The Delhi High Court has issued guidelines that must be followed by the police of one State, when they go to some other State or Union Territory, to effect an arrest while investigating a complaint or a First Information Report (FIR) disclosing a cognisable offence.
A Division Bench of Justice Muralidhar and Justice Talwant Singh has asked Delhi Police to implement the recommendations given by a Committee headed by Justice SP Garg which was constituted by the court to look into the issues involved in the present matter.
The present case involved a habeas corpus petition filed under Article 226 of the Constitution, where the Petitioner Sandeep Kumar had asked the court to issue directions to the police to produce his wife, Nisha, before the court.
Sandeep and Nisha had solemnised their marriage under the Hindu Marriage Act, after Nisha, who was a Muslim, embraced the Hindu faith. After their marriage, Nisha's father came to the residence of the couple in the JNU campus created a ruckus and threatened both the Petitioner and Nisha with dire consequences.
The Petitioner further stated that at around 8 pm on 2 July 2018, the local police accompanied by JNU security personnel and others in civilian clothing forcibly took away Nisha and also handed over the Petitioner to "other people" who were in civilian clothing. Thereafter, he was then taken to Ghaziabad and kept in a police lockup for three days and two nights and was abused and beaten.
He also named SI Sharad Kant Sharma of Loni police station as the officer who threatened to implicate him in a false case of rape if he tried to reunite with Nisha.
The status report which was subsequently filed, states that an FIR was lodged by Nisha's brother in Loni police station.
In pursuance of the said complaint, SI Sharad Kant Sharma of PS Loni came to JNU along with his staff and found Nisha to be present there. It is stated that she was produced subsequently before the concerned Court where she said that she left her home in anger due to a quarrel with her sister and is now returning to her family members of her own free will.
When Nisha appeared before the High Court, she said she's willing to reunite with the Petitioner. During the in chamber hearing, she confirmed to the court that she had married Sandeep, the Petitioner, of her own free will.
Subsequently, on August 4, this court constituted a Committee to conduct an enquiry into the matter and in particular the legality of the actions of the police attached to PS Loni (Ghaziabad) and PS Vasant Kunj. The said committee was headed by Justice SP Garg, retired judge of the Delhi High Court.
After receiving the said report, the court had directed a copy of the same to be immediately forwarded to both to the CP, Delhi and the DGP, Uttar Pradesh for appropriate disciplinary action to be initiated against the erring police officers.
The Committee headed by retired Justice SP Garg, had given the following detailed suggestions as to the protocol to be followed by the police in the event of inter-state arrests:
- The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
- In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/search warrants.
- Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
- If the possible arrestee is a female, a lady police officer be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
- Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit
- After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
- After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC
- The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
- While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim's name be also indicated.
- Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C.within 24 hours.
- The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing the remand of an accused is a judicial decision
- Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India.
- In terms of S. 41C, control rooms be established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. Control Room at State level must collect details of the persons so arrested.
- The police officer must record all the proceedings conducted by him at the spot and prepare an 'arrest memo' indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
- Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be able to arrange legal assistance for him.
- The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody.
- On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
- Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
- The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
- The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicle should be used for transportation to the extent possible.
- MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
- The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
- The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
In addition to this, the court also directed a compensation to be paid of Rs 50,000 each to Nisha and Sandeep by the Uttar Pradesh government for the illegal detention of the couple. The amounts should be paid within a period of four weeks along with a letter written by the Director General of Police of Uttar Pradesh himself, apologizing to each of them for the conduct of his police officials.
Court has asked the police to file a compliance report by July 6, 2020.
It has also directed for a copy of the report to be forwarded to CP, Delhi and the DGP, Uttar Pradesh for appropriate disciplinary action to be initiated on the basis of the said report against the police officials under their respective control and supervision.