CHAPTER - XXXVIII (C)

POWERS OF POLICE TO ARREST, PROCEDURE OF ARREST, AND DOCUMENTATION OF ARREST

POWERS OF ARREST 1653. Any Police officer may without any order from a magistrate and without a warrant, arrest any person under the following circumstances: (1) Section 41 Cr.P.C. (a). (b). (c). (d). (e). (f). (g). (h). (i). a person concerned in a person in possession of a person who has been in possession of a person who a person being a under any law relating to a person being a and COGNIZABLE OFFENCE; IMPLEMENT OF HOUSE BREAKING; PROCLAIMED OFFENDER; STOLEN PROPERTY; OBSTRUCTS A POLICE OFFICER; DESERTER FROM ANY OF THE ARMED FORCES; EXTRADITION; RELEASED CONVICT; ARREST ON REQUISITION.

(2) Section 42 Cr.P.C. Any person who, in the presence of a Police officer, has committed a non-cognizable offence refused to give his name and address. (3) Section 60 Cr.P.C. If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was received may immediately pursue and arrest him in any place in India. (4) Section 129 (2) Cr.P.C. Any officer in charge of a Police Station or in the absence of such officer incharge, any Police officer, not below the rank of a Sub-Inspector, while dispersing any unlawful assembly, if necessary, may proceed to arrest and confine the persons who form part of the unlawful assembly in order to disperse such assembly or that they may be punished according to law. (5) Section 151 Cr.P.C. Any person (or group of persons) designing to commit any cognizable offence can be prevented by the arrest.

(6) Section 300 (3) Cr.P.C. A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the court to have happened, at the time when he was convicted. (7) Section 432 (3) Cr.P.C. If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate government, not fulfilled, the appropriate government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any Police officer without warrant. (8) Powers under the Police Act, 1861 (a). It shall be lawful for any Police officer to take into custody, without a warrant, any person who within his view commit offences (under section 34 of the Police Act 1861) like obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers on roads, etc. Section 35 B of the Police (Pondicherry Amendment) Act, 1966 empowers any Police officer to arrest without a warrant any person committing in his view any offence made punishable under sections 29 A, 34 A, 34 B, 34 C, 34 D, 34E, or 34 G.

(b).

(9). Every Police officer should be thoroughly conversant with the powers of arrest and privileges of the Police including the provisions in various special and local laws. 1654. PROCEDURE OF ARREST (1). The Police officer making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the Police custody (S. 46(1) Cr.P.C.) (2). If any person resists the arrest or attempts to evade the arrest, the Police officer arresting him may use all means necessary to effect the arrest. The Police officer is not given right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life (S. 46 (2)(3) Cr.P.C.) (3). Any Police officer to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein. (S. 47 (3) Cr.P.C.) (4). A Police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India (S. 48 Cr.P.C.)

(5).

The Police officer making an arrest shall follow the following: (a). (b). (c). He may search the arrested person. He may place in safe custody all articles other than necessary wearing apparel found upon the arrested person. If any article is seized from the arrested person, a receipt showing the articles taken in possession by the Police officer shall be given to the arrested person (S. 51 Cr.P.C.)

(6). Whenever it is necessary to cause a female to be searched, the search shall be made by the Woman Police or Women Home Guards with strict regard to decency. (S. 51 (2) Cr.P.C.) (7). The Police officer making an investigation can depute any officer subordinate to him to arrest without a warrant with an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the subordinate officer so required shall, before making the arrest, notify the person to be arrested the substance of the order. If required, he shall show the order to the arrestee. (P. 55 Cr.P.C.) Note:The investigating officer shall record all steps in deputing the subordinate officer to make the arrest in the following files / registers. (a). (b). (c). (d). General Diary Case diary Pocket note book of the subordinate A copy of the written order to arrest to be kept in the case diary.

(8). Any person arrested by any Police officer shall not be detained in the custody of the Police more than twenty four hours (S. 57 Cr.P.C.) (9). Officers in charge of the Police Stations shall report the Judicial Magistrate the cases of all persons arrested in Form No. I F.3 Arrest Court / Surrender Memo u/s 58 Cr.P.C. Besides, a memo of arrest, as laid down under clause (Manual II) shall also be sent. (10). No person who has been arrested by a Police officer shall be discharged except on his own bond or on bail, if the offences committed by the arrested are bailable. In non-bailable cases, if the investigation cannot be completed in twenty four hours, the Police officer making the investigation, if he is not below the rank of Sub-Inspector of Police, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary along with a report under section 167 Cr.P.C. and shall at the same time forward the accused to the Magistrate who may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as he thinks fir for a term not exceeding fifteen days. If he has no jurisdiction to try the case or commit it for trial and if considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having such jurisdiction.

1655. The magistrate may authorize detention of the accused, otherwise than in custody of the Police, beyond the period of fifteen days, if he is satisfied that adequate grounds exists for doing so, but no magistrate shall authorize the detention of the accused person in custody under section 167 Cr.P.C. for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence and on the expiry of the said period, the accused person shall be released on bail if he is prepared to and also furnish bail. Whenever an application for the remand of an accused person is made, the investigation officer should invariably produce the accused before the Magistrate. 1656. If during the period of remand to Police custody, the Police complete the investigation and find that there is no ground for sending up the accused to a magistrate for trial or inquiry, it is not open to the Police to release him on bail under section 169 of the Code of Criminal Procedure. The proper course for them is to send the accused back to the magistrate concerned or request him to release the accused on bail under section 437 of the Code of Criminal Procedure. 1657. If the investigation is too long or complicated to be finalized within the period prescribed, a provisional charge sheet or preliminary charge sheet based on such evidence, as has been collected should be sent to the magistrate having jurisdiction to try the case or to inquire into it and continue his investigation to collect further evidence in support of the charge. All fresh evidences collected should be produced before the conclusion of trial of that case. 1658. An accused who has been produced before a magistrate for the purpose of making a confession u/s 164 Cr.P.C. and has declined to make it or has made a statement which from the point of view of the Police is unsatisfactory, is liable to be remanded to jail and the investigation officer should not, except in the presence of the magistrate, see the accused again or have any communication with him. 1659. An under-trial prisoner should not be removed from one place of confinement to another for the purpose of identification. The attendance of any person believed to be cognizant of the prisoners identity should be secured. 1660. Sundays and other holidays are not excluded from the time limit allowed under section 61 of the Code of Criminal Procedure for production of the accused before a magistrate for remand. 1661. The officer incharge of the Police Station or the Police official making the investigation, if he is not below the rank of a Sub-Inspector may, where a judicial magistrate is not available, transmit the accused and the remand papers under section 167 (2-A), to the nearest Executive Magistrate or whom the powers of a Judicial Magistrate have been conferred who may authorize as he may think fit for a term not exceeding seven days or otherwise prescribed under the above provisions.

1662. The investigating officer shall remember that the investigation of certain cases wherein the accused persons were already arrested shall be completed as expeditiously as possible, because of the following reasons : (a). If in any case triable by a Magistrate as a summon case, 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 for STOP PROCEEDINGS, under section 167 (5) Cr.P.C. After the expiry of the period of limitation, no court shall take cognizance of an offence of the category specified below (section 468 Cr.P.C.):(i). (ii). Six months One year If the offence is punishable with fine only. If the offence is punishable with imprisonment for a term not exceeding one year. If the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(b).

(iii).

Three year

Note For the purpose of fixing the day for the period of limitation, it should be from the date of the offence in general; or if the aggrieved party or the Police officer was not aware of the commission of the offence, then the earliest day on which either of them becomes aware of such offence; or the first day on which either of the aggrieved person or the Police officer comes to know the identity of the accused (Section 469 Cr.P.C). 1663. For the purpose of arrest, there is a provision (section 45 Cr.P.C.) to protect the members of the Armed forces. Accordingly, no member of the Armed forces of the union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. 1664. Section 53 Cr.P.C. provides for examination of an arrested person by a registered medical practitioner under certain circumstances. The Police officer should take action accordingly when their circumstances warrant such an examination. 1665. Article 22 (1) of the constitution of India provides that every person placed under arrest shall be informed, as soon as possible, the ground of arrest and shall not be denied of the right to consult and be defended by a lawyer of his choice. Section 50 of the Code of Criminal Procedure, 1973 requires a Police officer arresting any person to forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

1666. A large number of complaints pertaining to Human Rights violations are in the area of abuse of Police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the Police to effectively maintain and enforce law and order and proper investigation. The guidelines regarding the arrest issued by the National Human Rights Commission are hereinafter enumerated for strict compliance. 1667. PRE-ARREST The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the guidelines and bonafides of a complaint and a reasonable belief as to both the persons complicity as well as the need to effect arrest [Joginder Kumars case (1994) 4 SCC 2006]. Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case. After Joginder Kumars pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonable or not is clearly a justifiable one. Arrest in cognizable cases may be considered justified in one or other of the following circumstances: (i). The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law. The suspect is given to violent behaviour and is likely to commit further offences. The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested. The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. (3rd Report of National Police Commission).

(ii).

(iii).

(iv).

Except in heinous offences, as mentioned above, an arrest must be avoided if a Police officer issues notice to the person to attend the Police Station and not leave the station without permission [ see Joginder Kumars case (1994) 4 SCC 260].

The power to arrest must be avoided where the offences are bailable unless there is a strong apprehension of the suspect absconding. Police officer carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of Police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the Police Station. 1668. ARREST As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided. The dignity of person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost. Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the persons right to privacy. Searches of women should only be made by other women with strict regard to decency [ S. 51 (2) Cr.P.C.] The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in Judgement of the Supreme Court in Prem Shanker Shukla V. Delhi Administration [ (1980) 3 SCC 526] and Citizen for Democracy V. State of Assam [(1995) 3 SCC 743]. As far as practicable women Police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided. Where children or juveniles are sought to be arrested, no force or beatings should be administered under any circumstances. Police officer, may for this purpose, associate respectable citizens so that the children or juveniles are not terrorized and minimal coercion is used. Where the arrest is without a warrant, the person arrested has to be immediately informed of the ground of arrest in a language which he or she understands. Again, for this purpose, the Police if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in Police records. The person arrested should be shown the written reasons as well and also given a copy on demand [ S. 50 (1) Cr.P.C.].

The arrested person can, on a request may by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The Police should record in a register the name of the person so informed. [Joginder Kumars case (supra)]. If a person is arrested for a bailable offence, the Police officer should inform him of his entitlement to be released on bail so that he may arrange for sureties [S. 50(2) Cr.P.C.] Apart from informing the person arrested of the above rights, the Police should also inform him of his rights to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [D.K. Basus case (1997) 1 SCC]. When the person arrested is brought to the Police Station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed on this right. Where the Police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner ( S. 53 Cr.P.C.) Information regarding the arrested and the place of detention should be communicated by the Police officer effecting the arrest without any delay to the Police Control Room and District / State Headquarters. There must be a monitoring mechanism working round the clock. As soon as the person is arrested, Police officer effecting the arrest shall make a mention of the existence of non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the Police officer and the arrestee. At the time of release of the arrestee, a certificate of the Police officer shall be issued to the arrestee. If the arrestee has been remanded to Police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the Police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.

1669. POST ARREST The person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss. 56 and 57 Cr.P.C.) The person arrested should be permitted to meet his lawyer at any time during the interrogation. The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place. The methods of interrogation must be consistent with the recognized rights to life, dignity and liberty and right against torture and degrading treatment. 1670. ENFORCEMENT OF GUIDELINES (1). The guidelines must be translated in as many languages as possible and distributed to every Police Station. It must also be incorporated in a handbook, which should be given to every Policemen. Guidelines must receive maximum publicity in the print or other electronic media, it should also be prominently displayed on notice board, in more than one language, in every Police Station. The Police must set up a complaint redressal mechanism, which will promptly investigate complaints of violation of guidelines and take corrective action. The notice board which displays the guidelines must also indicate the location of the complaints redressal mechanism and how that body can be approached. NGOs and public institutions including courts, hospitals universities, etc., must be involved in the dissemination of these guidelines to ensure the widest possible reach. The functioning of the complaint redressal mechanism must be transparent and its reports accessible. Prompt action must be taken against errant Police officers for violation of these guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism. Sensitization and training of Police officers is essential for effective implementation of these guidelines.

(2).

(3).

(4).

(5).

(6).

(7).

(8).

DIRECTIVES OF THE SUPREME COURT ON MATTERS RELATING TO ARREST, DETENTION AND INTERROGATION OF A PERSON 1671. The Supreme Court of India has issued the following eleven directions to all state governments on preventive measures that should be strictly followed to curb custodial violence: (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 personnel who handle the interrogation of the arrestee must be recorded in a register. 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 atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time of arrest and the case of arrest. 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. The time, place of arrest and venue of custody of an arrest must be notified by the Police where the next friend or relative of the arrestee lives outside the district or town through legal organization in the District and the Police Station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 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. 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. 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.

(2).

(3).

(4).

(5).

(6).

(7).

(8).

The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all tehsils and Districts as well. Copies of all the documents including the memo of arrest, referred to above, should be sent to the village Magistrate for his record. The arrestee may be permitted to meet his lawyer during the interrogation, though not throughout the interrogation. 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.

(9).

(10).

(11).

INFORMAL DETENTION 1672. Informal arrest of an accused person and compelling him to remain in attendance are forbidden. If the presence of a suspect is secured, arrest must always be made in a formal manner as prescribed by law and, if the arrested person is not sent for remand, he should be released on bail. 1673. The Police cannot pursue their investigation by defying the provisions of law on the pretext that no actual arrest has been made when, to all intents and purposes, a man has been in their custody or in detention. 1674. RE-ARREST OF A PERSON ARRESTED BY PRIVATE INDIVIDUALS (1). Section 43 of the Code of Criminal Procedure provides that a private person also can arrest: (a). (b). an offender who has committed a non-bailable and cognizable offence in his view or any proclaimed offender

(2). He should then, without unnecessary delay, make over the person so arrested to a Police officer or, in the absence of a Police officer, take such person or cause him to be taken in custody to the nearest Police Station. (3). When the arrested person is brought before a Police Station, the Police Station shall re-arrest him if he has reason to believe that such person comes under the provisions of section 41 of the Code of Criminal Procedure.

(4). If there is reason to believe that the person produced has committed a non-cognizable offence and if he refused, on demand by a Police officer, to give his name and residence or gives name and residence which the Police officer has reason to believe to be false, the person produced shall be dealt with under section 42 of the Code of Criminal Procedure. PLACE OF CONFINEMENT 1675. When a person is arrested, he shall be taken at once to the nearest Police Station. He should not be kept in a private house, temple, mosque or church. HINTS FOR IDENTIFICATION OF THE ACCUSED TO BE ARRESTED 1676. When a Police officer proceeds to arrest a person and cannot identify him personally, he should secure the services of a person who knows the person to be arrested and should also provide himself, if available, with a photograph, a descriptive roll and the marks of identification of that person, as far as possible. 1677. The Police officer should be in uniform or, if in plain clothes, discloses his identity. He should arm himself with a revolver or other means of defence. 1678. Police parties engaged in anti-social operations or similar duties likely to lead to arrests should carry handcuffs and leading chains to secure prisoners. 1679. The person to be arrested should be informed to the authority for making the arrest. 1680. The arrest should be effected without unnecessary violence or publicity. 1681. Police officer may break open any outer or inner door or window of such a place and enter such place and search therein and make arrest, but before entering an apartment in the actual occupancy of a woman (not being the person to be arrested) not appearing in public, he shall give notice and afford every reasonable facility for her to withdraw (Section 47 (2) of the Code of Criminal Procedure). 1682. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape (section 49 of the Code of Criminal Procedure). USE OF FIRE-ARMS IN MAKING ARREST 1683. Where a person forcibly resists the endeavour to arrest him, or attempts to evade arrest the Police officer making the arrest may use all means including the use of fire-arms, necessary to effect the arrest. But according to sub-section (3) of section 46 of the Code of Criminal Procedure, the Police have no right to cause the death of a person who s not accused of an offence punishable with death or life imprisonment.

1684. However, Police officers are not prevented from exercising the right of private defence of the body provided under section 109 of the Indian Penal Code, extending to the voluntary causing of death or of any other harm to assailant, if the offence which occasions the exercise of the right consequence of such assault or (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In such a case, while exercising the right of private defence, the Police officers may use firearms to overcome the resistance. 1685. When an accused person is placed under arrest, the investigation Police officer shall ask him whether he has any complainant to make ill-treatment by the Police and shall enter the question and answer in the case diary. If an allegation of ill-treatment is made, the investigating officer shall then and there examine the prisoners body, if the prisoner consents, to see if there are any marks of ill-treatment and shall record the result of his examination. If the prisoner refuses to allow his body to be examined, the refusal and the reasons thereof shall be recorded. While the allegation is being enquired into by a Magistrate under the said order, the Police investigation into the main case need not be suspended but may be carried on, provided no prejudice is caused thereby to the Magisterial inquiry. SEARCH OF PRISONER 1686. Prisoners, who are not enlarged on bail, shall be searched immediately after the arrest to ensure that they do not carry with them any weapon or drug. If any weapon or drug is seized, it should be sent to court. PRISONERS IN POLICE CUSTODY 1687. A prisoner in Police custody shall not be permitted to leave the lock-up after nightfall, except in special and emergent circumstances and that with adequate escort, which shall be recorded in the Station House Diary and the Sentry Relief Book. 1688. Whenever any punitive action is taken or contemplated against a foreigner, he should be provided with facilities, if he so desires, to communicate over the telephone or by telegram or letter, with the Consul or High Commissioner of his Country or his representatives, as the case may be. 1689. The prisoner in Police custody should not at any time be allowed to talk to members of the public. But he is entitled to see a pleader and his relations prior to remand. 1690. When other prisoners are in the lock up, the prisoner concerned in other department shall be confined with them and the Police in charge of the lock up will be responsible for the prisoners safe custody. 1691. In all circumstances, the duty of supplying the prisoner with food and guarding him when outside the lock up, shall lie with the department which arrested the prisoner.

ESCAPES FROM CUSTODY REPORTS 1692. Whenever an accused or other prisoner escape from Police custody, a report by Police wireless or teleprinter / fax in addition to telephonic message shall immediately be sent by the Superintendent to the Inspector General, with information to the Deputy Inspector General and the concerned Senior Superintendent of Police. 1693. The wires or teleprinter message or fax shall immediately be followed by a detailed report furnishing the circumstances under which the persons escaped, the action taken to apprehend him, the person or persons responsible for the escape, the action taken against them, and other relevant particulars. BAIL IN NON-BAILABLE CASES 1694. Police officers are empowered to grant bail under sub-section (2) of section 42 and under sections 169, 170, 436 and 437 of the Code of Criminal Procedure. STATION HOUSE OFFICER ALONE CAN GRANT BAIL 1695. The Station House Officer is empowered to grant bail under sections 436 and 437 of the Code of Criminal Procedure, but an Investigating Officer may send a person to him with a recommendation to be released on bail. A Station House Officer or the investigating officer is empowered to release an accused person under section 169 of the Code of Criminal Procedure. Bonds under which accused are released on bail should be executed in favour of government. Bail bond should be used. When, on investigation, there is no sufficient evidence or reasonable suspicion to justify the forwarding of the accused to a Magistrate, the Station House Officer or the investigating officer should release him on bail, if he is in custody. ANTICIPATORY BAILS 1696. Section 438 Cr.P.C. provides for grant of anticipatory bail. When any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of session for a direction under this section, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail subject to certain conditions. BAILABLE WARRANTS PRODUCTION FOR REMAND 1697. In bailable cases, bail is a right and not a favour, detention in the lock-up is the alternative, not the original order. The bail demand should never be excessive but should be fixed with reference to the social status of the prisoner and the character of the offence. 1698. A person arrested under a bailable warrant should not be compelled to come to the Police Station to give bail. The officer executing the warrant should take necessary bail bond form with him and take bail, where offered, and release the warrantee.

1699. ARREST OF CERTAIN OFFICIALS (1). If a RAILWAY official is to be arrested and if the immediate arrest of the railway official would cause risk or inconvenience, the Police should make all arrangements necessary to prevent his escape and apply to the proper quarter to have him relieved. The fact of the arrest of a railway employee when off duty, or when not engaged in a duty which renders his immediate arrest undesirable, should be reported at once to the local Head of the Department to which he belongs. (2). Arrest of employees of ORDNANCE factories owned or sponsored by the government should be notified immediately to the Superintendent / officer-in-charge of the factories concerned. (3). When a Central Government or any Department or a State Government servant or a village officer is arrested or removed by the Police it is desirable whenever practicable to send prior intimation of the arrest of such an officer to his immediate superior or the officer of the installation or department. This intimation must be treated as secret. Information of arrest should be sent to his immediate superior officer concerned, if in any case, prior warning cannot be given and this should be followed by a more detailed report of the offence committed together with an indication as to whether the arrested person is being released on bail or bond by the Police. (4). In the event of the arrest of an employee of FOREIGN CONSULATE (not a foreigner), intimation should be immediately be given to the consular officer concerned. (5). The fact of the arrest of MILITARY personnel by the Police should be communicated to the Commanding Officer of the Unit to which they belong and also to the concerned Magistrate Court. Such communication should be sent within 24 hours from the time of arrest. Such intimations should be directly sent by the concerned Superintendents of Police. (6). When a reservist of the Indian Army is arrested and remanded on a criminal charge, the facts of arrest remand will be at once reported to the Inspector General with information as to the military unit to which the man arrested belongs. When the case is over its result and the event of conviction, the period spent in Jail by the accused while under trial prior to the conviction and the sentence awarded will be reported. The information so reported will be communicated by the Inspector General to the appropriate military authority. ARREST, DETENTION, RELEASE, ETC., OF MEMBERS OF PARLIAMENT / MEMBERS OF RAJYA SABHA, MEMBERS OF LEGISLATIVE ASSEMBLY OF OTHER STATES 1700. Information about the arrest, detention, release, etc., of the members of the Lok Sabha and Rajya Sabha should be sent immediately by telegram wireless message to the Speaker / Chairman, as the case may be, by the Senior Superintendent of Police concerned of this territory. Similar information should be sent to the Ministry of Home Affairs, New Delhi. Confirmatory report of the telegram / wireless message should be sent immediately by registered post to all the above officers and the Inspector General of Police.

1701. This form in which such confirmatory communication to be sent is appended below: FORM Place: Date: To The Speaker / Chairman Lok Sabha / Rajya Sabha / Legislative Assembly / Council

Dear Thiru Speaker / Chairman

I am to inform you that I have found it my duty, in the exercise of my powers under Section _________________ of the ___________________ (Act) to direct that Thiru.

__________________________ Member of the Rajya Sabha / Lok Sabha / Legislative Assembly / Council, be arrested / detained / released for ____________________________ (reasons for the arrest or detention, as the case may be). Thiru. ______________________ Member of the Lok Sabha / Rajya Sabha / Legislative Assembly / Council was accordingly arrested / taken into custody / released at _________________ (time) on _________________ (date) and is at present lodged in the _________________ jail (place).

A similar procedure should be adopted to furnish information to the Speaker of the Legislative Assembly, Puducherry, when an MLA is arrested, detained, released, etc., This information shall be sent by the concerned Superintendent of Police. The Inspector General of Police and the Senior Superintendent of Police concerned should also be informed in the case of arrest, detention or release of members of the legislative assembly. The form of communication to the speaker, legislative assembly is appended below: -

FORM OF COMMUNICATION REGARDING ARREST, DETENTION, CONVICTION OR RELEASE, AS THE CASE MAY BE, OF A MEMBER OF LEGISLATIVE ASSEMBLY, PUDUCHERRY. Place . Date .. To The Speaker, Legislative Assembly, Puducherry.

A
Dear Thiru Speaker, I have the honour to inform you that I have found it my duty, in the exercise of my powers under section of the

(Act) to direct that Thiru. member of the Legislative Assembly be arrested / detained for (reasons for the arrest or detention as the case may be).

Thiru. M.L.A., was accordingly arrested taken into custody at ..(time) on (date) and is at present lodged in the Jail . (place).

B
I have the honour to was inform tried you at that the Thiru..M.L.A.,

court before me on a charge ( or charges) of .. (reason for the conviction)

On .(date) after a trial

lasting

for .days I found him guilty of . and sentenced him to imprisonment for ..(period).

(His application for leave to appeal to . is pending consideration).

* Name of the Court.

C
I have the honour to inform you that Thiru. ..M.L.A. who was arrested / detained /convicted on ..(dated), for (reasons for arrest/detention/conviction), was released on .. (date) on

. (grounds for release).

Yours faithfully,

(Judge, Authority)

Magistrate

or

Executive