Theme: Arrest

Yes, a foreigner can file a case (Habeas Corpus petition) if they are unlawfully detained.

The Court declares an accused as a proclaimed offender when it believes that the accused against whom a warrant has been issued, has absconded or concealed himself to evade the warrant.

The police need to present you before the Magistrate as soon as possible after you have been arrested. They cannot keep you under arrest for more than 24 hours – this excludes travel time to the court. The police officer will also need to provide a copy of the entries in the case diary to the Magistrate. The case diary is a daily diary kept by an officer detailing all that happens in an investigation. The Supreme Court has directed the police officers to provide the Magistrate with a checklist of the reasons for your arrest along with all documents related to your arrest including the arrest memo.

After you’ve been presented before the Magistrate, the Magistrate can discharge you or grant you bail. Your lawyer should ask for your release if the police only needed to issue a ‘notice of appearance’ and not actually arrest you. The police can detain you beyond 24 hours only with permission of the Magistrate. They may seek ‘police custody’ or ‘judicial custody’. Police custody can only last 15 days from the date of arrest. This means you will be kept inside the lock-up at the police station for a maximum of fourteen more days.

If the police have not been able to file the charge-sheet and depending on the crime you have been suspected of, you can be in judicial custody for up to 90 days for crimes that you could possibly go to prison for more than 10 years, and up to 60 days for all other kinds of offences.

You cannot be sent to jail for more than fourteen days at a time even in judicial custody. You will be brought before the Magistrate after each fourteen day period. After the 60 or 90 day period, you have a right to be released on bail.

Yes, there are two purposes for which you can be examined.

• The first is to determine if you as the accused have been hurt or subject to violence by the police. You can ask for a copy of the report prepared by the doctor. If you are a woman, then a female doctor has to conduct the investigation.
• If the police think that a medical examination can prove that you committed a crime, they can ask a doctor to conduct an examination on you. If you do not cooperate with the doctor, they can use reasonable force on you.

Yes, the police can search you when they are arresting you. They will keep the things confiscated from you in safe custody. If you are a woman, you can be searched only by another woman police officer/constable. The police have to give you a personal search memo which is a list of all the things that they have taken-this search memo is sometimes known as jamatalashi. They can also take your fingerprints with the permission of the Magistrate.

Resisting an arrest does not help. It only allows the police to use force to arrest you. If you do not submit to being arrested, the police can use all means necessary to arrest you. Though they have a duty not to cause your death, they can use deadly force if you are being accused of a crime which is punishable with death or life imprisonment. In case the proper arrest procedure is not followed please contact your lawyer at the earliest and let your lawyer know of the violations so that he/she can take adequate measures to help you out.

The police can arrest you without a warrant in two broad cases:

1. You are suspected of having committed a cognizable crime
2. The police suspect you are planning to commit a cognizable crime

In the first category, the law lays down the specific situations in which the police can arrest you without an arrest warrant:

• when you commit a crime in front of a police officer (for example at a public event or in a police station);
• when the police have received reliable information or a complaint that you have committed a cognizable crime;
• if the court has declared you as a proclaimed offender;
• if the police found you with stolen property and they suspect you;
• if you cause trouble to a police officer who is performing her duty;
• if you escape from custody;
• if you are suspected of deserting the army;
• if you are a suspect in a crime outside India and you are liable to be brought back to India; or
• if you were convicted of a crime in the past and have violated rules relating to released convicts.

No, they do not need a warrant if they suspect that you committed a serious crime (cognizable offence). Examples include murder, sexual offences, acid attack, rioting, starting a fire etc. Normally, it is the Magistrate who will issue a warrant to arrest you. Since these types of crimes need urgent action from the police, the police can take charge even without permission from the Magistrate.

India’s legal framework gives special treatment and protection to children below the age of 18 who are in conflict with the law or who commit crimes. Every district has one special juvenile police unit (SJPU) and regular police stations have a Child Welfare Protection Officer (CWPO). Usually, the SJPU has the power of arresting juveniles. In case, A normal police officer arrests the child, the child shall be immediately placed under the protection of the SJPU or the CWPO.(( The Juvenile Justice (Care And Protection Of Children) Act, 2015 NO. 2 OF 2016.)) The child shall continue to remain under the protection of CWPO, who shall be responsible for the child just as a parent/guardian, before the child is brought to the Juvenile Justice Board (JJB) within 24 hours of his/her arrest. In case, the child cannot be produced before the Board due to the child being arrested during odd hours or distance, the child shall be kept by the CWPO in the Observation Home or in a fit facility.

After the arrest is made, the following guidelines are to be followed by the officers to ensure the welfare of Juveniles.

1. No FIR shall be registered except in cases of heinous offences or where a crime is alleged to have been committed jointly with adults. In all other cases, the alleged offence shall be recorded in the officer’s daily diary.
2. The arresting officer shall be in plain clothes and not in uniform while arresting the child.
3. The officer arresting the child shall not place him or her in handcuffs, chain or use force on the child.
4. The child shall be informed about the reason for the child’s arrest.
5. The child shall not be placed in a police lock-up or lodged in the jail.
6. The child shall not be asked to sign any statement.
7. The CWPO or the SPJU shall inform the parent or guardian of such a child about the child’s arrest and provide them with the address of the JJB before which the child is to be produced  and direct them to be present before the JJB.
8. A child shall not be forced to confess and shall be interviewed only at the SJPU or at a child friendly premises or a child friendly corner in the police station which does not give the feel of a police station.

The child should be provided with proper medical assistance, assistance of an interpreter or a special educator or any other assistance that the child may require.((  Ministry Of Women And Child Development Notification, Ministry of Women and Child Development, (2016) available at http://cara.nic.in/PDF/english%20model%20rule.pdf.))