Posts tagged ‘arrest’

Arneshkumar v/s State of Bihar and another

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that -
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is 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.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates

IS ANTICIPATORY BAIL AVAILABLE WHEN A COMPLAINT IS NOT REGISTERED?

Registration of an FIR is not mandatory for a person to approach the court of law for an order of anticipatory Bail. There are various citations of Supreme Court and High Courts in this regard.   Even in the absence of a pending criminal complaint against a person, if such person has an apprehension of arrest, he can approach the Sessions court or High court for an order of Anticipatory Bail. The apprehension of arrest may be elicited from the facts and circumstances of the matter, conduct of respondent police, the acts and communications of the potential complainant etc. On the whole, the applicant must convince the court, primarily that there is every likelihood for a criminal complaint to be lodged against him and the probability of respondent police arresting him based on the said complaint.

             An applicant cannot expect a blanket order from the court granting Anticipatory Bail. The applicant need to specify in his application the probable sections under which his opponent  may file a complaint against him,  which is even more difficult in comparison to a scenario where the complaint is already registered against him. This is because, if a complaint is already registered against the applicant, then the applicant as well as the court,  both are  convinced as to what are the sections which constitute the alleged offence. However in a case where the FIR is not yet registered, it is left to the mental exercise of both the applicant as well as the court to figure out the probable offence.
                                  
             The requirement of spelling out the exact provisions of the offence in an application for Anticipatory Bail may cause a technical difficulty for the applicant.  For instance if a court grants anticipatory bail to an applicant for an offence punishable under certain penal sections, his opponent can still trap him by lodging a complaint under some other sections. This dilutes the effect of the result got by the applicant. However the applicant is entitled to file for a fresh anticipatory bail and the obtainment of previous anticipatory bail will definitely be a plus factor while considering the second bail application.

             Similarly in matters where the FIR is not yet registered, courts have a tendency to grant anticipatory bail for limited periods like 45 days, 60 days etc. This again puts the applicant into some inconvenience, as his opponent may wait for the period to elapse for filing a complaint against him. In such a scenario the applicant can file one more application and obtain an anticipatory bail. The earlier anticipatory bail will definitely assist him in the obtainment of a new anticipatory bail. 

Power of arrest

A Police officer has the power to arrest any person without a warrant,  (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.