2Dec, 2024
Police officer cannot arrest outside his jurisdiction without informing local police

ANALYSIS OF ILLEGAL DETENTION IN STATE

The word “detention” means when a person is reserved or kept in a place or prison for a period of time.  Illegal detention means where a person is kept in a prison without any lawful reason. There is an unlawful deprivation of the liberty of the person by arresting the individual without any lawful reason or suspicion. Whereas if we compare the two terms , detention and arrest there is a difference between the two , detention is not like such a grave act like that of arrest. In cases of detention, there is lesser burden of proof involved and it is given for a short period of time than of arrest. In cases of detention, police used to detain the person if he feels that there is a lawful reason to detain him and can investigate the matter for the same. If a person is detained by the police, then they can inquire for any kind of weapons which the person is having and can ask if the person knows any such information regarding the crime or the omission which is going to happen or happened.

Inter State Arrest:

According to the section 79 of the Code of Criminal Procedure it deals with the matters of interstate arrests or arrest done outside the local jurisdiction of the police. According to the section 79 of the CRPC “(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it 49 for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. (2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant. (3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.”

Also according to the section 48 of the Code of Criminal Procedure it says, “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.” This section is highly a debated as the word “pursue” is involved. The debate involves two around two points that whether the person is arrested from another state for the physical pursuit or whether the person is located in any other states or the accused is not cooperating with the investigators and that’s the reason police need to go beyond their jurisdiction to arrest that accused.

Also according to the article 22 of the Indian Constitution, “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”The time 24 hours which is given for producing the individual before the magistrate excludes the time taken in the journey. No individual can be kept in the prison beyond the time said by the magistrate. This is also mentioned in the sections 56 & 57 of the CRPC.


Also, according to the article 21 of the Indian Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” So, if an individual is detained without any lawful reason, then it is said to be his fundamental right to life and liberty gets infringed.

There has been many cases where the police has arrested the person from a wrong location as argued by the accused and has framed charges based on any other location. Thus, leading to illegal detention. It’s not only violating section 41 of CrPCbut also violating the fundamental principles of Article 22 embodied in the Indian constitution.

Emphasizing on the case of DK Basu v State of West Bengal, the court laid down important guidelines which is to be taken care of while making arrests. “They are:

1. 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.
2. That the police officer carrying out the arrest 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 a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. 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 being 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.
4. 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 Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. 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 land particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on 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 Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.”

Moreover, in the case of Sandeep Kumar v The State (Govt of NCT Delhi), this case came out with the proper guidelines regarding the interstate arrest cases. “It is said that before doing arrest from outside the jurisdiction the police officer needs to take permission from his superior in written or through tele communication to visit some other states or area to arrest the accused which not comes under the authority of their jurisdiction. Further, to do such arrests he should mention the reasons which caused him arrest the person from any other location which does not falls in their jurisdiction and have to submit it in the written format and needs to submit in the court to make the endeavour except in the emergent cases. Before the police arrest the accused from some other area which does not falls under their jurisdiction he needs to inform the local police station which comes under that area. These above guidelines are need to be followed by the police officers if the case is of urgent in nature”.

In the case of State of Punjab v Ajaib Singh, “The accusedwas arrested at a location far removed from the site of the alleged offence without prior coordination with the relevant local authorities. The issue laid down before the court was whether the actions of police considered to be arbitrary or justified. The Hon’ble Supreme court of India ruled that such arrests violated territorial jurisdiction requirements. The failure to inform the local magistrate or police was a critical procedural lapse. The court nullified the arrest, reprimanded the officers involved, and directed administrative oversight to prevent future violations and also emphasized that arresting officers must act within their jurisdiction unless exceptional circumstances justify otherwise.”

In the case of Rasiklal Dalpatram Thakkar v State of Gujarat, “The police arrested the accused from a location outside their jurisdiction without informing the local magistrate or police. This arrest occurred despite the alleged crime being committed in another location under a different police station’s jurisdiction. The issue laid down before the court was whether the arrest was legal and complied with the sections of 48 and 57 of CrPC which mandates jurisdictional coordination. The Supreme court observed that arrests outside local jurisdiction must involve communication with the concerned magistrate or police officer of that particular jurisdiction. The arrest violated the sections of 48 and 57 of CrPC. The court also emphasized on the importance of notifying the nearest magistrate in inter-jurisdictional arrests​.”

Moreover, in the case of Joginder Kumar v state of UP, “Joginder Kumar was arbitrarily arrested from his residence, unrelated to the actual location of the alleged offense. The police failed to justify the arrest location and did not document it in official records. Two issues were laid down before the court. They were, did the arrest adhere to the procedural safeguards under CrPC Sections 50 and 57 and was the arrest arbitrary and in violation of Articles 21 and 22. The Supreme Court held that arrests should not be a routine exercise of police powers. The arresting officer must justify the necessity and location of the arrest. The arrest was deemed unlawful and disciplinary action was given to the police officers.”

In the case of Satvinder Kaur v state (Govt. of NCT of Delhi), “The accused was arrested from a location outside the crime’s jurisdiction. The police claimed logistical difficulties but failed to inform the concerned authorities. The issues laidbefore the court were whether the arrest was lawful and whether there was no violation of jurisdictional procedures. The court ruled that while the investigation can span multiple jurisdictions, arrests must adhere to procedural norms, including informing the relevant magistrate or local police and also quashed the arrest and directed better coordination between police jurisdictions.”  

In the case of Boya Nallabothulla v Circle Inspector of Police, “The police arrested the accused from a location different from the alleged crime scene without proper procedural compliance. he arrest was executed in a distant area under a different police jurisdiction, violating procedural safeguards under the sections 48 and 57 of CrPC. The petitioner claimed that the arrest was baseless and that the police did not inform the nearest magistrate or local police authorities at the place of arrest. The issues laid before the court were, whether the police violated sections 48 and 57 of CrPC by arresting the petitioner from a location outside their jurisdiction and whether the arrest violated the accused’s fundamental rights under Articles 21 and 22 of constitution of India. The court in the present case found the arrest was made without informing the local magistrate or police authorities, as required under the CrPC and declared it to be violative of sections 48 and 57. The court ordered compensation to the petitioner for the wrongful arrest and detention, citing the state’s responsibility to ensure proper conduct by its officials. The court also directed departmental action against the police officers for failing to comply with the provisions of CrPC and to violate the constitutional safeguard of the accused.”

Citing the case of Arnesh Kumar v State of Bihar, “The accused was arrested in a location unrelated to the alleged domestic violence offense under Section 498A of the IPC. The arresting officers failed to provide written justification for the arrest. The issues laid before the court were was the arrest justified under state and did the police violate the procedural safeguards. The Apex court observed that arrests outside jurisdiction require explicit documentation and directed disciplinary action against the 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:

1. 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.
2. 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 CrPC 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.
3. 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.
4. If the possible arrestee is a female, a lady police officer bemade 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.
5. 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.
6. 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.
7. 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 endeavours 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.
8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
9. 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.
10. 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 CrPC within 24 hours.
11. 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.
12. 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.
13. 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.
14. 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.
15. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
16. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
17. 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.
18. 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.
19. The public prosecutor should provide required assistance to the police officer visiting his state at the time of seeking transit remand.

In the case of Manoj Pratap Singh v State of Rajasthan, the accused was arrested by the police on certain charges. However, there was a discrepancy regarding the location of his arrest. While the police claimed that the accused was arrested at a specific location, the case diary, which is an official record of the police investigation, mentioned that the arrest took place at a different location. The accused was arrested from a bus stand but the police officials claimed that they have arrested him from police station under proper procedures. The court in this case ruled that any falsification of arrest records or failure to follow legal procedures could lead to serious consequences, including charges of wrongful confinement and kidnapping and highlighted the importance of accurate documentation of arrests and the correct procedure that must be followed under Section 41 of the CrPC.

Similarly, in the case of Christian community welfare council v Government of Maharashtra & Anr, the Christian Community Welfare Council (the respondent organization) was an NGO working for the welfare of Christian minorities. The case arose from a series of events where police officers were accused of illegally arresting members of the Christian Community Welfare Council under the guise of unlawful activities. The arrested individuals were not informed of their rights as per Section 50 of the CrPC (Criminal Procedure Code), which mandates informing an arrested person of the grounds of arrest. Furthermore, there were claims that the police officers misrepresented the place and manner of arrest in their records, leading to allegations of illegal detention.They also alleged that the arrests were not only illegal but were also a violation of their fundamental rights, particularly the right to personal liberty guaranteed under Article 21 of the Indian Constitution. The Supreme Court of India in this case addressed the procedural violations and reaffirmed the principles regarding arrest procedures and the rights of the accused under Indian law.

CONCLUSION

Thus, there can be different circumstances and several situation which can lead to illegal detention. This piece ofwriting gives emphasis on the arrest made by the police officer based on wrong location. Through different judicial interpretations and pronouncements, the court has respected the individual’s article 21 and 22 of Indian constitution. The court has emphasized on constitutionalism where the police cannot misuse their powers which can further lead to arbitrariness and also gave emphasis on the procedures of a proper and lawful arrest in the same state and interstate cases.

Research by ( Anusuya Roy Chaowdhury & Arpeeta Dash) 2nd year Student (Symbiosis Law School Nagpur)

 

To read the Judgment click here 

Manoj_Pratap_Singh_vs_The_State_Of_Rajasthan_on_24_June_2022 The Law Literates

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