CrPC 160 – Police officer’s power to require attendance of witnesses

Posted on August 24, 2020 by ShadesOfKnife

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no

male person under the age of fifteen years or above the age of sixty-five years or
a woman or
a mentally or physically disabled person

shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.

CrPC 41D – Right of arrested person to meet an advocate of his choice during interrogation

Posted on August 24, 2020 by ShadesOfKnife

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

CrPC 41B – Procedure of arrest and duties of officer making arrest

Posted on August 24, 2020 by ShadesOfKnife

Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

CrPC 41A – Notice of appearance before police officer

Posted on August 24, 2020 by ShadesOfKnife

(1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

CrPC 41 – When police may arrest without warrant

Posted on August 24, 2020 by ShadesOfKnife

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

CrPC 46 – Arrest how made

Posted on August 24, 2020 by ShadesOfKnife

(1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

CrPC 197 – Prosecution of Judges and public servants

Posted on August 24, 2020 by ShadesOfKnife

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)—
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.

Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

IPC 166A – Public servant disobeying direction under law

Posted on August 24, 2020 by ShadesOfKnife

Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other
matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509,
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

Meanings:

(a) knowingly disobeys any direction of the law means, knowingly disobeys any Judgment (of any High Court or Supreme Court) which established a law/principle

(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means, knowingly disobeys any Judgment (of any High Court or Supreme Court) which established a law/principle

E.g.: No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc)

Cognizable
Bailable
Magistrate of the first class

Criminal prosecution of Public Servant (includes a Judge or Magistrate or a Police office)

Posted on August 24, 2020 by ShadesOfKnife

Read the 2013 Amendment made to General Penal and Procedural laws of India. All amendments made to CrPC are here.

In this amendment, apart from inserting new sections (around women-protection) into prevailing laws, the following helpful sections were brought in.

Judge or Magistrate or a public servant may be prosecuted as per procedure laid out u/s sec 197 CrPC
New Cognizable and Bailable offence u/s 166A was inserted into IPC which can be invoke against police if they violate laws.
Per the new Explanation given to sec 197(1) CrPC, no sanction is required to prosecute the police. Karnataka High Court clearly explains this here.

Explanation follows…

PART-A

Section 197 CrPC provides the procedure for, When any person who is or was a Judge or Magistrate or a public servant, (who is) not removable from his office save (meaning except) by or with the sanction (meaning permission) of the Government (meaning Central or State Governments) is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

So, this mandates that Government permission is must for a Court to take cognizance of such offence by such public servant. Important aspect to note is that, there is no restriction of registering an FIR, only Cognizance needs Government permission to proceed.

PART-B

Now, the same 2013 Amendment to Criminal laws of India also inserted a new section criminalizing three acts/omissions of public servants. It is as follows.

Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) *****
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

The entire procedure of how to make arrest in a cognizable case by police is in CHAPTER V – ARREST OF PERSONS. The various sections under this chapter are few other sections are as follows:

Let’s focus on clauses (a) and (b) alone. I have given meanings for the words used in these two clauses here.

Clause (a) talks about the police disobeys any direction of the law (they are flouting CrPC so let’s consider only judicial decisions) which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter.

So, if a Police office disobeys any of these above CrPC provisions such as

a male police office arresting female accused,
a female arrested after sunset and before sunrise-meaning night time) or
no notice issued u/s 41A CrPC to the accused (even WhatsApp, email is also valid service of notice)
no notice or communication as mandated u/s 50 CrPC, not given to person being arrested
violates judgments which prohibit police in doing something in relation to forcing any person to attend before police for investigation, then such police office is liable for punishment under 166A IPC and a competent Court can take cognizance of his case, without permission from State Government.

Some Judgment (of any High Court or Supreme Court) which established a law/principle regd attendance of a person before police

Clause (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means,

Some Judgments (of any High Court or Supreme Court) which established a law/principle regd investigation

What is Investigation and what is not? [Rajesh Gutta Judgment]
No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc) [Arnesh Kumar judgment]

Until the 2013 Amendment to Criminal laws of India, the cases involving public servants were taken cognizance, only after/with Government permission.

PART-C

Now, the 2013 Amendment to Criminal laws of India inserted an Explanation under/after Section 197(1) and before 197(2) [this means that the explanation applies to sec 197(1) only]:

Explanation.—For the removal of doubts, it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).

Out of the many IPC offences listed in this explanation, Legislature, in it’s endless wisdom, also included Sec 166A also, so that means now, the cases involving public servants can be taken cognizance by Competent Court, without Government permission.

Conclusion

So, get FIRs registered (by making good use of Zero FIR, where appropriate) and prosecute the out-of-line public servant (includes a Judge or Magistrate or a Police office)

Check out the relevant case laws here.

CrPC 231 – Evidence for prosecution

Posted on August 17, 2020 by ShadesOfKnife

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

Shades of Knife

True Colors of a Vile Wife

Category: Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments

CrPC 160 – Police officer’s power to require attendance of witnesses

CrPC 41D – Right of arrested person to meet an advocate of his choice during interrogation

CrPC 41B – Procedure of arrest and duties of officer making arrest

CrPC 41A – Notice of appearance before police officer

CrPC 41 – When police may arrest without warrant

CrPC 46 – Arrest how made

CrPC 197 – Prosecution of Judges and public servants

IPC 166A – Public servant disobeying direction under law

Criminal prosecution of Public Servant (includes a Judge or Magistrate or a Police office)

CrPC 231 – Evidence for prosecution