Arrest, remand under Secs 54, 167 of CrPC

SC sets guidelines for law enforcers, judges

The Appellate Division of the Supreme Court yesterday released its full verdict, issuing a 10-point guideline for law enforcement agencies about detaining a person on suspicion, and a nine-point guideline for magistrates, judges and tribunals for dealing with an accused during trial proceedings. The Supreme Court released the 396-page verdict after judges concerned signed it. On May 24, after hearing on an appeal filed by the government against a High Court order, a four-member bench of the Appellate Division, headed by the Chief Justice, upheld the HC order. In 2003, the HC gave instructions and recommendations on Sections 54 and 167 of the Criminal Procedure Code (CrPC), which empower the police to detain a person on suspicion without any charge and interrogate him on remand.
In its short order, the apex court said it would issue guidelines for law enforcers and judges in the detailed verdict. It the full verdict yesterday, the apex court said: “Considering the facts and circumstances, we formulate the responsibilities of law enforcement agencies which are basic norms to be observed by them at all levels. We also formulate guidelines to be followed by every member of law enforcement agencies in case of arrest and detention of a person, who is suspected to be involved in a cognisable offence. In order to ensure observance of those guidelines, we also direct Magistrates, Tribunals, Courts and Judges who have power to take cognisance of an offence as a court of original jurisdiction.” The guidelines for law enforcement agencies are:
(i) A law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum. (ii) A law enforcement officer who arrests a person must intimate to the nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12 hours of such arrest, notifying the time and place of arrest and the place of custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcement officer to arrest the person, or made the complaint, along with his address, and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and particulars of the law enforcement officer in whose custody the arrestee is staying.
(iv) Registration of a case against the arrested person is sine qua non for seeking the detention of the arrestee either to the law enforcement officer’s custody or in the judicial custody under Section 167(2) of the CrPC. (v) No law enforcement officer shall arrest a person under Section 54 of the Code for the purpose of detaining him under Section 3 of the Special Powers Act, 1974. (vi) A law enforcement officer shall disclose his identity and, if demanded, shall show his identity card to the person arrested and to persons present at the time of arrest.
(vii) If the law enforcement officer finds any mark of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor. (viii) If the person is not arrested from his residence or place of business, the law enforcement officer shall inform the nearest relative of the person in writing within 12 hours of bringing the arrestee in the police station.
(ix) The law enforcement officer shall allow the person arrested to consult a lawyer of his choice, if he so desires, or to meet any of his nearest relatives.
(x) When any person is produced before the nearest Magistrate under Section 61 of the CrPC, the law enforcement officer shall state in his forwarding letter under Section 167(1) of the Code as to why the investigation cannot be completed within 24 hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit a copy of the relevant entries in the case diary B.P. Form 38 to the Magistrate.
The following are guidelines to magistrates, judges and tribunals having power to take cognisance of an offence: (a) If a person is produced by the law enforcement agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per Section 167(2) of the Code, the Magistrate or the Court or Tribunal, as the case may be, shall release him in accordance with Section 169 of the Code on taking a bond from him.
(b) If a law enforcement officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such a prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such a case, and if the prayer is not well founded and baseless, he shall reject the prayer.
(c) On the fulfilment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person, as required under Section 167(2), and if the case is exclusively triable by a Court of Sessions or Tribunal, the Magistrate may send such an accused person on remand under Section 344 of the Code for a term not exceeding 15 days at a time.
(d) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.
(e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report discloses that the arrest has been made for the purpose of putting the arrestee in preventive detention.
(f) It shall be the duty of the Magistrate/ Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under Section 167 of the Code.
(g) If the Magistrate has reason to believe that any member of law enforcement agency or any officer who has legal authority to commit a person in confinement has acted contrary to law, the Magistrate shall proceed against such an officer under Section 220 of the Penal Code.
(h) Whenever a law enforcement officer takes an accused person in his custody on remand, it is his responsibility to produce such an accused person in court on expiry of the period of remand, and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhuming of the body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under Section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer- in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.
(i) If there are materials or information to a Magistrate that a person has been subjected to “Nirjatan” or died in custody within the meaning of Section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of “Nirjatan” and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-motu under Section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with the law.
“The Inspector General of Police is directed to circulate the above guidelines to all police stations forthwith for compliance in letter and spirit. Similarly, the Director General of the Rapid Action Battalion is also directed to circulate them for compliance by its units and officers,” the verdict copy reads.

 

Arrest, remand under Secs 54, 167 of CrPC

SC sets guidelines for law enforcers, judges

The Appellate Division of the Supreme Court yesterday released its full verdict, issuing a 10-point guideline for law enforcement agencies about detaining a person on suspicion, and a nine-point guideline for magistrates, judges and tribunals for dealing with an accused during trial proceedings. The Supreme Court released the 396-page verdict after judges concerned signed it. On May 24, after hearing on an appeal filed by the government against a High Court order, a four-member bench of the Appellate Division, headed by the Chief Justice, upheld the HC order. In 2003, the HC gave instructions and recommendations on Sections 54 and 167 of the Criminal Procedure Code (CrPC), which empower the police to detain a person on suspicion without any charge and interrogate him on remand. In its short order, the apex court said it would issue guidelines for law enforcers and judges in the detailed verdict. It the full verdict yesterday, the apex court said: Considering the facts and circumstances, we formulate the responsibilities of law enforcement agencies which are basic norms to be observed by them at all levels. We also formulate guidelines to be followed by every member of law enforcement agencies in case of arrest and detention of a person, who is suspected to be involved in a cognisable offence. In order to ensure observance of those guidelines, we also direct Magistrates, Tribunals, Courts and Judges who have power to take cognisance of an offence as a court of original jurisdiction. The guidelines for law enforcement agencies are: (i) A law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum. (ii) A law enforcement officer who arrests a person must intimate to the nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12 hours of such arrest, notifying the time and place of arrest and the place of custody. (iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcement officer to arrest the person, or made the complaint, along with his address, and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and particulars of the law enforcement officer in whose custody the arrestee is staying. (iv) Registration of a case against the arrested person is sine qua non for seeking the detention of the arrestee either to the law enforcement officers custody or in the judicial custody under Section 167(2) of the CrPC. (v) No law enforcement officer shall arrest a person under Section 54 of the Code for the purpose of detaining him under Section 3 of the Special Powers Act, 1974. (vi) A law enforcement officer shall disclose his identity and, if demanded, shall show his identity card to the person arrested and to persons present at the time of arrest. (vii) If the law enforcement officer finds any mark of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor. (viii) If the person is not arrested from his residence or place of business, the law enforcement officer shall inform the nearest relative of the person in writing within 12 hours of bringing the arrestee in the police station. (ix) The law enforcement officer shall allow the person arrested to consult a lawyer of his choice, if he so desires, or to meet any of his nearest relatives. (x) When any person is produced before the nearest Magistrate under Section 61 of the CrPC, the law enforcement officer shall state in his forwarding letter under Section 167(1) of the Code as to why the investigation cannot be completed within 24 hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit a copy of the relevant entries in the case diary B.P. Form 38 to the Magistrate. The following are guidelines to magistrates, judges and tribunals having power to take cognisance of an offence: (a) If a person is produced by the law enforcement agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per Section 167(2) of the Code, the Magistrate or the Court or Tribunal, as the case may be, shall release him in accordance with Section 169 of the Code on taking a bond from him. (b) If a law enforcement officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such a prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such a case, and if the prayer is not well founded and baseless, he shall reject the prayer. (c) On the fulfilment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person, as required under Section 167(2), and if the case is exclusively triable by a Court of Sessions or Tribunal, the Magistrate may send such an accused person on remand under Section 344 of the Code for a term not exceeding 15 days at a time. (d) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above. (e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report discloses that the arrest has been made for the purpose of putting the arrestee in preventive detention. (f) It shall be the duty of the Magistrate/ Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under Section 167 of the Code. (g) If the Magistrate has reason to believe that any member of law enforcement agency or any officer who has legal authority to commit a person in confinement has acted contrary to law, the Magistrate shall proceed against such an officer under Section 220 of the Penal Code. (h) Whenever a law enforcement officer takes an accused person in his custody on remand, it is his responsibility to produce such an accused person in court on expiry of the period of remand, and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhuming of the body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under Section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer- in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place. (i) If there are materials or information to a Magistrate that a person has been subjected to Nirjatan or died in custody within the meaning of Section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of Nirjatan and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-motu under Section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with the law. The Inspector General of Police is directed to circulate the above guidelines to all police stations forthwith for compliance in letter and spirit. Similarly, the Director General of the Rapid Action Battalion is also directed to circulate them for compliance by its units and officers, the verdict copy reads.