in our daily
life, right from buying a newspaper or a bottle of milk to any other big or small item necessary for our
life. Law is so important for our life that it becomes necessary to understand various aspects of law.

'Law' is a notional pattern of conduct to which actions do or ought to conform. 'Law' is a large body of
rules and regulations, based mainly on general principles of justice, fair play, and convenience, which
have been worked out by governmental bodies to regulate human activities.

Page 47

After discussing the concept of Law, the next section a outline the doctrine of "Rule of Law".

RULE OF LAW

The expression 'Rule of Law' plays an important role in the administrative law. It provides protection to
the people against the arbitrary action of the administrative authorities. The expression 'Rule of Law' has
been derived from the French phrase 'la Principle de legality', i.e., a government based on the principles of
law. In simple words, the term 'rule of law' indicates the state of affairs in a country where, in the main,
the law rules. Law may be taken to mean mainly a rule or principle which governs the external actions of
human beings and which is recognised and applied by the State in the administration of justice.

The concept of 'Rule of Law' is of old origin. Edward Coke is said to be the originator of this concept,
when he said that the King must be under God and Law; he, thus, vindicated the supremacy of law over
the pretensions of the executives. Prof. A.V. Dicey later developed on this concept in the course of his
lectures at the Oxford University. Dicey was an individualist; he wrote about the concept of Rule of Law
at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey's
concept of Rule of Law contemplated the absence of wide powers in the hands of government officials.
According to him, wherever there is discretion, there is room for arbitrariness. Further, he attributed three
meanings to Rule of Law.

(1) The first meaning of Rule of Law is that no man is punishable or can lawfully be made to suffer
in body or goods except for a distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land.1

(2) The second Meaning of Rule of Law is that no man is above law. Every man, whatever his rank
or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals.2

(3) The third meaning of Rule of Law is that the general principles of the constitution are a result of
judicial decisions determining the rights of private persons in particular cases brought before the court.3
Page 48

Basic Principles of the Rule of Law

• Law is Supreme, above everything and everyone. Nobody is the above law.

• All things should be done according to law and not according to whim.

• No person should be made to suffer except for a distinct breach of law.

• Absence of arbitrary power being hot and sole of rule of law.

• Equality before law and equal protection of law.

• Discretion should be exercised within reasonable limits set by law.

• Adequate safeguard against executive abuse of powers.

• Independent and impartial Judiciary.

• Fair and Just procedure.

• Speedy Trial.

CRIMINAL JUSTICE AND RULE OF LAW IN INDIA

No country is perfect with respect to rule of law vis-a-vis criminal justice, but the minimum requirement
imposed on the criminal justice mechanism, which conforms to the rule of law, is that those accused of
breaking the law have the right to fair, speedy trials, and that convicted criminals are protected by rules
intended to ensure that they are treated humanely. Whether criminal justice in India conforms to the
doctrine of rule of law or not depends on various denominators which are as follows:

I. Incarceration

Today, the incarceration rate in India is 33 prisoners per 100,000 people of the population.4 Other
countries with comparable rates of incarceration include Russia, Belarus, and Bermuda. However, some
experts suggest that the actual rates of incarceration in more repressive countries are higher than
reported.5

ii. Capital Punishment

After independence, India retained several laws put in place by the British colonial government, which
included the Code of Criminal
Page 49

Procedure, 1898 (CrPC) and the Indian Penal Code, 1860 (IPC). The IPC prescribed six punishments that
could be imposed under law, including death. For offences where death penalty was an option, Section
367(5) of the CrPC, 1898, required the courts to record the reasons where they decided not to impose a
sentence of death: If the accused is convicted of an offence punishable with death, and the court sentences
him to any punishment other than death, the court shall in its judgment state the reason why sentence of
death was not passed. In 1955, the Parliament repealed Section 367(5) of the CrPC, 1898, significantly
altering the position of death sentence. Death penalty was no longer the norm and the courts did not need
special reasons for why they were not imposing death penalty in cases where it was a prescribed
punishment.

The Code of Criminal Procedure was re-enacted in 1973, and several changes were made, notably to
Section 354(3): When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

This was a significant modification from the situation following the 1955 amendment (where terms of
imprisonment and death penalty were equal possibilities in a capital case), and a reversal of the position
under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other
punishment was imposed). Now, judges needed to provide special reasons for why they imposed the
death sentence.

These amendments also introduced the possibility of a post-conviction hearing on a sentence, including
death sentence, in Section 235(2), which states: If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence,
and then pass sentence on him according to law.6

Besides the Indian Penal Code (IPC), various other laws prescribe death penalty as a punishment.7

Article 21 of the Indian Constitution ensures the fundamental right to life and liberty for all persons. It
adds no person shall be
Page 50

deprived of his life or personal liberty except according to procedure established by law. This has been
legally construed to mean if there is a procedure, which is fair and valid, and then the State by framing a
law can deprive a person of his life. While the Central Government has consistently maintained that it
would keep death penalty in the statute books to act as a deterrent, and for those who are a threat to the
society, the Supreme Court too has upheld the constitutional validity of capital punishment in "rarest of
rare" cases. First in Jagmohan Singh v. State of Uttar Pradesh,8 then in Rajendra Prasad v. State of Uttar
Pradesh,9 and finally in Bachan Singh v. State of Punjab,10 the Supreme Court affirmed the
constitutional validity of death penalty. It said that if capital punishment is provided in the law and the
procedure is a fair, just, and reasonable one, death sentence can be awarded to a convict. This will,
however, only be in the "rarest of rare" cases, and the courts should render "special reasons" while
sending a person to the gallows.11

iii. Fairness in Trial and Sentencing

The right to a fair trial is a norm of the rule of law as well as the international human rights law, and is
also adopted by many countries in their procedural law. It is designed to protect individuals from the
unlawful and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent
of which are the right to life and liberty of the person. The concept of fair trial is based on the basic
principles of natural justice. Although, the form and practice of the principles of natural justice may vary
from system to system on the basis of the prevailing conditions of the society concerned. The formal
account of the concept of fair trial has been accepted as human rights jurisprudence in the Universal
Declaration of Human Rights, 1948 (hereinafter as UDHR). The major features of fair criminal trial are
preserved in Article 10 and 11 of the UDHR. Article 14 of the International Covenant on Civil and
Political Rights (hereinafter as ICCPR) reaffirmed the objects of UDHR and provides that, "Everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law."The standards against which a trial is to be assessed in terms of fairness are
numerous, complex, and constantly evolving.
Page 51

may constitute binding obligations that are included in human rights treaties to which the State is a party.
But they may also be found in documents which, though not formally binding, can be taken to express the
direction in which the law is evolving. As far as the Indian legal system is concerned, the international
promise of fair trial is very much reflected in its constitutional scheme as well as its procedural law.
Indian judiciary has also highlighted the pivotal role of fair trial.

Various elements of fair trial which is also conforming to the idea of rule of law are following:

a. Adversary Trial System

The system adopted by the CrPC, 1973, is the adversary system based on the accusatorial method. In the
adversarial system, the responsibility for the production of evidence is placed on the opposing party that
is prosecutions with the judge acting as a neutral referee between the parties. By contrast, in inquisitorial
trial system, the responsibility for the production of evidence at trial is the job of the trial judge and it is
the trial judge who decides which witnesses will be called at the trial and who will be questioning the
witnesses. The adversary system is more or less based on the notion of reconciliation of public and private
interests, which are public interest in punishing the wrongdoer and prevent him to commit more crimes
and private interest in preventing the wrongful convictions and protect his life and personal liberty. This
system of criminal trial assumes that the State, by using its investigative agencies and government
counsels, will prosecute the wrongdoer who will also take recourse to best counsels to challenge and
counter the evidences of the prosecution. But if we take a close look of the CrPC, we will find that there
are some provisions which negate the strict adherence to the adversarial trial system12 like Section 311
CrPC which empowers the court to examine any person as a witness though such person has not been
called by any party as a witness (similar power is also given to the court under Section 165 of the Indian
Evidence Act, 1872), Section 313 CrPC where the court can examine the accused at any time to get
explanation from him, Section 320 CrPC where certain offences to be compounded need prior permission
of the court, and Section 321 where the prosecutor cannot withdraw the case without tire
Page 52

consent of the court. Though the concept of adversary trial system is diluted in the CrPC, but still this
system is praised not only because of the protection it accords the accused but also because its
competitive style of presenting evidence and argument is thought to produce a more accurate result than
an inquisitorial system where the judge monopolises evidence taking. The judiciary has also advocated
the role of presiding judge as a participant in the trial, rather than as a mere spectator, in order to be an
effective instrument in the dispensation of justice.

b. Presumption of Innocence

The principle that the accused person is presumed to be innocent unless his guilt is proved beyond
reasonable doubt is of cardinal importance in the administration of justice. This notion is incorporated as
a right of accused person under many Conventions. Basically, this principle is based on the legal adage
that it is better that hundred criminals escape than that one innocent person is wrongfully convicted.

c. Independent, Impartial and Competent Judges

The basic institutional framework enabling the enjoyment of the right to a fair trial is that proceedings in
any criminal case are to be conducted by a competent, independent, and impartial court. Independence
presupposes a separation of powers in which the judiciary is institutionally protected from undue
influence by or interference from the executive branch. The rationale of this provision is to avoid the
arbitrariness and bias that would potentially arise if criminal charges were to be decided on by a political
body or an administrative agency. In a criminal trial, as the State is the prosecuting party and the
investigating machinery is also limb of the State, it is of utmost significance and importance that the
judiciary is unchained of all suspicion of executive influence and control, direct or indirect. In this regard,
Section 6 of the CrPC is relevant which separates courts of Executive Magistrates from the courts of
Judicial Magistrates. Article 50 of the Indian Constitution also imposes similar duty on the state to take
steps to separate the judiciary from the executive. Impartiality refers to the conduct of the judge. Bias is
the decisive factor for ascertaining a court's impartiality. It can, thus, be prima facie called in question
when a judge has taken part in the proceeding in some
Page 53

prior capacity or when he has a personal stake in the proceedings. But this presumption is taken away by
Section 479 of the CrPC, which prohibits trial of a case by a judge or magistrate in which he is a party or
otherwise personally interested.

d. Venue of Trial and Public Hearing

Fair trial also requires public hearing in an open court. Article 14(1)of the ICCPR also guarantees the
right to a public hearing as one of the essential elements of the concept of fair trial. It is a right not
belonging to the parties only, but to the general public also. The right to a public hearing means that the
hearing should be conducted orally and publicly as a rule, without a specific request by the parties to that
effect. The CrPC makes provision for open courts to conduct public hearing but it also gives discretion to
the presiding judge or magistrate that if he thinks fit, he can deny the access of the public generally or any
particular person to the court.13 The provisions regarding the venue or place of inquiry or trial are
contained in Sections 177 to 189 of the CrPC.lt is a general rule that every offence is to be inquired into
or tried by a court within whose local jurisdiction it was committed. Trial at any other distant place would
generally mean hardship to the parties in the production of evidence and it would also adversely affect the
defence preparation.

e. Knowledge of the Accusation

It is also one of the attributes of fair trial that the accused person is given adequate opportunity to defend
himself. But this opportunity will have no meaning if the accused person is not informed of the accusation
against him. Tire CrPC considered the value of this object and provided under many provisions14 in plain
words that when an accused person is brought before the court for trial, the particulars of the offence for
which he is accused shall be stated to him.

f. Trial in the Presence of the Accused

The general rule in criminal cases is that all inquiries and trials should be conducted in the presence of the
accused person. The underlying principle behind this is that in a criminal trial the court should not
proceed ex parte against the accused person. It is also necessary for the reason that it facilitates the
accused to understand properly the prosecution case and to know the witnesses against
Page 54

him so that he can check their truthfulness in a later stage. Though the CrPC does not explicitly provide
for mandatory presence of the accused in the trial,15 it can be indirectly inferred from the provisions
which allow the court to dispense with the personal presence of the accused person under certain
circumstances.16

g. Evidence to be Taken in the Presence of the Accused

As a logical corollary of Sections 228, 240, 246 and 251 (where the particulars of the offence have to be
explained to the accused person) it is also imperative that in a trial the evidence should be taken in the
presence of the accused person. Section 273 of the CrPCis significant in this regard which provides that
all evidence taken during the course of the trial shall be taken in the presence of the accused. This Section
provides for exception to this rule that if the personal attendance of the accused is dispensed with, the
evidence shall be taken in the presence of his pleader.

h. Cross-Examine Prosecution Witnesses

Article 14(3) (e) of the ICCPR states that in the determination of any criminal charge against the accused,
he is entitled to examine, or has examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him. This
mandates that the parties be equally treated with respect to the introduction of evidences by means of
interrogation of witnesses. The prosecution must inform the defence of the witnesses it intends to call at
trial within a reasonable time prior to the trial so that the defendant may have sufficient time to prepare
his/her defence. Though, in adversarial trial system, the burden of proving the guilt is entirely on the
prosecution and the law does not call for the accused to lead evidence to prove his innocence, yet the
accused is given a right to disprove the prosecution case or to prove special defence available to him. The
refusal without any legal justification by a magistrate to issue process to the witnesses named by the
accused person was good enough to vitiate the trial.

i. Expeditious Trial

Speedy trial is necessary to restore the confidence of the public in the judiciary. Delayed trial defeats the
objective of re-socialisation of the offenders too. Delayed justice leads to unnecessary
Page 55

harassment. Section 309(1) CrPC gives directions to the courts with a view to have speedy trials and
quick disposals.17 Though this feature is recognised as an element of fair trial, but the real problem is
how to make it a reality in actual practice where millions of cases are pending before the subordinate
courts for disposal. In Hussainara Khatoon v. State of Bihar,18 this court declared that speedy trial is an
essential ingredient of 'reasonable, just, and fair' procedure guaranteed by Article 21 and it is the
constitutional obligation of the State to set up such a procedure as would ensure speedy trial to the
accused. The State cannot avoid its constitutional obligation by pleading financial or administrative
inadequacy. As the guardian of the fundamental rights of the people, it is constitutional obligation of this
court to issue necessary directions to the State for taking positive action to achieve this constitutional
mandate. In Motilal Saraf v. State of J &K,19 the Supreme Court explained the meaning and relevance of
speedy trial and said that the concept of speedy trial is an integral part of Article 21 of the Constitution.
The right to speedy trial begins with actual restraint imposed by arrest, and consequent incarceration, and
continues at all stages so that any possible prejudice that may result from impressible and avoidable delay
from the time of commission of the offence till its final disposal can be prevented.

j. Prohibition on Double Jeopardy

Double jeopardy provides that if a person is tried and acquitted or convicted of an offence, he cannot be
tried again for the same offence or on the same facts for any other offence. This concept is embodied in
Section 300 of the CrPC which provides that persons once convicted or acquitted not to be tried for the
same offence or on the same facts for any other offence. Plea of double jeopardy is not applicable in case
the proceedings for which the accused is being tried are distinct and separate from the offence for which
the accused has already been tried and convicted. If we compare tire constitutional position of India and
America on double jeopardy, we will find that the protection under Article 20(2) of our Constitution is
narrower than that given in the American constitution. Under the American Constitution, the protection
against double jeopardy is given for the second prosecution for the same offence irrespective of whether
an accused was acquitted or convicted in the first trial. But under Article 20(2), the protection
Page 56

against double punishment is given when the accused has not only been 'prosecuted' but also 'punished'
and is sought to be prosecuted for the second time for the same offence.

k. Aid of Counsel

Lawyers in criminal courts are necessities, not luxuries. The requirement of fair trial involves two things:
a) an opportunity to the accused to secure a counsel of his own choice, and b) the duty of the State to
provide a counsel to the accused in certain cases. The right is recognised because of the obvious fact that
ordinarily an accused person does not have the legal knowledge and the professional skill to defend
himself before a court of law wherein the prosecution is conducted by a competent and experienced
prosecutor.

In India, right to counsel is recognised as a fundamental right of an arrested person under Article 22(1)
which provides, inter alia, no person shall be denied the right to consult and to be defended by a legal
practitioner of his choice. Sections 303 and 304 of the CrPC are manifestations of this constitutional
mandate.

Further, Article 39A was also inserted in the Constitution as per Constitution (42ndAmendment)
Act,1976, which requires that the state should pass suitable legislations for promoting and providing free
legal aid. This Article also emphasises that free legal service is an unalienable element of 'reasonable, fair
and just' procedure for without it a person suffering from economic or other disabilities would be
deprived of the opportunity for securing justice. To fulfill this constitutional mandate, the Parliament
enacted Legal Services Authorities Act, 1987. Section 12 of the said Act provides legal services to the
persons specified in it.

iv. Police

The primary responsibility of the police is to protect the life, liberty, and property of citizens. It is for the
protection of these rights that Criminal Justice System has been constituted assigning important
responsibilities to the police. They have various duties to perform, the most important among them being
maintenance of law and
Page 57

order and investigation of offences. The Indian legislature and judiciary has always tried to minimise the
arbitrariness in the hands of the police so that they should also conform to the rule of law.

v. Compensation to Victims of Crime

In the post-Independence period, criminal trials in India were governed by the Criminal Procedure Codes
1898 and 1973. Till the year 2008, there was a provision, more or less similar in both the Codes, for
compensation to the victims of the offence that is section 545 in the old Code and section 357 in the new
Code.

Section 357 CrPC, 1973 - Order to pay compensation:

1. In case of Conviction and Fine is part of Sentence to Accused

"When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine
forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to
be applied to -

a) Expenses incurred in prosecution: In covering the expenses properly incurred in the prosecution;

b) Compensation to victims: In the payment to any person of compensation for any loss or injury
caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a
Civil Court;

c) Compensation in case of death: When any person is convicted of any offence for having caused
the death of another person or of having abetted the commission of such an offence, the fine imposed may
be used in paying compensation to the persons who are covered for relief under the Fatal Accidents Act,
1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them
from such death;

d) Compensation of victim in other offence: When any person is convicted of any offence which
includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly
received or retained, or of having voluntarily assisted in disposing of, stolen property
Page 58

knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of
such property for the loss of the same if such property is restored to the possession of the person entitled
thereto."

vi. Prison Conditions and Rehabilitation of offenders

Prisons in the India are operated both by the Union Government and by individual State Governments.
For less serious crimes, offenders may be sentenced to short terms in local jail - which also hold
defendants awaiting trial - or to alternative forms of punishment such as community service, probation, or
restitution.

Prisoners are guaranteed adequate housing, nutrition, exercise, and medical care. Inmates have the right to
practice their religions, to send and receive mail, to use exercise facilities, and to be free from
unnecessary intrusions on their dignity and privacy. Many prisons also offer educational, work, and other
opportunities that are designed both to keep inmates occupied and to train them to play productive roles in
society when they are released.

CONCLUSION

The rule of law signifies that nobody is deprived of his rights and liberties by an administrative action;
that the administrative authorities perform their functions according to law and not arbitrarily; that the law
of the land are not unconstitutional and oppressive, and that the supremacy of courts is upheld and judicial
control of administrative action is fully secured.

After analysing different provisions of the Human Rights, the Constitution of India, the Indian Evidence
Act, and the Criminal Procedure Code, which are reflecting different corners of the criminal justice
system, it can be submitted that the criminal justice system adopted by the Indian judiciary are very much
conforms to the doctrine of rule of law. Besides this, the Indian judiciary is also playing a balancing role
with different elements of the criminal justice system, i.e., speedy trial, legal aid, victim compensation,
etc., through its celebrated judgements in a number of cases.20
Page 59

References
1 The view of Dicey is quoted by Garner in his Book on 'Administrative Law'.

2Ibid.

3 Ibid.

4 World Prison Brief, International Centre for Prison Studies, http://www.prisonstudies.org/world-prison-

brief-data visited on 25th Nov. 2016.

5 Tbid.

6 Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.

7 Capital Offences in IPC: Section 121 (Treason, for waging war against the Government of India),
Section 132 (Abetment of mutiny actually committed), Section 194 (Perjury resulting in the conviction
and death of an innocent person), Section 195A (Threatening or inducing any person to give false
evidence resulting in the conviction and death of an innocent person), Section 302 (Murder), Section 305
(Abetment of a suicide by a minor, insane person or intoxicated person), Section 307 (2) (Attempted
murder by a serving life convict), Section 364A (Kidnapping for ransom), Section 376A (Rape and injury
which causes death or leaves the woman in a persistent vegetative state), Section 376E (Certain repeat
offenders in the context of rape) and Section 396 (Dacoity with murder)

Capital Offences in other laws: Sections 34, 37, and 38(1) The Air Force Act, 1950, Section 3(1)(i) The
Andhra Pradesh Control of Organised Crime Act, 2001, Section 27(3) The Arms Act, 1959 (repealed),
Sections 34, 37, and 38(1) The Army Act, 1950, Sections 21, 24, 25(l)(a), and 55 The Assam Rifles Act,
2006, Section 65A(2) The Bombay Prohibition (Gujarat Amendment) Act, 2009, Sections 14, 17,
18(1)(a), and 46 The Border Security Force Act, 1968, Sections 17 and 49 The Coast Guard Act, 1978,
Section 4(l) The Commission of Sati (Prevention) Act, 1987, Section 5 The Defence of India Act, 1971,
Section 3 The Geneva Conventions Act, 1960, Section 3 (b) The Explosive Substances Act, 1908,
Sections 16, 19, 20(l)(a), and 49 The Indo-Tibetan Border Police Force Act, 1992, Section 3(l)(i) The
Karnataka Control of Organised Crime Act, 2000, Section 3(l)(i) The Maharashtra Control of Organised
Crime Act, 1999, Section 31A(1) The Narcotics Drugs and Psychotropic Substances Act, 1985, Sections
34, 35, 36, 37, 38, 39, 43, 44, 49(2)(a), 56(2), and 59 The Navy Act, 1957, Section 15(4) The Petroleum
and Minerals Pipelines (Acquisition of rights of user in land) Act, 1962, Sections 16,19, 20(l)(a), and 49
The Sashastra Seema Bal Act, 2007, Section 3(2)(i) The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, Section 3(l)(i) The Suppression of Unlawful Acts against Safety of
Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002; and Sections 10(b)(i) and
Section 16(l)(a) The Unlawful Activities Prevention Act, 1967.

8 AIR, 1973 SC 947.

9 AIR, 1979 SC 916.

Page 60

10 AIR, 1980 SC 898.

11 The Indian Express, New Delhi, dated 27.5.2015.

12 Provisions which show departure from the adversary trial system are Sections 228 and 240 which
suggest that charge against the accused is to be framed by the court and not by the prosecution, Sections
303 and 304 which confers on the accused not only a right to be defended by a lawyer of his choice but
also provide in case of an indigent accused person a right to get legal aid for his defence at State's cost
[Article 22(1) of our Constitution confers similar right on the accused person], Section 311 which
empowers the court to examine any person as a witness though such person has not been called by any
party as a witness (similar power is also given to the court under Section 165 of the Indian Evidence Act,
1872), Section 313 where the court can examine the accused at any time to get explanation from him,
section 320 where certain offences to be compounded need prior permission of the court, section 321
where the prosecutor cannot withdraw the case without the consent of the court.

13 Section 327 CrPC.

14 Sections 228(2), 240(2), 246(2), 251 of the CrPC.

15 Sections 235(2) and 248(2) which are related to pre-sentence hearing require that the judge shall hear
the accused on the question of sentence before passing the sentence provide for the presence of the
accused.

16 Sections 205(1), 273, and 317 of the CrPC. Section 205(1) provides that "whenever a magistrate issues
summons, he may, if he sees reasons to do, dispense with the personal attendance of the accused and
permit him to appear by his pleader." This power is limited to the first issue of process and that it cannot
be exercised at any later stage, it is immaterial for this purpose that whether the case is a summons case or
a warrant case. Under section 317 the court can dispense with the personal presence of the accused if such
attendance is not necessary in the interests of the justice, or that the accused persistently disturbs the
proceedings in court. But this power can only be exercised after satisfying the following prerequisites;
that the accused person is represented by a lawyer and the judge or magistrate has recorded his reason for
doing so.

17 Section 309 directs that every inquiry or trial proceeding shall be held as expeditiously as possible.
Clause (1) provides that when the examination of witnesses has once begun, the same shall be continued
from day to day until all the witnesses in attendance have been examined. The court, after recording its
reason, may adjourn the same beyond the prescribed day.

18 (1980)1 SCC 98 at 107.

19 (2007) 1SCC (Cri) 180.

20 Russainara Khatoon & Ors. v. Home Secretary, State Of Bihar, AIK 1979 SC 1369, Smt. Nilabati
Behera Alias Lalit vs. State Of Orissa and Ors. AIK 1993 SC 1960,Sunil Batrav.Delhi Administration
AIK1980SC1579. Ect.
Page 61

Chapter 5
Procedure to file complaint
Role of First Information Report
Jasper Vikas George

INTRODUCTION

It is always essential to know one's rights and duties as the same are necessary to empower oneself. There
are various laws passed by the legislature for empowering the citizens of the country. Unfortunately, due
to lack of awareness, citizens are unable to use the rights available to them in an appropriate manner.
Reporting of crime is one such law whose awareness is limited to the students of law, and the public in
general is not aware of the same. The law relating to reporting of crime is one of the most important rights
enshrined in the Criminal Procedure Code (CrPC), 1973. Since reporting of crime affects the liberty of the
accused, therefore, utmost importance is given towards reporting of the complaint under the CrPC, and
detailed procedure is prescribed accordingly. Justice Mathew in his majority judgment in Prabhu Daval
Deorath case, while emphasising on the preservation of personal liberty, had expressed his view, "The
gravity of the evil to the community resulting from anti-social activities can never furnish an adequate
reason for invading the personal liberty of a citizen, except in accordance with the procedure established
by the Constitution and the laws. The history of personal liberty is largely the history of insistence on the
observance of the procedure. Observance of procedure has been the bastion against wanton assaults on
personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person
is that he shall not be deprived of it except in accordance with the procedure established by law."1 This
chapter, therefore, deals with the procedure established by law for filing of First Information Report (FIR)
and the role played by FIR in the dispensation of justice in the criminal justice system. Impartial and
unbiased reporting of offences in a
Page 62

particular society is a sign of its healthiness. And FIR, in this process, is the first step that not only allows
the police to immediately start an investigation into a cognizable offence, but it also helps society in
reposing faith in the criminal justice system and delivering justice to the victim. Reporting of crime varies
according to the nature of an offence.

Indian Penal Code has classified almost 300 types of offences, along with their punishment, in two
separate categories - 'cognizable' and 'non-cognizable' offences. FIR is registered only in cases related to
'cognizable offences'2 and therefore, it is essential to know the difference between 'cognizable offences'
and 'non- cognizable offences'. The reporting procedures of 'cognizable' and 'non-cognizable' offences are
altogether different.

Cognizable offences are of serious nature such as murder3, dacoity4, robbery5, grievous hurt6, rape7,
kidnapping8, etc., and therefore, the police officer starts his investigation immediately without waiting for
taking permission from the Magistrate9 and arrests the accused person without taking warrant from the
Magistrate and in accordance with the First Schedule,10 whereas non-cognizable offences are those
offences in which the police officer has to take permission from the Magistrate before investigating the
offence11 and police has no authority to arrest without warrant.12 Non-cognizable offences such as
defamation, contempt of court, etc., are of less serious nature and therefore, do not require immediate
attention. In short, in cases pertaining to cognizable offences, the police may arrest without a warrant and
without an order from the Magistrate, any person who has committed or is suspected to have committed a
cognizable offence. Police may also arrest persons without a warrant for the purpose of preventing a
crime. This reporting of offences is also subject to jurisdiction and subject matter.

There are various offences which are subject to special state departments, such as economic offences are
subject to Economic Offences Wing. Similarly, cyber-crimes are investigated by the Cyber Crime Team
or Cell of the police. Specialised departments are created to investigate particular types of offences that
are very serious in nature and require special type of expertise and attention.
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According to John Hostettler, "Criminal justice is the complex system, with many aims and agencies,
which is used in the main by the government to maintain social control, curtail crime, enforce laws and
administer justice. It also allows the State to interfere in people's lives and even coerce them. In doing so
it is crucial that the rights of both victims and accused persons are balanced and related to each other and
the community."13 Even the Supreme Court in Committee for Protection of Democratic Rights, vs. State
of West Bengal and others observed, "Article 21 of the Constitution in its broad perspective seeks to
protect the persons of their lives and personal liberties except according to the procedure established by
law. The said Article in its broad application not only takes within its fold enforcement of the rights of an
accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen
providing for fair and impartial investigation against any person accused of the commission of a
cognizable offence, which may include its own officers. In certain situations, even a witness to the crime
may seek for and shall be granted protection by the State."14 Reporting of crime in this regard is very
crucial for the sustenance of the criminal justice system and to gain the faith of the community, in
particular. Reporting of crime always helps and empowers the victim and repose his faith in the criminal
justice system. The process of criminal investigation begins when the police learn of a crime that has been
committed (or is yet to be committed). The police learn of criminal activity (both committed and yet to be
committed) in two ways, either they may discover it themselves, or a citizen may report such activity to
them. And once "police are aware of criminal activity, the pre- arrest investigation begins. There are two
objectives to this stage. First, police must determine whether a crime has been committed. Second, if a
crime has been committed, police attempt to gather sufficient evidence to charge and convict the person
believed to have committed the crime.'15 Timely registration of FIR in this context proves to be a lethal
weapon against the accused and helps the criminal justice system in taking timely action against the
offenders. The Supreme Court in Ram Lal Narang case discussed the duty of the police officer in relation
to the reporting of crime and other appropriate steps to be taken thereafter. The Apex Court held, " Under
the CrPC, whenever an officer in charge of the police station received information relating to the
commission of a
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cognizable offence, he was required to enter the substance thereof in a book kept by him, for that purpose,
in the prescribed form (Section 154, CrPC). Section 156 of the Code of Criminal Procedure invested the
Police with the power to investigate into cognizable offences without the order of a Court. If, from the
information received or otherwise, the officer in charge of a police station suspected the commission of a
cognizable offence, he was required to send forthwith a report of the same to the Magistrate empowered
to take cognizance of such offence upon a police report and then to proceed in person or depute one of his
subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and to
take measures for the discovery and arrest of the offender (Section 157, CrPC). He was required to
complete the investigation without unnecessary delay, and, as soon as it was completed, to forward to the
Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed
form, setting forth the names of the parties, the nature of the information and the names of the persons
who appeared to be acquainted with the circumstances of the case {Section 173(l)CrPC}. He was also
required to state whether the accused had been forwarded in custody or had been released on bail. Upon
receipt of the report submitted under Section 173(1) of the Code of Criminal Procedure by the officer in
charge of the police station, the Magistrate empowered to take cognizance of an offence upon a police
report might take cognizance of the offence {Section 190(1)(b), CrPC}. Thereafter, if, in the opinion of
the Magistrate taking cognizance of the offence, there was sufficient ground for proceeding, the
Magistrate was required to issue the necessary process to secure the attendance of the accused (Section
204, CrPC). The scheme of the Code thus was that the FIR was followed by investigation, the
investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the
offence on receipt of the police report and, finally, the Magistrate taking cognizance issued process to the
accused."16 And this whole process starts with the registration of FIR in cases of cognizable offences.
Generally, the public is not aware of the differences between "cognizable and non-cognizable offences'
and therefore, they should only inform about all offences in general. If the reporting is found to be of a
serious or cognizable offence, in that case the police shall register the FIR and start its investigation
Page 65

immediately. But if the reporting is found to be related to a non- cognizable offence, the police will not
act immediately and inform the Magistrate, and when the Magistrate directs the investigative officer to
investigate, only then the police officer starts the investigation. Below, various ways of filing a criminal
complaint have been discussed in detail.

VARIOUS WAYS OF FILING OF COMPLAINT

There are various ways available under the provisions of the CrPC, 1973, to file a complaint, such as
filing of complaint relating to cognizable offence before the police under Section 154 of the CrPC,17
filing of complaint related to non-cognizable offence before the police, filing complaint before the
Magistrate under Section 200 of the CrPC, etc.

Registration of FIR is considered as the first cornerstone of rule of law and the whole criminal
administration starts functioning from here. Filing a complaint is always considered as the first step
towards justice, and if the grievance of the victim is considered here itself, the possibility of justice is
larger. The procedure of reporting of complaint is provided under chapter XII of the CrPC, 1973. Section
15418 elaborately provides about how the informant or victim can inform a police officer about the
commission of a cognizable offence and how the FIR can be registered.

REPORTING OF NON-COGNIZABLE OFFENCE

The process of reporting a non-cognizable offence is similar to cognizable offence. Thus, a person has to
report of the commission of a non-cognizable offence to the police at the police station only where, when
the information is given to an officer-in-charge of die police station of the commission, within the limits
of such station, of a non-cognizable offence, he shall enter or cause to be entered such substance of the
information in a book known as the ‘Station Diary' or 'Daily Diary' kept at every police station, and refer
the informant to the Magistrate.19 And when the Magistrate gives an order to the police officer to
investigate a non-cognizable case,20 any police officer receiving such order may exercise the same
powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge
of a police station may exercise in a
Page 66

cognizable case.21 But where a case relates to two or more offences of which at least one is cognizable,
the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-
cognizable.22 The Supreme Court in Sharat Chandra Sahu case held, "Although a case may comprise of
several offences of which some are cognizable and others are not, it would not be open to the police to
cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of
cognizable and non-cognizable offences) is to be treated a cognizable, the police had no option but to
investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or
non- cognizable both, provided it is found by the police during investigation that the offences appear,
prima facie, to have been committed."23

REPORTING OF COGNIZABLE OFFENCE

Any person can inform the police about the commission of, or apprehension of the commission of, a
cognizable offence. Section 39 of the CrPC provides a whole list of offences where the public is supposed
to inform the police about the commission of a crime on time. There cannot be a specific list of offences
which needs reporting because, as a prudent citizen, it is the duty of every person to report the
commission of, or apprehension of the commission of, every crime, irrespective of its nature. There is a
whole list of offences provided under Section 39 of the CrPC, which require immediate reporting to the
police by the citizens because of their seriousness. Every person, therefore, who is aware of either the
commission of, or of the intention of any other person to commit, any offence, which is punishable under
the following sections of the Indian Penal Code (IPC), 1860, namely Sections 121 to 126, both inclusive,
and Section 130 (offences against the State specified in Chapter VI of IPC); Sections 143, 144, 145, 147
and 148 (offences against the public tranquility specified in Chapter VIII of IPC sections 161 to 165A,
both inclusive (offences relating to illegal gratification);Sections 272 to 278, both inclusive (offences
relating to adulteration of food and drugs, etc.); Sections 302, 303 and 304 (offences affecting life);
Section 364A (offence relating to kidnapping for ransom etc.); Section 382 (offence of theft after
preparation made for causing death, hurt or restraint in order to the
Page 67

committing of the theft); Sections 392 to 399, both inclusive, and Section 402 (offences of robbery and
dacoity); Section 409 (offence relating to criminal breach of trust by public servant, etc.); Sections 431 to
439, both inclusive (offences of mischief against property); Sections 449 and 450 (offences of house-
trespass); Sections 456 to 460, both inclusive (offences of lurking house-trespass); and Sections 489A to
489E, both inclusive (offences relating to currency notes and bank notes) shall, in the absence of any
reasonable excuse, inform to the nearest magistrate or police officer about the same.24In the present
century, there are many more special or other offences identified and prescribed as punishable as per
many other penal statutes and therefore, need appropriate attention and reporting to the police. Offences
prescribed in Narcotic Drugs and Psychotropic Substances Act, 1985, Copyright Act, The Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, etc., also need timely reporting to the
police so that appropriate steps can be taken. The timely reporting of the commission of aforesaid crimes
helps in effective investigation of the crimes, whereas the timely reporting of the intention to commit the
aforesaid crimes helps in preventing the happening of the crime. In both the cases, the reporting of the
crime is crucial. Below we will discuss the detailed procedures related to the registration of FIR and the
role played by FIR in dispensing justice to the victims.

WHAT IS FIRST INFORMATION REPORT (FIR)?

First information is information related to commission of, or apprehension of commission of, a

cognizable offence given to the police first in point of time, or on the basis of which the investigation
commences. Any person who is a victim of or a witness to a crime should, as soon as possible, inform the
police regarding the same or write down the details and submit it to the nearest police station. A police
officer, on the basis of such oral information or signed written complaint disclosing the happening of a
cognizable offence, is statutorily duty-bound to lodge an FIR. FIR is the basic document which informs
about the happening of a cognizable offence, and Section 154 provides the whole procedure in which
such information is to be reported and recorded. The essential ingredients of Section 154 are as follows;
Page 68

(I) Every information relating to the commission of a cognizable offence, whenever it is given orally
to an officer-in-charge of a police station, it is his duty that he shall reduce the information in writing or
direct some other person to reduce the same in writing. Then the police must read the contents to the
informant so that all the information received is put in writing and no information is left outside the
purview of the FIR. But when the information given to the police is vague and indefinite in character, it
cannot be treated as the first information at all. In Tapinder Singh case, the Supreme Court held, "The
telephonic message recorded in the Daily Diary of the police station, if it was a cryptic and anonymous
oral message which did not in terms clearly specify a cognizable offence, must not be treated as a First
Information Report. The mere fact that this information was the first in point of time could not by itself
clothe it with the character of first information report. The question whether or not a particular document
constitutes an First Information Report has to be determined on the relevant facts and circumstances of
each case."25 Information means information only and not credible information. In Bhajan Lal case, the
Supreme Court observed, "In Section 154(1) of the Code, the legislature in its collective wisdom has
carefully and cautiously used the expression 'information without qualifying the same as in Section
41(1)(a) or (g) of the CrPC wherein the expressions 'reasonable complaint' and 'credible information' are
used. Evidently, the non-qualification of the word' information' in Section 154(1) unlike in Section
41(1)(a) and (g) of the CrPC may be for the reason that the police officer should not refuse to record an
information relating to the commission of a cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or credibility of the information. In other words,
'reasonableness' or 'credibility’ of the said information is not a condition precedent for registration of a
case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the
legislature had purposely thought it fit to employ only the word 'information' without qualifying the said
word. Section 139 of the CrPC of 1861 (Act XXV of 1361) passed by the Legislative Council of India
Page 69

read that 'every complaint or information' preferred to an officer-in-charge of a police station should be
reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act
X of 1872) which there after read that 'every complaint' preferred to an officer-in- charge of a police
station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861
and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act II of
1974). An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for
recording an First Information Report is that there must be an information and that information must
disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer-in-charge of a police action satisfying the requirements of
Section 154(1) of the Code, the said police officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a case on the basis of such information."26 This
means, the only requirement for filing of FIR is that there must be an information and that information
must be related to some cognizable offence.

(ii) Every such information, whether given in writing or reduced to writing as explained in the
previous paragraph, shall be signed by the person giving it. The situation is different when it comes to
receiving information on the telephone or mobile phone. In Surajit Sarkar case, the Supreme Court held
that cryptic telephonic information cannot be treated as an FIR. Justice Madan B. Lokur further observed
in the same case, "Even though the oral information given to an officer in charge of a police station can be
treated as an FIR, yet some procedural formalities are required to be completed. They include reducing
the information in writing and reading it over to the informant and obtaining his or her signature on the
transcribed information. In the case of a telephonic conversation received from an unknown person, the
question of reading
Page 70

over that information to the anonymous informant does not arise nor does the appending of a signature to
the information, as recorded, arise.”27 This is the reason why the police has to act cautiously in
registering an FIR on the basis of information received on phone. Therefore, in J.K. Devaiy a case, the
Mysore High Court held, "To constitute a 'First Information Report' two conditions are to be fulfilled:
firstly, what is conveyed must be an information, and secondly, that information should relate to the
commission of a cognizable offence on the face of it.”28 Every such information related to cognizable
offence must be entered into the FIR register. In Lalita Kumari case, the Court made it clear that,
"Registration of FIR is to be done in a book called FIR book or FIR Register. Of course, in addition, the
gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the 'General Diary'
as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions.
The 'General Diary' is a record of all important transactions/events taking place in a police station,
including departure and arrival of police staff, handing over or taking over of charge, arrest of a person,
details of law and order duties, visit of senior officers, etc. It is in this context that gist or substance of
each FIR being registered in the police station is also mentioned in the 'General Diary' since registration
of FIR also happens to be a very important event in the police station. Since 'General Diary' is a record
that is maintained chronologically on a day-to-day basis (on each day, starting with new number 1), the
'General Diary' entry reference is also mentioned simultaneously in the FIR Book, while HR number is
mentioned in the 'General Diary' entry since both of these are prepared simultaneously. It is relevant to
point out that FIR Book is maintained with its number given on an annual basis. This means that each FIR
has a unique annual number given to it. This is on similar lines as the Case Numbers given in courts. Due
to this reason, it is possible to keep a strict control and track over the registration of FIRs by the
supervisory police officers and by the courts, wherever necessary. A copy of each FIR is sent to the
superior officers and to the concerned Judicial Magistrate."29 The Court further held, "The signature of
the
Page 71

complainant, is obtained in the FIR Book as and when the complaint is given to the police station. On the
other hand, there is no such requirement of obtaining the signature of the complainant in the 'General
Diary'. Moreover, at times, the complaint given may consist of a large number of pages, in which case it
is only the gist of the complaint which is to be recorded in the 'General Diary' and not the full complaint.
This does not fit in with the suggestion that what is recorded in 'General Diary' should be considered to be
the fulfilment/compliance of the requirement of Section 154 of registration of FIR. In fact, the usual
practice is to record the complete complaint in the FIR book (or annex it with the FIR form) but record
only about one or two paragraphs (the gist of the information) in the 'General Diary'."30 The purpose of
the 'General Diary' is completely different than the purpose of FIR. The provisions related to FIR are
mentioned in the CrPC, whereas the 'General Diary' is governed by Section 44 of the Police Act, 1861.

(iii) After the registration of the FIR, the police officer shall enter the substance of the complaint in a
book to be kept at the police station which is known either as 'Daily Diary' or as 'Station Diary' (Section
4431 of the Police Act, 1861) in such form as is prescribed by the State Government.

(iv) Keeping in mind that there has been a sharp increase in the crime rate in offences related to
women, especially after the Nirbhaya case 3, the Parliament acted promptly and came up with relevant
changes in Section 154 of tire CrPC, so as to make reporting of crimes against women prompt and
convenient, and also keeping in mind the empathy she needed to address her cause. And therefore, where
the information is related to cognizable offence, and is given by a woman against whom an offence under
Sections 326Av', 326B34, 354* 354A\ 354B'7, 354C*, 354D* 376*, 37bA4\ 376 B* 376C", 376DW,
376E45 or Section 509*of the Indian Penal Code is alleged to have been committed or attempted, such
information shall be recorded by a woman police officer or any woman officer. Here, it is specifically
mentioned that information shall be recorded by either a woman police officer or any woman officer. This
means information has to
Page 72

be recorded by a woman only, whether she is a police officer or not. This will help the female victims in
sharing and discussing information more freely.47 To execute this Section in spirit, the Legislature has
also amended Section 166A(c) of the IPC which lays down that "if a public servant (police officer) fails
to record any information given to him under Section 154(1) of the Code particularly in relation to
cognizable offences punishable under Sections 326A, 326B, 354, 354B, 370, 370A, 376, 376A, 376B,
376C, 376D, 376E or Section 509, he shall be punished with rigorous imprisonment for a term which
shall not be less than six months but which may extend to two years, and he shall also be liable to fine"48

Every State Police has its own mechanisms to provide counseling to the victims of sexual assault, and
how to approach the case thereafter. Similarly, the Delhi Police has also issued certain standing
instructions to all the police stations of Delhi regarding sexual offences. Circular No. 01/2012 was issued
by the Delhi Police and it is specifically regarding the instructions with respect to victims of sexual
offences/rape, etc. Past experience shows that in cases of sexual offences, because of the absence of the
victim from the courts, the case of the victim falls. Following instructions are issued by the Delhi Police
in this regard: "At the time of
Page 73

recording of First Information Report, the victim of such cases should be interacted by the Investigative
Officer (I.O.) in a peaceful environment to ensure maximum information about the incident and victim
herself. After getting initial information, a responsible lady police official should talk to the victim at
length to yield purposeful personal information about the victim. This will help prosecution to produce
the victim in the Court during the trial. During this interaction, expert members of NGOs working in this
field can also be associated so that the victim may feel more comfortable. During the course of interaction
with the victim the I.O. should try to get maximum details from victims such as to enable the victim to
produce before the court.

1. Name/ address and contact number of the victim in Delhi as well as of her native place.

2. Complete detail about the family members of the victim. It should include parents of the victim
and parents of her husband also if she is married.

3. Detail of property/ vehicle if any, in the name of the victim or any of her family members.

4. Her birth place with the name of concerned Police Station, Tehsil, and District.

5. Detail about school/college if relevant, with class/date of admission/leaving the institution.

6. Name, address and contact number of any friend / teacher who has been in regular contact with
her.

7. Details of other persons with whom she has been in regular contact.

8. Detail about the landlord, if she is a tenant. The landlord should be requested to inform the I.O. if
the victim changes her address.

9. Concerned beat staff should also be briefed to remain in contact with the victim/witness.

10. In case, the victim is minor, Child Welfare Committee /concerned court should be requested by
the IO to get verified the address and actual relation of the person to whom the victim is handed
over before passing such order."49
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Delhi Police has also issued Standing Order No. 303/2010 regarding guidelines to be followed by the
police while investigating cases of rape:

a) "Every SHO shall ensure that at his Police Station a lady police official/officer not below the rank
of a Head Constable available round the clock.

b) As soon as a complaint of the offence is received, the duty officer receiving the
complaint/information shall call the lady police official/ officer present at the police station and make the
victim and her family comfortable.

c) The duty officer, immediately, upon receipt of the complaint/ information intimate the 'Rape
Crises Cell' on its notified helpline number.

d) After making preliminary inquiry/investigation, the Investigation Officer along with the lady
police official/officer available, escort the victim for medical examination.

e) The Assistant Commissioner of Police shall personally supervise all investigation into the
offence.

f) The statement of the victim shall be recorded in private, however, the presence of family
members while recording statement may be permitted with a view to make the victim comfortable. In
incest cases, where there is a suspicion of the complicity of the family members in the crime, such family
members should not be permitted.

g) The Investigation Officer shall bring the cases relating to "child in need of care and protection"
and the child victim involved in incest cases to the notice of Child Welfare Committee.

h) The accused should not be brought in the presence of victim except for identification and that too
in the Court during TIP, proceedings on the direction of MM.
Page 75

Department of the Government of NCT of Delhi shall ensure that Superintendents of the Foster Home for
Women will provide necessary shelter till formal orders are secured from the concerned authorities.

j) The Investigating Officer shall endeavour to complete the investigation at the earliest and he shall
ensure that in no case the accused gets the undue advantage of bail by default as per the provisions of
Section 167 CrPC It is desirable that in cases of incest the report under Section 173 CrPC is filed within
30 days.

k) Periodical Training to deal with rape cases should be provided to the Police Officers, Juvenile
Police Officers, Welfare Officers, Probationary Officers and Support persons. A Training Module is
prepared in consultation with the Delhi Judicial Academy.

l) The Police should provide information to the Rape Crisis Cell regarding the case including the
arrest and bail application of the accused, the date of filling of the investigation report before the
Magistrate;

m) The police should keep the permanent address of the victim in their file in addition to the present
address and such other information which may help in finding the prosecutrix during trial if she leaves her
reported addresses. They should advise the victim to inform them about the change of address in future;

n) In cases where the victim informs the police about any threats received by the accused family, the
concerned DCP should consider the matter and fresh FIR must be registered under Section 506 of the
Indian Penal Code.”50

Police have issued these guidelines so as to effectively and in most efficient manner deal with sexual
offences against women. The purpose is two-pronged - firstly, to sensitise the police forces about the
victims of sexual offences, and secondly, to use the time immediately after the crime in an efficient
manner for the purpose of investigation.
Page 76

Cases related to Child Sexual Abuse: The Delhi High Court in Court on its own motion vs. State &
Anr.51 has issued many directions to be followed by the police [Investigative Officers (I.O.s)] while
investigating cases of child sexual abuse at the time of registration of FIR and immediately thereafter. The
court stated that the child victims need special consideration and safeguard because of their physical and
mental status. They need to be treated with compassion and dignity. It is very easy for a child victim to be
traumatised because of their tender age and therefore, the whole criminal justice system, including the
police and the judiciary, need sensitisation and be apprised regularly about their roles and how they can
be more protective so as to further avoid victimisation of child victims. And for securing the above
objectives, the Court has laid down the following guidelines:

1. "On a complaint of a cognizable offence involving a child victim being made, the concerned
police officer shall record the complaint promptly and accurately.

2. The investigation of the case shall be referred to an officer not below the rank of Sub-Inspector,
preferably a lady officer, sensitised by imparting appropriate training to deal with child victims of
sexual crime.

3. The statement of the victim shall be recorded verbatim.

4. The officer recording the statement of the child victim should not be in police uniform.

5. The statement of the child victim shall be recorded at the residence of the victim or at any other
place where the victim can make a statement freely without fear.

6. The statement should be recorded promptly without any loss of time.

7. The parents of the child or any other person in whom the child repose trust and confidence will be
allowed to remain present.

8. The investigating officer shall ensure that at no point should the child victim come in contact with
the accused.

9. The child victim shall not be kept in the police station

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overnight on any pretext, whatsoever, including medical examination.

10. The investigating officer recording the statement of the child victim shall ensure that the victim is
made comfortable before proceeding to record the statement and that the statement carries accurate
narration of the incident covering all relevant aspects of the case.

11. In the event the investigating officer should so feel the necessity, he may take the assistance of a
psychiatrist.

12. The investigating officer shall ensure that the child victim is medically examined at the earliest
preferably within twenty- four hours (in accordance with the provisions of the CrPC) at the nearest
government hospital or hospital recognised by the government.

13. The investigating officer shall ensure that the investigating team visits the site of the crime at the
earliest to secure and collect all incriminating evidence available.

14. The investigating officer shall promptly refer for forensic examination clothing and articles
necessary to be examined, to the forensic laboratory which shall deal with such cases on apriority basis to
make its report available at an early date.

15. The investigation of the cases involving sexually abused child may be investigated on a priority
basis and completed preferably within ninety days of the registration of the case. The investigation shall
be periodically supervised by senior officer (s).

16. The investigating officer shall ensure that the identity of the child victim is protected from
publicity.”52

The aforementioned guidelines are issued to the police so that the victim of child abuse not only feels free
to furnish all the necessary information related to the case, but must also feel completely safe and secure.
The security of the child is paramount and therefore, his identity is also not shared with the media. The
Supreme Court is watchful of the conditions and problems faced by the victims in case of reporting of a
crime. The Supreme Court, therefore, has issued from time to time guidelines in regard to reporting of
Page 78

offences. In Delhi Domestic Working Women's Forum case (1995), the Court has further elaborated the
scope of reporting of crime and has laid down the guidelines in relation to legal assistance to be provided
for rape victims. The Court held,

1. "The complainants of sexual assault cases should be provided with legal representation. It is
important to have someone who is well acquainted with the criminal justice system. The role of the
victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her
for the case and to assist her in the police station and in court but to provide her with guidance as to how
she might obtain help of a different nature from other agencies, for example, mind counseling or medical
assistance. It is important to secure continuity of assistance by ensuring that the same person who looked
after the complainant's interests in the police station represents her till the end of the case.

2. Legal assistance will have to be provided at the police station since the victim of sexual assault
might very well be in a distressed state upon arrival at the police station, the guidance and support of a
lawyer at that stage and while she

3. The police should be under a duty to inform the victim of her right to representation before any
questions were asked of her and that the police report should state that the victim was so informed.

4. A list of advocates willing to act in these cases should be kept at the police station for victims
who does not have a particular lawyer in mind or whose own lawyer is unavailable.

5. The advocate shall be appointed by the court, upon application by the police at the earliest
convenient moment, but in order to ensure that the victim was questioned without undue delay, advocates
would be authorised to act at the police station before the leave of the court was sought or obtained.

6. In all rape trials, the anonymity of the victim must be maintained, as far as necessary.
Page 79

7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatised to continue in employment.

8. Compensation for victim shall be awarded by the court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take
into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of
child birth if this occurred as a result of the rape.”53

This provision clearly indicates that registration of FIR is imperative and a police officer has no discretion
in the matter of offences specified in the said Section. But the Supreme Court in Lalita Kumari case
clearly held that there are certain types of cases such as matrimonial disputes or commercial cases, where
police may use discretion to hold a preliminary inquiry if there is any doubt about the correctness of the
information.

(v) When the person, against whom an offence under Sections 354, 354A, 354B, 354C, 354D, 376,
376A, 376B, 376C, 376D, 376E or Section 509 of the IPC is alleged to have been committed or
attempted, is temporarily or permanently mentally or physically disabled then in such cases such
information shall be recorded by a police officer, at the residence of the person seeking to report such
offence or at a convenient place of such person's choice, and in the presence of an interpreter or a special
educator, as the case may be. It is important to note that such information shall be video- graphed and the
police officer should make sure to get the statement of the person recorded by a Judicial Magistrate under
clause (a) of sub-Section (5A) of Section 16454 Section.

(vi) Liberty of an individual is one of the sacrosanct principles of contemporary societies that run on
the principle of Rule of Law. Justice Dipak Misra had also analysed the importance of personal liberty
and observed, "Article 21 of the Constitution of India uses the expression 'personal liberty'. The said
expression is not restricted to freedom from
Page 80

physical restraint but includes a full range of rights which has been interpreted and conferred by the Apex
Court in a host of decisions. It is worth noting, the great philosopher Socrates gave immense emphasis on
'personal liberty'. The State has a sacrosanct duty to preserve the liberties of citizens and every act
touching the liberty of a citizen has to be tested on the anvil and touchstone of Article 21 of the
Constitution of India, both substantive and also on the canons of procedural or adjective law.”55 The
Supreme Court, in a catena of cases, observed the importance of the right to information. In Express
Newspapers case, the Court held, "The task of a modern Judge, as has been said, is increasingly becoming
complex. Furthermore, the lot of a democratic Judge is heavier and thus nobler. We cannot escape the
burden of individual responsibilities in a particular situation in view of the peculiar facts and
circumstances of the case. There is no escape in absolute. Having regard, however, to different aspects of
law and the several decisions, by which though we are not bound, except the decisions of this Court
referred to hereinbefore, about which we have mentioned, there is no decision dealing with this particular
problem, we are of the opinion that as the Issue is not going to affect the general public or public life nor
any jury is involved, it would be proper and legal, on an appraisal of the balance of convenience between
the risk which will be caused by the publication of the article and the damage to the fundamental right of
freedom of knowledge of the people concerned and the obligation of Press to keep people informed, that
the injunction should not continue any further."56 It is imperative to inform to the accused about the
allegations leveled against him and therefore, it is essential to supply the copy of the FIR to the accused in
the interest of justice. Even otherwise, there must be some difference between the documents to be
disclosed to the public and not to be disclosed. And FIR certainly is a document that, until specific
reasons assigned to it, must be disclosed to the accused in all circumstances. The Supreme Court,
therefore, opined, "Immunity should not be lightly extended to any other class of documents, but, at the
same time, boundaries cannot be regarded as immutably fixed. The principle is that
Page 81

whenever it is clearly contrary to the public interest for a document to be disclosed, then it is in law
immune from disclosure. If a new class comes into existence to which this principle applies, then that
class would enjoy the same immunity. It is necessary to repeat and re-emphasise that this claim of
immunity can be justifiably made only if it is felt that the disclosure of the document would be injurious
to public interest. Where the State is a party to an action in which disclosure of a document is sought by
the opposite party, it is possible that. the decision to withhold the document may be influenced by the
apprehension that such disclosure may adversely affect the head of the department or the department itself
or the minister or even the Government or that it may provoke public criticism or censure in the
legislature or in the press, but it is essential that such considerations should be totally kept out in reaching
the decision whether or not to disclose the document. So also the effect of the document on the ultimate
course of the litigation whether its disclosure would hurt the State in its defence - should have no
relevance in making a claim for immunity against disclosure. The sole and only consideration must be
whether the disclosure of the document would be detrimental to public interest in the particular case
before the Court."57 FIR certainly is not that document (unless in cases of specific offences wherein it is
not to be disclosed) that will hamper public peace; rather it will repose the faith of the persons in the
criminal judicial system. In Chnnappa Andanappa Siddareddy case, the Supreme Court held, "The FIR
being a record of the acts of the public officers prepared in the discharge of the official duty is such a
public document as defined under Section 74 of the Evidence Act. Under Section 76 of the Evidence Act,
every public officer having the custody of a public document, which any person has a right to inspect is
bound to give such person on demand a copy of it on payment of the legal fees thereof. A copy of the FIR
registered as recorded under this Section shall be given, free of cost, to the informant."58 In the
contemporary world, by using the technology, this provision becomes much easy to comply with. The
Court in Dhanpat Singh vs. Emperor further held.
Page 82

"It is vitally necessary that an accused person should be granted a copy of the first information at the
earliest possible state in order that he may get the benefit of legal advice. To put difficulties in the way of
his obtaining such a copy is only creating a temptation in the way of the officers who are in possession of
the originals.59 The fate of the contemporary society is based totally on the fact of how much it is
transparent and accountable. So, the courts constantly observed about the need for timely delivery of the
copy of the FIR to the accused so as to deliver fair justice. And, therefore, now the FIRs are directed to be
uploaded online on the police websites by the police authorities. Recently, in Youth Bar Association of
India Petitioner(s) vs. Union of India and Others, the Supreme Court held,

(a) "An accused is entitled to get a copy of the First Information Report at an earlier stage than as
prescribed under Section 207 of the CrPC

(b) An accused who has reasons to suspect that he has been roped in a criminal case and his name
may be finding place in an First Information Report can submit an application through his
representative/agent/parokar for grant of a certified copy before the concerned police officer or to the
Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the
Court. On such application being made, the copy shall be supplied within twenty-four hours.

(c) Once the First Information Report is forwarded by the police station to the concerned Magistrate or
any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall
be given by the Court concerned within two working days. The aforesaid direction has nothing to do with
the statutory mandate inhered under Section 207 of the CrPC.

(d) The copies of the FIRs, unless the offence is sensitive in nature, like:

(i) Sexual offences,

(ii) Offences pertaining to insurgency,

Page 83

(iii) Terrorism and of that category,

(iv) Offences under POCSO Act and such other offences,

should be uploaded on the police website, and if there is no such website, on the official website of the
State Government, within twenty-four hours of the registration of the First Information Report so that the
accused or any person connected with the same can download the FIR and file appropriate application
before the Court as per law for redressal of his grievances. It may be clarified here that in case there are
connectivity problems due to geographical location or there is some other unavoidable difficulty, the time
can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and
it is only relatable to connectivity problems due to geographical location."60

One of the important facets of Article 21 of the Constitution of India is 'fair and impartial investigation'
and there is a very strong presumption towards 'innocence' of an accused, which also be termed as his
'human right. "Therefore, a person who is booked under criminal law has a right to know the nature of
allegations so that he can take necessary steps to safeguard his liberty. It is imperative in a country
governed by Rule of Law as crusaders of liberty have pronounced 'give me liberty, or give me death'."61
The Calcutta High Court discussed the importance of providing the copy of the FIR to the accused on
time and opined, "The accused is entitled to a copy of the FIR on payment of legal fees at any stage. After
so opining, the learned Judge proceeded to deal with the fact of prejudice in the following terms: The
question of prejudice of the accused on account of the denial of the copy of the FIR at the earlier stage,
therefore, assumes greater importance and on a proper consideration thereof, I hold that it is expedient in
the interests of justice that a certified copy of the first information report, which is a public document,
should be granted to the accused on Iris payment of the legal fees, therefore, at any stage even earlier than
the stage of Section 173(4) of the Code of Criminal Procedure. At the later stage of accused will have the
right to have a free copy but the same would not take away the right he already has in law to have a
certified copy of the first information report on payment of the legal fees..”62
Page 84

There are certain other offences also where FIR will not be registered in routine. No FIR will be
automatically registered against public servants in relation to their duty without holding a preliminary
inquiry. In Prakash Singh Badal case, the Supreme Court held, "If act or omission for which a public
servant has been charged has a reasonable connection with the discharge of his duty, then, it must be held
to be official to which applicability of Section 197 of the Code of Criminal Procedure, 1973 cannot be
disputed. Question relating to the need of sanction under Section 197 of the Code is not necessarily to be
considered as soon as a complaint is lodged and on allegations contained therein and it may arise at any
stage of the proceeding. 'Protection to public servants under Section 19(1) (a) of the Prevention of
Corruption Act, 1988 has to be confined to time related to criminal acts performed under the colour or
authority for public servant's own pleasure or benefit as categorised under Sections 7, 10, 11, 13 and
15.'"63

(e) "The decision not to upload the copy of the FIR on the website shall not be taken by an officer
below the rank of Deputy Superintendent of Police or any person holding the equivalent post. In case, the
States where District Magistrate has a role, he may also assume the said authority. A decision taken by the
concerned police officer or the District Magistrate shall be duly communicated to the concerned
jurisdictional Magistrate.

(f) The word 'sensitive' apart from the other aspects which may be thought of being sensitive by the
competent authority as stated hereinbefore would also include the concept of privacy regard being had to
the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and
are not exhaustive.

(g) If an FIR is not uploaded, needless to say, it shall not ensure per se a ground to obtain the benefit
under Section 438 of the CrPC

(h) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person
grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent
of Police or any person holding the equivalent post in the State. The Superintendent
Page 85

of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as
the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the
Commissioner of Police who shall constitute a committee of three officers. The committee so constituted
shall deal with the grievance within three days from the date of receipt of the representation and
communicate it to the grieved person.

(I) The competent authority referred to herein above shall constitute the committee, as directed here
in above, within eight weeks from today.

(j) In cases wherein decisions have been taken not to give copies of the FIR regard being had to the
sensitive nature of the case, it will be open to the accused/his authorised representative/parokar to file an
application for grant of certified copy before the Court to which the FIR has been sent and the same shall
be provided in quite promptitude by the concerned Court, not beyond three days of the submission of the
application.

(k) The directions for uploading of FIR on the website of all the States shall be given effect from
15th November 2016."64

(vii) There are provisions present in the CrPC itself that are administrative mechanisms to be used by
the victim in case the police failed in their duty to register the FIR on the basis of the disclosure of facts
related to a cognizable offence. Section 154 (3) of the CrPC prescribes the whole mechanism to be
followed in such circumstances. It says that if the police refuse to register FIR on the basis of information
related to cognizable offences, then such person may in that case send the substance of such information,
in writing and by post, to the Superintendent of Police who, if satisfied that such information discloses the
commission of a cognizable offence, shall either investigate the case himself or direct an investigation to
be made by any police officer subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer in charge of the police station in relation to that offence.65
Page 86

The insertion of sub-Section (3) of Section 154 by way of an amendment, according to the Court in Lalita
Kumari case, "reveals the intention of the legislature to ensure that no information of commission of a
cognizable offence must be ignored or not acted upon which would result in unjustified protection of the
alleged offender/accused. The maxim expression uniusest exclusion alterius (expression of one thing is
the exclusion of another) applies in the interpretation of Section 154 of the Code, where the mandate of
recording the information in writing excludes the possibility of not recording an information of
commission of a cognizable crime in the special register. Therefore, conducting an investigation into an
offence after registration of FIR under Section 154 of the Code is the 'procedure established by law' and,
thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of the accused under
Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is
conducted in accordance with the provisions of law."66 A police officer cannot refuse to register the FIR
only on the ground that the police station has no territorial jurisdiction over the place of crime. He has to
record the information and forward the same to the concerned police station. Non-registration of FIR by a
police officer in cases related to cognizable offences is a dereliction of his statutory duty .67 In short, the
FIR should include,

(a) Date and hour when report related to cognizable offence was reported;

(b) Name and residence of informant and complainant;

(c) Name and address of the accused, if known;

(d) Brief description of the offence (with Section) and of property carried off, if any;

(e) Place of occurrence and distance and direction from Police Station;

(f) Steps were taken regarding investigation; Explanation of delay in recording information;

(g) Date and hour of dispatch of police from the police station.
Page 87

REGISTRATION OF FIR IS MANDATORY IN COGNIZABLE OFFENCES

The question whether the registration of FIR is mandatory or not hovers over the Indian Criminal Justice
System for the past many years. In Parkash Singh Badal and Anr. vs. State of Punjab and Ors., the
Supreme Court held, "The legal mandate enshrined in Section 154(1), CrPC is that every information
relating to the commission of a 'cognizable offence' if given orally (in which case it is to be reduced into
writing) or in writing to "an officer-in-charge of a police station" (within the meaning of Section 2(o) of
the CrPC) and signed by the informant should be entered in a book to be kept by such officer in such form
as the State Government may prescribe which form is commonly called as 'first information report' and
which act of entering the information in the said form is known as registration of a crime or a case. At the
stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in
compliance with the mandate of Section 154(l) of the Code, the concerned police officer cannot embark
upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise
and refuse to register a case on the ground that the information is not reliable or credible. On the other
hand, the officer-in-charge of a police station is statutorily obliged to register a case and then to proceed
with the investigation if he has reason to suspect the commission of an offence which he is empowered
under Section 156 of the CrPC to investigate, subject to the proviso to Section 157, CrPC thereof. It is,
therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-
in-charge of a police station satisfying the requirements of Section 154 (1) of the Code, the said police
officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to
register a case on the basis of such information."68 Although there are certain types of cases where it is
essential to enquire prior to the registration of FIR, such as matrimonial cases. In Preeti Gupta vs. State of
Jharkhand,69 the Court expressed its anxiety over misuse of Section 498A of the Indian Penal Code,
1860, with respect to which a large number of frivolous reports were lodged. Similarly, offences related
to Prevention of Corruption Act are also subject to preliminary inquiry. The concern is, if FIR will be
registered merely on the basis

Page 88

Important Cases on First Information Report

1. Lalita Kumari vs. Government of U.P. and Others, (2014)

2 SCC: The Court) directed the police to immediately
register the FIR, without any preliminary inquiry of
cognizable offences other than matrimonial
disputes/family disputes; commercial offences; medical
negligence cases; corruption cases; and cases where there
is abnormal delay/laches in initiating criminal
prosecution, for example, over three months delay in
reporting the matter| without satisfactorily explaining the
reasons for the delay.

2. Youth Bar Association of India Petitioner(s) vs. Union of

India and Others, WP (Crl.) No. 68/2016: The Court
 directed that an accused is entitled to get a copy of the
First Information Report at an earlier stage itself. The
copies of the FIR, unless the offence is sensitive in nature,
like sexual offences, offences pertaining to insurgency,
terrorism and of that category, offences under POCSO
Act and such other offences, should be uploaded on the
police website, and if there is no such website, on the
official website of the State Government, within twenty-
four hours of the registration of the FIR so that (the
accused or any person connected with the same can
download the FIR and file appropriate application before
the Court as per law for redressal of his grievances.

3. Ram Lal Narang vs. State (Delhi Administration), (1979)

2 SCC 322: The Court observed that under the CrPC, an
officer in-charge of the police station should enter the
details of information related to cognizable offence on the
book kept for the same purpose in police station, and then
start investigation of the crime, without the order of a
Court. He was required to complete the investigation
without unnecessary delay, and, as soon as it was
completed, to forward to the Magistrate empowered to
take cognizance of the offence upon a police report, a
report in the prescribed form, setting forth the names of
the parties, the nature of the information and the names of
the persons who appeared to be acquainted with the
circumstances of the case.

4. Tapinder Singh vs. State Of Punjab, AIR 1970 SC 1566:

In Tapinder Singh case, the Supreme Court held, "the
telephonic message recorded by the police station in the
Daily Diary of the police station if was a cryptic and
anonymous oral message which did not in terms clearly
specify a cognizable offence, [must not be treated as an
First Information Report".

5. Domestic Working Women's Forum vs. Union of India,

(1995) 1 SCC 14: The Court directed that in cases of
sexual assault, legal representation (list of advocates
should be provided to the victim) should be provided
immediately at the police station itself, and the role of
victim's advocate would not only be to explain to the
victim the nature of the proceedings, to prepare her for the
case and to assist her in the police station and in court but
to provide her with guidance as to how she might obtain
help of a different nature from other agencies, for
example, mind counseling or medical assistance. The
Court further directed that it is the duty of the police to
inform the victim of her right to representation before any
questions were asked of her and that the poke report,
should state that the victim was so informed.
Page 89

of the information related to cognizable offences then, as soon as the police will receive the information
related to the matrimonial dispute, immediately police will register the FIR, which may lead to unforeseen
consequences detrimental to the lives of the accused. And, therefore, some types of offences required
some inquiry before the registration of FIR.

The Supreme Court, therefore, in Lalita Kumari case, clearly held that filing of FIR is mandatory in cases
of information related to cognizable offences.

FIR by a Child, Pardanashin women, and Illiterate villagers

There is no rule to suggest that the FIR lodged by a child, a Pardanashin woman or an illiterate is of no
value or has less value. The Court in Prenarayan vs. State of M.P.70 held that the evidence tendered by a
child is well appreciated and is admissible under law. Similarly, the Court in Attepalli Gopaiah vs. State
of A.P.71 held that just because the informant is an illiterate villager, and has admitted in the Court that
he could not get all the facts deposed in the Court written in the FIR, it could not be viewed with
suspicion. And there is always a possibility with an illiterate informant to not remember the exact time of
occurrence. The case with Pardanashin (veiled women) women will also be the same. Even if she is not in
a position to recall the name of each and every member of the mob, it will not make her case weak. The
court, therefore, has to rely on the facts of each case and is not supposed to mechanically denounce the
contents of the FIR lodged by the child, illiterate persons or pardanashin (veiled) women.

CAN THERE BE TWO FIRS?

The CrPC provides no bar in filing a second complaint on the same facts. In a case where a previous
complaint is dismissed without assigning any reasons, the Magistrate under Section 204 of the CrPC may
take cognizance of an offence and issue process if there
Page 90

is sufficient ground for proceeding.72 This means there are situations where two FIRs can be possible on
the same facts and circumstances. The Supreme Court in Shiv Shankar vs. State of Bihar73 further held,
"The law does not prohibit filing or entertaining of the second complaint even on the same facts provided
the earlier complaint has been decided on the basis of insufficient material or the order has been passed
without understanding the nature of the complaint or the complete facts could not be placed before the
Court or where the complainant came to know certain facts after disposal of the first complaint which
could have tilted the balance in his favour. However, the second complaint would not be maintainable
wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on
merit "The plain construction of the language and scheme of Sections 154, 156 and 190 of the CrPC
neither construed and nor suggested for more than one FIR about an occurrence or an event. However,
where the incident is separate, offences are similar or different, or even where the subsequent crime is of
such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second
FIR could be registered.74 It has to be examined on the merits of each case whether a subsequently
registered FIR is a second FIR about the same incident, or offence, or is based upon distinct and different
facts, and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court
to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed
question of law and facts depending upon the merits of a given case.75 The Court in order to examine the
impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the
test of sameness to find out whether both FIRs relate to the same incident and to the same occurrence, or
are in regard to incidents which are two or more parts of the same transaction, or relate completely to two
distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed.
However, in case the contrary is proved, where the version of the second FIR is different, and both FIRs
are in respect of two different incidents/crimes, the second FIR is permissible.76 For example, theft is
committed by the same group of people in different localities under different jurisdictions; in this case,
there is a possibility of multiple FIRs in different police stations. Second
Page 91

FIR, therefore, on similar facts and circumstances is possible. Justice Syed Shah Mohammed Quadri in
T.T. Antony case77 considered the status of filing of the counter-case and held that counter-case is not
precluded from the ambit of the CrPC at all and filing of counter-complaints are very much within the
ambit of the CrPC. This position was reconsidered by the three-judge bench of the Supreme Court in
Upkar Singh vs. Ved Prakash, which held at para 17, "any further complaint by the same complainant or
others against the same accused, subsequent to the registration of a case, is prohibited under the Code
because an investigation in this regard would have already started and further complaint against the same
accused will amount an improvement on the facts mentioned in the original complaint, hence will be
prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not
apply to counter-complaint by the accused in the 1st complaint or on his behalf alleging a different
version of the said incident."78

THE PROCEDURE WHEN POLICE REFUSES TO REGISTER THE FIR AND COURSE OPEN
TO COMPLAINANT WHEN FIR IS NOT RECORDED

The police are obliged to register the FIR in cases related to cognizable offences. But, there are chances
when the police officer may refuse to register the FIR. In that case, there are two ways to follow, one is
administrative, and second is to approach the Magistrate under Section 156(3) of the CrPC.

(a) Section 154(3) of the CrPC: In cases where the police officer refuses to register the FIR, the victim
or informant may write the information and by post inform the Superintendent of Police concerned, who,
on satisfaction, shall either investigate the case himself or direct an investigation to be made by any police
officer subordinate to him under Section 154(3)79. If a person has a grievance that his FIR has not been
registered by the police station, his first remedy is to approach the Superintendent of Police under Section
154(3)of the CrPC, or another police officer referred to in Section 36 of the CrPC. If despite approaching
the Superintendent of Police or the officer referred to in Section
Page 92

36 his grievance still persists, then he can approach the Magistrate under Section 156(3) of the CrPC.80

(b) Magistrate ordering investigation under Section 156(3) of the CrPC: There is an implied power
conferred on the Magistrate under Section 156(3) of the CrPC to order registration of a criminal offence
and/or to direct the officer in charge of the concerned police station to hold a proper investigation and
take all such required steps that may be necessary for ensuring a proper investigation, including
monitoring the same.81 Under this Section, power is given to the Magistrate to direct the police to do an
investigationon information which consists of the ingredients of cognizable offences. Section 156(3) of
the CrPC though does not empower the Magistrate to stop an investigation undertaken by the police.82

( c) A complaint under Section 190 of the CrPC read with Section 200 lays a complaint before the
Magistrate: If the police have not registered the FIR on the basis of the information related to a
cognizable offence, in that case the informant or victim may approach the Magistrate also under Section
200 of the CrPC. There is a clear difference between the powers of the Magistrate under Section 156(3)
and Section 202 of the CrPC. The Supreme Court in Mohd. Yusuf vs. Afaq Jahan held, "Section 156
falling within Chapter XII, deals with powers of police officers to investigate cognizable offences.
Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation
contemplated under Section 156 of the Code. Chapter XII of the Code contains provisions relating to
information to the police and their powers to investigate', whereas Chapter XV, which contains Section
202, deals with provisions relating to the steps which the Magistrate has to adopt while and after taking
cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different
facets altogether, though there could be a common factor, i.e., complaint filed by a person. Section 156,
falling within Chapter XII deals with powers of the police officers to investigate cognizable offences.
True, Section 202, which falls under Chapter XV, also refers to the power of the
Page 93

Magistrate to 'direct an investigation by a police officer'. But the investigation envisaged in Section 202 is
different from the investigation contemplated in Section 156 of the Code. The various steps to be adopted
for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such
investigation would start with making the entry in a book to be kept by the officer in charge of a police
station, of the substance of the information relating to the commission of a cognizable offence. The
investigation started thereafter can end up only with the report filed by the police as indicated in Section
173 of the Code. The investigation contemplated in that chapter can be commenced by the police even
without the order of the Magistrate. But that does not mean that when the Magistrate orders an
investigation under Section 156(3) it would be a different kind of investigation. Such investigation must
also end up only with the report contemplated in Section 173 of the Code. But the significant point to be
noticed is, when the Magistrate orders investigation under Chapter XII he does so before he takes
cognizance of the offence. But the Magistrate need not order any such investigation if he proposes to take
cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure
envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear
that the investigation referred to therein is of a limited nature. The Magistrate can direct such an
investigation to be made either by a police officer or by any other person. Such investigation is only for
helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This
can be discerned from the culminating words in Section 202(1), i.e., or direct an investigation to be made
by a police officer or by such other person as be thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding.”83

Role of First Information Report

"The principal object of the first information report from the point of view of the informant is to set the
criminal law in motion and
Page 94

from the point of view of the investigating authorities is to obtain information about the alleged criminal
activity so as to be able to take suitable steps for tracing and bringing to book the guilty party.” FIR,
therefore, plays a pivotal role in the criminal justice system. Justice P. Sathasivam in Lalita Kumari
case84 observed the importance of FIR and held, "The registration of FIR either on the basis of the
information furnished by the informant under Section 154(1) of the Code or otherwise under Section
157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:

a) It is the first step to 'access to justice' for a victim.

b) It upholds the 'Rule of Law' in as much as the ordinary person brings forth the commission of a
cognizable crime in the knowledge of the State.

c) It also facilitates the swift investigation and sometimes even prevention of the crime. In both
cases, it only effectuates the regime of law.

d) It leads to less manipulation in criminal cases and lessens incidents of 'ante-dates' FIR or
deliberately delayed FIR."85

Justice K.N. Padmanabhiah discussed the importance of FIR in J.K. Devaiya case and observed, "The
importance of the first information from the standpoint of the accused cannot lightly be ignored. The very
object of insisting on first information regarding the commission of the offence is to obtain early
information regarding the alleged criminal activity and to record the circumstances before there is time
for the parties concerned to embellish or develop the case as circumstances present themselves to them.
That information is very important so far as the accused is concerned because he is entitled to know as to
what was nature or the manner in which the occurrence was first related or started. The first information
report is a very valuable document and the accused is entitled to know what was said in that report to
connect him with the offence so that he may be in a position to protect his interests by cross-examining
the prosecution witnesses with respect to any additions or alterations to the story of the prosecution which
may subsequently be made in evidence."86 It is not necessary that each and every minute detail should be
covered in the FIR.
Page 95

DELAY IN FILING FIR: EFFECTS

It is the essence of the criminal justice system that FIR should be lodged as soon as possible so as to avoid
the time to stage/conduct the criminal case. But the Supreme Court held in various cases that "delay in
lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding
the same solely on the ground of delay in lodging the first information report. The delay has the effect of
putting the court on its guard to search if any plausible explanation has been offered for the delay, and if
offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and
there is a possibility of embellishment in the prosecution version on account of such delay, the delay
would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the
delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."87 In Tara
Singh case, the Court made the following observations in para 4, "It is well settled that the delay in giving
the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they
are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human
nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically
with all the promptitude in giving the report to the police. At times being grief-stricken because of the
calamity it may not immediately occur to them that they should give a report. After all, it is but natural in
these circumstances for them to take some time to go to the police station for giving the report.
Explainable delays will not damage the case of tire prosecution at all. In cases of rape, voyeurism,
outraging tire modesty of women, etc., the mental trauma to the victim is of a very high level; the delay in
such cases, therefore, is not going to affect the case of the prosecution at all. The chances of delay in
lodging tire FIR are more in sexual offences and therefore, tire Court has to be sensitive towards the
victims in these cases and understand tire reality of why the FIRs are lodged late. But the long delay in
filing FIR due to taking legal advice was held fatal to the case.89

Evidentiary Value of FIR

FIR is not an encyclopedia of the crime and, therefore, is not a substantive piece of evidence; but it
certainly is a relevant
Page 96

circumstance of the evidence produced by the investigating agency. Merely because the informant had
turned hostile, it cannot be said that the FIR loses its entire relevancy and cannot be looked into for any
purpose.90 However, the FIR cannot be given a complete go-by since it can be used to corroborate the
evidence of the person lodging the same, but it cannot be used as a substantial evidence for corroborating
the statement of a third party.91 The Supreme Court in Utpal Das case observed, "It is needless to restate
that the First Information Report does not constitute substantive evidence. It can, however, only be used
as a previous statement for the purposes of either corroborating its maker or for contradicting him and in
such a case the previous statement cannot be used unless the attention of witness has first been drawn to
those parts by which it is proposed to contradict the witness."92 The credibility of the FIR will not be
challenged merely on the ground that there are certain minor discrepancies in the contents of the FIR.

The Court has, at numerous occasions, observed the importance of promptly lodging an FIR and has
insisted upon the mandatory filing of FIR in cognizable offences. The Supreme Court in Thulia Kali case
observed, "FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be
overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the
report to the police in respect of commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the actual culprits and the part played by
them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first
information report quite often results in embellishment which is a creature of an afterthought. On account
of delay, the report not only gets bereft of the advantage of spontaneity danger creeps in of the
introduction of coloured version, exaggerated account or concocted story as a result of deliberation and
consultation."93 FIR is also termed as an important and valuable piece of evidence, but it cannot be
termed as a vital piece of evidence. The Supreme Court in Ravi Kumar case further held, "FIR is not a
substantive piece of evidence and can only be used to corroborate the statement of the maker under
Section 161 of the Indian Evidence Act, 1872 or to contradict him
Page 97

under Section 145 of Indian Evidence Act. It can neither be used as evidence against the maker at the trial
if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the
requirement of law that the minutest details be recorded in the FIR lodged immediately after the
occurrence. The fact of the state of mental agony of the person making the FIR who generally is the
victim himself, if not dead, or the relations or associates of the deceased victim apparently under the
shock of the occurrence reported has always to be kept in mind. The object of insisting upon lodging of
the FIR is to obtain the earliest information regarding the circumstance in which the crime was
committed. Sending the copy of the special report to the Magistrate as required under Section 157 of the
CrPC is the only external check on the working of the police agency, imposed by law which is required to
be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the
case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as
stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations
involving some other persons who were actually not involved in the commission of the crime. Immediate
sending of the report mentioned in Section 157 of the CrPC is the mandate of law. Delay wherever found
is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference
can be drawn but failure to explain the delay would require the court to minutely examine the prosecution
version for ensuring itself as to whether any innocent person has been implicated in the crime or not.”94
Even where a young bride had committed suicide within four months of marriage, and her father came to
know about the death in the afternoon of the next day, and the FIR was lodged by him one more day after
the incident, the Court held that the delay is not fatal and prosecution case is not going to be thrown out
because of this delay.

The Supreme Court in Alagarsamy vs. State by Deputy Superintendent of Police95 observed, "The FIR is
not a be-all and end-all of the matter, though it is undoubted, a very important document. In most of the
cases, the FIR provides corroboration to the evidence of the maker thereof. It provides a direction to the
Investigating Officer and the necessary clues about the crime and the perpetrator thereof. True it is that a
concocted FIR. Wherein
Page 98

some innocent persons are deliberately introduced as the accused persons, raises a reasonable doubt about
the prosecution story, however, a vigilant, competent and searching investigation can despoil all the
doubts of the Court and on the basis of the evidence led before the Court, the Court can weigh the
inconsistencies in the FIR and the direct evidence led by the prosecution. It is not a universal rule that
once FIR is found to be with discrepancies, the whole prosecution case, as a rule, has to be thrown. Such
can never be the law.”96 FIR, as discussed above, is not a document prepared perfectly by the police and
therefore, there are many chances of eruption of discrepancies. But just because there is presence of
certain discrepancies, it will not completely fail the case of the prosecution. The correct view would be to
weigh all the situations, including the discrepancies found in the FIR, as also the other evidence made
available to the court, and after carefully appreciating the same the correct conclusion must be arrived
at.97

Can FIR be sued in evidence where the Informant is dead?

Where a person lodging the FIR has died, the FIR, in this case, cannot be used as a substantive piece of
evidence.98 Similarly, where the FIR was lodged by the eye-witness, mother of the deceased, and she was
not examined in the court because of her death, and as such, the accused-appellants had no opportunity to
cross-examine her, hence the contents of the FIR could not be looked into.99

FIR CAN BECOME DYING DECLARATION

Where the report of the occurrence of a cognizable offence is dictated to the police officer, who later had
converted it into written form and the same is read over to him after which, the deceased has put his
thumb impression on the same, this report is admissible under Section 32 of Indian Evidence Act as dying
declaration after the death of the accused.99

EFFECTS OF OMISSIONS IN FIR'S

Accused not named in FIR: its Effects

It is a well-settled law that FIR need not contain the names of all the accused persons101 and nor it is
necessary to put the names of all the
Page 99

persons standing near the crime scene in the FIR. Even otherwise, the FIR is not a substantial piece of
evidence.102 At times, it is not possible in serious offences, or in sexual offences in particular, where
along with physical trauma, mental trauma is of a very high degree, where the victim takes time to
understand the brutality caused on her body or takes time to locate the sequence of events, to put all the
names of accused to the police; therefore, not narrating the name of the accused in these cases will not
weaken the case against the unnamed persons in the FIR. The FIR is not to be treated as the last word of
the prosecution in the matter. The magistrates as well as the judges, while considering omissions in the
FIR, should not derive inference from them like mathematical formulas, but should try to appraise them
and find out their true effect in the light of all circumstances of the case and the materials on
record.103The omission of the name of an accused in the FIR neither leads to the complete negation of
the case of the informant and nor omission itself is a sufficient proof of the innocence of the accused.

What if the names of all the witnesses are not present in the FIR?

Even if the names of all witnesses is not mentioned in the FIR it will not make the case of the prosecution
weak. The Supreme Court in State of Uttar Pradesh vs. Lalla Singh and Ors. lwheld, "It is not necessary
that the names of ail the eye-witnesses should be mentioned in the First Information Report. While
narrating the occurrence and the part played by the accused the witness has also mentioned the name of
the witnesses who accompanied the party and were prominent in his mind. The mere non-mention of the
names of the eyewitnesses will not justify the rejection of the evidence of the eye-witnesses."

Details of Occurrence

Where minor omission is reasonably explained, it would not affect conviction. But failure to report the
discovery of empty cartridges from the spot and the particular posture of the deceased before being shot at
falsifies the prosecution's case regarding tire place of occurrence and the manner of attack.11 FIR must
consist information related to the commission of a cognizable offence and oven if minule details are
somehow omitted from the FIR, it will not lilt the case in favour of the accused. Generally, people do not
care
Page 100 Your Laws and Your Rights

for all possible details necessary for filing of complaint and therefore, many details are not registered at
the time of lodging the FIR. But this does not mean that the case of the accused is weak. FIR is only
considered as a launching pad for the police to start their investigation as soon as possible. But in a
murder case, not mentioning the motive in the FIR makes the incident doubtful.106

Dying Declaration

Not mentioning the dying declaration in the FIR will not fail the case of the prosecution. It is not
considered as a blatant problem at all. In State vs. Dhirendra107 the Court held, "Non-mentioning of the
dying declaration of the deceased in the FIR does not make the evidence of the witness about the dying
declaration unbelievable. It is settled law that FIRs are not taken as encyclopaedic and omission of a fact
therein, even if the material cannot be itself makes the witness deposing about that fact unbelievable."

PROCEDURE IN CASE OF FALSE FIR REGISTERED AGAINST THE PERSON

According to Section 182108 of the IPC, giving false information to any public servant is a punishable
offence. The first thing a person should do immediately after the registration of false FIR is to collect the
copy of it and consult an advocate regarding the same if the allegations are very serious in nature. Filing a
false complaint is a criminal offence under the IPC. Section 203 of the IPC provides the punishment for
filing a false FIR. It says, "Whoever knowing or having reason to believe that an offence has been
committed, gives any information respecting that offence which he knows or believes to be false shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine,
or with both." In the same way, Section 211 of the IPC provides punishment against the false charge of
offence, which was made with the intent to injure anyone. The Section says, "Whoever, with intent to
cause injury to any person, institutes or causes to be instituted any criminal proceeding against that
person, or falsely charges any person with having committed an offence, knowing that there is no just or
lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of
either
Page 101 Procedure to file complaint: Role of First Information Report

description for a term which may extend to two years, or with fine, or with both; and if such criminal
proceeding is instituted on a false charge of an offence punishable with death, imprisonment for life, or
imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for
a term which may extend to seven years, and shall also be liable to fine."

There are various means to approach the filing of false FIR. One approach is to file a criminal complaint
under Section 200 of the CrPC before the concerned Magistrate disclosing the actual facts and requesting
him to consider the same. The second approach is to move an application before the High Court under
Section 482 of the CrPC for quashing the false FIR.

Under Section 482 of the CrPC, the inherent powers are bestowed on the High Courts to deliver criminal
justice in India and therefore, the High Court has to use this power with utmost caution in the
dispensation of justice. By invoking Section 482, the High Court can quash the FIR registered against the
accused. The High Court exercising inherent powers under Section 482 cannot quash FIR, more so when
the investigation has not even commenced.109 The power under Article 226 of the Constitution of India
to quash the FIR shall be used only in the rarest of rare cases. In S.N. Sharma vs. Bipen Kumar Tiwari
and Ors.,110 the Court stated, "It appears to us that, though the CrPC gives to the police unfettered power
to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate
cases an aggrieved person can always seek a remedy by invoking the power of the High Court under
Article 226 of the Constitution under which, if the High Court could be convinced that the power of
investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of
mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not
contain any other provision giving power to the Magistrate to stop an investigation by the police cannot
be a ground for holding that such a power must be read in Section 159 111 of the Code." Even if some of
the offences mentioned in the FIR are not made out as per the allegations contained in the FIR and the
accompanying materials, when it may appear that the said allegations would constitute some of the
offences mentioned in the FIR or some other offences with which the petitioners may be
Page 102 Your Laws and Your Rights

ultimately sent for trial by the investigating agency, it would not be a case for quashing the FIR.112 In
State of Haryana vs. Bhajan Lal,113 in the Supreme Court provided a detailed list of cases in which the
High Court can use its power to quash the FIR. The list is as follows:

(I) “Where the allegations made in the First Information Report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case
against the accused.

(ii) Where the allegations in the First Information Report and other materials, if any, accompanying
the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under
Section 156(1) of the Code except under an order of the Magistrate within the purview of Section 155(2)
of the Code.

(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of any offence and make out a case against the
accused.

(iv) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by a police officer without an order of the
Magistrate as contemplated Under Section 155(2) of the Code.

(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.

(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.

(vii) Where a criminal proceeding is manifestly attended with

Page 103 Procedure to file complaint: Role of First Information Report

mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal grudge."114

The quashing of the FIR is not the rule of law and therefore, every precaution should be taken to ensure
that the culprit must not be free and the sword of prosecution must not hang over the innocent.

CONCLUSION

Everyone must know their rights as well as duties. Rights are created to empower the individuals in the
society. It is, therefore, everybody's right as well as duty to report the commission of cognizable offences
to the police officer and it is, simultaneously, the duty of the police officer to immediately register an FIR
(subject to exceptions) in case of the receipt of the information pertaining to commission of cognizable
offences and start investigation thereafter. The reporting of crime is one of the most important edifices of
democracy and one of the essential features of the rule of law that can ensure peace in society.

References

1 Prabhu Dayal Deorath etc. vs. The District Magistrate, Kamrup and Ors., 1974 Cr LJ 286.

2 Cognizable offences are those offences in which police may arrest without warrant.

3 Section 302 of Indian Penal Code (IPC) 1860.

4 Section 395 of IPC.

5 Section 392 of IPC.

6 Section 326 of IPC.

7 Section 376 of IPC.

8 Section 363 of IPC.

9 Section 156(1) of the CrPC

10 Section2(c) of the CrPC

11 ’Section 155 of the CrPC

12 Section 2(1) of the CrPC

13 Hostettler, John. A History of Criminal Justice in England and Wales, 1st edition. (Waterside Press,
UK: 2009), p. vii.
Page 104 Your Laws and Your Rights

14 State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and
others, (2010) 3 SCC 571.

15 Hall, Daniel E., Criminal Law and Procedure, 6th edition, (Denmark Cengage Learning, New York)
P.485.

16 Ram Lal Narang vs. State (Delhi Administration), (1979) 2 SCC 322 at para 14 and 15.

17 Section 154 of the CrPC

18 Code of Criminal Procedure, 1973

19 Section 155(1) of the CrPC

20 Section 155(2) of the CrPC

21 Section 155(3) of the CrPC

22 Section 155(4) of the CrPC

23 (1996) 6 SCC 435.

24 SECTION 39 of the CrPC

25 Tapinder Singh vs. State Of Punjab, AIR 1970 SC 1566.

26 State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 at para no. 32.

27 Surajit Sarkar vs. State of West Bengal (2013) 2 SCC 146.

28 J.K. Devaiya vs. State of Coorg., AIR 1956 My Section51.

29 Lalita Kumari vs. Government of U.P. and Others, (2014) 2 SCC 1 at para no. 54, 55 and 56.

30 Lalita Kumari vs. Government of U.P. and Others, (2014) 2 SCC l para no. 58.

31 Police Officers to keep diary (SECTION 44 of Police Act 186: It shall be the duty of every officer in
charge of a police-station to keep a 'General Diary' in such form shall, from time to time, be prescribed by
the State Government and to record therein all complaints and charges preferred, the names of all persons
arrested, the names of the complainants, the offences charged against them, the weapons or property that
shall have been taken from their possession or otherwise, and the names of the witnesses who shall have
been examined. The Magistrate of the district shall be at liberty to call for and inspect such diary.

32 FIR no. 413/2012, State vs. Ram Singh and another.

33 Voluntarily causing grievous hurt by use of acid, etc.

34 Voluntarily throwing or attempting to throw acid.

35 Assault or criminal force to woman with intent to outrage her modesty.

36 Section 354A of IPC, (1) A man committing any of the following acts— (i) physical contact and
advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual
favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured
remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence
specified in clause (i) or clause (ii) or clause (iii) of sub-Section (1)
Page 105 Procedure to file complaint: Role of First Information Report

shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or
with both. (3) Any man who commits the offence specified in clause (iv) of sub-Section (1) shall be
punished with imprisonment of either description for a term which may extend to one year, or with fine,
or with both.

37 Assault or use of criminal force to woman with intent to disrobe her.

38 Voyeurism (any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either by the
perpetrator or by any other person at the behest of the perpetrator or disseminates such image.

39 Stalking (Any man who (i) follows a woman and contacts, or attempts to contact such woman to foster
personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors
the use by a woman of the internet, email or any other form of electronic communication; or (iii) watches
or spies on a woman in any manner, that results in a fear of violence or serious alarm or distress in the
mind of such woman, or interferes with the mental peace of the woman, commits the offence of stalking).

40 Rape

41 Punishment for causing death or resulting in persistent vegetative state of victim of Rape under Section
376(1) of IPC.

42 Sexual intercourse by husband upon his wife during separation.

43 Sexual intercourse by a person in authority.

44 Gang Rape

45 Punishment for repeated offenders of Rape.

46 Punishment for criminal intimidation: Whoever commits, the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine,
or with both; If threat be to cause death or grievous hurt, etc. — And if the threat be to cause death or
grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with
death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to
impute, unchastity to a woman, shall be punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.

47 Section 154 (1) of the CrPC

48 Section 166A(c) of Indian Penal Code, 1860.

49 http://www.delhipolice.nic.in/cawcircular.html. (Last accessed on 01.09.2016).

50 Standing Order No. 303/2010 issued by Delhi Police.

51 W.P. (Crl.) No. 930/2007.

52 Court on its own motion vs. State &Anr., W.P. (Crl.) No. 930/2007.
Page 106 Your Laws and Your Rights

53 Domestic Working Women's Forum vs. Union of India, (1995) 1SCC14.

54 Section 164 (5A) of the CrPC "(a) In cases punishable under Section 354, Section 354A, Section
354B, Section 354C, Section 354D, sub-Section (1) or Sub- Section (2) of Section 376, Section 376A,
Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code, the
Judicial Magistrate shall record the statement of the person against whom such offence has been
committed in the manner prescribed in sub-Section (5), as soon as the commission of the offence is
brought to the notice of the police:

Provided that if the person making the statement is temporarily or permanently mentally or physically
disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the
statement.

Provided further that if the person making the statement is temporarily or permanently mentally or
physically disabled, the statement made by the person, with the assistance of an interpreter or a special
educator, shall be video-graphed

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or
physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in
Section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-
examined on such statement, without the need for recording the same at the time of trial."

55 Court on its Own Motion vs. State, WP (Crl.) No. 468/2010.

56 Express Newspapers (Pvt.) Ltd. vs. The Union of India, AIR 1958 SC 578

57 S.P. Gupta vs. Union of India and others, AIR 1982 SC 149

58 Chnnappa Andanappa Siddareddy and others vs. State, 1980 Cri. L.J. 1022.

59 AIR 1917 Patna 625.

60 Youth Bar Association of India Petitioner(s) vs. Union of India and Others, WP (Crl.) No. 68/2016,
para. 12.

61 Court on its Own Motion vs. State, WP (Crl.) No. 468/ 2010.

62 Panchanan Mondal vs.The State, 1971 Crl. L.J. 875.

63 Parkash Singh Badal and Anr. vs. State of Punjab and Ors., (2007) 1 SCC 1.

64 Writ Petition (Criminal) No. 68/2016, para. 12.

65 Section 154 (3) of the CrPC

66 Lalita Kumari vs. Govt. of U.P. and Ors,(2014) 2 SCC 1 para no. 74,75 and 76.

67 B.SECTION Sundaresh vs.State of Karnataka, 2012 Cri. L.J. 1986 (Kant)

68 AIR 2007 SC 1274

69(2010) 7SCC 667.

70 Binay vs.State 1997 Cr.L.J. 362.

71 State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335.

72 Mohd. Yusuf vs. Afaq Jahan (2006) 1 SCC 627.

Page 107 Procedure to file complaint: Role of First Information Report

73 R.P. Kapur vs.The State of Punjab, 1960 CriL.J. 1239.

74 1989 JLJ 207 at 210.

75 1978 Cr. L.J.798

76 Mahesh Chand vs. B. Janardhan Reddy and Anr. AIR 2003 SC 702

77 (2012) 1SCC130.

78 Anju Chaudhary vs.State of U.P. 2013 6 SCC 284.

79 Anju Chaudhary case para 16.

80 BabuBabubhai vs.State of Gujarat (2010) 12 SCC 254.

81 T.T. Anotny vs.State of Kerala &other Section, AIR 2001 SC 2637.

82 Upkar Singh vs. Ved Prakash, AIR 2004 SC 4320.

83 CrPC

84 Mohd. Yusuf vs.Afaq Jahan (2006) 1 SCC 627, para. 26.

85 Sakiri Vasu vs. State of Uttar Pradesh &Ors (2008) 2 SCC 409

86 Prakash Singh vs.The State, (2007) 1 SCC 1.

87 Mohd.Yousuf vs.Smt. Afaq Jahan &Anr., (2006) 1 SCC 627.

88 AIR 1972 SC 283.

89 Lalita Kumari vs.Govt. of U.P. and Ors, (2014) 2 SCC 1.

90 (2014) 2SCC1.

91 J.K. Devaiya vs. State of Coorg, 1956 AIR Mys. 51.

92 Sahebrao and Anr. vs. State of Maharashtra, AIR 2006 SC 2002.

93 Tara Singh vs. State of Punjab, AIR 1991 SC 63.

94 State of U.P. vs. Raj Bahadur, 1993 Cr. L.J. 86 (All.).

95 Bable @ Gurdeep Singh vs. State of Chattisgarh, AIR 2012 SC 2621.

96 Magesh vs.State of Karnataka, AIR 2010 SC 2768.

97 Utpal Das and Anr.vs. State of West Bengal, (2010) 6 SCC 493
98 Thulia Kali vs. State of Tamil Nadu, 1973 AIR 501.

99 Ravi Kumar vs. State, (2005) 9 SCC 315.

100 (2009) 13 SCALE 376.

101 Alagarsamy vs. State by Deputy Superintendent of Police, (2009) 13 SCALE 376, para. 18.

102 (2009) 13 SCALE 376. Para. 18.

103 Harkirat Singh vs. State of Punjab, AIR 1997 SC 3231

104 Kailash vs. State of M.P., 2007 Cr.L.J. 1129.

105 Dharam Pal vs. State of U.P., 2008 Cr.L.J 1016.

106 Ranjit Singh vs. State of M.P., (2010) 11 SCC 629. Where at the first possible opportunity the
complainant had informed the name of the accused to the
Page 108 Your Laws and Your Rights

police is sufficient and it will not tilt the balance in favour of the accused.

107 Moti Lal vs. State of U.P., (2010) 1SCC 581.

108 Mohanlal vs. State, (1961) 1 Cr.L.J. 155.

109 AIR 1978 SC 368.

110 Ram Narain Singh vs.The State of Punjab, AIR 1975 SC 1727.

111 Sukhlal vs. State of U.P., 1985 All L.J. 475.

112 (1995) 1 SCC 93.

113Section 182 of IPC: Whoever gives to any public servant any information which he knows or believes
to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public
servant — (a) to do or omit anything which such public servant ought not to do or omit if the true state of
facts respecting which such information is given were known by him, or (b) to use the lawful power of
such public servant to the injury or annoyance of any person, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

114 Kurukshetra University vs. State of Haryana, AIR 1977 SC 2229.

115 S. N. Sharma vs. Bipen Kumar Tiwari and Ors., AIR 1970SC 786.

116 Section 159 of the CrPC: Power to hold investigation or Such Magistrate, on receiving such report,
may direct an investigation, or, if he thinks fit, at once proceed, or depute any Magistrate Subordinate to
him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner
provided in this Code.

117 Achamma Chacko vs. Government of Kerala, 2006 Cr. L.J. 4391.

118 1992 SCC (Cr.) 426.

119 State of Haryana and Ors. vs. Bhajan Lal and Ors., AIR 1992 SC 604.
Page 109

Chapter 6
Criminal Justice:
Arrest, Detention and Bail
Jasper Vikas George

INTRODUCTION

The history of liberty has largely been the history of observance of procedural safeguards. The legitimacy
of every criminal justice system is based on how it applies the procedures of arrest, detention and bail, as
the same are the most common means by which the public relates to the criminal justice system. In
modern democracy, many public events are organised which are in the nature of protests. These have a
direct, and at times adverse, bearing on either the government or the administration. To bring things under
control, the police have to take recourse to arrest and detention of the people involved, who later go for
bail to come out of jail and participate in a free and fair trial. Therefore, it is essential to know the laws
regarding arrest, detention and bail.

Arrest and detention are such procedures that immediately take away the liberty of a person and therefore,
it is crucial that appropriate procedures, duly established by law, must be followed in this regard. The
arrest affects the dignity of an individual. In Charu Khurana vs. Union of India, the Court held, "Dignity
is the quintessential quality of a personality, for it is a highly cherished value. The freedom of an
individual has its sanctity. When the individual liberty is curtailed in an unlawful manner, the victim is
likely to feel more anguished, agonised, shaken, perturbed, disillusioned, and emotionally torn. It is an
assault on his/her identity. The said identity is sacrosanct under the Constitution. Therefore, for
curtailment of liberty, requisite norms are to be followed. Fidelity to statutory safeguards instils faith of
the collective in the system."2It is, therefore, necessary to curtail any attempt to corrode the procedural
safeguards that are meant to sustain the sanguinity of liberty enshrined in the Constitution of
Page 110 Your Laws and Your Rights

India.3 Every criminal justice system, therefore, has to follow the procedure established by law. A fair
trial is the basis of the criminal law. Every criminal trial is a voyage of discovery in which truth is the
quest.4 In Rattiram case,5 speaking on fair trial the Court opined, "Fundamentally, a fair and impartial
trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A
fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice,
dishonesty, and favouritism."6 Fair trial begins with the arrest of the accused, which must be within the
purview of the procedure established by law. Similarly, fair rules of detention are also sacrosanct for a
civilised society. Bail and no jail is the necessary principle that must be followed in full spirit.

Similarly, in J. Jayalalitha a case, the Court ruled that "fair trial is the main object of criminal procedure
and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of
the accused, the victim, and of the society. Thus, the fair trial must be accorded to every accused in the
spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable
trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties
adversely affects the community as a whole and it becomes harmful to the society in general. It has
further been observed that in all circumstances, the Courts have a duty to maintain public confidence in
the administration of justice and such duty is to vindicate and uphold the 'majesty of the law' and the
Courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal
proceedings."8 Trial commences with the arrest of the person. And, therefore, it is essential to know the
laws related to arrest and detention. In this chapter, the procedure established by law related to arrest,
detention and bail is discussed in detail, and simultaneously the rights of the arrested persons and persons
under detention are also discussed.

CRIMINAL JUSTICE AND ARREST

The word 'arrest' is derived from the French word 'Arreter' which means 'to stop or stay' and signifies the
restraint of a person. Arrest
Page 111 Criminal Justice: Arrest, Detention and Bail

means deprivation of the most precious right - the right to liberty- of an individual. The purpose of arrest
is either to stop the commission of an offence or to secure the presence of the accused during a criminal
trial. In Roshan Beevi vs. Joint Secretary, Government of T.N.,9 the Court explained, "The word 'arrest',
when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of
one's personal liberty. The question whether the person is under arrest or not depends not on the legality
of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When
used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking
into custody of another person under authority empowered by law, for the purpose of holding or detaining
him to answer a criminal charge or of preventing the commission of a criminal offence. The essential
elements to constitute an arrest in the above sense are that there must be an intent to arrest under the
authority, accompanied by a seizure or detention of the person in the manner known to the law, which is
so understood by the person arrested."10 The police must use this discretionary power of arrest with
caution and must not put any person under restraint without appropriate reasons and in violation of the
procedure established by law. "Arrest brings humiliation, curtails freedom, and casts scars forever.
Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it
seems that the police have not learnt its lesson: the lesson implicit and embodied in the Criminal
Procedure Code. It has not come out of its colonial image despite six decades of Independence; it is
largely considered as a tool of harassment, oppression, and surely not considered a friend of public. The
need for caution in exercising the drastic power of arrest has been emphasised time and again by the
Courts but has not yielded the desired result. The power to arrest greatly contributes to its arrogance, so
also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative
sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has
become a handy tool to the police officers who lack sensitivity or act with oblique motive."11

There are various ways to arrest any person. We shall discuss in detail the procedure related to the law of
arrest below.
Page 112 Your Laws and Your Rights

Arrest by Police (without warrant)

The Criminal Procedure Code (hereafter CrPC) provides detailed provisions related to arrest. Generally,
the police have the authority to arrest, but in some circumstances a private person12 or a Magistrate13 can
also arrest. Arrest is often a necessity in the process of investigation. In Adri Dharan Das vs. State of
West Bengal,14 the Court held, "Ordinarily, the arrest is a part of the process of an investigation intended
to secure several purposes. The accused may have to be questioned in detail regarding various facets of
motive, preparation, commission, and the aftermath of the crime and the connection of other persons, if
any, in the crime. There may be circumstances in which the accused may provide information leading to
the discovery of material facts. It may be necessary to curtail his freedom in order to enable the
investigation to proceed without hindrance and to protect witnesses and persons connected with the victim
of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other
reasons, the arrest may become an inevitable part of the process of investigation."15 Arrest generally
requires the permission of the Magistrate. But, there are certain cases in which the police can arrest
without an order from a Magistrate and without a warrant, such as:

1) When any person commits a cognisable offence in the presence of a police officer16; or

2) Where a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists against a person that he has committed a cognisable offence punishable with
imprisonment for a term which may be less than seven years or which may extend to seven years whether
with or without fine, if the following conditions are satisfied, namely:

a) Where the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence17;

b) Where the police officer is satisfied that such arrest is necessary18:

(I) To prevent such person from committing any further offence; or

Page 113 Criminal Justice: Arrest, Detention and Bail

(ii) For proper investigation of the offence; or

(iii) To prevent such person from causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or

(iv) To prevent such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police
officer; or

(v) As unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing. Subject to the
condition that a police officer shall, in all cases where the arrest of a person is not required under the
provisions of this sub-Section, record the reasons in writing for not making the arrest.

c) Against whom credible information has been received by the police that the person has
committed a cognisable offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the said offence.19

d) The person who has been proclaimed as an offender either under CrPC or by order of the State
Government20; or

e) The person in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing21; or

f) The person who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody of the police officer22; or

g) The person who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union23; or

h) The person who has been concerned in, or against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable suspicion
Page 114 Your Laws and Your Rights

exists, of his having been concerned in, any act committed at any place out of India which, if committed
in India, would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India24; or

i) The person who, being a previously convicted offender, commits a breach of any rule made under
Section 356 (5) of CrPC25; or

j) The person for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears there from that the person might lawfully be
arrested without a warrant by the officer who issued the requisition.26

3) Police may also arrest without warrant when any person who, in the presence of a police officer,
has committed or has been accused of committing a non-cognisable offence refuses, on demand of such
officer, to give his name and residence or gives a name or residence which such officer has reason to
believe to be false, he may be arrested by such officer in order that his name or residence may be
ascertained. And, when the true name and residence of such person have been ascertained, the person
shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so
required, subject to the condition that, if such person is not resident in India, the bond shall be secured by
a surety or sureties resident in India. And, if the true name and residence of such person have not been
ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so
required, to furnish sufficient sureties, the person shall forthwith be forwarded to the nearest Magistrate
having jurisdiction.27

4) No person concerned in a non-cognisable offence or against whom a complaint has been made or
credible information has been received or a reasonable suspicion exists of his having so concerned, shall
be arrested except under a warrant or order of a Magistrate (except in cases referred to in Section 42 of
CrPC) ,28
Page 115 Criminal Justice: Arrest, Detention and Bail

5) It is the duty of the police to prevent cognisable offences under Section 149 of CrPC, and
therefore, a police officer knowing of a design to commit any cognisable offence may arrest, without
taking orders from the Magistrate and also without a warrant, the person so designing.29

There are other Acts also where the power has been given to the Police to arrest without warrant, such as,
(i) Section 34 of Police Act, 1961; (ii) Section 64 of Indian Forest Act, 1927; (iii) Section 20 of Arms
Act, 1959; (iv) Section 13 of Explosives Act, 1884; (v) Sections 145, 146, 150, 152, 153, 154, 162, 180 of
Railways Act, 1989; (vi) Section 7 of Fisheries Act, 1897, etc. The arrest of the person is necessary only
for the purpose of carrying out the investigation. In the M.C. Abraham case,30 the Supreme Court held,
"In the first place, the arrest of an accused is a part of the investigation and is within the discretion of the
investigating officer. Section 41 of the CrPC provides for arrest by a police officer without an order from
a Magistrate and without a warrant. The Section gives discretion to the police officer who may, without
an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in
that Section. It is open to him, in the course of the investigation, to arrest any person who has been
concerned with any cognisable offence or against whom a reasonable complaint has been made or
credible information has been received, or a reasonable suspicion exists of his having been so concerned.
Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon
as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make
up his mind as to whether it is necessary to arrest the accused person. At that stage, the Court has no role
to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if
the allegation against him is of having committed a cognisable offence. Since an arrest is in the nature of
an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the
power has to be cautiously exercised. It depend sinter alia upon the nature of the offence alleged and the
type of persons who are accused of having committed the cognisable offence. Obviously, the power has to
be exercised with caution and circumspection."31 In Sanjib Kumar case,32 the Apex Court directed the
police to not cause any
Page 116 Your Laws and Your Rights

harassment to the arrestee. The police need to make an arrest as it is necessary for the investigation of a
crime and therefore, there cannot be any blanket protection to a person that he cannot be arrested for any
crime, except after a written notice.33

In Kaisar Otmar case,34 the Court held, "Our legal system does not require that an arrest should be
attended with any ritual of even that it should be ostentatious. It is not necessary that a man in order to get
arrested should be taken prisoner; nor does the law regard as arrest only the ceremonial handcuff or
manacle. An authority is said to arrest another man if it prevents the latter from willing his movements
and moving according to his will. Under enlightened modern conditions, it seldom becomes necessary for
any police officer or other authority empowered to make arrests to actually seize or even touch a person's
body with a view to his restraint. The utterance of a guttural word or sound, a gesture of the index finger
or hand, the sway of the head or even the flicker of an eye is enough to convey the meaning to the person
concerned that he has lost his liberty."35 In a civilised society, just because there is a ground to arrest, a
police officer may arrest is not appropriate. Therefore, the Supreme Court opined," 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. 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 an arrest. Denying
a person of his liberty is a serious matter."36

In D.K. Basu vs. State of W.B.,37 the Supreme Court laid down certain guidelines to be followed in cases
of arrest and detention, until legal provisions were made in their place as preventive measures. The said
guidelines read as given in the box.

DK Basu Guidelines for Arrest

(1) "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 who handle interrogation of the arrestee must be recorded in a register.
Page 117 Criminal Justice: Arrest, Detention and Bail

(2) 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 attested by at least one witness, who may either be 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.

(3) A person who has been arrested or detained and is being held in custody in a police station or
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 himself
such a friend or a relative of the arrestee.

(4) 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 outside the district or town through the Legal Aid
Organisation in the District and the police station of the area concerned telegraphically within a period of
8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or
detention as soon as he is put under arrest or is detained.

(6) 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.

(7) 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 that 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.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in
Page 118 Your Laws and Your Rights

custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State
or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and
districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.

(11) A police control room should be provided at all district and State headquarters, where information
regarding the arrest and the place of 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."38

Judicial Officer plays a significant role in the judicial system. Therefore, there are certain specific
guidelines formed for the purpose of arresting the Judicial Officer. In Delhi Judicial Service Association,
Tis Hazari Court vs. State of Gujarat,39 the Supreme Court laid down following guidelines to be followed
by the police agencies:

(a) "If a judicial officer is to be arrested for some offence, it should be done under intimation to the
District Judge or the High Court as the case may be.

(b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate
judiciary, a technical or formal arrest may be effected.

(c) The facts of such arrest should be immediately communicated to the District and Sessions Judge
of the concerned District and the Chief Justice of the High Court.

(d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or
directions of the District & Sessions Judge of the concerned District, if available.

(e) Immediate facilities shall be provided to the Judicial Officer of communication with his family
members, legal advisers and Judicial Officers, including the District & Sessions Judge.

(f) No statement of a Judicial Officer who is under arrest be

Page 119 Criminal Justice: Arrest, Detention and Bail

recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of
the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if
available.

(g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is
offered or there is imminent need to effect a physical arrest in order to avert danger to life and limb, the
person resisting arrest may be overpowered and handcuffed. In such case, the immediate report shall be
made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the
burden would be on the police to establish the necessity for effecting physical arrest and handcuffing the
Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was
unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of
misconduct and would also be personally liable for compensation and/or damages as may be summarily
determined by the High Court."40

In Ahmed Noormohmed Bhatti vs. State of Gujarat, the Supreme Court held that the requirements of D.K.
Basu and Joginder Kumarwere" in addition to the constitutional and statutory safeguards and do not
detract from various directions given by the Courts from time to time in connection with the safeguarding
of the rights and dignity of the arrestee. The Court cautioned that failure to comply with the requirements
aforesaid, shall apart from rendering the official concerned liable for departmental action, also render him
liable to be punished for Contempt of Court."41 Many of these guidelines were later included in the
CrPC. In 2010, Section 41A, 41B and 41C were inserted by the legislature to check the discretionary
power of the police. Under Section 41 A, "notice of appearance before police officer was directed to be
issued against the person against whom a reasonable complaint has been made, or credible information
has been received, or a reasonable suspicion exists that he has committed a cognisable offence, to appear
before him (the police officer) or at such other place as may be specified in the notice.//42The person to
whom a notice is issued is duty-bound to comply with the terms of the notice,4’ and if such person
complies and continues to comply with
Page 120 Your Laws and Your Rights

the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to
be recorded, the police officer is of the opinion that he ought to be arrested.44 And, where such person, at
any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer
may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for
the offence mentioned in the notice.45 But, the accused cannot claim the right to notice or hearing before
the arrest. In Mohd. Rashid case, a question was posed before the Court about whether or not the accused
had any right to a four working days' written notice whenever his arrest was needed, the Court held that
"the accused had no such right of notice."46

It is the exclusive domain of the police officer to arrest and the Court cannot generally interfere with the
power of the investigation. In Ajeet Singh case, the Court further observed, "There can be no quarrel with
the settled legal proposition that arrest is a part of investigation and it is not permissible to agitate that the
Court can stay the arrest unless the Court is of the view that in the peculiar facts of a particular case, it is
necessary to interfere with the investigation. That the powers of investigation fall within the exclusive
domain of the police, and the Courts cannot intervene unless the police act wholly without jurisdiction by
seeking to investigate a non-cognisable offence without the permission of a Magistrate, or where there
may be some other statutory restriction on the investigation. It is only after submission of the charge
sheet, if the FIR and investigation do not disclose commission of a cognisable offence, or according to
other well-settled principles delineated by the Apex Court and this Court in various decisions, can the
High Court grant some appropriate relief."47

Rights of Arrested Persons

• Right to know the grounds of arrest.

• The police officer while making an arrest bears an accurate, visible, and clear identification of his
name.

• Rights of arrested person to inform about the arrest to a nominated person.

• Right to consult an advocate of his choice during interrogation.

• Information regarding the right to be released on bail.

• No unnecessary restraint.
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• Right to be taken before a Magistrate without delay and within 24 hours of arrest.

• Rights of free legal aid.

• Right to be examined by a medical practitioner.

The Supreme Court in Smt. Nandini Satpathy vs .P. L. Dani and Anr. observed, "The incidents of
personal liberty are guaranteed under the Constitution of India. 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 rights 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 the person to attend the Station House and not to leave the
Station without permission would do."48 Thus, the Court in Ajeet Singh case held, "The arrest is
permissible only in a case where the circumstances of the said case so require and there is a justification
for making the arrest otherwise not and the Court has a duty to balance the freedom of a person and the
right of the Executive to investigate the offence. Therefore, the Court has to examine as to whether the
investigation is being made in accordance with law and if it comes to the conclusion that investigation is
nothing but a means to harass the accused, the Court can always interfere with the investigation."49
Page 122 Your Laws and Your Rights

Procedure of arrest and duties of officer making arrest and Control room at districts

The detailed procedure of arrest and duties of a police officer in this regard are prescribed under Section
41B of CrPC. It directs that every police officer, while making an arrest, shall, (a) bear an accurate,
visible and clear identification of his name which will facilitate easy identification; (b) prepare a
memorandum of arrest which shall be - (i) attested by at least one witness, who is a member of the family
of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned
by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a
member of his family, that he has a right to have a relative or a friend named by him to be informed of his
arrest."50 And, to check arbitrary arrest by police, Section 41C is included within CrPC which directs the
State governments to establish Police Control Room (PCR) in every district and state, and to display on
the notice board kept outside the control rooms at every district, the names and addresses of the persons
arrested and the name and designation of the police officers who made the arrests. The control room at the
police headquarters at the State level shall collect from time to time, details about the persons arrested,
nature of the offence with which they are charged and maintain a database of the information of the
general public.51 And, finally, the right of arrested persons to meet an advocate of their choice during
interrogation (though not throughout interrogation) is also established.52 The Allahabad High Court in
Shaukin case53 observed the relevance of these newly inserted Sections, "The import of the said
provisions is that normally where an accused has been named in the FIR, and the offence is punishable
with upto seven years imprisonment, the arrest of the accused may not be necessary at the initial stage and
his attendance may be secured by issuing a notice to him to appear before the police officer under Section
41A of CrPC. In such cases, it would be advisable to arrest the accused only after sufficient evidence of
his involvement in the crime has been collected and the charge sheet needs to be submitted. Under
Section 170(1) of CrPC, it has been provided that on completion of investigation if sufficient evidence
has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has
been released on bail (if the
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offence was bailable), in which event security may be taken for his appearance before the Magistrate.
This practice of not arresting the accused straightaway and arresting them only after sufficient evidence
has been collected is normally followed by the CBI and the CID in their investigations."54 And where the
name of accused is not present in the FIR, or the co-accused is picked up, "for example in a case of
vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while
committing a crime, and he names another accused as also having participated in the crime, whose
custodial interrogation may be necessary and the police officer is of the opinion that the disclosure
furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose
arrest is sought could also be involved, or there are chances that such an accused would abscond or not
respond to a notice under Section 41A to appear, looking to the nature of the crime and the background of
the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise
where the accused whose arrest is sought appears to be habitually engaged in committing crimes or
appears to be participating in some organized crimes, and there is probability of the accused repeating the
offence, these would also be circumstances where it may be necessary to arrest such accused without
delay.”55 The Court, therefore, asked to maintain the balance between the liberty of an individual and
arrest. This means, in case of matrimonial disputes (Section 498A of IPC) where the wife went back to
her parents' home after subject to cruelty, "it may not be necessary in a particular case to immediately
arrest the husband and other family members who have been made accused in the FIR until adequate
evidence has been collected, as she is unlikely to encounter violence when she is away from her sasural
(husband's home)."56 Similarly, there are various cases where there is no need to arrest immediately; in
those cases police should avoid the arrest. The Court, therefore, directed,

(1) "The police officer record reasons in a bona fide and honest manner, why it has become necessary
to arrest the accused in a particular case punishable with imprisonment for upto 7 years. The police officer
should not mechanically and routinely write down in the case diary that there is likelihood of the accused
running away, or presume that the accused
Page 124 Your Laws and Your Rights

would not respond to the notice to appear under Section 41A of CrPC, or that he would tamper with the
evidence, unless there are strong reasons with concrete material for taking such a view, and this
satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case
diary before the accused is arrested.

(2) Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an
income tax payee with roots in the community, and a permanent abode, no history of earlier abscondence
or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a
crime unless he is immediately arrested.

(3) The propriety, honesty, and genuineness of the reasons given for arrests in particular cases
punishable with imprisonment up to seven years and whether they conform to the requirements of
Sections 41(l)(b) and 41A of CrPC, therefore, need to be strictly monitored by the superior officers, i.e.,
C.O.s/ S.P.s/SSPs or DIGs in the districts.

(4) In the even the Court finds that the accused who are wanted in cases punishable with up to seven
years imprisonment are being arrested in a routine and mechanical matter, without the existence of the
conditions necessary for arresting them as mentioned in Sections 41 (1) (b) and 41A of CrPC, the Court
will not hesitate in summoning the concerned police officers or even the superior police officers and they
may even have to face contempt charges."57

These provisions are included within the ambit of CrPC not to curb the powers of the police, but to
maintain a striking balance between the liberty of the person and the need of the investigative agency to
carry out an investigation without interference.

How arrest is made and no Automatic arrest in certain cases

Section 46 of CrPC clearly defines how the police may arrest. Police, while making an arrest, shall
actually touch or confine the body of the person to be arrested, unless there is a submission to the custody
by word or action, but where a woman is to be arrested (unless the circumstances indicate to the contrary),
her submission
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to custody on an oral intimation of arrest shall be presumed and, even if she is arrested, the arrest shall
only be made by a female police officer and the police officer shall not touch the person of the woman for
making her arrest."58 And, if a person forcibly resists the arrest, or attempts to evade the arrest, such
police officer or another person may use all means necessary to effect the arrest.59 This Section does not
give any power to the police to cause the death of a person who is not accused of an offence punishable
with death or with imprisonment for life.60 And unless exceptional circumstances exist, no woman shall
be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman
police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of
the first class within whose local jurisdiction the offence is committed or the arrest is to be made.61 There
are other guidelines as well that have been issued by the Judiciary from time to time. In Sunil Batra case,
the Court held, "Section 5662 does not permit the use of bar fetters for an unusually long period, day and
night, and that too when the prisoner is confined in secure cells from where escape is somewhat
inconceivable"63

In Arnesh Kumar case64, the Supreme Court emphasized that the police and the Magistrates should be
more circumspect in arresting the accused without warrant and in committing them to judicial custody.
Consequently, the Apex Court issued a series of directions to police officers, asking them not to arrest the
accused unnecessarily, and to the Magistrates, asking them to not authorise detention casually and
mechanically. In order to ensure the above, the Court gave the following directions:

(1) "All the State Governments to instruct its police officers not to automatically arrest when a case
under Section 498A of the IPC is registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41 of CrPC;

(2) All police officers are provided with a checklist containing specified sub-clauses under Section
41(l)(b)(ii);

(3) The police officer shall forward the checklist duly filed and furnish the reasons and materials
which necessitated the
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arrest while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise
detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the Magistrate which may be extended by the
Superintendent of Police of the District for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of CrPC be served on the accused within two
weeks from the date of institution of the case, which may be extended by the Superintendent of Police of
the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to
be instituted before High Court having territorial jurisdiction;

(8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the appropriate High Court.

(9) We hasten to add that the directions aforesaid shall not only apply to the cases under Section
498Aof the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where
offence is punishable with imprisonment for a term which may be less than seven years or which may
extend to seven years; whether with or without fine."65

Rights of the Arrested person

1. To be informed of grounds of arrest: Every police officer arresting any person without warrant shall
communicate to him the full particulars of the alleged offence for which he is arrested or other grounds
for such arrest.66 And, where a police officer arrests without warrant any person other than a person
accused of a non- bailable
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offence, he shall inform the person arrested that he is entitled to be released on bail and that he may
arrange for sureties on his behalf.67 This is further the duty of every police officer making any arrest to
give the information regarding such arrest and place where the arrested person is being held to any of his
friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the
purpose of giving such information.68 And, it is the duty of the police officer to inform the arrested
person of his rights under Section 50A(1) as soon as he is brought to the police station.69 The entry of the
fact as to who has been informed of the arrest of a person shall be made in a book kept in the police
station70 and, it shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of Section 50A(2) and (3) have been complied with in respect of
such arrested person.71

2. Search, Medical Examination, Health and Time of Detention of arrested person: Whenever a
person is arrested, the police officer may search such person, and place in safe custody all articles, other
than necessary wearing apparel, found upon him and where any article is seized from the arrested person,
a receipt showing the articles taken in possession by the police officer shall be given to such person and
whenever it is necessary to cause a female to be searched, the search shall be made by another female
with strict regard to decency.72 It is the right of the arrested persons to be examined by a medical officer
in the service of Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made, and if the arrested person is a female, the
examination of the body shall be made only by or under the supervision of a female medical officer, and
in case the female medical officer is not available, by a female registered medical practitioner.73 The
medical officer or a registered medical practitioner shall prepare the record of such examination,
mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time
when such injuries or marks may have been inflicted74 and a copy of the report of such examination shall
be furnished to the arrested person or the person nominated by such arrested person.75 It is the duty of the
police to take reasonable care of the health and safety of the arrested person. 'The person arrested should
be taken before the Magistrate
Page 128 Your Laws and Your Rights

or officer in charge of the police station without delay77 and the person arrested must not be detained for
more than twenty-four hours.78

3. Proper Use of Handcuffs: From time to time, the Supreme Court, by its various judicial
pronouncements, has directed the police how to deal with the arrested persons and things to be kept in
mind while dealing with arrested persons. Justice V. R. Krishna Iyer observed, "A law which handcuffs
almost every undertrial (who, presumably, is innocent) is itself dangerous.”79 The Court in Prem Shankar
case observed, "It is an axiom of the criminal law that a person alleged to have committed an offence is
liable to arrest. In making an arrest, declares Section 46 of CrPC, 'the police officer or other person
making the same shall actually touch or confine the body of the person to be arrested unless there be a
submission to the custody by word or action.' If there is forcible resistance to the endeavour to arrest or an
attempt to evade the arrest, the law allows the police officer or another person to use all means necessary
to effect the arrest. Simultaneously, Section 49 of CrPC provides that the person arrested must 'not be
subjected to more restraint than is necessary to prevent his escape.' The two Sections define the
parameters of the power, envisaged by the Code in the matter of arrest. And Section 46, in particular,
foreshadows the central principle controlling the power to impose restraint on the person of a prisoner
while in continued custody. Restraint may be imposed where it is reasonably apprehended that the
prisoner will attempt to escape, and it should not be more than is necessary to prevent him from
escaping"80 justice R. S. Pathak, observed "Whether a person should be physically restrained and, if so,
what should be the degree of restraint, is a matter which affects the person in custody so long as he
remains in custody. Consistent with the fundamental rights of such person the restraint can be imposed, if
at all, to a degree no greater than is necessary for preventing his escape. To prevent his escape is the
object of imposing the restraint, and that object defines at once the bounds of that power."81

4. Illegal Arrest are the most common threats to the liberty of an individual. Illegal arrest spoils the
life of the person as the same comes with a social stigma. In In Re, Madhu Limaye and Ors.,82 the
Supreme Court held, "The two requirements of clause (1) of Article
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22 are meant to afford the earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly
what the accusation against him is so that he can exercise the second right, namely, of consulting a legal
practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most
material safeguard that the arrested person must be produced before a Magistrate within twenty-four
hours of such arrest so that an independent authority exercising judicial powers may without delay apply
its mind to his case."83 The Court further held, "Once it is shown that the arrests made by the police
officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate
directed detention in jail custody after applying his mind to all relevant matters.... If their detention in
custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution,
they were entitled to be released forthwith. The orders of remand are not such as would cure the
constitutional infirmities."84 Illegal arrests, therefore, are subject to compensation.

In Boya Nallabothula Venkateswarlu and Ors. vs. The Circle Inspector of Police and Ors., Boya and some
other persons were acquitted for the offence of murder on the ground that the person, for whose murder
they were charged, was alive. The Court in this case held, "Investigation conducted by the police was
false to then- own knowledge and arrest and detention of Boya and others caused by the police was
illegal. Police personnel (were) found guilty of illegal arrest, wrongful detention and wrongful
confinement and violated the fundamental right of Boya and others."85 The Court issued directions to the
State to compensate the victims.

Illegality in an arrest does not affect the validity of the trial of the person arrested.86 Where a person is in
the Court and is charged before a Magistrate with an offence under the IPC, he cannot take a plea that he
was brought illegally from a foreign country.87 In Jograj case, the Court held that if the police officer has
no power to arrest and his actions are on the whole without jurisdiction, then the person arrested has the
right of private defence and he can repel the arrest by violence also.88 The protection afforded to police
officers and to those acting under their authority by Section 99 of IPC does not extend to and the officer
whose acts are wholly illegal.89
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5. Women Arrestees The condition of women prisoners was pathetic earlier and needed serious
consideration and therefore, in Sheela Barsevs. State of Maharashtra,90 the Court issued the following
guidelines to be followed in cases related to women prisoners in police lock-ups.

(i) "It is directed that four or five police lock-ups should be selected in reasonably good localities
where only female suspects should be kept and they should be guarded by female constables. Female
suspects should not be kept in police lock-up in which male suspects are detained....

(ii) It is further directed that interrogation of females should be carried out only in the presence of
female police officers / constables.

(iii) And, whenever a person is arrested by the police without a warrant, he must be immediately
informed of the grounds of his arrest and in case of every arrest it must immediately be made known to
the arrested person that he is entitled to apply for bail.

(iv) It is further directed that whenever a person is arrested by the police and taken to the police lock-
up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid
Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal
assistance to the arrested person at State cost provided he is willing to accept such legal assistance. The
State Government will provide necessary funds to the concerned Legal Aid Committee for carrying out
this direction.

(v) It is further directed that in the city of Bombay, a City Sessions Judge, to be nominated by the
principal Judge of the City Civil Court, preferably a lady Judge, if there is one, shall make surprise visits
to police lock-ups in the city periodically with a view to providing the arrested persons an opportunity to
air their grievances and ascertaining what are the conditions in the police lock-ups and whether the
requisite facilities are being provided and the provisions of law are being observed and the directions
given by us are being carried out. If it is found as a result of inspection that
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there are any lapses on the part of the police authorities, the City Sessions Judge shall bring them to the
notice of the Commissioner of Police and if necessary to the notice of the Home Department and if even
this approach fails, the City Sessions Judge may draw the attention of the Chief Justice of the High Court
to such lapses. This direction in regard to police lock-ups at the district's headquarters shall be carried out
by the Sessions Judge of the district concerned.

(vi) It is further directed that as soon as a person is arrested, the police must immediately obtain from
him the name of any relative or friend whom he would like to be informed about his arrest and the police
should get in touch with such relative or friend and inform him about the arrest.

(vii) It is further directed that the magistrate before whom an arrested person is produced shall enquire
from the arrested person whether he has any complaint of torture or maltreatment in police custody and
inform him that he has right under Section 54 of the CrPC, 1973, to be medically examined. We are aware
that Section 54 of the CrPC, 1973, undoubtedly provides for examination of an arrested person by a
medical practitioner at the request of the arrested person and it is a right conferred on the arrested person.
But very often the arrested person is not aware of this right and on account of his ignorance, he is unable
to exercise this right even though he may have been tortured or maltreated by the police in police lock-up.
It is for this reason that we are giving a specific direction requiring the magistrate to inform the arrested
person of this right of medical examination in case he has any complaint of torture or maltreatment in
police custody."91
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Important Cases on Rights of Arrested Persons

l. D.K. Basu vs. State of W.B., (1997) 1 SCC 416: Citizen is entitled to monetary compensation in case of
illegal custodial detention if committed by functionaries of State and 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, and must record the fact of arrest in a register. The police must
also prepare a memo of arrest consisting the time and date, at the time of arrest which must be attested by
either a member of the family of the arrestee or a respectable person of the locality from where the arrest
is made. The Court also issued many other specific directions which are in addition to the constitutional
and statutory safeguards and do not detract from various other directions given by the courts from time to
time in connection with safeguarding the rights and dignity of the arrestee.

2. Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96: The Court issued specific directions in regard
to women prisoners. The Court directed for the creation of four or five women policelock-ups for keeping
female suspects, which must be guarded by female constables, and interrogation of females should be
carried out only in the presence of female police officers/constables.

3. Arnesh Kumar vs. State of Bihar and Anr., (2014) 8 SCC 273: The Court directed police officers to not
automatically arrest in cases under Section 498A of IPC and check the parameters prescribed under
Section 41 of CrPC. Police should forward the checklist duly filed and furnish the reasons and materials
that necessitated the arrest while forwarding/producing the accused before the Magistrate for further
detention. The Court also directed to apply in such cases where the offence is punishable with
imprisonment for a term which may be less than seven years or which may extend to seven years; whether
with or without fine.

4. Sunil Batra vs. Delhi Administration, (1978) 4 SCC 494: The prisoner is entitled to all constitutional
rights. CrPC does not permit the use of bar fetters for an unusually long period, day and night, and that
too when the prisoner is confined in secure cells from where escape is somewhat inconceivable.

5. Joginder Kumar vs. State of U.P., (1994) 4 SCC 260: The Court directed the police officer that except
in heinous offences, he must avoid the arrest and instead issue notice to person to attend the police station,
and he must not arrest a person on a mere allegation of commission of offence and suspicion of
complicity in offence. It is the right of the arrested person that someone be informed of his arrest and an
entry of the fact may be made in station diary as to who was informed of his arrest.
Page 133 Criminal Justice: Arrest, Detention and Bail

Criminal Justice and Detention

Detention under Criminal Procedure Code

In CrPC, there are various safeguards provided to an arrested person regarding illegal or unnecessary
detention. There are time limits fixed for persons detained either in police custody or in judicial custody.
From time to time, the judiciary has also issued various guidelines to be followed by the police.

Arrested Person may not be detained for more than 24 Hours

According to Section 57 of CrPC, "No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate under Section 167 92, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."

Length of Period of Detention

The investigation should be completed within twenty-four hours, and the defence must be released
thereafter.93 And, if it appears that the investigation cannot be completed within the period of twenty-
four hours, and there are grounds for believing that the accusation or information is well-founded, the
police making the investigation shall produce him before the Judicial Magistrate,94 who shall authorise
the detention of the accused in such custody as he thinks fit, but, for a term not exceeding fifteen days in
the whole.95 But, the Magistrate shall not authorise the detention of the accused person in custody for a
total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where
the investigation relates to any other offence. And, on the expiry of the period of ninety days, or sixty
days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish
bail.96 No Magistrate shall authorise detention of the accused in custody of the police, unless the accused
is produced before him in person for the first time and subsequently every time till the accused remains in
the custody of the police, but the Magistrate may extend further
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detention in judicial custody on production of the accused either in person or through the medium of
electronic video linkage.97 No Magistrate of the second class, not specially empowered in this behalf by
the High Court, shall authorise the detention in the custody of the police. The accused shall be detained in
custody so long as he does not furnish bail, and in the case of a woman under eighteen years of age, the
detained shall be authorised to be in the custody of a remand home or recognised social institution.98 A
Magistrate, whenever authorising detention in the custody of the police shall always record his reasons for
so doing.99 lf in any case triable by a Magistrate as a summonscase,100 the investigation is not concluded
within a period of six months from the date on which the accused was arrested, the Magistrate shall make
an order stopping further investigation into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.101 And, where any order stopping further
investigation into an offence has been made under Section 167(5), the Sessions Judge may direct further
investigation to be made into the offence subject to such directions with regard to bail and other matters
as he may specify.102

There are some specific socio-economic legislations, such as The Narcotics Drugs and Psychotropic
Substance Act (NDPS), 1985, where the detention period is higher keeping in mind the intensity of the
crime and the additional time needed for the completion of investigation. The maximum period provided
under Section 167(2) of CrPC has been increased to 180 days for several categories of offences under the
NDPS Act, but the proviso authorises a further period of detention which may in total go upto one year,
provided the stringent conditions provided therein are satisfied and are complied with. The conditions
provided are: (1) A report of the public prosecutor, (2) which indicates the progress of the investigation,
and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180
days, and (4) after notice to the accused.103 Section 57 of CrPC is mandatory in nature. And any
violation of this poses serious consequences. For instance, two persons, aged 60 years, were arrested at
20.50 pm on 2nd December 2011 at Aurangabad and were brought to Navghar Police Station, Mulund,
Mumbai, from Aurangabad at 20.20 pm on
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3rd December 2011. They were taken from Aurangabad at 22.50 pm and reached Navghar Police Station,
Mulund, Mumbai, after nearly 22 hours. They were shown as arrested on the morning of 4th December
2011 and were released on bail that afternoon. Though the said petitioners were arrested just before 20.50
pm on 2nd December 2011 at Aurangabad, they were shown as arrested in Mumbai at 08.10 am on 4th
December 2011. They were thus illegally detained by the police for nearly 35 hours and 40 minutes. As
they were not shown as arrested for a period of 35 hours, they could not apply for bail. This is a clear
violation of their fundamental rights and a gross breach of the directions issued by the Apex Court from
time to time. The Court awarded reasonable compensation of Rs. 2,50,000/- each. Interest payable on the
said amount was set at the rate of 8% per annum from the date of filing of the petition.104

In Section 57, time taken for the journey from the place of arrest to the Magistrate's Court is excluded.105
The intention of the Legislature is that an accused person should be brought before a Magistrate
competent to try or commit with as little delay as possible. Section 57 is a pointer to the intendment to
uphold liberty and to restrict to the minimum curtailment of liberty.106 The provisions of Section 167 of
CrPC are to be read as supplementary to those contained in Section 57.107 In Tarsem Kumar vs. The
State,108 the Court held, "Section 167 (2) deals with the period of detention which can be authorised by
the Magistrate and has no concern with the period for which the accused can be detained by a police
officer without the authority of a Magistrate. Under Section 57, a police officer can detain an accused for
a period of twenty-four hours as well as for the time which may be necessary for the journey from the
place of arrest to the Magistrate's Court. This journey may, in some cases, take a long time depending
upon the circumstances. All this period of detention does not need any authorisation by the Magistrate. It
is only when the period for which a police officer can detain under Section 57 of the Code expires that he
needs the authorisation of a Magistrate for further detention. The total authorisation, which can be made
for police custody by the Magistrate, is not to exceed fifteen days. The words 'in the whole' have been
used with reference to the context that the Magistrate may 'from time to time' authorise the detention of
the
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accused in police custody and they have no reference to the period of detention during which a police
officer can detain the accused under Section 57 of the Code. Similarly, when the proviso of Section
167(2)(a) refers to 'a total period of sixty days', it relates to the period of detention authorised by the
Magistrate in police custody as well as the custody other than police custody. Thus, while computing the
total period of sixty days, referred to in the proviso of Section 167(2) (a), the period of detention under
Section 57 of the Code has to be excluded."109

In "Common Cause", A Registered Society through its Director vs. Union of India (UOI) and Ors.,110 the
Court observed that in minor offences, which are punishable by not more than three years or at times even
less, with or without fine, the proceedings are kept pending for years together. "And, if they are poor and
helpless, they all will languish in jails for long periods either because there is no one to bail them out or
because there is no one to think of them. The very pendency of criminal proceedings for long periods by
itself operates as an engine of oppression. Quite often, the private complainants institute these
proceedings out of oblique motives. Even in the case of offences punishable by seven years or less - with
or without fine - the prosecutions are kept pending for years and years together in criminal courts. In a
majority of these cases, whether instituted by police or private complainants, the accused belong to the
poorer sections of society, who are unable to afford competent legal advice. Instances have also come
before courts where the accused, who are in jail, are not brought to the court on every date of hearing and
for that reason also the cases undergo several adjournments."111 The Court, after giving deliberations on
the reports, observed the necessity to issue appropriate writ in this regard, and to ensure that the criminal
prosecutions do not operate as an engine of oppression, issued guidelines to be followed by all States and
Union Territories:

(I) "Where the offences under IPC or any other law for the time being in force for which the accused are
charged before any criminal court are punishable with imprisonment not exceeding three years, with or
without fine, and if trials for such offences are pending for one year or more and the concerned accused
have not been released on bail but are in jail for a period of six months or more, the concerned
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criminal court shall release the accused on bail or on personal bond to be executed by the accused and
subject to such conditions, if any, as may be found necessary, in the light of Section 437 of CrPC.

(ii) Where the offences under IPC or any other law for the time being in force for which the accused
are charged before any criminal court are punishable with imprisonment not exceeding five years, with or
without fine, and if the trials for such offences are pending for two years or more and the concerned
accused have not been released on bail but are in jail for a period of six months or more, the concerned
criminal court shall release the accused on bail or on personal bond to be executed by the accused and
subject to the imposing of suitable conditions, if any, in the light of Section 437 of CrPC.

(iii) Where the offences under IPC or any other law for the time being in force for which the accused
are charged before any criminal court are punishable with seven years or less, with or without fine, and if
the trials for such offences are pending for two years or more and the concerned accused have not been
released on bail but are in jail for a period of one year or more, the concerned criminal court shall release
the accused on bail or on personal bond to be executed by the accused and subject to imposing of suitable
conditions, if any, in the light of Section 437 of CrPC.

(iv) Where criminal proceedings are pending regarding traffic offences in any criminal court for more
than two years on account of non-serving summons to the accused or for any other reason whatsoever, the
Court may discharge the accused and close the cases.

(v) Where the cases pending in criminal courts for more than two years under IPC or any other law
for the time being in force are compoundable with the permission of the Court and if in such cases trial
have still not commenced, the criminal court shall, after hearing the public prosecutor and other parties
represented before it or their advocates, discharge or acquit the accused, as the case may be, and close
such cases.
Page 138 Your Laws and Your Rights

(vi) Where the cases pending in criminal courts under IPC or any other law for the time being in force
pertain to offences which are non-cognisable and bailable and if such pendency is for more than two years
and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the
accused as the case may be, and close such cases.

(vii) Where the cases pending in criminal courts under IPC or any other law for the time being in force
are pending in connection with offences which are punishable with fine only and are not of recurring
nature, and if such pendency is for more than one year and if in such cases trial have still not commenced,
the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

(viii) Where the cases pending in criminal courts under IPC or any other law for the time being in force
are punishable with imprisonment upto one year, with or without fine and if such pendency is for more
than one year and if in such cases trials have still not commenced, the criminal court shall discharge or
acquit the accused, as the case may be, and close such cases.

(ix) Where the cases pending in criminal courts under IPC or any other law for the time being in force
are punishable with imprisonment upto three years, with or without fine, and if such pendency is for more
than two years and if in such cases trial have still not commenced, the criminal Court shall discharge or
acquit the accused, as the case may be, and close such cases.

The period of pendency of criminal cases shall be calculated from the date the accused are summoned to
appear in the Court. And the above directions are not applicable to offences involving (a) corruption,
misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of
Corruption Act or any other statute; (b) smuggling, foreign exchange violation and offences under the
Narcotics Drugs and Psychotropic Substances Act; (c) Essential Commodities Act, Food Adulteration
Act, Acts dealing with Environment or any other economic offences; (d) offences under Arms Act,
Explosive Substances Act, Terrorists and Disruptive Activities Act; (e) offences relating to the Army,
Navy,
Page 139 Criminal Justice: Arrest, Detention and Bail

and Air Force; (f) offences against public tranquillity; (g) offences relating to public servants; (h) offences
relating to coins and Government stamp; (i) offences relating to elections; (j) offences relating to giving
false evidence and offences against public justice; (k) any other type of offences against the State; (1)
offences under the taxing enactments; and (m) offences of defamation as defined in Section 499 of
IPC."112

Preventive Detention Laws

In A.K. Gopalan case, the Court held, "No person shall be arrested or detained without being at once
informed of the charges against him."113 The Court further held, "There is no authoritative definition of
the term 'Preventive Detention’ in Indian law, though as description of a topic of legislation it occurred in
the Legislative Lists of the Government of India Act, 1935, and has been used in Item 9 of List I and Item
3 of List III in the Seventh Schedule to the Constitution. The expression has its origin in the language
used by Judges or the law Lords in England while explaining the nature of detention under Regulation
14(B) of the Defence of Realm Consolidation Act, 1914, passed on the outbreak of the First Word War;
and the same language was repeated in connection with the emergency regulations made during the last
World War. The word 'preventive’ is used in contradistinction to the word 'punitive.' It is not a punitive
but a precautionary measure.114 The object is not to punish a man for having done something but to
intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge
formulated, and the justification of such detention is suspicion or reasonable probability and not criminal
conviction which can only be warranted by the legal evidence. Detention in such form is unknown in
America. It was resorted to in England only during wartime, however, as per information available, no
country in the world has made this an integral part of their Constitution as has been done in India. This is
undoubtedly unfortunate, but we cannot speculate on questions of policy or attempt to explore the reasons
which led the representatives of our people to make such a drastic provision in the Constitution itself,
which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people."115
Preventive detention is not intended to punish the offender, but is only a
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precautionary measure against future crimes. Article 22 of the Constitution of India provides protection
against arrest and detention in certain cases. It clearly says that no person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall
he be denied the right to consult, and to be defended by, a legal practitioner of his choice.116 The
Constitution further protects the rights of the arrested or detained person in custody as it directs the police
to produce him before the nearest Magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no
such person shall be detained in custody beyond the statutory period without the authority of a
Magistrate.117 The provisions enshrined in Article 22(1) and (2) are not applicable - (a) to any person
who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law
providing for preventive detention.118

The Constitution further directs that no law providing for preventive detention shall authorise the
detention of a person for a period longer than three months, unless - (a) an Advisory Board consisting of
persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in its opinion sufficient cause for such
detention, provided that nothing in this sub-clause shall authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament under Article 22(7) (b); or (b) such person is
detained in accordance with the provisions of any law made by Parliament under Article 22(7)(a) and
(b).119 And, when any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the earliest opportunity of
making a representation against the order.120 Nothing in clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts which such authority considers to be against the
public interest to disclose.121

The Parliament may by law prescribe the circumstances under which, and the class or classes of cases in
which, a person may be detained for a period longer than three months under any law
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providing for preventive detention without obtaining the opinion of an Advisory Board in accordance
with the provisions of Article 22(4) (a); the maximum period for which any person may in any class or
classes of cases be detained under any law providing for preventive detention; and finally, the procedure
to be followed by an Advisory Board in an inquiry under Article 22 (4) (a).122

The arrest connotes deprivation of 'negative liberty', which is a primordial freedom from interference by
other people that every human being inherently possesses except for any reason established under law.123
Isaiah Berlin while assimilating the distinction between negative and positive liberty argues, "It follows
that a frontier must be drawn between the area of private life and that of public authority. Where it is to be
drawn is a matter of argument, indeed of haggling. Men are largely interdependent, and no man's activity
is so completely private as never to obstruct the lives of others in any way."124 In Anitha Bruse case, the
Court held, "Article 22 is coming within Part-III of the Constitution of India which deals with
fundamental rights of citizens. Thus, Articles 22 itself is one of the fundamental rights guaranteed by the
Constitution to the people of India. But, on a close scrutiny of Article 22, it can be seen that such right is
not an absolute unrestricted one, but subject to certain limitations. Such restrictions are always to protect
the larger interest of the society as well as the nation and the individual right must always be subject to
the interest of the society as a whole. Therefore, such restrictions cannot be termed as authoritarian or
undemocratic under any system of governance. Thus, it is crystal clear that while protection is granted to
the citizens of India against arrest and detention, in certain cases as per Article 22 of the Constitution of
India, in deviation from normal procedure, but subject to the further provisions contained therein, arrest
and detention can be affected. Thus, on a reading of clause (a) to Article 22(4) and the proviso thereto and
clause (b), it can be seen that what is prohibited is the
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detention of a citizen for more than three months as per the law made by the State which contained no
provision for an Advisory Board as constituted as per clause (b) to Article 22(4) for giving opinion as to
whether the detention is with sufficient cause. Therefore, if the State law contains no provision for such
Advisory Board, such law will be unconstitutional."125

In Shyam Balakrishnan case, a person, when he was on his motorcycle, was taken into custody by the
Anti-Naxalite Force of Kerala Police. He was taken to the police station, where his body was completely
searched and where, later on, he was interrogated by the Deputy Superintendent of Police. His house was
also raided by the police and his belongings (laptop, mobile phone, etc.) were seized. Later, he was
released without recording arrest. He approached the High Court seeking compensation for illegal
detention by the police and also seeking departmental action against the police personnel. The Court
held,"To be a Maoist sympathiser is not a crime and unless the police form a reasonable opinion that
activities of a citizen are illegal, his personal liberty cannot be curtailed on the ground that he is a Maoist.
Compensation for the tune of Rs. 1,00,000/- along with costs of Rs. 10,000/- towards expensed be
paid."126 The Court observed, "A reasonable suspicion or belief is more than a mere possibility of
commission of offence. It involves the exercise of due diligence by an officer bestowed with the power in
terms of the CrPC to be exercised in a given set of circumstances as a foundation to ignite a reasonable
suspicion in his mind to act upon. The factual foundation is essential for such suspicion or belief. Being a
Maoist is no crime, though the political ideology of Maoists does not synchronise with our constitutional
polity. It is a basic human right to think in terms of human aspirations. The freedom of thought and liberty
of conscience is a natural right and cannot be surrendered by any human being and that freedom is
ingrained in human mind and soul. However, that freedom becomes unlawful when it confronts with the
positive laws of the State. If the Maoist organisation is a proscribed organisation under law, activities of
the Maoist organisation can be interfered with. If an individual or organisation abhors and resorts to
physical violence, law agency can prevent or take action against that individual or organisation. It is only
when private thoughts or ideas become repugnant to the
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public values as envisaged under law, the private activities become unlawful. Therefore, police cannot
detain a person merely because he is a Maoist, unless police form a reasonable opinion that his activities
are unlawful."127 Even otherwise, as per Article 9(5) of the International Covenant on Civil and Political
Rights, 1966, "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable
right to compensation."

Writ of Habeas Corpus

Justice K. Subha Rao, while discussing the importance of the writ of habeas corpus, observed, "The
history of the writ is the history of the conflict between power and liberty. The writ provides a prompt and
effective remedy against illegal restraints. It is inextricably intertwined with the fundamental right of
personal liberty. 'Habeas Corpus' literally means 'have his body'. By this writ, the Court can direct to have
the body of the person detained to be brought before it in order to ascertain whether the detention is legal
or illegal. Such is the predominant position of the writ in the Anglo- Saxon jurisprudence."128 other
words, "The writ of habeas corpus is a writ directed to the person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and cause of his caption and
detention, to do, submit to, and receive whatsoever the Court or judge awarding the writ shall consider in
that behalf."

Writ of habeas corpus is filed under Articles 32 and 226 of the Constitution of India before the Supreme
Court and the respective High Courts. Whenever a person is detained illegally, or there is some reason to
suspect that the person is unsafe in the custody, one can file the writ petition of habeas corpus. When the
person is produced before the Court on the direction of the writ, the Court can determine whether the
arrested person has been tortured by police or not. The writ of habeas corpus can be filed either by the
detained person himself, or by the relatives or friends of the detained person, before the Court.

In Rudul Sah vs. State of Bihar,130 a person was illegally detained in prison for over fourteen years after
his acquittal in a full dressed trial. It was only after moving to the Supreme Court by way of petition of
habeas corpus that he was released. It was in this background that the Supreme Court observed that "an
order for payment of money in
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the nature of compensation can be passed consequential upon the deprivation of a fundamental right to
life and liberty of a petitioner." The Court further observed, "Article 21 which guarantees the right to life
and liberty will be denuded of its significant content if the powers of the Supreme Court were limited to
passing orders to release from illegal detention. One of the telling ways in which the violation of that right
can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation. The right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of public interest and which present for their
protection the powers of the State as a shield. Respect for the rights of the individuals is the true bastion
of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It
may have recourse against those officers." In cases of illegal detentions, compensation is granted to the
victims, though such compensation only works as a solace and does not permanently remove the scars.
Lord Birkenhead, in Secretary of State for Home Affairs vs.O'Brien,131 observed that the remedy of
habeas corpus is the most important right known to the Constitutional law and is a check upon the illegal
usurpation of power by the executive at the cost of the liege.

II

CRIMINAL JUSTICE AND BAIL

The Criminal Justice System is based on the premise that the accused is innocent unless proven guilty.
And therefore, bail should be granted as the rule rather than as an exception.132 Bail is a conditional
liberty. It may be regarded as a mechanism whereby the State devolutes upon the community the function
of securing the presence of the prisoners, and at the same time involves the participation of the
community in the administration of justice.133 Bail is not defined in the CrPC. "Conceptually, it
continues to be understood as a right for the assertion of freedom against the State imposing restraints
since the U.N. Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has
found a place within the scope of human rights."134 The law of bailis like any other branch of law and
has its own jurisprudence and philosophy, which occupies a very important role in the criminal
Page 145 Criminal Justice: Arrest, Detention and Bail

administration of justice. "The concept of bail emerges from the conflict between the police power to
restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in
favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on
the assumption of his guilt. Chapter XXXIII of CrPC consists of Sections 436 to 450. Sections 436 and
437 provide for the granting of bail to accused persons before trial and conviction. For the purposes of
bail, offences are classified into two categories, that is, (i) bailable135 and

(ii) non-bailable. Section 436 provides for granting bail in bailable cases and Section 437 in non-
bailable cases. A person accused of a bailable offence is entitled to be released on bail pending his trial. In
the case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to
furnish surety. The Magistrate gets jurisdiction to grant bail during the course of an investigation when
the accused is produced before him. In bailable offences, there is no question of discretion for granting
bail. The only choice for the Court is as between taking a simple recognisance of the principal offender or
demanding security with surety. Persons contemplated by this Section cannot be taken into custody unless
they are unable or unwilling to offer bail or to execute personal bonds. The Court has no discretion when
granting bail under this Section, even to impose any condition except the demanding of security with
sureties."136 The law of bail constitutes an important branch of the procedural law and is not a static one;
and in a welfare state like India, it cannot indeed be so. It has to dovetail two conflicting demands,
namely, on one hand, the requirements of the society for being shielded from the hazards of being
exposed to the misadventures of a person alleged to have committed a crime; and on the other, the
fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is
found guilty.137

BAIL

Bail is derived from an old French verb 'boiler', which means to 'give' or 'to deliver', although another
view is that its derivation is from the Latin term 'baiulare', meaning 'to bear a burden'. The dictionary
meaning of the expression 'bail' denotes a security for the appearance of a prisoner for his release. Bail is
a conditional liberty. Bail, according to Strouds Judicial Dictionary138 means, "When a
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man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is
restrained of his liberty - And being by law bailable, offences, surety to those which have authority to bail
him, which sureties are bound for him to the King's use in a certain sum of money, or body for body, that
he shall appear before the Justices of Goal-delivery at the next sessions etc. Then upon the bonds of these
sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his
appearance." Bail is the most important and integral part of the CrPC. The medical examination of the
accused released on bail can be made under Section 53 of CrPC. Bails are of many types such as Regular
Bail, Anticipatory Bail, etc. We are going to discuss them in detail below.

Bail in Bailable offence

A "bailable offence" is one which is shown as bailable in the First Schedule of the CrPC or which has
been made bailable by any other law. Bailable offences are generally categorised as less serious offences,
and therefore, 'bail is a right' in such cases. A person accused of a bailable offence is entitled to be
released on bail pending trial. 139 In cases such as defamation or complaint under Section 138 of
Negotiable Instruments Act, the accused is allowed bail during the pendency of the trial. As soon as the
accused is prepared to give the bail, the police officer or the court is bound to release him on bail. In
bailable offences, the police officer or the court has no discretionary power at all and the accused has a
corresponding right to bail in this regard. In Rasiklal case, the Court held, "It would even be open to the
officer or the Court to discharge such person on his executing a bond as provided in the Section instead of
taking bail from him. The position of persons accused of a non-bailable offence is entirely different. The
right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible
right. In bailable offences, there is no question of discretion in granting bail as the words of Section 436
are imperative. The only choice available to the officer or the Court is as between taking a simple
recognisance of the accused and demanding security with surety. The persons contemplated by Section
436 cannot be taken into custody unless they are unable or willing to offer bail or to execute personal
bonds. There is no manner of doubt that bail in a bailable offence can be claimed by
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accused as of right and the officer or the Court, as the case may be, is bound to release the accused on bail
if he is willing to abide by reasonable conditions which may be imposed on him. There is no express
provision in the Code prohibiting the Court from rear resting an accused released on bail under Section
436 of the Code. However, the settled judicial trend is that the High Court can cancel the bail bond while
exercising inherent powers under Section 482 of the Code. According to this Court, a person accused of a
bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released
on bail if his conduct subsequent to his release is found to be prejudicial to a fair trial. And this forfeiture
can be made effective by invoking the inherent powers of the High Court under Section 482 of the
Code.”140 The legislature has inserted Section 436A by way of Code of Criminal Procedure
(Amendment) Act, 2005, because there had been instances where under-trial prisoners were detained in
jail for periods beyond the maximum period of imprisonment provided for the alleged offence.

Cancellation of Bail in Bailable offences

Cancellation of bail is not a routine affair. Section 436(2) of CrPC empowers the Court to refuse bail,
without prejudice to action under Section 446 of CrPC,141 where a person fails to comply with the
conditions of bail bond. In Rasiklal vs. Kishore s/o Khanch and Wadhwani,142 the Court held, "It is well
settled that bail granted to an accused with reference to bailable offence can be cancelled only if the
accused,

(i) Misuses his liberty by indulging in similar criminal activity,

(ii) Interferes with the course of investigation,

(iii) Attempts to tamper with evidence of witnesses,

(iv) Threatens witnesses or indulges in similar activities which would hamper smooth investigation,

(v) Attempts to flee to another country,

(vi) Attempts to make himself scarce by going underground or becoming unavailable to the
investigating agency, and

(vii) Attempts to place himself beyond the reach of his surety,

The above-referred grounds are only illustrative in nature, not

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exhaustive, and therefore, depend upon case to case. "However, a bail granted to a person accused of
bailable offence cannot be cancelled on the ground that the complainant was not heard. As mandated by
Section 436 of the Code what is to be ascertained by the officer or the Court is whether the offence
alleged to have been committed is a bailable offence and whether he is ready to give bail as may be
directed by the officer or the Court. When a police officer releases a person accused of a bailable offence,
he is not required to hear the complainant at all. Similarly, a Court while exercising powers under Section
436 of the Code is not bound to issue a notice to the complainant and hear him."144 The Court in
Bhupinder Singh Chhabra vs. State of Punjab and Anr.,145 after perusing Sections 436, 436A146 and
437(6)147 of CrPC, held,

(i) "Every accused of a bailable offence has legal right to be enlarged on bail and if he fails to
furnish the bail within a week is entitled to be released on personal bond;

(ii) No accused ordinarily shall be detained for the period more than one half period of the maximum
sentence provided for the offence for which accused is facing trial unless Court directs otherwise for the
sufficient reasons;

(iii) No accused shall be kept in detention for more than the maximum punishment provided for the
offence.

(iv) Even in the non-bailable offence triable by the Magistrate if accused is in judicial custody and
trial of an accused of non- bailable offence is not concluded within a period of 60 days from the first day
for taking evidence in the case, he shall be released on bail to the satisfaction of the Magistrate unless for
reasons to be recorded in writing the Magistrate otherwise directs as per Section 436(6) of the Code.

(v) If an accused does not appear before the Court in breach of the terms of the bail on the date fixed,
on his subsequent appearance or arrest, he shall not be kept in judicial custody for unreasonable period
and in any case for more than period as opined under Clauses (ii), (iii) or (iv) hereinbefore as the case
may be. Ordinarily accused should be released on bail soon after his arrest or appearance before the Court
if he furnishes proper explanation for his nonappearance on the previous date with more surety ensuring
the appearance
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before the trial Court facilitating the disposal of the trial; and

(vi) However, Court shall be at liberty to pass appropriate orders, pertaining to the bail bonds, surety
bonds and personal bonds submitted before the Court while enlarging the accused on bail on his failure to
appear on the date fixed, in accordance with law."148

Bail in Non-Bailable Offences: Governing Principles

Non-bailable offences are serious offences which cause a huge impact on the society and therefore, the
court has to be cautious in granting bail to them. In State vs. Jagjit Singh (Captain),149 the Court held
that for granting bail, various considerations are to be taken into account for both bailable and non-
bailable offences, including the nature and seriousness of the offence, the character of the evidence, the
possibility of tampering with witnesses, the interest of the public and the State. Bail is a matter of right in
bailable offences and in non-bailable offences, it is a matter of judicial discretion. The basic principle
governing bail is that 'bail is the rule and committal to jail, an exception.’ The objective of bail is neither
punitive nor preventive. Deprivation of liberty must be considered a punishment unless it can be required
to ensure that an accused person will stand his trial when called upon.150 Section 437(1) of CrPC clearly
rules out that in the following situations no bail shall be granted:

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognisable offence and he had been
previously convicted of an offence punishable with death, imprisonment for life or imprisonment for
seven years or more, or he had been previously convicted on two or more occasions of a cognisable
offence punishable with imprisonment for three years or more but not less than seven years.

In case of Women or Sick or Infirm

The Court may direct a person to be released on bail in the above cases if such person is under the age of
sixteen years, or is a woman, or is sick, or infirm, provided the Court may also direct "that a
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person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any
other special reason". It is further specified that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail
if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court. It is also provided that no person shall, if the offence alleged to
have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under Section 437(1), without giving an opportunity of
hearing to the public prosecutor. In Dhanendra Shriram Bhurle case, the Court held that it is necessary for
the courts dealing with application for bail to consider, among other circumstances, the following factors
before granting bail:

(i) The nature of the accusation.

(ii) The severity of punishment in case of conviction.

(iii) The nature of evidence.

(iv) Reasonable apprehension of threat to the complainant.

(v) Prima facie satisfaction of the Court in support of the charge.151

(vi) The character means and standing of the accused.

(vii) The danger of the offence being repeated or continued.

(viii) The danger of the witnesses being tampered with.

(ix) Larger interest of the public.

Bail cannot be demanded when the accused in discharged

The Court in Ram Lal Tewaree vs.SoophuRam152 held that where Magistrate, after appropriate inquiry,
comes to the conclusion that the case is not proved against the accused and therefore, discharges him, he
at this point has no authority in law to demand bail. In cases where further inquiry is pending, the Court
may direct the accused to furnish bail.

Reasons for releasing on bail to be recorded

Page 151 Criminal Justice: Arrest, Detention and Bail

Bail is the discretion of the Court in non-bailable cases and therefore, it is essential for the Court to give
reasons for releasing the accused on bail. The Court in Talab Haji Hussain vs. Madhukar Purshotamm
Mondkar153 held that "Section 437(4) requires that whenever the Court is going to use his discretion
under Section 437 (1) and (2) in favour of the accused person, reasons for exercising such jurisdiction
shall be recorded in writing. The accused must be released on good grounds for grave offence."154 In
Omar Usman Chamadia case,155 the Court held, "The High Court should not, unless for very good
reasons desist from indicating the grounds on which their orders are based because when the matters are
brought up in appeal, the Court of appeal has every reason to know the basis on which the impugned
order has been made. It may be that while concurring with the lower Court's order, it may not be
necessary for the said appellate Court to assign reasons but that is not so while reversing such orders of
the lower Courts. It may be convenient for the said Court to pass orders without indicating the grounds or
basis but it certainly is not convenient for the Court of appeal while considering the correctness of such
impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the
case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of
the impugned order. The need for delivering a reasoned order is a requirement of law which has to be
complied with in all appealable orders."156

Bail to require accused to appear before next appellate Court

The legislature has inserted Section 437A in CrPC which states that before the conclusion of the trial and
before the disposal of the appeal, the court trying the offence or the appellate court, as the case may be,
shall require the accused to execute bail bonds with sureties, to appear before the higher court as and
when such court issues notice in respect of any appeal or petition filed against the judgment of the
respective court and such bail bonds shall be in force for six months
Page 152 Your Laws and Your Rights

and if such accused fails to appear, the bond shall be forfeited and the procedure under Section 446157
shall apply.158

Concurrent powers of Sessions and High Court with Magistrate Courts

In Gurcharan Singh and Ors. vs. State (Delhi Administration),159 the Court held, "Section 439(1) of
CrPC, on the other hand, confers special powers on the High Court or the Court of Session in respect of
bail. Unlike under Section 437(l) there is no ban imposed under Section 439(1) of CrPC against granting
of bail by the High Court or the Court of Session to persons accused of an offence punishable with death
or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session
will be approached by an accused only after he has failed before the Magistrate and after the investigation
has progressed throwing light on the evidence and circumstances indicating the accused. Even so, the
High Court or the Court of Session will have to exercise its judicial discretion in bail under Section
439(1) of CrPC The overriding considerations in granting bail to which we adverted to earlier and which
are common both in the case of Section 437(1) and Section 439(1) of CrPC are the nature and gravity of
the circumstances in which the offence is committed, the position and the status of the accused with
reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating
the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the
case; or tampering with witnesses; the history of the case as well as of its investigation and other relevant
grounds which, in view of so many variable factors, cannot be exhaustively set out.,160 This means that
there is no provision excluding the jurisdiction of the High Court in dealing with an application under
Section 439(2) of CrPC to cancel bail. The High Court has, undoubtedly, jurisdiction to entertain an
application under Section 438(2) of CrPC for cancellation of bail not withstanding that the Sessions Judge
had earlier admitted the accused person to bail. The Court has already, while discussing the scope of
Section 439(2) of CrPC, held in Delhi Administration vs. Sanjay Gandhi,161 "Rejection of bail when bail
is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail
application in a non-bailable case
Page 153 Criminal Justice: Arrest, Detention and Bail

than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a
decision already made and can, by and large, be permitted only if, by reason of supervening
circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom
during the trial."162 The Magistrate has no power to cancel the bail granted by the High Court or the
Court of Sessions under Section 439(1).163 The Magistrate can cancel the bail granted by himself only
for a proper reason under the provisions of the CrPC.

Anticipatory Bail

The provision for anticipatory bail is prescribed in Section 438 of CrPC. The Supreme Court in
Balachand Jain vs. State of Madhya Pradesh164 has described, "The expression 'anticipatory bail' is a
misnomer.

It is well-known that bail is an ordinary manifestation of arrest, that the Court thinks first to make an
order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of
release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order
becomes operative."165

The Apex Court in Adri Dharan Das case166 held, "The power exercisable under Section 438 is
somewhat extraordinary in character and it is only in exceptional cases where it appears that the person
may be falsely implicated or where there are reasonable grounds for holding that a person accused of an
offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The
power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e., the
Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-
bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment
Page 154 Your Laws and Your Rights

a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall
be released immediately on bail without being sent to jail."167

The Court further elaborated the ambit of anticipatory bail in Salauddin Abdul samad Shaikh case168 and
observed, "Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not
mean that the regular Court, which is to try the offender, is sought to be bypassed— It must be realised
that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when
the investigation is incomplete and, therefore, it is not informed about the nature of the evidence against
the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited
duration only and ordinarily on the expiry of that duration or extended duration the Court granting
anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progress or the charge- sheet is submitted."169

In Siddharam Satlingappa Mhetre vs. State of Maharashtra,170 Justice Dalveer Bhandari, after analysing
various judgements, enumerated the following factors that can be taken into consideration while dealing
with the anticipatory bail:

(i) "The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in respect of any cognisable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.

(vi) The impact of the grant of anticipatory bail particularly in cases of large magnitude affecting a
very large number of
Page 155 Criminal Justice: Arrest, Detention and Bail

people.

(vii) The Courts must evaluate the entire available material against the accused very carefully. The
Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused
is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider
with even greater care and caution because over implication in the cases is a matter of common
knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between
two factors namely, no prejudice should be caused to the free, fair and full investigation and there should
be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) - The Court to consider reasonable apprehension of tampering of the witness or apprehension of
threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness
that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as
to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of
bail.”171

Section 438 cannot be invoked in bailable offences. Section 438 in terms relates to non-bailable offences.
Anticipatory bail is for a limited duration during which the accused has to move to the regular court for
bail.172

Principles for granting Anticipatory Bail

There are various principles related to anticipatory bail discussed in Sibbia case by the Supreme Court,
which are as follows:

(i) "Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.

(ii) Filing of FIR is not a condition precedent to the exercise of power under Section 438.
Page 156 Your Laws and Your Rights

(iii) An order under Section 438 would not affect the right of police to conduct an investigation.

(iv) Conditions mentioned in Section 437 cannot be read into Section 438.

(v) Although the power to release on anticipatory bail can be described as of an 'extraordinary'
character this would 'not justify the conclusion that the power must be exercised in exceptional cases
only.' Powers are discretionary to be exercised in light of the circumstances of each case.

(vi) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be
issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform
to requirements of the Section and suitable conditions should be imposed on the applicant."173

Can an Application of Anticipatory Bail be directly filed before High Court?

In exceptional circumstances, a person can move directly to the High Court for seeking anticipatory bail.
In Balan vs. State of Kerala, the Court held that the applicant has all the right to choose a forum and he
can always approach the High Court directly for bail.174 The full bench of the Calcutta High Court in
Maya Rani Guin case discussed and summarised the propositions in the following way:

(I) “The only remedy available to the accused upon rejection of regular bail is to apply to the
superior Court for regular bail and not once again for anticipatory bail.

(ii) Accused who prefers an application for regular bail in compliance with the conditions stipulated
in the order of anticipatory bail and physically submits to the jurisdiction and order of the Court,
before which such application is filed, the application is required to be disposed of on merits if the
outer limit of the anticipatory bail has not expired and the accused has appeared in person and placed
himself under the control of the Court.
Page 157 Criminal Justice: Arrest, Detention and Bail

(iii) If the application for regular bail is moved within the duration of anticipatory bail, but the passing
of the order is delayed for any reason whatsoever and it is likely to come after the expiry of the outer limit
of the duration fixed by the order of anticipatory bail, the Court hearing the regular bail application can
always grant interim regular bail for limited duration till final orders are passed by the Court.

(iv) If the application for regular bail is moved within the duration of anticipatory bail and the same is
rejected/refused but the outer limit prescribed by the order of anticipatory bail has not expired, then
instead of taking the accused into custody he may be allowed to move the superior Court for bail within
the specified period namely the outer limit as specified in the order of anticipatory bail.

(v) If the application for regular bail is moved after or the date as on which the application for regular
bail is rejected and in either case the outer limit prescribed by the order of anticipatory bail has expired,
then and in that event on and from that date of expiry of the period fixed by the order of anticipatory bail,
the accused must surrender and be in the custody of the Court before the superior Court can take up for
consideration the application for regular bail."175

The Sessions Court and the High Court have concurrent jurisdiction in matters relating to granting of
anticipatory bail.176

RELEASE ON BAIL BOND

A bail bond is a bond furnished by the person released on bail. There are many arrested persons behind
the bars who are not released just because they have not filed the necessary bail bond. In the case of the
poorer sections of society, the monetary bond is the major hurdle which deprives their liberty. This grave
problem was discussed by Justice Bhagwati in Hussainara Khatoon case,177 wherein he observed, "One
reason why our legal and judicial system continually denies justice to the poor by keeping them for long
years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property-oriented
approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only
deterrent against fleeing from justice. The CrPC, even
Page 158 Your Laws and Your Rights

after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted
towards the end of the last century. Where an accused is to be released on his personal bond, it insists that
the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he
fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the Courts
mechanically and as a matter, of course, insist that the accused should produce sureties who will stand
bail for him and these sureties must again establish their solvency to be able to pay the amount of the bail
in case the accused fails to appear to answer the charge. This system of bails operates very harshly against
the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on
bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the
bail fixed by the Courts is so unrealistically excessive that in a majority of cases the poor are unable to
satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is
with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons
sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue
officials or by touts and professional sureties and sometimes they have even to incur debts for securing
their release or, being unable to obtain release, they have to remain in jail until such time as the Court is
able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent,
they are subjected to psychological and physical privations of jail life, (2) they are prevented from
contributing to the preparation of their defence and (3) they lose their job, if they have one, and are
deprived of an opportunity to work to support themselves and their family members with the result that
the burden of their detention almost invariably falls heavily on the innocent members of the family. It is
here that the poor find our legal and judicial system oppressive and heavily weighted against them and a
feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of
inequality with the non-poor."178 Similarly, Justice V. R. Krishna Iyer in Moti Lal case179 ordered the
Magistrate to release the person on the bond of Rs. 1000/- only. As per Section 440 of CrPC, the amount
of bond must be fixed with due regard to the circumstances of the case and the High Court and the
Sessions
Page 159 Criminal Justice: Arrest, Detention and Bail

Court may direct the Magistrate or police to reduce the amount of bond. Under Section 441, the person
may be released on his own bond for the sum of such money as police or court may think sufficient to be
executed by the person. And when the person is released on bail, one or more sufficient sureties
conditioned that the person released on bail shall attend the court or police and will follow the other
conditions of the bond. Only natural persons can be sureties, corporations cannot be sureties.180

CONCLUSION

The edifice of criminal justice is fairness, and since it affects the liberty of an individual, it must be
subject to the procedure established by law. Laws of arrest, detention and bail have direct implications on
the life of the arrested person, not because they pose serious after-effects of conviction, but they are those
general procedures which go simultaneously with the trial of the case. Therefore, it is always essential to
secure the rights of the arrested persons. Similarly, detention beyond time or illegal detention is also
prohibited by law. And law of bails is a dynamic law, which has been amended from time to time so as to
deliver justice to the arrested persons and to ensure their well-being.

References

1 Justice V.R. Krishna Iyer in Prem Shankar Shuklavs. Delhi Administration, (1980)3 SCC 526.

2 (2015) 1SCC192.

3 Protection of life and personal liberty is prescribed in Article 21 of the Constitution of India, which
says, "No person shall be deprived of his life or personal liberty except according to procedure established
by law."

4 Nellore vs. Intha Ramana Reddy, 1972 Cri LJ 1485.

5 (2012) 4 SCC 516.

6 Rattiram and others vs. State of Madhya Pradesh, (2012) 4 SCC 516.

7 (2014) 2 SCC 401.

8 J. Jayalalithaa and others vs. State of Karnataka and others, (2014) 2 SCC 401.

9 1983 LW Cri 283 and 289.

10 1983 LW Cri 289.

11 Arnesh Kumar vs. State of Bihar and Anr., (2014) 8 SCC 273.
Page 160 Your Laws and Your Rights

12 S.43 of CrPC

13 S.44 of CrPC

14 AIR 2005 SC 1057.

15 AdriDharan Das vs. State of West Bengal, AIR 2005 SC 1057.

16 S. 41(1) (a) of CrPC

17 41 (1) (b) (i) of CrPC

18 41 (1) (b) (ii) of CrPC

19 S. 41 (1) (ba) of CrPC

20 S. 41 (1) (c) of CrPC

21 S. 41 (1) (d) of CrPC

22 S. 41(l)(e) of CrPC

23 S.41(l)(f) of CrPC

24 S. 41 (l)(g) of CrPC

25 S. 41(l)(h) of CrPC under Section 356 (5) of CrPC the previously convicted offenders are duty bound
to inform of their residence, change of residence, or absence from informed residence for a period of five
years.

26 S. 41 (1) (i) of CrPC

27 S. 42 of CrPC

28 S. 41 (2) of CrPC

29 S. 151 of CrPC

30 (2003) 2 SCC 649.

31 M.C. Abraham And Another vs. State Of Maharashtra And Others, (2003) 2 SCC 649.

32 Sanjib Kumar vs.Om Prakash, (2006) 1 SCC 228.

33 State of Maharashtra vs.Mohd.Rashid and another, (2005) 7 SCC 56.

34 1981 Cri LJ (NOC) 208 (Mad.).

35 Kaisar Otmar's case, 1981 Cri LJ (NOC) 208 (Mad.).

36 Joginder Kumar vs. State of U.P., (1994) 4 SCC 260.

37 (1997) 1 SCC 416.

38 D.K. Basu vs. State of W.B., (1997) 1 SCC 416.

39 AIR SCW 2419.

40 Delhi Judicial Service Association, Tis Hazari Court vs. State of Gujarat, AIR SCW 2419, para. 55.

41 Ahmed Noormohmed Bhatti vs. State of Gujarat, (2005) 3 SCC 647.

Page 161 Criminal Justice: Arrest, Detention and Bail

42 S.41 A (1) of CrPC

43 S.41 A(2) of CrPC

44 S.41A(3) of CrPC

45 S.41 A(4) of CrPC

46 (2005) 7 SCC 56.

47 Para no. 6 of Ajeet Singh vs. State of Uttar Pradesh, 2007 Cr. L.J. 670 (All-FB).

48 1978 SCR (3) 608.

49 Para 34 and 35 of Ajeet Singh vs. State of Uttar Pradesh, 2007 Cr. L.J. 170.

50 S.41B of CrPC

51 S. 41(C) of CrPC

52 S. 41D of CrPC

53 2013 (1) Crimes 306 (All).

54 Shaukin vs. State Of U.P. And Others, 2013 (1) Crimes 306 (All) para. 8.

55 Ibid. para. 9.

56 Ibid. para. 10.

57 Shaukin vs. State Of U.P. And Others, 2013 (1) Crimes 306 (All) para. 12, 13 and 14.

58 S.46(1) of CrPC

59 S.46(2) of CrPC

60 S.46(3) of CrPC

61 S.46(4) of CrPC

62 CrPC

63 Sunil Batra vs. Delhi Administration, (1978) 4 SCC 494.

64 (2014) 8 SCC 273.

65 Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273.

66 S.50(l) of CrPC
67 S.50(2) of CrPC also read Padam Dev vs. State of H .P., 1989 Cr LJ 383 (HP).

68 S. 50A(1) of CrPC

69 S. 50A(2) of CrPC

70 S. 50A(3) of CrPC

71 S.50A(4)of CrPC

72 S. 51 (1)&(2) of CrPC

73 S. 54(1) of CrPC

74 S. 54 (2) of CrPC
Page 162 Your Laws and Your Rights

75 S. 54(3) of CrPC

76 S. 55 A of CrPC

77 S. 56 of CrPC

78 S. 57 of CrPC

79 Prem Shankar Shukla vs. Delhi Administration, (1980)3 SCC 526, para 39.

80 AIR 1980 SC 1535 para no. 43.

81 Prem Shankar Shukla vs.Delhi Administration, (1980)3 SCC 526.

82 AIR1969 SC 1014.

83 In Re, Madhu Limaye and Ors., AIR 1969 SC 1014.

84 In Re, Madhu Limaye and Ors., AIR 1969 SC 1014 at para 12.

85 2010 (5) ALT 50.

86 Prabhu vs. Emperor, AIR 1944 PC 73 at 74.

87 Mobarik Ali vs.State of Bombay, AIR 1957 SC 857.

88 Jograj vs. Emperor, AIR 1940 (Pat.) 696.

89 Queen -Empress vs.Tulsiram, (1888) I.L.R. 13 Bom. 108.

90 (1983) 2 SCC 96.

91 Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96.

92 S. 167 of CrPC, defines the procedure when investigation cannot be completed in twenty-four hours.

93 Section 57 and 167 of CrPC

94 S. 167(1) of CrPC

95 S. 167(2) of CrPC

96 S. 167(2) (a) of CrPC

97 S. 167(2) (b) of CrPC

98 Explanation II of S. 167 (2) CrPC

99 S. 167 (3) of CrPC

100 S. 2 (w) 'summons-case' means a case relating to an offence, and not being a warrant-case. And
'warrant-case' means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years [S. 2 (x)].

101 S. 167 (5) of CrPC

102 S. 167 (6) of CrPC

103 Section 36(A) (4) of NDPS Act 1985.

104 Niraj Ramesh Jariwala vs.Mahadeo Pandurang Nikam, 2013 (2) Bom.CR (Cri) 260.
Page 163 Criminal Justice: Arrest, Detention and Bail

105 Fakira Naik vs. State of Orissa, (1983) 2 Crimes 339 at 341 (Cri.).

106 Mohd. Ahmed YasinMansurivs. State of Maharashtra, 1994 CrLJ 1854 (1859) (Bom.)(DB).

107 State of Gujarat vs. Jaswant Singh, 19871 Guj.LR 255.

108 1975 Cri LJ 1303.

109 Tarsem Kumar vs.The State, 1975 Cri LJ 1303.

110 AIR 1996 SC 1619.

111 Common Cause case, AIR 1996 SC 1619.

112 Common Cause A Registered Society through its Director vs. Union of India (UOI) and Ors., AIR
1996 SC 1619.

113 A.K. Gopalan vs. State of Madras, AIR 1950 SC 27.

114 Lord Finlay in Rex vs. Halliday, [1917] A.C. 260.

115 A.K. Gopalan vs. The State of Madras, AIR 1950 SC 27 para 165.

116 Article 22 (1) of Constitution of India, 1950.

117 Article 22 (2) of Constitution of India, 1950.

118 Article 22 (3) of Constitution of India, 1950.

119 Article 22 (4) of Constitution of India, 1950.

120 Article 22 (5) of Constitution of India, 1950.

121 Article 22 (6) of Constitution of India, 1950.

122 Article 22 (7) of Constitution of India, 1950.

123 2015 (4) Crimes 191 (Ker.).

124 Berlin, Isaiah, Two Concepts of Liberty, lst edn. (OUP, 1958) p. 4.

125 AnithaBrusevs. State of Kerala & Ors., 2008 Cr LJ 2807.

126 Shyam Balakrishnan vs. State of Kerala and Ors., 2015 (4) Crimes 191 (Ker.).

127 ShyamBalakrishnanvs. State of Kerala and Ors., 2015 (4) Crimes 191(Ker.) para 12.

128 Justice K.Subha Rao in Ghulam Sarwar vs. Union of India & Ors. 1967AIR 1335.
129 Corpus Juris Secundum, Vol. 39 at p. 424.

130 1983 Cr LJ 1644.

131 (1923) pp. cases 603 at 609.

132 State of Rajasthan vs.Balchand, 1978 SCR (1) 535.

133 Vaman Narain Ghiya vs.State Of Rajasthan, (2009) 2 SCC 281.

134 VamanNarainGhiyavs.State Of Rajasthan, (2009) 2 SCC 281.

Page 164 Your Laws and Your Rights

135 'Bailable offence' is defined in Section 2 (b) of the CrPC to mean an offence which is shown as
bailable in the First Schedule of the CrPC, or which is made bailable by any other law for the time being
in force; and 'non-bailable offence' means any other offence.

136 Vaman Narain Ghiya vs.State Of Rajasthan, (2009) 2 SCC 281, para nos. 16, 17 and 18.

137 Govind Prasad vs.State of West Bengal, 1975 Cr LJ 1249 (Cal.).

138 Fourth Edition 1971.

139 Bakshi Sardari Lal vs.Supdt.Tehar Central Jail, 1968 Cr. L.J. 675.

140 Rasiklal vs. Kishore s/o Khanchand Wadhwani, (2009) 4 SCC 446. Also read Talab Haji Hussain
vs.Madhukar Purushottam Mondkar and Anr., 1958 SCR 1226 and Ratilal Bhanji Mithani vs.Asstt.
Collector of Customs and Anr., 1967 (3) SCR 926.

141The procedure for the cancellation of bail bond has been prescribed.

142 (2009) 4 SCC 446.

143 Rasiklal vs. Kishore s/o Khanchand Wadhwani, (2009) 4 SCC 446.para 7.

144 Rasiklal vs. Kishore s/o Khanchand Wadhwani, (2009) 4SCC 446.para 7.

145 2011(3) RCR (Criminal) 418.

146 Under this Section, maximum period is prescribed for which an under-trial prisoner can be detained.

147 S. 437(6): If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable
offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the
case, such person shall, if he is in custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.

148 Bhupinder Singh Chhabra vs. State of Punjab and Anr., 2011(3) RCR (Criminal) 418.

149 1962 SCR (3) 622.

150 Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40.

151State of Maharashtra vs. Dhanendra Shriram Bhurle, (2009) 11 SCC 541.

152 10 WR34.

153 AIR 1958 SC 376.

154 State through Public Prosecutor vs.Balwant Singh Onkar Singh, AIR 1950 MP 43.

155 2004 CriLJ 1364.

156 Omar Usman Chamadiavs. Abdul and Anr., 2004 CriLJ 1364.

157The Section deals with the procedure when the bail bond has been forfeited.
Page 165 Criminal Justice: Arrest, Detention and Bail

158 S.437A of CrPC

159 AIR 1978 SC 179.

160 Gurcharan Singh and Ors. vs. State (Delhi Administration), AIR 1978 SC 179.

161 (1978) 2 SCC 411.

162 Delhi Administration vs. Sanjay Gandhi, (1978) 2 SCC 411.

163 Dandapani Rout vs. State of Orissa, (1984) 2 Crimes 781.

164 AIR 1977 SC 366.

165 Bala chand Jain vs. State of Madhya Pradesh, AIR 1977 SC 366.

166 SLP (Crl.) No.250 of 2004.

167 AdriDharan Das vs. State Of West Bengal, SLP (Crl.) No.250 of 2004.

168 AIR 1996 SC 1042.

169 Salauddin Abdulsamad Shaikhvs. State of Maharashtra, AIR 1996 SC 1042.

170 (2011) 1 SCC 694.

171 Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC 694, para. 122. Almost same
parameters are also mentioned in Section 438 (1) of CrPC

172 Vaman Narain Ghiya vs. State of Rajasthan, (2009) 2 SCC 281.

173 Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab, (1980) 2 SCC.

174 Balan vs. State of Kerala, 2004 CrLJ 3427.

175 Maya Rani Guin and etc. vs. State of West Bengal, 2003 CriLJ 1, para 43.

176 State of Tripura vs.Samuel Ruhul Askar, (2001) 2 GLR 546.

177 Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1360, para no. 3.

178 Moti Lal vs. State of Madhya Pradesh, (1978) 4 SCC 47.

179 Edmund N. Schuster vs. Assistant Collector of Customs, (1966) 2 Delhi LT 65.