147. Powers of arrest of a police officer.—

Any police officer may cause any person whom he is empowered to arrest under Section 41 (2) of the Code of Criminal Procedure, 1973 (2 of 1974) to be arrested by giving to any other police officer enrolled under the Police Act (V of 1861) the information which will justify that officer in making the arrest in the exercise of his own powers under that section. For the purpose of Section 41 (2) a telegram may be considered to furnish credible information of a person having been concerned in a cognizable offence. The officer-in-charge of a station or any officer making an investigation under Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) may also cause any person whom he is empowered to arrest under Section 41 (1) to be arrested by issuing an order in writing under Section Section 55 to any officer subordinate to him. The officer-in-charge of a station may similarly issue an order in writing under Section 55 against any person whom he is empowered to arrest under Section Section 41 (2).

147-A (i) According to the Rules of Procedure and Conduct of Business in the Lok Sabha and the Rules of Procedure and Conduct of Business of the U.P. Vidhan Sabha, when a member of the Lok Sabha/Vidhan Sabha is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a Court or is detained under an executive order, the committing Judge Magistrate or executive authority, as the case may be, shall immediately intimate such fact to the Speaker indicating the reasons for the arrest, detention or conviction, as the case may be, as also the place of detention or imprisonment of the members in the prescribed forms. The same rules also provide that when a member is arrested and after conviction released on bail pending an appeal or otherwise released such fact shall also be intimated to the Speaker by the authority concerned in the prescribed form. A similar procedure is also required to be followed and the same forms, with necessary modifications are to be used in respect of members of the Rajya Sabha or the Vidhan Parishad.

(ii) It shall be the duty of the officer-in-charge of the police station, in whose jurisdiction such an arrest has been effected, or a superior Police Officer making the arrest of any such member to intimate forthwith the prescribed details about the arrest and, if the member has been released on bail, the necessary information in respect thereof as well, to the Magistrate, Judge or the executive authority under whose orders such arrest is made, for communicating the required information to the Speaker/Chairman of the House concerned.

(Note.—If the Magistrate having jurisdiction or the Judge or the executive authority under whose orders the arrest has been made, is not available the nearest Magistrate available should be contacted by the Police Officer personally giving reasons in writing for not contacting the Magistrate having jurisdiction or die Judge or executive authority ordering the arrest, and necessary information laid before him for onward transmission. A recourse to this procedure should, however, be taken in exceptional cases only).

(iii)  When the officer-in-charge of police station concerned or any other Police Officer makes the arrest of a member otherwise than under the orders of a Magistrate, Judge or executive authority, e.g. for committing a cognizable offence, for preventing breach of peace, etc. a special report should be sent by the officer-in-charge of the police station having jurisdiction, to the S.P., D.M., etc. as provided in para 101 of the Police Regulations. The S.P. should on receipt of information through Special Report or otherwise, communicate the required information to the Presiding Officer of the House concerned, forthwith through a telegram, sending the details through a report by post. Copies of the communications should be sent to District Magistrate.

(iv)  Where the Police arrest a member pursuant to a warrant issued under Section Section 79 of the Cr.P.C, 1973 (2 of 1974) the Police Officer making the arrest should immediately after effecting the arrest, lay the necessary information before the authority before whom the arrested member is produced in terms of Section 86 ibid with the request that the same may be forwarded to the Presiding Officer of the House concerned.

(v)   When a member under arrest is transferred by Police from one place to another while still in their custody, the fact of transfer should also be reported by the Superintendent of Police of the district from where he is being transferred to the Presiding Officer of the House concerned. Such information should also be communicated by the Superintendent of Police in cases where a member remanded to the Police custody is transferred to another place. He should also inform the Magistrate issuing the remand accordingly.

(vi)  Where intimation of arrest or detention of a member of a member is sent by a telegram or a radiogram, the information on all the points mentioned in the appropriate forms should be given succinctly, but clearly.

(vii)  The rules referred to in sub-para (i) above also provide that no member of the House shall be arrested and no legal process, civil or criminal, shall be served on him/her within the precincts of the House, without obtaining the permission of the Speaker. A similar procedure is required to be followed in the case of the Member of the Rajya Sabha/Vidhan Parishad. When making a request for such an arrest the warrant should be accompanied by a brief and concise statement containing a well reasoned request setting out the grounds therefor and explaining why it is desired to effect the arrest within the precincts of the House and why the matter cannot wail till the House adjourns for the day; so as to enable the Speaker/Chairman to decide whether he should grant or withhold permission for arrest within the precincts of the House.

Note.—The term ’Precincts of the House' as defined in the Rules of Procedure and Conduct of Business of the U.P. Vidhan Sabha and the direction of the Speaker is as follows :

"Precincts of the House' means and includes, the Chamber, the Lobbies, Galleries and approaches leading these to and all other accommodation in possession of the Speaker or the officers of the Assembly Secretariat in the Vidhan Bhawan and such other places as the Speaker may from time to time specify:

Direction

"The Precincts of the House" means clearly the Assembly Hall, Lobbies, the rooms in occupation of Legislature Secretariat, Speaker's Room, Deputy Sepaker's room. Committee room, Library, Party rooms and approaches thereto."

The terms 'Precincts of the House' as defined by the Chairman of the U.P. Vidhan Parishad is as follows :

"Precincts of the House” means and includes, the Chamber, the Lobbies, the Galleries Reading room and Legislature Library and approaches leading thereto, and all accommodation in possession of the Chairman or officers and the Council Secretariat in the Vidhan Bhawan and such other places as the Chairman may from time to time specify.

(viii) It must also be noted that notwithstanding the provision contained in Section 135-A, Code of Civil Procedure, the immunity of a Member of Parliament/State Legislature from arrest pursuant to a Civil process would, in terms of Article 105 (3) 194 (3) of the Constitution of India, extend to a period of 40 days before or after a meeting of the House.

(ix) Except when in Judicial or Jail custody all communications addressed by a Member of Parliament/State Legislature who is under arrest or detention to the Speaker or Chairman of the House of which he is a member or to the Chairman of a Committee (including a Committee of Privileges) of such House or of a Joint Committee of both the Houses of Parliament/State Legislature shall be immediately forwarded by the Superintendent of Police to Government in Home Department (Police -B) so as to be death with by them having regard to his rights and privileges as a member of the House of which he belongs.

N.B.—Such communication from Members while in Judicial or Jail custody would be dealt with by the Court or Jail authorities, as the case may be.

148. Powers of Police Officer to arrest any offender in whole of India.—

A police officer may follow to any place in British India an offender whom he is empowered to arrest. For the procedure to be observed where Indian States are concerned, see Chapter XXIV.

149. Process for arresting a Railway personnel.—

When a railway servant, whose removal from duty would disorganize the working of the railway, has to be arrested, his arrest should ordinarily be deferred until he is relieved : but he may be arrested and allowed to carry on his duties under guard, if it is advisable to place him under restraint at once.

150. Powers of arrest should not be exercised in case of a known person.—

The power of arrest given to police officer by Section 34 of Act V of 1861 should not be exercised in the case of a person whose name and address are known. Such a person should be called upon to execute a bond to appear before a Magistrate, if required.

151. Process when an accused is arrested by a private person.—

When an accused person is arrested by a private person and brought to the police station, he must be re-arrested by the officer-in-charge of the station or released in accordance with the provisions of Section 43 of the Code of Criminal Procedure, 1973 (2 of 1974).

152. Restrictions imposed on police for arrest of a person.—

The restrictions imposed by Section 57 and 167 of the Code of Criminal Procedure, 1973 (2 of 1974) on the period of which persons arrested without warrant may be detained in police custody must be strictly observed. The report required by Section 58 of the Code of Criminal Procedure, 1973 (2 of 1974) must be made within 24 hours of the arrest, in the charge-sheet or final report, or separately, as may be most convenient.

153. Process when any person is arrested in the course of an investigation.—

When any person is arrested in the course of an investigation, the investigating officer shall, at the first step in the investigation subsequent to the arrest, ask him whether he has any complaint to make of ill-treatment by the police and shall record in the case diary both question and answer. He shall also then and there, subject to the consent of prisoner, examine the prisoner's body to see whether there are any marks of ill-treatment and shall record the result of this examination, certifying in his diary of investigation whether to the best of his knowledge and belief the prisoner has suffered ill-treatment or not, and whether he has marks of ill-treatment .on his person. Should be prisoner refuse to allow his body to be examined, the refusal and reasons given for it shall be recorded. If an allegation of ill-treatment is made or if makes of ill treatment are found on the personer's person, the investigating officer shall so far suspend the investigation on which the prisoner has been arrested, as to forward the prisoner with his complaint, the record of corporal examination, any other evidence available, and, if possible, the police officers implicated by the prisoner's complaints, to the nearest Magistrate having jurisdiction to inquire into the case. Whenever such action is taken the Superintendent of Police must be informed immediately.

The same procedure shall be followed by the Officer-in-charge of a station in the case of persons arrested otherwise than in the course of police investigation. In such cases question arid answer shall be recorded in the general diary of the police station.

Note.—The examination required by this paragraph shall be made, when the prisoner is a female, by another woman, with strict regard to decency under provisions of Sec. 51 (2) Cr. P.C. the medical examination of a female should be done by a Registered Medical Practitioner only by the prior consent of the woman according to the provisions of Sec. 53 (2).

154. The search of an arrested person.—

The search of an arrested person under Section 51 (1) of the Code of Criminal Procedure, 1973 (2 of 1974) should be made in the presence of two witnesses unconnected with the police, whenever such witnesses are available. All property of which police take possession should be marked and entered in a list. Searches should be made with consideration and in such privacy as may in each case, be possible. Undue exposure of the person should be avoided.

155. Arrested person should not be subjected to any unnecessary hardship.—

A person arrested should not be subjected to any unnecessary hardship or indignity. The instructions regarding handcuffing and fettering of convicted and under trial prisoners, contained in Rules for Guards and Escorts will apply, as far as possible, to all arrested persons on their way to police stations and form outlying police stations to headquarters.

Visits of friends and legal advisers should be permitted subject to any precautions which may be necessary to prevent the prisoner from escaping or otherwise defeating the ends of justice.

When handcuffs are used a pair should be selected which will fit the prisoner's.wrists; the key should be carried in the breast pocket of the police officer-in-charge of the prisoner.

For journeys by road prisoner or arrested person who wishes to travel in a hired conveyance should be allowed to do so, provided he is willing to pay both for himself and his escort.

When travelling by rail, arrested persons or prisoners will ordinarily travel in a third class compartment. But if a prisoner or arrested person is willing to pay for a higher class fare, including the fare of the police escort, he should be allowed to travel by the class of his choice.

156. Conditions for granting bail to accused person by the station officer- in-charge.—

Whenever an accused person is arrested the investigating officer or officer-in-charge of the station must consider with reference to Section 169 and Chapter XXXIII of the Code of Criminal Procedure, 1973 (2 of 1974) whether bail should be allowed. Bail cannot be refused unless there are reasonable grounds for believing that the accused has been guilty of a non-bailable offence, and even in such circumstances the grant of bail by the officer-in-charge of a police station is not prohibited unless the offence is punishable with death or transportation for life. An investigating officer not in charge of a station may not take bail, except under Section 169 of the Code of Criminal Procedure, 1973 (2 of 1974) when there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused person to a Magistrate. In cases covered by Sections Sections 436 and 437, Code of Criminal Procedure, 1973 (2 of 1974) he should send accused person to the officer-in-charge of the police station with his recommendations. In case where there are reasonable grounds for believing that a person has been guilty of a non-bailable offence, an officer-in-charge of a police station should, before releasing him on bail according to the special provisions of Section 437, Criminal Procedure Code, 1973 (2 of 1974) consider his past history, if known, and also the possibility of his absconding, should be released.

SHORT NOTES

The provisions of granting bail by police officer is given in Sections 42, 59 167 (2), 169, 170 (1), 170 (4), 389,436 (1), 437 (1) to 437 (4) Cr. P.C..

157. Proper care of undertrial prisoners confined in police lock-ups.

Officers-in-charge of police stations are responsible that proper care is taken of undertrial prisoners confined in station lock-ups or in transit to Courts, blankets, lotas, and conservancy utensils are supplied to all station lock-ups by the Superintendent of Police from the grant provided.

Lock-ups should be supplied from the police contract grant, with tatpurdhas or other contrivances for the protection of prisoners from the inclemency of the weather.

158. Maximum number of persons accommodated in lock-up.—

The Superintendent of Police will determine for each police station lock-up (male and female) the maximum number of persons who may be accommodated therein at the same time. This number will be marked in a conspicuous place on the exterior of the lack-up. The basis of calculation is 36 square feet of floor and 540 cubic feet of space for each person.

Prisoners may not be kept in a lock-up in excess of its specified capacity. When people under arrest at a police station number more than the maximum capacity of the loci-up, the exexx must either be housed in a neighbouring jail or in quarters in the vicinity if available, safe and suitable and which may be rented temporarily, if necessary, or, if no such accommodation is available in the vicinity be sent to the nearest lock-up where there is room. Superintendents of Police will lay down for each police station where prisoners in excess of lock-up accommodation shall be housed or despatched at the skme time passing orders for the guarding of prisoners housed elsewhere than in lack-ups.

159. Instructions regarding scale of daily diet for healthy prisoners.—

Detailed instructions regarding the scale of daily diet for healthy prisoners and the diet for sickly prisoners in transit, and regarding prisoners undertrial in the Court of a Magistrate in camp, will be found in Rules for Guards and Escorts.

160. Under trial prisoners should not be kept at Courts so late.—

According to the Manual of Government Orders, undertrial prisoners should not be kept at Courts so late as to necessitate their admission to jails and lock-ups after lock-up time. Every effort will be made by Magistrates to ensure that the above directions are observed by subordinate Courts. Undertrial prisoners, however, who cannot arrive before lock-up time should to be sent to jail except under the special orders of the Magistrate concerned. It is unnecessary and impracticable to specify the circumstances in which such an order should be passed. The question for consideration in each case will be whether there are circumstances which render it undesirable in the interests of justice or security that a prisoner should remain in police custody As to the existence or otherwise of such circumstances, the Magistrate concerned must exercise his own discretion subject to the general control and supervision of the District Magistrate. The Inspector General of Prisons has issued instructions to all jail Superintendents to arrange for the admission of undertrial prisoners to Jail after lock-up time, provided that the necessary warrant is produced at the jail gate. District magistrates have been directed by Government to designate a Magistrate whose duty it will be to sign the remand forms of prisoners who arrive for the first time at headquarters after lock-up time. Superintendents of Police will see that their public prosecutors understand these orders and assist in their execution.

161. Lunatics never, confined in cells with other persons.—

Officer-in- charge of police stations will be held personally responsible that lunatics, or persons suspected to be such, are never in any circumstances confined in cells with other persons.

162. Minor girls should not be kept in the custody of police.—

As a rule, minor girls, especially those termed as 'strayed' should not be kept in the custody of the police. In all cases where a hospital or dispensary with female accommodation exists, such girls should be made over to the hospital authorities as dieted patients.

The period for which it will be necessary for the dispensary to keep such girls will not exceed fifteen days save with the consent of the distinct board concerned.

163. Seriously sick person to be kept in custody, where he is.—

When a person arrested has to be kept in custody but is in such a state of health that he cannot be moved without serious risk to himself or to others, the officer making the arrest must make suitable arrangements to keep him in custody where he is.

164. Rules for guidance of the police in dealing with Juvenile Offenders.—

Rules for the guidance of the police in dealing with juvenile offenders will be found in Rules for Guards and Escorts.

Juvenile convicts released from the Bareilly Juvenile Jail, will not be escorted to their home by the police. The police shall ordinarily have nothing to do with them after release except when history-sheet have been prepared for them in accordance with the orders in paragraph 234 of these Regulations. Juvenile convicts released from other jails shall be escorted to their home by the police in accordance with paragraph 336 of the Jail Manual (Revised edition 1941).

SHORT NOTES

Hon. Supreme Court of India issues some directions relating to arrest in deciding the writ petition No.-539/88, D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC 610, dated 18-12-96! The 11— point directives are given as under—

"(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.

(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 pohce 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 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.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter."