CIVIL, POLICE

Arrest, Custody, Bail and Remand in India

  SC INDEx

Power of arrest

Police Officers derive their powers of arrest without warrant from sections 41, 42, 43(2), 60, 129 and 151 of CrPC. Sections 46, 47, 49, 50, 51, 56, 57, 167 and 169 CrPC inter alia deal with procedures, during and after arrest.

Arrests can be made by Police Officers with Warrants issued by the Courts. There is no discretion allowed to the police in executing Warrants of arrests.

The Warrant must, be in writing, signed and sealed by the presiding officer. It should specify the offence as well as clearly the identity of the person to be arrested.

The Warrant sometimes may specify the date on which the Warrantee is to be produced in the Court. If such a Warrant cannot be executed within the time specified, a fresh Warrant might be obtained after returning the earlier one.

The validity of a Warrant is an important matter particularly in respect of those meant for arrest of persons in other countries.

The Warrants are either bailable or non-bailable.

In respect of bailable Warrants the arrestee should be released on bail when he offers the required security and in respect of non-bailable Warrants the Police Officer has no discretion, and the person must be produced before the concerned Court.

Prompt execution of Warrant is one of the foremost duties of the Police and should receive high priority.

The Warrant must be executed by the officer to whom it is endorsed. If that officer wants warrant to be executed by his subordinate officer he must make endorsement by name accordingly.

 Arrest takes away the liberty of a person and should therefore be affected in strictest compliance of the law.

Wherever it is warranted it should be promptly carried out but arrest is not to be effected just because a police officer has the power.

No accurate account of all circumstances under which arrest without Warrant can be made or should not be made can be detailed. He must exercise it with discretion.

 

Conditions necessitating arrest

 

To infuse confidence among the terror stricken victims, particularly in grave offences like murder, dacoity, robbery, burglary, rape, organized crime, terrorist offences etc.

In cases where the accused is likely to abscond and evade the  process of law;

  1. The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint;
  2.  The accused is a habitual offender and unless kept in custody, he is likely to continue to commit similar offences;
  3. Where it is necessary that his presence is required for the purpose of investigation.
  4. Where accused is likely to tamper or intimidate or cause physical hurt to witnesses or destroy other evidence.

Police Officer making an arrest should record in all the relevant records, the reasons for making the arrest, thereby bring out his conformity to the instructions given in this order and must be able to justify the arrest if required.

The Police Constables and Head Constables who make the arrest should submit a report detailing the circumstances of the arrest to the SHO or IO concerned who should incorporate the contents of such reports in the General Diary, Case Diary etc.

All Police Constables, Head Constables and Sub-Inspectors working in the field and empowered under law to exercise the powers of arrest without Warrant, should exercise their powers with prudence and be accountable for the arrest made in the discharge of their assigned tasks and duties.

No arrest should be made in a routine manner simply because the law empowers the police officer to do so. The existence of the power to arrest is one thing while justification for the exercise of power of arrest is quite another. The police officer must draw a margin between vindictivity and necessity.

The police officer may without arresting, keep a watch on a person and then arrest him, if subsequent events justify such action.No restraint can lawfully be exercised over a person so long as he is not arrested.

The arrest should be avoided if the intention is only to verify the suspicion of involvement against a person. A police officer may under section 160 CrPC issue a notice to the suspected person to attend the police station and interrogate him. He should not be detained for long and more than necessary.

[Joginder Kumar vs State of U.P. and others A.I.R. 1994 SC 1349]

Arrest of Children and Women

The Juvenile Act 2015  prohibits lodging of children in police lock-ups or being brought to police stations after arrest. Alternatives are provided for lodging the delinquent juveniles. The procedure prescribed therein should be observed in respect of juveniles.
The following instructions shall be followed whenever arrest of women is contemplated.While making arrest of a woman submission to custody should be presumed unless circumstances to the contrary exist.

There should be no occasion for a male Police Officer to touch her person. It is therefore advisable whenever it is proposed to arrest a female, women police should be employed.Arrest of women should as far as possible during night times be avoided unless it is inevitable.When it is not possible to secure the services of women Police Officers, an officer of the rank of ASI or above should effect the arrests.

Bail may be granted where the offence for which the arrest is made is not of a serious nature.

The SHO may exercise his discretion in non-bailable offences to release a woman arrestee on bail.Whenever a woman is arrested, the services of women Police Officers should be utilized for guarding and escorting her. If women Police Officers are not available in the Police Station, one of the relations of the arrested woman, of her choice can be permitted to remain with her.

When interrogation of the arrested woman is done by a male Police Officer the relation or woman Police Officer should be present. If a Woman Police Officer herself is conducting the interrogation, the presence of a woman relative may not be necessary.

Rights of Arrested Persons

The arrested persons have certain rights with which the Police Officers should be familiar. These are important from the human rights angle also besides being statutory provisions and should be respected.

The important rights are –

  1. Right to be informed of the grounds of arrest.
  2. Right to be produced before a Magistrate without unnecessary delay and within 24 hours
  3. Right to consult a legal practitioner or any one of his choice
  4. Right to be informed of right to bail
  5. Right of a person without means to free legal aid and to be informed about it
  6. Right to be examined by a Medical Officer
Direction to subordinates to arrest

When a Police Officer in-charge of a police station, or any Police Officer making an investigation, is himself not able to effect the arrest of a person, he may, under Section 55 of the CrPC depute any officer subordinate to him to arrest the person.

When such an officer is deputed, he should be given an order in writing specifying the person to be arrested and the offence or cause for which the arrest is to be made.

The officer so authorised shall notify to the person to be arrested, the substance of the order and, if so required by such person, shall show him the order. This section, however, does not take away the statutory power vested in all Police Officers by Section 41 of the CrPC.

A Head Constable in-charge of an outpost or a beat area or check post, without the intervention of the SHO, may take action in offences under special and local enactments, which empower the Head Constable to take action.

When a private person arrests any person who commits a non-bailable and cognizable offence in his view, he shall be taken to the nearest police station immediately and such person shall be re-arrested by the police.

The following requirements laid down by Supreme Court should be observed in all cases of arrest or detention:

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.

In D.K. Basu vs State of West Bengal. AIR 1997 Supreme Court Page 610 and Government Orders issued in this regardMemo No. 564, 23/HRC/93-12 dt. 20-10-97 of GAD. RC No. 43383/C3/87 dt. 22-10-97 of DGP.

That the Police Officer carrying out the arrest of a person shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either member of the family of the arrestee or respectable person of the locality where the arrest is made. It shall also be countersigned by the arrestee and contain the time and date of arrest.

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 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.

The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

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.

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.

The arrestee should, where he so requests, be also examined at the time of his arrest about major or minor injuries, if any, present on his/her body. The Inspection Memo must be signed both by the arrestee and the Police Officer affecting the arrest and its copy provided to the arrestee.

The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a doctor from the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Mandals and Districts as well.

Copies of all the documents including the memo of arrest, referred to above, should be sent to the jurisdictional Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

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 it should be displayed on a conspicuous police board at the police control room.

Guidelines for a Police Officer in making an arrest

When a police officer proceeds to arrest a person and cannot identify him personally, he should secure the services of a person who knows the person to be arrested and should also provide himself, if available, with a photograph, a descriptive role and the marks of identification of that person. He should be sure of the identity of the person to be arrested.

The police officer should be in uniform with his name and number if any, on the pocket, besides carrying his identity card or, if in plain clothes, carry his identity card and should disclose his identity. He should arm himself with such firearms and accessories required for his defence, if the circumstances demand such a precaution.

Police parties engaged on anti-dacoity, terrorist operations or similar duties which are likely to lead to arrests of dangerous persons, should carry handcuffs and leading chains to secure the arrestees, to prevent their escape or violence.

The person to be arrested with or without warrant should be informed of the grounds for making the arrest.

The arrest should be affected without unnecessary violence or publicity.

Section 46 of the Cr.P.C lays down that the police officer making the arrest of a person shall do so by actually touching or confining the body of the person to be arrested, unless there is submission to the custody by word or action.

When a person is to be apprehended and if he resists by force or tries to evade, the arresting police officer may use necessary force to arrest him except causing death.

But if the accused to be arrested is involved in an offence punishable with death or imprisonment for life, the force can be even to the extent of causing death depending upon the circumstances.

When a person to be arrested is concealing himself in a closed place, the police officer has every right to enter such place even by force to affect the arrest. He can even arrest every one who obstructs him from discharging his duty. However, he must behave decently with women inmates.

Police officer can exercise the right of private defence of his body and others while facing resistance in making arrest.

Search of the arrested person by the Police

Whenever a person is arrested and not released on bail by a police officer a thorough search of his clothes and belongings should be made before putting him in lockup.

Articles found upon him other than necessary wearing apparel should be placed in safe custody and if any articles are seized from his person, a receipt showing the articles taken possession by the Police Officer shall be given to such person.

The personal articles of the person should be kept in safe custody in the Property Room (Malkhana) and entries made in concerned registers.

If there are any incriminating articles or objects or materials, which might be necessary for investigation, they should be separated and the procedure for recording and despatch of case property to courts should be followed.

The other property should be returned to him or his nearest kith or kin when he is remanded to custody.

Whenever it is necessary to cause a female to be searched, the search shall be made by a Woman Police Officer or another female with strict regard to decency.

The officer or other person making any arrest, shall seize from the arrested person any offensive weapons, which he has on his person and shall deliver all weapons so taken to the court or officer before which or whom he is produced.

Treatment of the arrested persons Whenever any person is arrested by a Police Officer or by a private person and is brought to the police station, the SHO shall examine the body of the arrested person and note whether he has any injuries over his body.

If any, injuries are observed irrespective of their nature, he should forward the said person to the nearest Medical Officer of the Government Civil Hospital or other Hospitals of local bodies authorized for medico-legal work, for treatment and injury certificate. The Medical Officer should be requested to specify the age of each injury.

When any person with injuries in a serious condition or a drunken person in uncontrollable condition, who is unable to take care of himself, is brought to the police station, the SHO shall immediately forward such person(s) to the Government Hospital.

Any delay may cause death, in which case the Police Officer in-charge of the police station will be held responsible. The statement of the injured person should be recorded in the hospital and further action taken.

When an arrestee demands examination of his body, which will afford evidence to disprove the charge leveled against him and establish his innocence or evidence of an offence against his own body, the Police Officer should forward him to the Medical Officer of the Government Civil Hospital for the examination and injury certificate. Such a certificate shall be forwarded to the Magistrate concerned.

Police Custody

A person who is arrested and not released on bail shall be detained in a secure area of the Police Station earmarked for such purposes, under constant watch.

A prisoner whom the SHO considers to be dangerous and is likely to escape should be kept in the lock-up under continuous and effective watch. This should be done only after making a thorough search and necessary entries should be made in the prisoners search register and guard or watch sentry relief book.

A person called to a police station for questioning in order to verify his complicity in any offence shall not be kept in lock-up, without effecting arrest.

Arrested persons who are known to be goondas, rowdies, dangerous criminals, members of organized gangs, terrorist groups, those likely to escape and charged in serious offences of murder, rape, kidnapping for ransom etc. should be kept in the lock up rooms.

A person in police custody shall not be permitted to leave the lock-up after sun set, except in special and emergent circumstances (and that too with adequate escort) which shall be recorded in the general diary and the Sentry Relief Book.

A person in police custody prior to remand is entitled to see his relatives and an Advocate. He should not, however, be allowed to talk to members of the public.

 If the arrested person desires that one of his relatives may be permitted to remain with him, his request should be considered unless there are compelling security reasons.

If the arrested person for health reasons prefers to get his food from his residence, he can be permitted, but the person bringing food to the police station should be made to eat samples of all the food items before serving to the person in custody.

However, in normal course, the arrested persons should be fed at Governments cost as per the rates approved from time to time.

Whenever any punitive action is taken or contemplated against a foreigner, he should be provided with facilities, if he so desires, to communicate over the telephone or by a telegram or letter, with the Counsel, High Commissioner or other representative of his country, as the case may be.

Arrest Reports or Memo

Every person arrested by a police officer without a warrant shall be forwarded for judicial remand to the nearest Judicial Magistrate within 24 hours excluding the journey time.
An arrest report or memo in Form No. 61 containing time, date and place of arrest shall be prepared at the time of arrest and will be sent by the SHO or Inspector, as required by section 57 Cr.P.C. to the Magistrate.

The arrest report shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality. The arrestee shall also countersign it. The other columns of the arrest card containing time and date etc. should all be filled up.

When any person is arrested for his involvement in number of cases under different transactions, separate arrest reports should be forwarded to the Magistrate(s) concerned. In the arrest report, the fact of remanding the arrested person or enlarging him on bail should be mentioned.

Procedure when arrests relate to Government employees, armed forces etc.

Railway Officials

The exercise by the Railway Police of the power of arrest without warrant given to them by Section 131 of the Indian Railways Act for offences under Section 101 of the same Act is discretionary. It should be exercised only in cases, when

There has been loss of life or serious injury to a person; or A person is caught in the commission of a grave offence; or The accused is likely to abscond or continue to endanger the safety of the public or tamper evidence and intimidate witnesses.

When an arrest is made without warrant, immediate intimation of such arrest must be given to the local head of the railway department.

Under ordinary circumstances, immediate arrest may not be necessary. A warrant should be applied for while maintaining a watch over the movements of the accused, where necessary.

Whenever the arrest of a Railway employee on duty is required, the department shall make arrangements for his relief. If, the relief cannot be arranged immediately or his immediate arrest would cause risk or inconvenience, the police should make all arrangements to prevent his escape and contact the authorities for immediate relief.

Arrest of Ordnance Factory Employees

G.O.Ms. 2013, Home, (Pol.C), dt. 24.8.1956.

Arrest of an employee of an ordnance factory owned or sponsored by the Government should be notified immediately to the General Manager or the officer in-charge of the factory.

G.O. Ms. 2013, Home (Pol.C), dt. 24.8.1956.
Arrest of Central or State Government or quasi-Government employees

When a Central government employee of any department or a State Government employee or an employee of a quasi-Government Organization is to be arrested by the police, wherever it is practicable and desirable, prior intimation of the arrest of such an employee should be sent to his immediate superior officer or the officer in-charge of the institution or department.

The prior intimation must be treated as secret. Whenever prior intimation is given by telephone, it should be followed by a written intimation mentioning the time and date of such conversation.

The fact of telephoning should be recorded in the General Diary if intimation is by SHO.

If the intimation is by a superior officer he should make a record of it in the Telephone Register. After the arrest by the police,

G.O.Ms. 2013, Home, (Pol.C), dated 24.8.1956.

Intimation of the arrest along with a copy of arrest memo should be sent immediately to the highest officer of the department available in the district to which the person belongs with a copy to the immediate superior officer (of the person) if, for any reason, prior intimation could not be given;

This should be followed by a detailed report of the offence committed together with an indication as to whether the arrested person is being released on bail or personal bond, by the police.

Arrest of public servants on operational duty

G.O.Ms.No. 772, Home (Police-D) Department, dated 18.5.1965

When a public servant on operational duty of a department of the Central or State Government, e.g., railway staff like station masters, assistant station masters, guards, drivers and train control staff; or electricity department staff like sub-station attendants, is to be arrested, prior intimation should be given to his immediate superior, as a rule, to facilitate them to make alternate arrangements.

Departure from the procedure should be made only in very exceptional cases and even in such cases; intimation should be given to the superior officer immediately after the arrest of the public servant. However, in respect of the operational staff of the trains, prior intimation should invariably be given to the Railway Divisional Authorities or where this is not possible, to the superior available at the Station where the arrest is made.

Arrest of employees of Foreign Diplomatic/Consular MissionsIn the event of the arrest of an Indian employee of a Foreign Diplomatic/ Consular Mission, intimation should immediately be given to the Foreign Diplomatic/Consular Mission through the Government.

Arrest of foreigners

When a foreigner is arrested, reports as required in Order 349 of Chapter 16 on Foreigners should be sent.

Arrest of Military employees

The arrest of personnel of Armed Forces including Navy and Air Force charged with the commission of an offence should be intimated to the Commanding Officer to enable him to take appropriate measures for the defence of the personnel.

Subject to sub-order (A) above, the person so arrested shall be dealt with in all respects like any other person in the matter of the investigation of the offence in respect of which he is arrested.

The question as to whether he is to be tried by a Court Martial or a Court functioning under the Cr.P.C. is a matter for decision between the Commanding Officer and the Magistrate before whom he is brought by the police, in accordance with the rules made by the Government of India under Section 475 CrPC.

When any investigation, search or arrest is contemplated within military lines (quarters), the Police Officers concerned should be in uniform and if in plain clothes should carry identity cards and, so far as circumstances permit, prior notice should be given confidentially to the Officer Commanding, Adjutant or Orderly Officer concerned.

Arrest of Indian Army Reservists

When a reservist of the Indian Army is arrested and remanded on a criminal charge, the facts of arrest and remand will at once be reported to the DGP with information to the Army unit to which the person arrested belongs. When the case is completed, its result and, in the event of conviction, the period spent in jail by the accused while under trial, prior to conviction and the sentence awarded shall be reported.

The information so reported will be communicated by the DGP to the appropriate Army authority.

Arrest of Members of State and Union Legislatures 

All the rights, that any arrested person has, are available to Members of Legislature and Parliament whenever they are arrested. All guidelines and instructions contained in this Chapter apply to them.

The procedure contained in this should be scrupulously observed whenever any Member of Legislative Assembly/Council or Parliament is arrested by the police.Govt. Memo. 6646/54-5, Home (Elec.II) dt. 8.3.1955;Govt. Memo. 2233/56-1, Home, (Elec.II) dt. 24.4.1956;Rc.3563/C1/63, dated 25th Sept., 1963;G.O.Ms.No. 1392, Home, (Police-D) Dept., dt. 22.6.1966.

Whenever a member of a State or the Union Legislature is arrested, he should immediately be produced before the Magistrate concerned and there should be absolutely no delay. The police will send information of the arrest through a telegram or Radio Message, to the Speaker of the Lok Sabha or the Legislative Assembly, as the case may be.

Failure to send immediate intimation to the presiding officer of the Legislature concerned will constitute a breach of the privilege of the House.

If a member of the Union or a State Legislature is concerned in an unimportant case, he need not be arrested, except when it is really necessary. When arrest is made in a bailable offence, the member should be immediately released on his own recognizance. If the offence is a non-bailable one, the member should be immediately produced before the Magistrate. In any case the fact of arrest and release on bail or remand should be intimated to the Speaker.

Though the instructions are that the Magistrate should send intimation to the Presiding Officer of the Legislature concerned, prompt reporting by police is necessary.

A report of the arrest (whether released on bail either by the Police or by the Magistrate) should be sent by the SP/CP in whose jurisdiction the arrest is effected to the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha, the Speaker of the State Legislative Assembly or the Chairman of the Legislative Council, as the case may be, by telegram or Radiogram or automex or fax with a copy of confirmation dispatched simultaneously by speed post along with a copy of Arrest Memo in Form-61.

The message should contain the information as furnished in the arrest memo sent to Magistrate and relatives (Form 61). Thereafter a detailed report should be sent to the Presiding Officers concerned containing the following information:

 The place of custody or detention of the Member;

When a Member, who is under detention or is undergoing, a sentence of imprisonment is transferred from one jail to another, the change in the place of detention or imprisonment; and

When a member is released from jail on any ground e.g., on bail pending appeal or on the sentence being set aside on appeal or on the remission of sentence by Government on completing the sentence or on the termination of preventive detention, such release.

The SP/CP also should simultaneously report the arrest by telegram or radiogram to the DGP, to enable him to report it forthwith to the Government and the Secretary to the Legislature. The copies of such reports should also be sent to the superior police officers.

Police lock-ups and treatment of persons in custody and 
under trial prisoners
Rc.No. 449/ J3/62, dated 10.10.62

Once a person is in custody of the police, the responsibility for his life and safety will be totally on the police. The physical and psychological condition of every person in custody is a major factor that should determine the precautions, facilities and arrangements required to be made. The other factors such as the nature of the offence in which he is involved, the investigation required to be done, the antecedents, age, sex, ignorance and vulnerability are all vital and crucial. While every case has its peculiar features and circumstances, certain important stipulations should be observed.

The first requirement is physical safety of the person in custody. This includes safety from injury and death, whether self inflicted or otherwise. As the psychological state of each individual cannot be accurately gauged, it is necessary to realize that the general mental state of a person arrested and brought to police station would be fear, shock, trauma, sense of guilt and shame etc. Suicidal tendencies therefore develop.

Hence the place where he is lodged should not contain anything including his apparel or belongings that afford him any opportunity to attempt or commit suicide.

There should be a watch on the person all the time, at least by one policeman. The room or place where he is kept should be such as to afford a full view to the Police Officer posted to watch him and also to the Station Writer, HC or Duty officer. The place of work of these two should be so adjusted as to afford a complete view of the lock up rooms.
Wherever any attempt or suspicion about the movements or action comes to notice, the lock up room should be opened and searched.

There should be effective intervention to prevent attempt at suicide and injuries. The whole episode should be recorded in the station General Diary, Sentry Relief Book and the person should be sent for Medical examination with a report. The Magistrate and all other authorities to which Form 61 report is made should also be informed in writing.
The statements of other persons in custody and those present should also be recorded and enclosed to the report.

Since the person is in custody, sometimes even self-inflicted injuries or suicides can be interpreted as those caused by police. Hence effective and timely intervention, contemporaneous recording of events, reporting to all concerned of such attempts by persons in custody are important.

No Police Officer or IO shall use any force or cause any physical injury during interrogation of the person in custody. If such injuries are caused and result in death of the person, the Police Officers concerned will be liable for prosecution for homicide and the burden of proof of their innocence lies on them.

Custody rules

No one shall be subjected to torture, or to cruel inhuman or degrading treatment in custody.
Two blankets and two dhurries for rural stations and four blankets and four dhurries for town police stations having lock-ups should be supplied for the use of persons in police custody for each lock-up. These should be always kept clean, washed and dried. These articles will be treated as station property and the officer in-charge of the station or Outpost will be responsible for their issue to such of the prisoners who do not provide themselves with their own bedding.
The police lock-up, if it contains a prisoner or prisoners shall be unlocked at daybreak. The bedding of the prisoners, shall be at once brought outside, well shaken and left for some hours in the sun.G.O 3017, Home, dt. 2.8.1937.
In lock-ups where toilet facilities are not provided, the night vessels, if any used, shall be removed and toilets shall be thoroughly cleaned. Wherever toilets are provided they should also be thoroughly cleaned.
The persons in custody shall be taken to the latrine and shall be allowed to wash. They shall be given food daily at 10.00 am or earlier if necessary before he is taken to Court and again at 5 pm. If prisoners are not brought to the station before the hours prescribed for meals they should be given food as soon as possible after they are confined in the lock up rooms. They should be fed at government cost if food is not brought by their relatives.

Officers in-charge of Police stations and officers in-charge of guards will be held personally responsible for strict compliance of these orders.

Prisoners are not to be subjected to needless indignity or harsh treatment. At district Headquarters or at places where police vehicles are available, prisoners should be conveyed from jail to court and back in the police vehicles. Prisoners whose confessions are to be recorded should be taken to the Court from the jail in a police van, when available, escorted by warders as a special case. In places where there is no police van, but where public transport is available, under-trial prisoners should be conveyed by normal bus service, irrespective of the distance to be travelled, provided that the number of prisoners to be taken at a time is small and can be controlled easily and provided that their presence in the bus does not cause inconvenience or annoyance to members of the public using it.

In places where none of the above modes of conveyance are available, under-trial prisoners who are persons of good social position, accustomed to use a conveyance, may be allowed a conveyance, provided their safe custody is not jeopardized. The same rule should be followed in the case of prisoners who are certified by a Medical Officer to be physically unfit to walk.

In other cases, prisoners should go on foot except in the cases noted below, but no prisoner should be compelled to march on foot for long distances.

G.Os. 464, Pub. (Pol.), dated 19.10.1930; 1917, Law, (Genl.) dated 11.3.1932 & 5394, Home, dated 13.10.1939.

When convicted prisoners are escorted along with under-trial prisoners, the former may be conveyed by the transport Bus in which the latter are conveyed, irrespective of the distance travelled, in order to avoid the inconvenience and expense of providing a separate escort for them.

Whenever women prisoners have to be escorted by road, they should be provided with a conveyance, where the distance to be travelled by them exceeds 2 km. Conveyance may also be provided for shorter distances for reasons of health or custom or for other valid reason. Failure to make such provision would cause undue hardship to them.
G.O.Ms 2768, Home, dt. 27.6.1940

Use of handcuffs

The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law mandated in judgment of the Supreme Court in Prem Shanker Shukla vs. Delhi Administration (1980, 3 SCC 526) and Citizen for Democracy vs State of Assam (1995, 3 SCC 743).

The points to be observed in this regard are as follows:

When an accused is in Court during the trial, he must be held to be in the custody of the Court. If an accused is so dangerous that it is necessary to handcuff him, representation should be made to the Court, and the Court will issue appropriate instructions in the matter.

Accused persons while in Court during trial should not be handcuffed except with the permission of the Court.G.O. Ms. 1832, Home, dated 10.5.1951.

 Under-trial prisoners and other accused persons shall not be handcuffed and chained without specific permission of the court and only if there is a reasonable apprehension, either due to heinous nature of the crimes with which they are charged or from their character or behaviour that such persons will use violence or will attempt to escape or that an attempt will be made to rescue them. The same principle shall be applied to convicts proceeding in public places while in police custody. Vindictivity is to be differentiated from necessity.

G.O.Ms. 108, Home (Pol.D) dated 17.1.61. Whenever non-convicted accused persons are handcuffed with courts permission, the fact and the reasons for it shall be stated in the Station House general diary, the sentry relief book, and in the remand diary forwarded to the Magistrate.

G.O. 615, Judl., dated 24.4.1908.

The prisoners either convicted or under trial and confined in a sub-jail shall not be handcuffed, whenever they are taken out in the precincts of the sub-jail for food or other necessities, rather the entire guard including the guard commander shall be present. If there are more number of prisoners, the guard in-charge should inform the officer in-charge of the police station to send two or three constables to assist the sub-jail guard during the period when the prisoners are taken out. The officer in-charge of police station shall provide extra manpower as required by the guard-in-charge.

Whenever, it is considered necessary to handcuff certain prisoners confined in sub-jail, while they are taken out, the written orders of the Magistrate should be obtained and the permission granted by him should be maintained in a book to be kept by the guard officer.

With regard to a refractory, violent or dangerous prisoner, the officer in-charge of the sub-jail guard or the senior Police officer present may control him only by utilising more personnel and by such force as may be necessary, while rushing a messenger to the concerned court or Magistrate for permission to handcuff him.

Under-trial prisoners or accused persons in Hospital should not be handcuffed without permission of the court. In no case should prisoners or accused persons who are aged and bed ridden in hospital or women prisoners, juvenile prisoners or civil prisoners be handcuffed or fettered. If necessary, extra guard should be provided.

G.O.Ms. 108, Home (Pol.D) dated 17.1.1961.
The restriction on use of handcuffs is not to place any embargo on use of minimum force to control a violent prisoner.

Sick prisoners

When a prisoner, who arrives at a Police station, is seriously ill, medical aid should be provided. When not available, the prisoner should be sent by the quickest conveyance available, if his condition admits of it, to the nearest station where medical assistance can be procured.

Prisoners attacked by cholera or other infectious or communicable disease in a police station should be removed from the lock-up and placed in an airy part of the station and all possible treatment provided.

Whenever sick prisoners are brought from rural police stations to district head-quarters hospitals and admitted as in-patients, the fact should be reported to the Superintendent of Police of the district or Dy. Superintendent of Police or the Inspector of the District Reserve Police in whose area the hospital is located, and an armed guard will be provided from the Reserve.

In larger hospitals in cities, where prisoners wards are provided, the guard provided for the prisoners ward should take charge of such prisoners brought from the districts. The guard in-charge of the district headquarters hospital or city hospital, should find out from the resident Medical Officer or in-charge Medical Officer of the ward about the probable date of discharge of the prisoner. The information about date of discharge should be furnished to the police station or district from which the prisoner was admitted to the hospital, so that; the concerned police shall take back the prisoner.

Most of the District Headquarters Hospitals/General Hospitals are provided with prisoners ward. If such provision is not available the SP or the CP should take up the matter with the concerned authority and ensure that the prisoners ward as per the norms is provided. The prisoner irrespective of his status should be lodged in the prisoners ward as to ensure their safety and enable the police to guard them effectively.

This would also prevent inconvenience to other patients. Arrangements are to be made for their treatment in the prisoners ward itself except where it is necessary to shift them in emergencies either to an operation theatre or to an Intensive Care Unit. The government has issued instructions in this regard to the concerned authorities.

In case of death of a prisoner admitted to the hospital, the officer in-charge of the police station in whose jurisdiction the hospital is situated shall register a case under section 174 CrPC and, inform the Executive Magistrate to hold inquest and make such other enquiries. Finally the dead body will be handed over to the relations through concerned police.

Scale of accommodation for prisoners

The maximum number of prisoners that can be confined in a lock-up should, in each case be fixed by the Superintendent of Police in consultation with the Executive Engineer, Police Housing Corporation or Roads and Buildings Department, having regard to the accommodation available therein. A notice in English, Telugu, Urdu and Hindi should be displayed outside the lock-up, showing the maximum number of male or female prisoners who may be confined in it. The number so fixed shall never be exceeded; and any excess over the authorized number shall be accommodated in any convenient building with adequate guard.G.O.s. 1672, Judl., dated 11.7.196 and 325, Home (Judl.) dated 9.2.1918.
For purpose of the above Order, 16 cubic metre of breathing space and 4 square metre of ground space should be taken as the minimum requirements for each prisoner to be accommodated in a police lock-up.
PWD Circular, Memo. 3266, G, dated 19.7.1917.
The design of the lock-up rooms should be prepared in such a manner as to ensure adequate ventilation and light and other safety measures. The electrical wiring should be concealed and the lights embedded in the roof with the switch being kept outside at the entrance to the lock-up. There should be no rods or hooks either on the ceiling or on the walls and both ceiling and walls should be smoothly polished and white washed frequently.
Accommodation of persons outside the lock-up rooms in the station premisesThose prisoners who are not likely to escape or create any problem or those who are not involved in any serious crimes and the women may be allowed to be in any area of the police station under watch. They should not however be allowed any contact with outsiders except with their advocate or in case of women with a female relative.

In case where large numbers of persons are arrested under 151 CrPC to prevent breach of peace, they may be made to sit in a place either within the premises of police station or in another building which has access control and with facilities for drinking water and toilets. Where it is not necessary to detain them for any length of time they should be released after making a complete record of each person and the reasons for arrest in the concerned records.

Where it is felt necessary to detain them for a few hours and they are not required to be produced before a Magistrate for any specific offence they may be released by the SHO at any time that he considers appropriate.

The detention should, in any case, not exceed 24 hours as laid down in section 57 of CrPC. They should all be given food at government cost if not arranged by their relatives or friends.

Confinement of other department prisoners in lockup

When any prisoner arrested and escorted by officers of other units such as police stations & CID, Excise, Customs etc., are brought for confinement in the police station lock-up, a written requisition shall be given to the officer in-charge of the police station and the latter shall keep such prisoners in the lock-ups. The Officers of the other units will keep their subordinates besides police station guard.

If there are no prisoners in the concerned police station lock-up, the key of the lock-up shall be given to the officers of other branches or units or departments and they will be responsible for the prisoners safe custody.

In the lock-up if there are already prisoners of the concerned police station, the key shall remain with the in-charge of the guard.

In all circumstances, the duty of supplying the prisoners with food and guarding them, when taken outside the lock-up, shall lie with the outside officers.

Escape from Custody

In all cases of escape of prisoners from police custody including those from jails where police guards are posted, a report by Automax, Fax, Radio or Telephone shall immediately be sent by the Superintendent of Police or the Commissioner of Police as the case may be to the Director General of Police, Addl. DGsP, L&O, Intelligence, CID, Zonal IG/DIGP who will communicate the information immediately to the government.

G.O.Ms.No. 1599, Home (Prisons-B) Department, dated 4.9.1966.

The radio or telephonic report shall immediately be followed by a detailed report in triplicate furnishing the circumstances under which the person escaped, whether the escape of the prisoner was accidental or as a result of collusion or negligence, the action taken to apprehend him, the person or persons responsible for the escape, the exact quantum of responsibility to be attached to the Police personnel involved and the action taken against them, and other relevant particulars. These reports should be properly drafted and neatly typed with proper care.

G.O.Ms.No. 1599, Home (Prisons-B), dated 1-2-57;Govt. Memo No.14957/57-1, Home (Prisons-B), dated 26-1-57;Govt.Memo No. 53948/57-2, Home (Prisons-B), dated 18-7-57 andGovt.Memo No.11974/60-46 dated 17-10-1962

Copies of the reports shall be sent by the Superintendent of Police to the Zonal Inspector-General/DIGP. Copies of the reports in respect of cases of escapes from jails where Police Guards are posted shall also be sent to the Director-General of Prisons, Andhra Pradesh.
Rc.No.1940/ C2/64, dated 22nd October, 1964. The above orders apply also to juvenile convicts.
Rc.No. 3406/ C2/63, dated 17.10.1963 andRc.No. 1940/ C2/64, dated 22.10.1964.

Bail

Bail broadly means security for release of a person who is arrested. A person is released on bail with or without sureties. Offences are of two types as far as bail is concerned, bailable and non-bailable. When a person is arrested for a bailable offence, he is entitled to be released on bail either by the SHO or by court. In cases of arrests for non-bailable offences, bail is discretion.

Bail in bailable offences:

The SHO is competent to release a person on bail when arrested for bailable offences. If the arresting police officer is not the SHO, the arrestee shall be produced before the SHO with a written report for release on bail. If the accused jumps bail in a bailable offence and when he is arrested again, it should be treated as a non-bailable offence. In case bail is given by SHO in bailable offence the bond should be taken in Form 63. The detailed addresses of the sureties have to be noted there in.

Bail in non-bailable offences: 

When a person is arrested for a non-bailable offence ordinarily he shall be produced before the court but the SHO may release on bail in exceptional cases covered by section 437(1) and (2) Cr.P.C after obtaining express permission by SP / DCP / CP concerned.   Points for opposing bail in non-bailable offences:

Likelihood of absconding.

Possibility of tampering with evidence, intimidation and threats to witnesses.

Likelihood of repeating the offence.Nature of the offender and the seriousness of the offence.

Likelihood of breach of peace and tranquility in the locality.

Likelihood of retaliations by the victims party.

Bailable warrants: – When a person is arrested under a bailable warrant, he should not be compelled to come to the police station to give bail. He should be given bail at the place of arrest if he offers security.

Anticipatory bail

When a person apprehends arrest for a non-bailable offence on a reasonable suspicion, he may apply to the High Court or Sessions court to give a direction to release him on bail in case he is arrested.
In such cases the court gives notice to the P.P. for his objections, if any. The SHO must furnish the P.P. with sufficient information to enable him to argue the case.

In case the order is given in favour of the petitioner, the direction will be that he should be released on bail in case he is arrested on taking security as specified in that order. This clearly shows that the police officers are competent to arrest even if one gets such order. The only facility is that he should be released on bail in case of arrest without producing him in court.

The court may be requested to impose conditions in case an order is given in his favour. Such conditions can be;

That the person shall make himself available for interrogation as and when required. That, he shall not directly or indirectly tamper with evidence or witnesses. That, he shall not leave the place or the country. That, he shall co-operate with the investigation.

Remand of arrested accused

When a person is arrested during the course of investigation and if the investigation is not completed within 24 hours, the officer in charge of the police station shall forward the accused to the nearest judicial magistrate along with a remand report enclosed by the case diary written till that date.

The accused will be remanded only when the investigation discloses some offence against him so far and further investigation is needed for completion.

A remand at a time will be for a maximum period of 15 days.

However in cases under Control of Organised Crimes Acts  and Prevention of Terrorism Act 2002, the police remand may be for 30 days.

Further remand, if necessary, is only by the jurisdictional magistrate.

The police can seek remand for 60 days in ordinary cases where offences are punishable with imprisonment for less than 10 years and 90 days in cases punishable with death or life imprisonment or with imprisonment for not less than 10 years. If the charge sheet is not filed within that period, the accused shall be entitled for a bail even in a serious case like murder.

No accused shall be remanded to judicial custody unless he is produced before Magistrate. But in Andhra Pradesh an accused can be remanded even from jail by means of video conferencing.

An accused can be remanded separately for each and every case committed under different transactions.

Remands always shall be given by the Judicial Magistrate, but in the absence of any Judicial Magistrate, an executive magistrate on whom the powers of Judicial Magistrate are conferred can give remand, if the arrested person is produced before him.

In such cases the remand can be only for a maximum period of 7 days by executive magistrate. Beyond this, remand can be given only by the competent Judicial Magistrate.

Police custody

When it is necessary for the police to interrogate an accused who is remanded to Judicial custody to take under  police custody, the following points shall be borne in mind:

  1. Taking a person to police custody is only granted when the magistrate finds sufficient reasons. Therefore the police officer in his requisition shall state satisfactory reasons.
  2. Police custody can be given only within the first fifteen days of remand and that too for a maximum period of 15 days. Police custody can be taken for different remands made in different cases.
  3. After the period of custody is over, the accused person shall duly be produced before the magistrate within time.