Have you been afraid of talking to the police officers? Do you feel like you have no power over them? Well, it is a part of their job. They need bad guys to be afraid of them, don’t they?
Read this post with great attention and learn the laws you need to know in order to deal with police officers. You just need to cite the right law at the right time. Feel free to comment below if you have any confusions.
Don’t be afraid ever again when the time comes to deal with police officers. They are for your protection, always co-ordinate with them.
Table of Contents
- We all are afraid of police
- Laws that will help young advocates
- Refusal to file a FIR
- Arrest without a warrant
- How are arrests made
- Arrest of Women
- Unnecessary Restraint
- Grounds of Arrest
- Landmark Precedents
- Search of Arrested Person
- 24-hour long detention
- Ace up your sleeve while you deal with police
We all are afraid of police
I write this as a well-informed, middle-class student who grew up with a reasonable amount of privilege in India, the fear of authority does very much exist in our country.
I necessarily may not be able to specifically pinpoint as to a moment when this conditioning started but it’s been present for as long as I remember. This goes to the extent that we actively avoid to deal with police officers and any interaction with them, as this leads to people at large believing the worst.
However, as a lawyer all of this changes, you become the buffer between civilians and police officers, lawyers don’t just represent their client’s interests in the court of law but play a crucial cog in the entire wheel of justice and protecting civilians from abuse of power by officers.
Laws to know while you deal with police
While coming up with a list for provisions to be aware of while dealing with the police, if strongly believe that I should caveat with the fact that the list is not by any means exhaustive, I would even go to the extent of saying that list you may come across in print or on the web cannot be exhaustive as a lot of the conduct of both parties is dependent upon the circumstances of that particular situation which changes even with a minuscule shift in facts. Having said that what follows are a few provisions that should help any lawyer while dealing with police officers.
Refusal to lodge FIR
No police officer refuses to lodge your FIR to the extent that if he/she refuses they may be imprisoned to the extent of a year as per Section 166A of the Indian Penal Code.
Arrest without a warrant
Under Section 41 of CrPC wide powers are conferred on police to arrest, mainly in cognizable offences, without having to go to Magistrate for obtaining a warrant of arrest. There can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence or commits offence(s), specified in Section 41.
The burden is on the police officer to satisfy the court before which the arrest is challenged that he has reasonable grounds of suspicion. In addition to the above, Section 45 of CrPC provides that members of Armed Forces cannot be arrested for anything done in the discharge of official duties, except after obtaining the consent from the Central government.
How are arrests made
Section 46 of CrPC envisages modes of arrest i.e. submission to custody, touching the body physically, or confining the body.
An arrest is a restraint on personal liberty. Unless there is submission to custody, by words or by conduct, an arrest can be made by actual contact. In case force is required, it should be no more than what is justly required and this section does not give a right to cause death of a person, who is not accused of an offence punishable with the death or with imprisonment for life.
Arrest of Women
No women can be arrested before 6 AM or after 6 PM as per Section 46 of the CrPC but this provision does come with due exceptions in many cases. It also mandates the arrest of a female only by a female officer.
Section 49 of CrPC provides that there should be no more restraint than is justly necessary to prevent escape i.e. reasonable force should be used for the purpose, if necessary; but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without an arrest is illegal.
Grounds of Arrest
Section 50(1) CrPC provides, “every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”
Apart from the provisions of CrPC, Article 22(1) of Constitution of India provides, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
Based on decisions of the Supreme Court in Joginder Kumar v. State of UP [(1994) 4 SCC 260], and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], substantial amendments have been enacted in Section 50-A of CrPC in the year 2006 making in obligatory on the part of the police officer making an arrest to inform the friend, relative or any nominated person of the arrested person about his arrest, inform the arrested person of his rights and make an entry in the register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard.
Search of Arrested Person
Section 51 of CrPC allows a police officer to make personal searches of arrested persons. With regard to the provisions of this section, the reference may be made to Article 20(3) of the Constitution of India which is a guarantee to the accused against self-incriminating testimonial compulsion. Though an accused cannot be compelled to produce any evidence against him, it can be seized under the process of law from the custody or person of the accused by the issue of a search warrant.
24-hour long detention
The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed in the Khatri v. State of Bihar [AIR 1983 SC 378] case.
Section 57 is concerned solely with the question of the period of detention. The intention is that the accused should be brought before a magistrate competent to try or commit, with the least delay.
Ace up your sleeve while you deal with police
A criminal case in India can be started in one of two ways (1) by filing an FIR (first information report) in a police station under Section 154 of CrPC or (2) by filing an Istagaasha before a judicial magistrate, under Section 200 of CrPC.
Now policemen are not scared of an FIR because that is submitted to others of their own fraternity, and members of one’s own fraternity tend to gang up with each other. So the matter is ‘manageable’.
But a criminal complaint before a judicial magistrate is a different cup of tea altogether. It is presented before a judge (a judicial magistrate), and lawyers and judges belong to the same legal fraternity. A magistrate’s sympathy is therefore likely to be more with the lawyers who appear daily before him in court, rather than with policemen.
On receiving a complaint by lawyers about a police atrocity, whether true or concocted, the magistrate will issue summons to the police personnel accused under Section 204 of CrPC and begin a criminal trial, which may end with the accused policemen being sent to jail, and/or their careers being damaged or ruined.
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