HUMAN RIGHTS AND POLICING: Landmark Supreme Court Directives & National Human Rights Commission Guidelines

HUMAN RIGHTS AND POLICING:
Landmark Supreme Court Directives &

National Human Rights Commission Guidelines

Researched and Written by

Mandeep Tiwana

Edited by

Maja Daruwala

Editorial Assistance/ Credits

In-house: Charmaine Rodrigues, Devika Prasad, G.P Joshi, Swati Mehta

External: B.B Pande, Professor of Law, Delhi University, L.R Singh, Advocate, Supreme
Court of India, Sima Gulati, Advocate, Delhi High Court

Cover design: Jyoti Bhargava

Print Layout: Chenthil Kumar Paramasivam

Commonwealth Human Rights Initiative

The Commonwealth Human Rights Initiative is an independent, non-partisan,
international non-governmental organisation mandated to ensure the practical
realisation of human rights in Commonwealth countries. Human rights advocacy and
education are at the core of all of CHRIs activities, and the aim and end of all its
publications

The objectives of CHRI are to promote awareness of and adherence to the Harare
Principles, Universal Declaration of Human Rights and other internationally
recognised human rights instruments and domestic instruments supporting human
rights in Commonwealth member states.

CHRI is headquartered in New Delhi and has offices in London and Accra.

CHRI is working in the following areas

! Right to Information
! Police Reforms
! Prison Reforms
! Constitutionalism
! Human Rights Advocacy
! Facilitation of Judicial Dialogue

CHRI presents a Biennial Report on Human Rights Issues to the Commonwealth
Heads of Government Meet (CHOGM)

Executive Committee, Headquarters, New Delhi: B.G Verghese (Chair), P.H Parekh
(Treasurer), Anu Aga, T. Ananthachari, K.S Dhillon, N.R Madhava Menon, R.V
Pillai, P.P Rao

International Advisory Commission, Chair: Sam Okudzeto
Trustee Committee, Chair: Nihal Jayawickrama

Copyright CHRI, New Delhi, April 2005

ISBN: 81- 88205 -09 - 05

CHRI New Delhi Office
B- 11, Sarvodaya Enclave
New Delhi 110 017 INDIA
Tel: + 91- 11 - 2652 8152, 2685 0523
Fax:+ 91- 11 2646 4688
E- Mail: chriall@nda.vsnl.net.in
Website: www.humanrightsinitiative.org
Contents

Foreword... (i)

Introduction.. 1

Registration & Investigation of Offences
State of Haryana v Bhajan Lal... 3
State of West Bengal v Swapan Kumar Guha... 5
T.T Anthony v State of Kerala... 7
Nandini Satpathy v P.L Dani..... 9
Peoples Union for Civil Liberties [PUCL] v Union of India and another.... 11
Delhi Domestic Working Womens Forum v Union of India and others.. 13

Arrest and Detention
Joginder Kumar v State of U.P and others..... 15
D.K Basu v State of West Bengal ..... 17
Sheela Barse v State of Maharashtra. 20
Icchu Devi Choraria v Union of India... 22
Gopalanachari v State of Kerala.... 24

Handcuffing/Chaining
Prem Shankar Shukla v Delhi Administration... 26
Citizens for Democracy v State of Assam. 28
Bail and Bonds
Hussainara Khatoon v Home Secretary State of Bihar.. 30
Motiram and Others v State of M.P... 32

Compensation
Nilabati Behera v State of Orissa... 34

National Human Rights Commission Guidelines
NHRC Guidelines on Encounter Deaths........................................................................ 36
NHRC Guidelines on Lie Detector Tests....... 39
NHRC Guidelines on Police-Public Relations.............................................................. 41
NHRC Guidelines on Arrest.......................................................................................... 43

Afterword.. 46

Annexures
Code of Conduct for the Police in India 47
U.N Code of Conduct for Law Enforcement Officials.. 49
Index... 51

(i)
Justice J.S Verma
Former Chief Justice of India
& Former Chairperson National Human Rights Commission

Foreword

The presumption that everyone knows the law is a myth that causes needless suffering
to millions of people in India especially those who are unlettered. Ignorance of laws
and the rights guaranteed by them facilitates blatant misuse of authority by law
enforcers, whose job is to protect peoples rights. Merely putting in place, provisions
for the protection of human rights without empowering people through human rights
education about the means to ensure their compliance is meaningless. Rule of law to
be meaningful must meet the end of legal awareness.

One of the essential functions of the National Human Rights Commission (NHRC) is
to spread a human rights culture, and to aid the empowerment of people for the better
protection of human rights in the country. Non-governmental organisations in
particular have been making a valuable contribution in this respect by sharing the
responsibility of the State and the NHRC. The Commonwealth Human Rights
Initiative (CHRI) is one such organisation actively involved in this effort. This
compilation is a step in that direction.

While police officers must know the limits and nature of their authority, citizens too,
must know their rights, even when they have to answer to the law. A proper balance
of individual rights and public interest has to be achieved through the mechanism of
the rule of law. This is the essence of human rights law and the avowed purpose of
this compilation.

The law laid down by the Supreme Court is the law of the land and binds everyone.
The Supreme Court decisions included in this compilation relate to matters impinging
on the basic human rights of individuals to life and liberty, which are sacrosanct. The
NHRC guidelines are meant to inform citizens as well as the police about their rights
and duties; to enable people to protect themselves with this knowledge; and to guide
the police in the performance of their task by indicating that any transgression would
be illegal.

I do hope this compilation will serve its purpose of improving knowledge about the
law amongst citizens and amongst personnel of law enforcement agencies.

9. February 2005 J.S Verma

B-53, Sector 39, Noida, Gautam Buddha Nagar, (U.P), India 201 301
Ph: 91- 120-2570166. E mail: justicejsverma@yahoo.co.in
(i)

This compilation and the accompanying research, advocacy and dissemination has
been made possible with the financial support of the Sir Dorabji Tata Trust.
(ii)

1
Introduction

Respect for human rights lies at the heart of good governance. In a democratic society, it
is the responsibility of the State to protect and promote human rights. All State
institutions whether they are the police department, the army, the judiciary or civil
administration have a duty to respect human rights, prevent human rights violations, and
take active steps for the promotion of human rights.

The role of the police is especially significant in this respect. The police is charged with
the responsibility of maintaining order and enforcing laws. Therefore, the onus of
bringing those who break the law including laws which protect peoples human rights
before the criminal justice system lies on the police.

Unfortunately, many a time, while discharging this duty, actions of the police conflict
with human rights. Police officers are pressured to get quick results, often with unofficial
guarantees that they may use any means possible to accomplish the task at hand.
However, the police as protectors of the law have both a legal duty and a moral
obligation to uphold human rights standards and act strictly in accordance with the law
and the spirit of our Constitution.

The Constitution - the supreme law of our country - entitles everyone living in India to
protection of their human rights. Part III, the chapter on Fundamental Rights, which is
referred to as the heart of the Constitution, guarantees basic human rights to all. It
pledges that the State will safeguard human rights and will protect citizens from undue
invasions on their liberty, security and privacy.

The Supreme Court has over the years, explained and elaborated the scope of
Fundamental Rights. They have strongly opposed intrusions upon them by agents of the
State, by asserting that the rights and dignity of individuals must always be upheld. The
Court has laid down certain directives for law enforcement. These directives deal with
various aspects of police work at the station house or cutting edge level, such as
registration of a case; conduct of an investigation; carrying out of an arrest; treatment of
an arrested person; grant of bail; questioning of a suspect; and protection of the rights of
women, poor and the disadvantaged. They also have the force of law.
1
An officer who
wilfully or inadvertently ignores Supreme Court directives can be tried in court
under relevant provisions of the Indian Penal Code and under the Contempt of
Courts Act, 1971.

The National Human Rights Commission [NHRC] too has issued guidelines for police
officers. The Commission has been established under a special Act of Parliament to
protect and promote the human rights of all people living in India. The National Human
Rights Commission addresses violations of human rights by recommending registration

1
Article 141 of the Constitution states that the law declared by the Supreme Court is binding on all courts
in India. In P.L.O Corp v Labour Court 1990 SCC 632, it has been held that this article recognises the role
and power of the Supreme Court to alter the law and in the course of performing this function, interpret
legislation in such a manner that it may be harmonised with social changes.

2
of criminal cases against the guilty; disciplinary action against errant officers; and
payment of compensation to the victims. Because an overwhelming majority of
complaints received by the National Human Rights Commission concern the police, the
Commission has made it mandatory to report any case of custodial death or rape within
24 hours and to provide it with a video-film of the post-mortem examination. The
Commission has also issued guidelines to the police on encounter deaths; lie detector
tests; arrest; and police-public relations. Guidelines of the National Human Rights
Commission are increasingly being subject to positive interpretation by the courts.
This means that officers accused of violating human rights may be called upon to
explain why these guidelines were not followed.

This compilation includes sixteen landmark judgements of the Supreme Court and four
significant National Human Rights Commission guidelines dealing specifically with
human rights and policing. While the directives/ guidelines mentioned here do comprise
the core of the jurisprudence on human rights and policing, this is by no means an
exhaustive list. The directives/ guidelines mentioned here lay out the correct procedure to
be followed by Station House Officers in the conduct of their official duties. Non-
adherence to these judgements/guidelines is taken to be a sign of malafide intention
and breach of good faith. It also invites legal and disciplinary action against the
officer concerned.

The protection of Section 197 of the Code of Criminal Procedure [CrPC]
2
only applies to
acts done in the discharge of official duty. Assaulting a suspect during investigation;
fabricating a false case; using abusive or threatening language; demanding a bribe; or
indulging in unruly conduct are not a part of official duty.
It is no part of an officials duty to commit an offence and never can be.
3

2
Immunity from prosecution for public servants without prior sanction of the government/ appointing
authority for any offence alleged to have been committed in the discharge of official duty.
3
Ratan Lal & Dhirajlal: Code of Criminal Procedure, Wadhwa & Company, Nagpur 2002, page 636

3
Registration of FIR
STATE OF HARYANA V BHAJAN LAL & OTHERS AIR 1992 SC 604

A First Information Report [FIR]
4
was registered by the Haryana Police against Ch
Bhajan Lal, on a complaint by a private person that he possessed assets disproportionate
to his known sources of income. Bhajan Lal - Union Minister and former Chief Minister
of Haryana - went to the High Court asking for the FIR to be cancelled, saying that it
was registered because of the political rivalry that existed between Ch Devi Lal, the
existing Chief Minister of Haryana and him.
The High Court ordered cancellation of the FIR and all proceedings undertaken on its
behalf, on the ground that the allegations did not make up a cognizable offence
5
to start a
lawful investigation. The State of Haryana appealed to the Supreme Court against the
order of the High Court.

Supreme Court Observations

The Supreme Court said that the order of the High Court cancelling the FIR was
bad both in law and on the facts. They asserted that everyone, whether individually or
collectively, must abide by the law and even the judiciary cannot interfere with the
investigation process unless police officers improperly and illegally exercise their
investigatory powers. However, the Supreme Court cautioned that where a police officer
transgresses the circumscribed limitsand causes serious prejudice to the personal
liberty and the property of a citizen, courts will step in and issue appropriate orders.
Section 154 (1) of the Code of Criminal Procedure, 1973 [CrPC] says that if any
information disclosing a cognizable offence is given at the police station, the officer in-
charge must register it. The Supreme Court asserted that it is not open to the police to
question the reasonableness or credibility of the informationat this stage. An FIR
should be registered immediately and even before proceeding with a preliminary
investigation.

The Court also commented on Section 157 CrPC which says that two conditions
must be satisfied before a police officer starts an investigation:

(i) S/he should have reason to suspect the commission of a cognizable offence.
The reason to suspect must arise from the allegations made in the first
information given to a police officer and at this stage the question of adequate
proof of facts alleged in the FIR does not arise.

4
First Information Report is the earliest and first information that is received about the commission of a
cognizable offence. It sets the ball of the criminal justice process rolling.
5
Cognizable offences are mentioned in the First Schedule of the Code of Criminal Procedure, 1973
[CrPC]. Section 2 (c) CrPC defines cognizable offence as an offence, in which a police officer can arrest a
person without a warrant. In practice, cognizable offences are offences in which a police officer can
register a case and start an investigation without a magistrates order and carry out an arrest without a
magistrates warrant.

4

(ii) S/he should satisfy her/himself about the credibility of the information.
A police officer has to draw his [her] satisfaction [about the credibility of
information] only on materials which were placed before him[her] at that stage
namely the first information together with the documents, if any, enclosed.

Supreme Court Directives

1. An FIR must be registered as soon as information about a cognizable offence is
received.
2. Before starting an investigation, police officers should make a rational inference
that a cognizable offence has been committed. The inference should be made
solely on the basis of facts mentioned in the FIR.
3. Courts will not as a rule interfere in the investigation process except in the
following circumstances when the High Court
6
can cancel the FIR and other
proceedings carried out by the police:

i. Where the allegations in the FIR do not constitute any cognizable offence
or justify an investigation by the police.
ii. Where the allegations made in the FIR and the evidence collected by the
police in support of the allegations do not point towards the guilt of the
accused.
iii. Where investigation has been carried out by the police in a non-cognizable
offence
7
without the order of a magistrate.
iv. Where the CrPC or any other law expressly prohibits carrying out criminal
proceedings against the accused.
v. Where criminal proceedings have been started with dishonest intent to
take revenge from the accused.

Non-registration of First Information Reports [FIR] is one of the most serious, frequent
and common grievances against the police. This problem is compounded when the person
against whom a complaint is made is rich and powerful. Article 14 of the Constitution
guarantees to all persons equality before the law and equal protection of the laws
within the territory of India. Police officers must register an FIR immediately on
receiving information about a cognizable offence. Persons aggrieved by non-registration
of FIR can approach the District Superintendent of Police
8
or the concerned
Magistrate
9
to get their complaints registered. Alternatively complaints in this regard can
also be filed before the National or concerned State Human Rights Commission.

6
By issuing a writ to protect the fundamental rights of a person under Article 226 of the Constitution or by
using its powers under Section 482 of the Code of Criminal Procedure, 1973 [CrPC] to prevent abuse of
court process or secure the ends of justice.
7
Non-cognizable offences are mentioned in the First Schedule of the Code of Criminal Procedure, 1973
[CrPC]. Section 2 (1) CrPC defines non-cognizable offence as an offence, in which a police officer has no
authority to arrest without a warrant. In practice, non-cognizable offences are offences in which police
cannot register a case without a magistrates order or carry out an arrest without a magistrates warrant.
8
Under Section 154 (3) CrPC
9
Under Section 156 (3) CrPC

5
Basis of Investigation
STATE OF WEST BENGAL V SWAPAN KUMAR GUHA & OTHERS
1982 SCC 561

Sanchaita Investments of Calcutta was offering extraordinarily high rates of interest to
attract cash deposits from the public. The Commercial Tax Officer, Bureau of
Investigation suspected some fraud was being committed. He asked the police to register
a First Information Report [FIR] on the grounds that such high rates of interest could not
be sustained, therefore the deposit scheme was being promoted with the intention of
making quick or easy money, in violation of the Prize Chits and Money Circulations
Schemes [Banning] Act, 1978.

The police registered an FIR and started an investigation on the basis of the Commercial
Tax Officers suspicions. However, the High Court cancelled the FIR and subsequent
police proceedings, saying that they were illegal and without jurisdiction. The State of
West Bengal appealed to the Supreme Court against the decision of the High Court.


The police do not have unfettered discretionto start an investigation. Unlimited
discretion, the Supreme Court said is a ruthless destroyer of personal freedom. An
investigation cannot be started on mere unfounded suspicion. They emphasised that
fundamental principles of justice are based on the logic that the process of investigation
cannot be used to harass people against whom no offence is disclosed. Carrying out
investigation without a proper basis imperils the personal liberty and property of the
individual, which are sacred and sacrosanct.
The right of the police to conduct an inquiry must be conditioned by the
existence of reason to suspect the commission of a cognizable offence. Such reason can
be established only if facts in the FIR point towards an offence being committed. The
Supreme Court laid down that an FIR which does not allege or disclose that the essential
requirements of the penal provision are prima facie [on the face of it] satisfied cannot
form the foundation or constitute the starting point of a lawful investigation.
This case also re-examined the question of when the courts can interfere in the
investigation process. The Supreme Court said, that if after considering all relevant
aspects, the courts are satisfied that an offence has been committed, they will allow the
investigation to proceed without interference. However, if no offence is disclosed, courts
are under a duty to interfere and stop the investigation to prevent any kind of uncalled
for and unnecessary harassment to an individual.


1. It is essential before starting an investigation that facts mentioned in the FIR
disclose all the elements that go to make up a cognizable offence.
2. Powers of investigation must be exercised in strict accordance with constitutional
guarantees and legal provisions.

6
3. Courts have a duty to intervene in the investigation process to prevent harassment
of individuals if their rights are being violated and correct procedure is not being
followed.

Police officers often find themselves under pressure to register cases on flimsy grounds.
The Supreme Court has laid down that a just balance has to be struck between
fundamental rights of citizens and the expansive power of the police to investigate an
offence.
10
Subjecting a person to a police investigation on the basis of vague and
unverified information is a violation of fundamental rights. It will only lead to censure
and ordering of inquiry against the errant officer by the courts who are under a duty to
ensure innocent people are not harassed by the investigative process.

10
T.T Anthony v State of Kerala AIR 2001 SC 2637

7
Investigation of Offences
T.T ANTHONY V STATE OF KERALA AIR 2001 SC 2637

In a well-known incident in Kannur district of Kerala, five persons were killed and
several injured in police firing. The police fired in order to control activists belonging to
the opposition, protesting the visit of a minister in the ruling UDF coalition. Cases were
registered against eight named and many unidentified persons belonging to the
opposition party for creating the disturbances that led to the police action. Meanwhile,
due to public uproar, the UDF Government instituted a judicial inquiry into the incident.
In the intervening period, the UDF lost the election and the opposition came to power.
The report of the Commission of Inquiry, which was released after the new government
came to power held the Executive Magistrate and the Deputy Superintendent of Police
responsible for the deaths. The findings of the commission were accepted by the new
government and cases were registered against the Executive Magistrate and the police
officials involved in the firing. The Executive Magistrate and the police officials appealed
to the Supreme Court after the High Court turned down their request for cancelling the
cases against them.

The appeals raised two significant questions of law: (i) whether a second First
Information Report [FIR] can be registered in respect of an offence that has already been
registered, and if it can form the basis of a fresh investigation (ii) whether the report of a
Commission of Inquiry into the same incident is binding upon the investigating agency.


(i) FIR [First Information Report] is the record of the information received first
in time and is written and registered on the basis of that information. In other words, it is
the record of the earliest information received about a cognizable offence. Therefore, the
Supreme Court affirmed that the question of having a second FIR does not arise.
However, it is possible that more than one piece of information may be received
from time to time and from different people in respect of the same incident. In such a
situation, the Court clarified, that before submitting the Magistrates report, the officer in
charge of a police station must investigate not merely the cognizable offence reported in
the FIR but also other connected offences found to have been committed in the course of
the same transaction or the same occurrence. They said that, if after filing the
investigation report before the magistrate, the investigating officer comes across further
information or material, he [she] need not register a fresh FIR, he [she] is empowered to
make further investigation, normally with the leave of the courtto collect further
evidence.

(ii) The Supreme Court said that the police is not bound by the findings of a
Commission of Inquiry. The government for varied reasons of its own sets up a
Commission of Inquiry and it is for them to endorse or reject the findings or
recommendations. However, the police as an independent investigating agency of the
State must act only in accordance with the law and on the evidence before it.
Nevertheless the police can take advantage of the facts and findings of a Commission of

8
Inquiry as a factor in its own investigations but the findings should not preclude the
investigating agency from forming a different opinion if the evidence obtained by it
supports such a conclusion.


1. There can only be one FIR in respect of an incident.
2. If any additional information is received after the FIR is registered, the police can
investigate on it and mention the result in the report to the magistrate
11
submitted
by the investigating officer.
3. If the investigating officer comes across any evidence after the report to the
magistrate has been sent, s/he can carry out further investigation and send
supplementary reports to the magistrate.
4. Report of a Commission of Inquiry is not binding upon the investigating agency.
The investigating agency can form a different opinion on the basis of evidence
collected by it.

Registration of more than one FIR in respect of a particular incident has been disallowed
by the Supreme Court. However, if any additional information is received in connection
with the incident, it should be recorded under Sec 161 of the Code of Criminal
Procedure,1973[CrPC]
12
and mentioned in the charge-sheet. The Supreme Court has
categorically said that the police is under a duty to investigate not only the cognizable
offences that are made out in the FIR but also any other offences that may have been
committed in the same incident or transaction.

11
Section 173 (2) (i) Criminal Procedure Code, 1973 [CrPC] requires the officer in charge of a police
station to forward a report to the authorised magistrate in the prescribed form as soon as an investigation is
completed. Section 173 (8) says that nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report has been filed before the magistrate. It also categorically
says that after the report has been forwarded to the magistrate, if the officer in charge of the police station
obtains further evidence, oral and documentary, s/he should forward report/s to the magistrate about the
evidence.
12
This section authorises an investigating officer to orally examine any person acquainted with the facts
and circumstances of the case. Section 161 (2) obliges such person to truthfully answer all questions
relating to the case put by the investigating officer except those which expose her/him to a criminal charge,
penalty or forfeiture. Section 161 (3) empowers the investigating officer to reduce into writing any
statement made to her/him in the course of investigation. It also casts a duty on the investigating officer to
make a separate and true record of the statement that s/he has reduced into writing.

9
Right Against Self-Incrimination
NANDINI SATPATHY V P.L DANI AIR 1978 SC 1025

Nandini Satpathy - former Chief Minister of Orissa - against whom a case had been
registered under the Prevention of Corruption Act, was asked to appear before the
Deputy Superintendent of Police [Vigilance] for questioning. The police wanted to
interrogate her by giving her a string of questions in writing. She refused to answer the
questionnaire, on the grounds that it was a violation of her fundamental right against
self-incrimination. The police insisted that she must answer their questions and booked
her under Section 179 of the Indian Penal Code, 1860, which prescribes punishment for
refusing to answer any question asked by a public servant authorised to ask that
question.

The issue before the Supreme Court was whether Nandini Satpathy had a right to
silence and whether people can refuse to answer questions during investigation that
would point towards their guilt.


Article 20 (3) of the Constitution lays down that no person shall be compelled to
be a witness against her/himself. Section 161 (2) of the Code of Criminal Procedure,
1973 [CrPC], casts a duty on a person to truthfully answer all questions, except those
which establish personal guilt to an investigating officer.
The Supreme Court accepted that there is a rivalry between societal interest in
crime detection and the constitutional rights of an accused person. They admitted that the
police had a difficult job to do especially when crimes were growing and criminals were
outwitting detectives. Despite this, the protection of fundamental rights enshrined in our
Constitution is of utmost importance, the Court said. In the interest of protecting these
rights, we cannot afford to write off fear of police torture leading to forced self
incrimination.
While any statement given freely and voluntarily by an accused person is
admissible and even invaluable to an investigation, use of pressure whether subtle or
crude, mental or physical, direct or indirect but sufficiently substantialby the police to
get information is not permitted as it violates the constitutional guarantee of fair
procedure. The Supreme Court affirmed that the accused has a right to silence during
interrogation if the answer exposes her/him into admitting guilt in either the case under
investigation or in any other offence. They pointed out that ground realities were such
that a police officer is a commanding and authoritative figure and therefore, clearly in a
position to exercise influence over the accused.

10

1. An accused person cannot be coerced or influenced into giving a statement
pointing to her/his guilt.
2. The accused person must be informed of her/his right to remain silent and also
of the right against self incrimination.
3. The person being interrogated has the right to have a lawyer by her/his side if
s/he so wishes.
13

4. An accused person must be informed of the right to consult a lawyer at the
time of questioning, irrespective of the fact whether s/he is under arrest or in
detention.
5. Women should not be summoned to the police station for questioning in
breach of Section 160 (1) CrPC.
14

An essential element of a fair trial is that the accused cannot be forced to give evidence
against her/himself. Forcing suspects to sign statements admitting their guilt violates the
constitutional guarantee against self incrimination
15
and breaches provisions of the Code
of Criminal Procedure, 1973 [CrPC].
16
It is also inadmissible as evidence in a court of
law.
17
In addition, causing hurt
18
to get a confession is punishable by imprisonment up
to seven years.
19

13
This has been clarified/modified in D.K Basu v State of West Bengal AIR 1997 SC 610. The Supreme
Court has said that the arrestee [arrested person] may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation. However, the National Human Rights Commission in its
guidelines dated November 22, 1999 has insisted that, the person arrested should be permitted to meet his
[her] lawyer at any time during the interrogation.
14
Children below 15 and women should not be summoned to the police station or to any other place by an
investigating officer. They should only be questioned at their place of residence.
15
Under Article 20 (3)
16
Section 162 (1) Code of Criminal Procedure, 1973 [CrPC] directs that a statement made to a police
officer during investigation should not be signed by the person making it.
17
Section 25, Indian Evidence Act, 1872
18
Section 319 of the Indian Penal Code, 1860 defines hurt as causing bodily pain, disease or infirmity to
any person.
19
Section 330, Indian Penal Code 1860

11
Telephone Tapping
PEOPLES UNION FOR CIVIL LIBERTIES [PUCL] V UNION OF INDIA AND
ANOTHER AIR 1997 SC 568

The Peoples Union for Civil Liberties [PUCL] filed a writ petition with the Supreme
Court challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act,
1882, which authorises the government to intercept messages on the occurrence of any
public emergency or in the interest of public safety if it is satisfied that it is necessary
or expedient to do so in five given situations.
20
PUCL approached the Court on the
basis of a report on tapping of politicians telephones by the Central Bureau of
Investigation [CBI]. It asked for the provisions of Section 5(2) to be interpreted in the
light of fundamental rights and read down to include procedural safeguards that would
discount arbitrariness and prevent indiscriminate phone tapping by law enforcement or
investigating agencies.


The right to have a telephone conservation in the privacy of ones home or office
is part of the Right to Life and Personal Liberty enshrined in Article 21 of the
Constitution, which cannot be curtailed except according to the procedure established by
law. The Supreme Court asserted that telephone tapping amounts to an invasion of
privacy in violation of this core right.
The Freedom of Speech and Expression guaranteed by Article 19 of the
Constitution includes the right to express ones convictions and opinions freely by word
of mouth. When a person is talking on the telephone s/he is exercising this freedom.
Article 17 of the International Covenant on Civil and Political Rights, 1966
expressly forbids arbitrary interference with privacy, family, home or correspondence and
stipulates that everyone has the right to protection of the law against such intrusions. The
Supreme Court affirmed that international law, if it does not conflict with national
legislation will be deemed as municipal [domestic/national] law.
Elaborating the scope of Section 5 (2) of the Indian Telegraph Act, 1882 the
Court clarified that this section does not confer unguided and unbridled poweron
investigating agencies to invade a persons privacy. Telephone tapping is only permitted
in the following two circumstances:

(i) on the occurrence of a Public Emergency : This means the prevailing of a
sudden condition or state of affairs affecting the people at large calling for
immediate action.
(ii) in the interest of Public Safety : This means the state or condition of
freedom from danger for the people at large.

The test of whether the above circumstances exist would be apparent to a reasonable
person. The Supreme Court strongly asserted, that if the two circumstances are not in

20
In the interests of (i) the sovereignty and integrity of India (ii) the security of the State (iii) friendly
relations with foreign States (iv) public order (v) preventing incitement to the commission of an offence

12
existence, the Central or State Government or their duly authorised officers cannot
resort to phone tapping.
21


1. Tapping of telephones is prohibited without an authorising order
22
from the
Home Secretary, Government of India or the Home Secretary of the concerned
State Government.
23

2. The order, unless it is renewed shall cease to have authority at the end of two
months from the date of issue. Though the order may be renewed, it cannot
remain in operation beyond six months.
3. Telephone tapping or interception of communications must be limited to the
address(es) specified in the order or to address(es) likely to be used by a person
specified in the order.
4. All copies of the intercepted material must be destroyed as soon as their retention
is not necessary under the terms of Section 5 (2) of the Indian Telegraph Act,
1882.

The right to privacy is a sacred and cherished right. There must be strong, cogent and
legally justifiable reasons for law enforcement agencies to interfere with this right. Even
then, proper procedure must be followed as intrusion into a persons home, professional
or family life in the name of investigation or domiciliary visits - without a proper basis- is
not permitted.
24

21
In the five given situations allowed by Section 5 (2) of the Indian Telegraph Act, 1882
22
Under Section 5(2) of the Indian Telegraph Act, 1882
23
In an urgent case, this power may be delegated to an officer of the Home Department, Government of
India or the Home Department of the State government, who is not below the rank of Joint Secretary. Copy
of this order should be sent to the concerned Review Committee within one week of passing of the order.
This Review Committee shall consist of the Cabinet Secretary, Law Secretary and the Secretary
Telecommunications at the Central Government. At the state level, the Committee shall comprise of Chief
Secretary, Law Secretary and another member (other than the Home Secretary) appointed by the State
Government. The Committee shall on its own, within two months of the passing of an order under Section
5 (2) investigate whether its passing is relevant. If an order is in existence, the Committee should find out
whether there has been a contravention of the provisions of Section 5 (2). If the Review Committee on
investigation concludes that provisions of Section 5 (2) have been contravened, it shall direct destruction of
the copies of the intercepted material.
24
Kharak Singh v State of Uttar Pradesh and Others (1964) 1 SCR 332

13
Rape Victims
DELHI DOMESTIC WORKING WOMENS FORUM V UNION OF INDIA &
OTHERS 1995 SCC 14

The Delhi Domestic Working Womens Forum was pursuing a case in which six girls -
belonging to a tribal community - travelling by train from Ranchi to New Delhi were
molested and raped by a group of army men in their compartment. Though they were
beaten and threatened by the culprits, the girls did register a First Information Report
[FIR]. However, because the investigations and trial dragged on for over six months, the
girls who worked in New Delhi as domestic help were not able to actively assist in the
prosecution of the case, which was being carried out in Aligarh, Uttar Pradesh.

Concerned over unnecessary delays, particularly in the investigation and trial of rape
cases, the Forum petitioned the Supreme Court to frame guidelines for ensuring a speedy
trial so that rape victims are not needlessly harassed and allowed to get on with their
lives.


Speedy trial is one of the essential requisites of law, the Court asserted. In
rape cases, the course of justice cannot be frustrated by prolonged investigations. They
said that it is important that investigations and trials should be carried out expeditiously,
otherwise the guarantee of equal protection of law under Article 14 and the guarantee of
life and personal security under Article 21 of the Constitution are meaningless.
Noting the seriousness of the crime, the Supreme Court said that rape shakes the
very foundations of victims lives. For many, its effects are long-term and so sustained
that they face difficulty in having personal relationships; their behaviour and values are
altered; and they suffer from constant fear and anxiety.
In addition to the trauma of rape itself, victims have to suffer further agony
during legal proceedingsas complaints are handled roughly and not given the attention
that they deserve. Victims are more often than not humiliated by the police and the
experience of giving evidence in court is so distressing, that it puts severe psychological
stress on them. Because, many of them feel re-victimized after reporting the crime, the
Supreme Court laid down specific guidelines on how to deal with rape victims, which are
given below:

14

25

1. As soon a rape victim reports the crime at the police station, she must be informed
about her right to get a lawyer before any questions are asked of her. The fact that
she was informed of this right must be mentioned in the police report.
2. The police should make arrangements to provide the victim with a lawyer if she
does not have access to one.
3. Every police station must maintain a list of lawyers capable enough to explain the
nature of proceedings to the victim; prepare her for the case; assist her in court
and in the police station; and provide guidance on agencies and organizations that
help in counselling and rehabilitation of rape victims.
4. The lawyer so chosen by the police to assist the victim must be approved by the
court. However, in order to ensure victims are questioned without undue delay,
the lawyer may be authorised to act at the police station before permission of the
court is taken.
5. In all rape trials, anonymity of the victim must be maintained.

Rape cases require extra sensitivity from the police. Care must be taken to see that the
victim is not made to feel small or uncomfortable and her statement is recorded by a
woman. Unnecessary references and passing of derogatory remarks that the victim
contributed to the crime is not permitted. A rape is a rape no matter what the reputation
or profession of the victim is.
26

The law favours protection of the victim. It lays down that inquiry and trial of rape cases
should be held in camera
27
[closed court] and that her identity should not be disclosed
to the media.
28

25
Apart from the under-mentioned directives, the Supreme Court has also given other directives, which
though not directly related with the police, are of significance. They have recommended setting up of a
Criminal Injuries Compensation Board to award compensation to the victim whether or not the prosecution
is able to secure a conviction. The compensation amount should take into account the pain, suffering,
shock, loss of earning capacity and expenses that may have been incurred on account of child birth if the
victim has become pregnant. They have also directed that compensation for the victims must be ordered by
the courts on conviction of the offender.
26
Section 155(4) of the Indian Evidence Act, 1872 which allowed admittance of the sexual history and
reputation of the complainant in court has been scrapped.
27
Section 327(2) Code of Criminal Procedure, 1973 [CrPC]
28
Section 327(3) CrPC

15
Basis of Arrest
JOGINDER KUMAR V STATE OF U.P AND OTHERS 1994 SCC 260

Joginder Kumar, a young lawyer aged 28 was called to the office of the Senior
Superintendent of Police [SSP], Ghaziabad in connection with some inquiries. He was
accompanied by friends and his brother, who were told by the police that he would be
released in the evening. But Joginder Kumar was taken to a police station with the
assurance that he would be released the next day. Next day, too he was not released as
the police wanted his help in making further inquiries. When his family went to the
police station on the third day, they found that he had been taken to an undisclosed
location. In effect, Joginder Kumar was illegally detained over a period of five days.

His family had to file a habeas corpus writ petition with the Supreme Court to find out his
whereabouts. The Court issued notices to the State of Uttar Pradesh and to the SSP to
immediately produce Joginder Kumar and answer why he was detained for five days
without a valid reason; why his detention was not recorded by the police in its diary; and
why he was not produced before a magistrate.


Rejecting the police version that Joginder Kumar was cooperating with them out
of his own free will, the Court said that the law of arrest is one of balancing individual
rights, liberties and privileges on the one hand and individual duties, obligations and
responsibilities on the other; of weighing and balancing the rights, liberties of the single
individual and those of individuals collectively..
They pointed out that the Third Report of the National Police Commission
identifies wrongful use of arrest powers as one of the chief sources of corruption in the
police and that nearly 60% arrests made by police officers are unnecessary and
unjustified. Strongly opposing the practice of carrying out indiscriminate arrests, the
Supreme Court said that an arrest cannot be made simply because it is lawful for a police
officer to do so. The existence of the power to arrest is one thing. the justification for
the exercise of it is quite another.. ..the police officer must be able to justify the
arrest..
Arrest and detention in police lock up can cause incalculable harm to the
reputation and self-esteem of a person. Therefore, arrests should not be made in a routine
manner on mere allegation that a person has committed an offence. If police officers do
not wish to face legal or disciplinary action, they should see that arrests are made only
after reaching a reasonable satisfactionabout the complaint being true and the case
being bonafide [genuine]. Even then, the Court said that the officer making the arrest
must function under a reasonable belief both as to the person's complicity in
committing the offence and the need to effect an arrest.


1. Arrests are not be made in a routine manner. The officer making the arrest must
be able to justify its necessity on the basis of some preliminary investigation.

16
2. An arrested person should be allowed to inform a friend or relative about the
arrest and where s/he is being held.
29
The arresting officer must inform the
arrested person when s/he is brought to the police station of this right and is
required to make an entry in the diary as to who was informed.
3. It is the duty of the magistrate before whom the arrested person is produced to
satisfy her/himself that the above requirements have been complied with.

Arrests should not be made, unless they are absolutely necessary and there is no other
way except arresting the accused to ensure her/his presence before the criminal justice
system or to prevent her/him from committing more crimes or tampering with evidence or
intimidating witnesses. Unnecessary and unjustified arrests lead to harassment and loss
of faith in the system. They also account for 43.2 % expenditure in jails according to the
Third Report of the National Police Commission.
30

On the other hand, corruptly or maliciously detaining people without recording an
arrest is punishable by a maximum sentence of seven years.
31

29
Article 22 (1) of the Constitution lays down that no person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds of arrest nor shall s/he be denied the right to
consult and be defended by a legal practitioner of choice.
30
Government of India, 1980, page 31
31
Section 220 Indian Penal Code, 1860

17
Arrest Procedure, Custodial Violence and Compensation
D.K BASU V STATE OF WEST BENGAL AIR 1997 SC 610

D.K Basu - Executive Chairman of Legal Aid Services, West Bengal - wrote a letter to the
Chief Justice of India, saying that torture and deaths in police custody are widespread
and efforts are often made by the authorities to hush up the matter. Because of this,
custodial crime goes unpunished and therefore flourishes. Some newspaper reports
published in the Telegraph, Statesman and Indian Express newspapers were also
attached to support the contention. Basu urged the Supreme Court to examine the issue in
depth and (i) develop custody jurisprudence and lay down principles for awarding
compensation to the victims of police atrocities (ii) formulate means to ensure
accountability of those responsible for such occurrences.

The Supreme Court treated the letter as a writ petition. While the writ was under
consideration, the Supreme Court received another report about a death in police
custody in Uttar Pradesh. This prompted the Court to issue notices to all state
governments and the Law Commission of India to submit suggestions on how to combat
this all-India problem.

Supreme Courts Observations

Custodial torture is a naked violation of human dignity, the Supreme Court said.
The situation is aggravated when violence occurs within the four walls of a police station
by those who are supposed to protect citizens. The Court accepted that the police have a
difficult task in light of the deteriorating law and order situation; political turmoil; student
unrest; and terrorist and underworld activities. They agreed that the police have a
legitimate right to arrest a criminal and to interrogate her/him in the course of
investigation. However, the law does not permit the use of third degree methods or
torture on an accused person. Actions of the State must be right, just and fair; torture for
extracting any kind of confession would neither be right nor just nor fair.

(i) The Right to Life guaranteed by our Constitution includes the right to live with
human dignity. The State is not only obliged to prosecute those who violate fundamental
rights, it also has a duty to pay monetary compensation to repair the wrong done by its
agents in not being able to discharge their public duty of upholding peoples rights.
Compensation, the Court said, is not be paid by way of damages as in a civil case [the
victim is free to file a civil case to privately recover damages from the wrongdoer for loss
of earning capacity] but under public law for breach of duty by the State in not being able
to protect its citizens. However, there can be no strait-jacket formula as each case has its
own peculiar facts and circumstances.

(ii) The Court recognised that the worst violations of human rights take place
during investigation when the police use torture and third degree methods to get
confessions. In such instances, arrests are either disguised by not recording them or
showing detention as prolonged interrogation. The Court stressed that no matter what the
circumstances, the State or its agents are not allowed to assault or torture people. They

18
then laid down an elaborate set of guidelines in respect of arrest and interrogation. The
Court directed that the guidelines which are given below should be circulated to the
Director General of Police and the Home Secretary of every state and union territory and
it shall be their obligation to have them put up in every police station at a conspicuous
place.


1. Use of third degree methods or any form of torture to extract information is not
permitted.
2. Police personnel carrying out arrest and interrogation must bear accurate, visible
and clear identification / name tags with their designations.
3. Particulars of all personnel handling interrogation of an arrested person must be
recorded in a register.
4. A memo of arrest stating the time and place of arrest must be prepared by the
police officer carrying out an arrest. It should be attested by at least one witness
who is either a family member of the arrested person or a respectable person from
the locality where the arrest is made. The memo should also be counter-signed by
the arrested person.
5. The arrested or detained person is entitled to inform a friend, relative or any other
person interested in her/his welfare about the arrest and place of detention as soon
as practicable. The arrested person must be made aware of this right as soon as
s/he is arrested or detained.
6. The arrested person may be allowed to meet her/his lawyer during interrogation
but not throughout the interrogation.
7. The time, place of arrest and venue of custody of the arrested person must be
notified by telegraph to next friend or relative of the arrested person within 8-12
hours of arrest in case such person lives outside the district or town. The
information should be given through the District Legal Aid Organisation and
police station of the area concerned.
8. An entry must be made in the diary at the place of detention in regard to the
arrest. The name of the friend/relative of the arrested person who has been
informed and the names of the police personnel in whose custody, the arrested
person is being kept should be entered in the register.
9. The arrested person should be examined by a medical doctor at the time of arrest
if s/he so requests. All bodily injuries on the arrested person should be recorded in
the inspection memo which should be signed by both the arrested person and the
police officer making the arrest. A copy of the memo should be provided to the
arrested person.
10. The arrested person should be subject to a medical examination every 48 hours by
a trained doctor who has been approved by the State Health Department.
11. Copies of all documents relating to the arrest including the memo of arrest should
be sent to the Area Magistrate for her/his record.
12. A police control room should be provided at all district and state headquarters
where information regarding arrests should be prominently displayed. The police

19
officer making the arrest must inform the police control room within 12 hours of
the arrest.
13. Departmental action and contempt of court proceedings should be initiated against
those who fail to follow above-mentioned directives.

Failure to follow proper procedure while arresting and interrogating suspects is a very
serious matter. D.K Basus case lays down specific guidelines that must be followed
while arresting and interrogating suspects. These guidelines are based on Code of
Criminal Procedure, 1973 [CrPC] provisions and are very much a part of regulations
laid down in police manuals and rule books. The Supreme Court has said that failure to
comply with these guidelines not only renders an officer liable for punishment through
departmental action but also amounts to contempt of court.
32

32
Proceedings under the Contempt of Courts Act, 1971 can be started in any High Court

20
Treatment of Women and Legal Aid
SHEELA BARSE V STATE OF MAHARASHTRA 1983 SCC 96

Sheela Barse - a journalist and activist for prisoners rights - wrote to the Supreme Court
saying that of the 15 women prisoners interviewed by her in Bombay Central Jail, five
admitted that they had been assaulted in police lock-up. Given the seriousness of the
allegations, the Court admitted a writ petition on the basis of the letter and asked the
College of Social Work, Bombay to visit the Central Jail to find out whether the
allegations were true. The College submitted a detailed report which, in addition to
admitting that excesses against women were taking place, pointed out that arrangements
for providing legal assistance to prisoners were inadequate.


Failure to provide legal assistance to poor and impoverished persons violates
constitutional guarantees. Article 39-A [Directive Principle of State Policy] casts a duty
on the State to secure the operation of a legal system that promotes justice on the basis of
equal opportunity. The right to legal aid is also a fundamental right under articles 14
[Equality before Law] and 21 [Right to Life and Personal Liberty].
The Court expressed serious concern about the plight of prisoners, unable to
afford legal counsel to defend themselves. They said that not having access to a lawyer
was responsible for individual rights against harassment and torture not being enforced.
Stressing the urgent need to provide legal aid not only to women prisoners but to all
prisoners whether they were undertrials or were serving sentences, the Court said that an
essential requirement of justice is that every accused person should be defended by a
lawyer. Denial of adequate legal representation is likely to result in injustice, and every
act of injustice corrodes the foundations of democracy and rule of law..
Expressing serious concern about the safety and security of women in police lock-up,
the Supreme Court directed that a woman judge should be appointed to carry out surprise
visits to police stations to see that all legal safeguards are being enforced.


1. Female suspects must be kept in separate lock-ups under the supervision of
female constables.
2. Interrogation of females must be carried out in the presence of female
policepersons.
3. A person arrested without a warrant must be immediately informed about the
grounds of arrest and the right to obtain bail.
4. As soon as an arrest is made, the police should obtain from the arrested
person, the name of a relative or friend whom s/he would like to be informed
about the arrest. The relative or friend must then be informed by the police.
5. The police must inform the nearest Legal Aid Committee as soon as an arrest
is made and the person is taken to the lock-up.

21
6. The Legal Aid Committee should take immediate steps to provide legal
assistance to the arrested person at State cost, provided such person is willing
to accept legal assistance.
7. The magistrate before whom an arrested person is produced shall inquire from
the arrested person whether s/he has any complaints against torture and
maltreatment in police custody. The magistrate shall also inform such person
of her/his right to be medically examined.
33

Women in custody are particularly vulnerable to physical and sexual abuse. Courts take
a very serious view of complaints regarding custodial rape
34
or harassment. Of late, the
National and State Human Rights Commissions and the Womens Commission are also
playing an increasingly proactive role to see such instances do not go unpunished. It is
the duty of the officer in-charge of a police station/post to ensure that women are not
harmed and searches of their person are carried out only by women with strict regard to
decency.
35

33
Section 54 Code of Criminal Procedure, 1973 [CrPC] confers the right to an arrested person to get
her/himself medically examined to afford evidence to disprove the commission of an offence by her/him or
establish the commission of an offence by any other person against her/his body. The arrested person can
ask to be medically examined either at the time s/he is produced before a magistrate or at any time during
the period of detention.
34
Custodial Rape is punishable by a minimum of ten years rigorous imprisonment under Section 376 (2) of
the Indian Penal Code, 1860
35
Section 51 (2) CrPC

22
Preventive Detention
ICCHU DEVI CHORARIA V UNION OF INDIA 1980 SCC 531

Mahendra Choraria, who was accused with smuggling, was put in preventive detention
by the Customs Department under a special Act [COFEPOSA].
36
The Customs
Department detained him on the basis of two tape-recorded conversations, some
documents and statements of several persons.

Choraria argued before the Supreme Court in a writ petition that his detention was
illegal because he was not provided with copies of statements, documents and other
materials that were being relied upon to detain him. The petition maintained that undue
delay in providing these materials amounted to denying him an opportunity to make a
representation before a court against his detention.


Article 22 (5) of the Constitution lays down that whenever a person is
preventively detained under a special law, the detaining authority should as soon as
possible communicate to the arrested person, the grounds of detention and afford her/him
the earliest opportunity to make a representation against the detention.
The Supreme Court asserted that if the detaining authority wants to preventively
detain a person, it must do so in accordance with the provisions of the Constitution and
the law and if there is any breach of any such provision, the rule of law requires that the
detenu [detained person]must be set at liberty.. They said that it was the duty of the
courts to satisfy themselves that all procedural safeguards have been observed in this
respect.
Though COFEPOSA was framed to eradicate the evil of smuggling, the Court
said that it must not be forgotten that the power of preventive detention is a draconian
power, justified only in the interest of public security and order and it is tolerated in a free
society only as a necessary evil. Detaining people without trial constitutes an
encroachment on personal liberty - one of the most cherished values of humankind. They
said that personal liberty is a most precious possession, life without it would not be worth
living. Therefore, the courts have a duty to uphold it.
Prescribing the under-mentioned procedure, the Supreme Court affirmed that the
law laid down in this case would be equally applicable in the event of preventive
detention under any other Act.


1. The detained person must be supplied copies of documents, statements and other
materials on the basis of which s/he is being detained, without delay.
2. The authorities who have preventively detained a person must consider the
representation of the detained person against the detention as soon as possible.

36
COFEPOSA- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is
one of several special Acts.

23
3. The burden of proving that the detention is in accordance with the procedure
established by law lies on the detaining authority.

Preventive detention is not allowed under normal circumstances. It has to be authorised
under a special Act. Even if an Act specifically provides for preventive detention, the
officer who has preventively detained a person must furnish convincing proof to the
magistrate that the detained person constitutes a threat to society, and all the procedural
requirements of the Act have been satisfied. The detaining officer must also provide the
detained person copies of the statements, documents or other proof on the basis of which
s/he has been preventively detained. This is part of the detained persons fundamental
right to make a representation against the detention.
37

37
Article 22(5) of the Constitution: Protection against arrest and detention in certain cases

24
Preventive Arrest and Bonds for Good Behaviour
GOPALANACHARI V STATE OF KERALA 1980 SCC 649

Gopalanachari, a 71 year old man wrote to the Supreme Court that he was wrongly
imprisoned in Kottayam sub-jail, Kerala after being picked up by the police. He was
charged under Section 110 of the Code of Criminal Procedure, 1973 [CrPC]. This
section is supposed to be used by the police for making people whom they believe to be
habitual offenders, desperate or dangerous persons execute a bond for good
behaviour before the Executive Magistrate. Gopalanachari wrote that though he could
not hear or see properly and constituted no threat to the community, yet he was taken
before the magistrate. The police told the magistrate that he was an ex-criminal, trying to
conceal his presence from a night patrol and on being questioned did not give his correct
name and address. Therefore, he should only be released after he executed a bond that he
will not indulge in any criminal or anti-social activities over the next two years.

Because, he was unable to immediately arrange for bail and execute the bond, the
magistrate sent Gopalanachari to prison. The Supreme Court admitted his petition and
asked the State of Kerala give a list of prisoners charged under Section 110 CrPC in
Kottayam sub-jail. The Court was informed that there were six such prisoners in the sub-
jail and some of them had been lodged there for several months.


Police powers must be exercised in accordance with the Right to Life and
Personal Liberty guaranteed by Article 21 of the Constitution. Actions of the State or its
agents must be right, just and fair; and not arbitrary; fanciful or oppressive, the
Supreme Court asserted.
Using Section 110 CrPC to harass innocent people violates the spirit of the law.
Shocked to discover that there were others like Gopalanachari, the Court said that if men
can be whisked away by the police and imprisoned for long months and the court can
keep the cases pending without thoughtfundamental rights remain symbolic and
scriptural..
They said, unless this section is prevented from misuse, many a poor person can
be imprisoned by being labelled habitual, desperate or dangerous. It is not permitted
in our free Republic to pick up homeless people or have-nots under the pretext of Section
110 CrPC. To be poor is not a crime in this country.
The Supreme Court directed magistrates to be vigilant and ensure Section 110 is
not used randomly as a matter of routine. Courts must insist on convincing testimony
and should not accept readily produced, made to order testimony as was given by the
police in this case. To call a man dangerous is in itself dangerous; to call a man
desperate is to affix a desperate adjective; to stigmatise a person as hazardous to the
community is itself a judicial hazard; unless compulsive testimony carrying credence is
abundantly available.

25

1. The person being charged under Section 110 and other preventive sections of the
CrPC must constitute a clear and presentdanger to society.
2. The police must lay out specific facts before the magistrate showing why the
person is a threat to the community and should be made to sign a bond for good
behaviour.
3. The person undergoing proceedings under Section 110 CrPC must be provided
with legal aid.
4. The magistrate is under a duty to make sure that Section 110 CrPC is not misused
by the police.

Preventive powers under Sections 107
38
109
39
& 110 CrPC should be exercised with due
caution. Care must be taken to ensure innocent persons are not harassed and presented
before magistrates for executing good behaviour bonds under the garb that they are
suspected persons or habitual offenders. Power of preventive arrest under Section 151
CrPC
40
should not used randomly by the police to pick people off the streets, especially
those belonging to economically weaker sections of society. Unjustified use of these
sections can invite judicial scrutiny. Magistrates have a duty to ensure that preventive
sections are not being misused by police officers.

38
Section 107 of the Code of Criminal Procedure, 1973 [CrPC] is supposed to be used by the police to
make a person whom they believe is likely to commit a breach of peace; disturb public tranquility; or do a
wrongful act - that may cause peace to be breached or public tranquility to be disturbed - execute a bond
for keeping the peacebefore the Executive Magistrate.
39
Section 109 CrPC is supposed to be used by the police to make a person whom they believe is taking
precautions to conceal her/his presence with a view to committing a cognizable offence, execute a bond for
good behaviourbefore the Executive Magistrate.
40
Section 151 CrPC authorises a police officer, knowing of a design to commit a cognizable offence, to
arrest the person designing to commit the offence, if it appears that commission of the offence cannot
otherwise be prevented. This section is often misused.

26
Handcuffing
PREM SHANKAR SHUKLA V DELHI ADMINISTRATION 1980 SCC 526

Prem Shankar Shukla - an undertrial prisoner at Tihar Jail - sent a telegram to the
Supreme Court that he and some other prisoners were being forcibly handcuffed when
they were escorted from prison to the courts. Shukla pleaded that routine handcuffing
and chaining of prisoners was continuing despite the Supreme Court directive in Sunil
Batras case
41
that fetters/handcuffs should only be used if a person exhibits a credible
tendency for violence or escape.


Using handcuffs and fetters [chains] on prisoners violates the guarantee of basic
human dignity, which is part of our constitutional culture, the Supreme Court said. This
practice does not stand the test of articles 14 [Equality before law], 19 [Fundamental
Freedoms] and 21 [Right to Life and Personal Liberty].
To bind a man hand and foot; fetter his limbs with hoops of steel; shuffle him
along in the streets; and to stand him for hours in the courts, is to torture him; defile his
dignity; vulgarise society; and foul the soul of our constitutional culture. Strongly
denouncing handcuffing of prisoners as a matter of routine, the Supreme Court said that
to manacle a man is more than to mortify him; it is to dehumanise him; and therefore to
violate his very personhood..
They rejected the argument of the State that handcuffs are necessary to prevent
prisoners from escaping. Insurance against escape does not compulsorily require
handcuffing.there are other methods whereby an escort can keep safe custody of a
detenu [detained person] without the indignity and cruelty implicit in handcuffs and other
iron contraptions.
The Supreme Court asserted that even orders from superiors are not a valid
justification for handcuffing a person. Constitutional rights cannot be suspended under
the garb of following orders issued by a superior officer. There must be reasonable
grounds to believe the prisoner is so dangerous and desperate that s/he cannot be kept in
control except by handcuffing.


1. Handcuffs are to be used only if a person is:
a) involved in serious non-bailable offences,
42
has been previously convicted of
a crime; and/or
b) is of desperate character- violent, disorderly or obstructive; and/or
c) is likely to commit suicide; and/or
d) is likely to attempt escape.
2. The reasons why handcuffs have been used must be clearly mentioned in the
Daily Diary Report. They must also be shown to the court.

41
Sunil Batra v Delhi Administration 1978 SCC 494
42
Non-bailable offences are laid out in the First Schedule of the Code of Criminal Procedure, 1973 [CrPC].
Bail in such offences is given at the discretion of the police or the court.

27
3. Once an arrested person is produced before the court, the escorting officer must
take the courts permission before handcuffing her/him to and fro from the court
to the place of custody.
4. The magistrate before whom an arrested person is produced must inquire whether
handcuffs or fetters have been used. If the answer is yes, the officer concerned
must give an explanation.

Use of handcuffs, chains or ropes to bind prisoners amounts to inhuman treatment. The
rule regarding handcuffs is that they should never be used as a matter of routine. Their
use is permitted only in exceptional cases and that too with judicial permission, on the
grounds that the person poses a clear and present danger and there are genuine
reasons to believe that s/he will attempt escape.

28
Handcuffing
CITIZENS FOR DEMOCRACY V STATE OF ASSAM 1995 SCC 743

Kuldip Nayar - eminent journalist and president of Citizens for Democracy - wrote to
the Supreme Court that he saw seven TADA detainees
43
handcuffed and tied to a hospital
bed in Guwahati. He said that this was done despite the fact that the room in which they
were being held, had iron bars, was locked and was guarded by a posse of armed
policemen.

Nayar wrote that he failed to understand how the Assam Government could treat people
in this manner despite court directives to the contrary. The government in its defence said
that the detainees were hardcore terrorists belonging to the United Liberation Front of
Assam [ULFA] and many dreaded members of this organisation had previously escaped
from custody.


Reiterating the principle in Premshankar Shuklas case,
44
the Supreme Court
said that indiscriminate use of handcuffs is inhuman, unreasonable and arbitrary.
Relevant considerations for putting a prisoner in chains are character,
antecedents and propensities. Peculiar and special characteristics of each individual have
to be taken into consideration. Laying down the law on use of handcuffs, the Court said
that the nature and length of sentence; or number of convictions; or gruesome character
of the crime are not by themselves relevant consideration.
The Supreme Court said it understood that the police and jail authorities have a
public duty to ensure safe custody of prisoners and must prevent them from escaping.
However, prisoners rights guaranteed by the Constitution cannot be trampled upon.
While suitable measures can be taken to reduce the likelihood of detainees escaping, use
of fetters or chains purely at the whims or subjective discretion of authorities is not
permissible.
As a rule, handcuffs or fetters must not be used on an undertrial or on a
convicted prisoner whether in jail or when being taken to court, without authorisation of a
magistrate. This authorisation may be given in cases where the police or jail authorities
have a well grounded basis for drawing a strong inference that a particular prisoner is
likely to jump jail or break out of custody.


1. It is necessary to take the magistrates permission before handcuffing a person
who has been remanded to judicial or police custody.
2. A person arrested in the execution of an arrest warrant [issued by a magistrate]
must not be handcuffed unless prior permission has been taken from the
magistrate.

43
Terrorist and Disruptive Activities (Prevention) Act, 1987, which was specially designed to control
insurgency/militant activities.
44
Prem Shankar Shukla v Delhi Administration 1980 SCC 526

29
3. In an arrest without warrant, the police is only allowed to handcuff on the basis of
concrete proof that the person is prone to violence; has a tendency to escape; or is
so dangerous and desperate that there is no other practical way to restrain her/his
movement. Even then the officer may use handcuffs only till the time the person
is taken to the police station and thereafter to the magistrates court.
4. Violation of the Courts directives by a police officer of whatever rank or any
member of the jail establishment is punishable summarily under Contempt of
Courts Act, 1971 in addition to other provisions of the law.

Handcuffing without a magistrates approval is not permitted, save in rare instances. In
such instances, the burden of proving that the use of handcuffs was warranted lies on the
police. If the detaining authority or escort party fail to satisfy the court about the
genuineness of the danger or threat posed by the person who was handcuffed, they will be
liable under law.
45

45

30
Bail and Bonds
HUSSAINARA KHATOON AND OTHERS V HOME SECRETARY STATE OF
BIHAR AIR 1979 SC 1360

The Supreme Court admitted a writ petition to look into the administration of justice in
Bihar after the Indian Express published a series of news items about appalling
conditions in Bihar jails. The paper reported that a large number of people, including
women and children had been in prison for years without trial. Even though some of them
were charged with minor offences carrying punishment for a few months or couple of
years at best, these people had been in jail awaiting trail for periods ranging from three
to ten years.


Article 21 of the Constitution lays down that no one shall be deprived of their life
or personal liberty except according to the procedure established by law. The procedure
should be reasonable, fair and just
46
otherwise such deprivation would be illegal.
The Supreme Court said that it is a travesty of justicethat certain persons end
up spending extended time in custody, not because they are guilty but because the courts
are too busy to try them, and they as the accused are too poor to afford bail. Poor people
find it difficult to arrange for bail, because quite often the bail amount fixed by the
magistrate or the police is unrealistically excessive. This happens due to bail being
given using a property-oriented approach. Such an approach is based on the wrong
assumption that risk of monetary loss is the only deterrent that prevents a person from
fleeing the judicial process.
The Supreme Court said that it was saddened that even after re-enactment in
1974,
47
the Code of Criminal Procedure, 1973 [CrPC] continues to require people to be
released on a personal bond that pledges a certain amount of money. While they
expressed the hope that the Parliament would bring about suitable amendments in the
law, the Court asserted that even under the law as it stands today, courts must abandon
the antiquated concept under which pre-trial release is ordered only against bail with
sureties. They affirmed that what they have said in relation to the courts also applies to
the police.


1. If the accused have roots in the community that would deter them from fleeing,
they may be released on bail by furnishing a personal bond without sureties. The
following facts may be taken into account in this regard:

46
Maneka Gandhi v Union of India 1978 SCC 248
47
From the old Code of Criminal Procedure, 1898, which was enacted by the British. Though this Code did
get amended many times, most notably in 1923 and 1955, many of its provisions remained unchanged till
the Code of Criminal Procedure, 1973 [CrPC] was enacted on January 25,1974.

31
i. the length of residence of the accused in the community
ii. the employment status and history of the accused
iii. family ties and relationships of the accused
iv. the reputation, character and monetary condition of the accused
v. any prior criminal record including record of prior release on bail
vi. the existence of responsible persons in the community who can vouch for
the reliability of the accused
vii. the nature of the offence that the accused is charged with; probability of
conviction; and likely sentence insofar as these are relevant to risk of non-
appearance of the accused

2. The bond amount should not be based merely on the nature of the charge but
should be fixed keeping in mind the individual financial circumstances of the
accused.

If the offence is bailable,
48
the police is duty bound to release the arrested person if s/he
is willing to give bail.
49
In addition, the amount of bail should be decided keeping in mind
the paying capacity of the accused.
50
Far too many people spend time in prison simply
because the bail amount is fixed too high, and they are unable to arrange for the money.
Police officers and magistrates have a duty to see that bail conditions are not so harsh,
that the very purpose behind giving bail is defeated. The High Court and the Sessions
Court are empowered to reduce the bail amount fixed by the police or the magistrate.
51

48
Bailable offences are laid out in the First Schedule of the Code of Criminal Procedure, 1973 [CrPC]. Bail
may be claimed as a matter of right in bailable offences.
49
Section 436 (1) Code of Criminal Procedure, 1973 [CrPC]
50
Section 440 (1) CrPC lays down that the amount of bail bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive.
51
Section 440 (2) CrPC

32
Bail and Bonds
MOTIRAM AND OTHERS V STATE OF M.P AIR 1978 SC 1594

Motiram, a mason appealed to the Supreme Court that despite being granted bail by the
Court, he was unable to secure his release because the Chief Judicial Magistrate fixed an
exorbitant sum of Rs 10,000, as the surety amount. Motiram said that the magistrate
rejected the suretyship offered by his brother simply because his brother resided in
another district and his assets were located there. Motiram wanted the Supreme Court to
either reduce the surety amount or order his release on a personal bond.

The Court had to decide: (i) whether a person can be released on bail under the Code of
Criminal Procedure, 1973 [CrPC] on a personal bond, without having to get people to
stand as surety for her/him (ii) the criteria for fixing the bail amount (iii) whether a
surety offered by a person can be rejected because s/he resides in a different district or
state or because her/his property is situated in a different district or state.


Article 14 [Equality before Law] of the Constitution protects all citizens within
the territory of India, the Supreme Court asserted. Many a poor person is forced into
cellular servitude for little offences because trials never concludeand bail amounts are
fixed beyond their meagre means.
The Court observed that the poor were being priced out of their liberty in the
justice market. Whenever, excessive amounts are fixed as surety for bail, the victims
invariably happen to be from disadvantaged sections of society; belong to linguistic or
other minorities; or are from far corners of the country.
(i)Bail provisions contained in Chapter XXXIII
52
of the CrPC must be liberally
interpreted in the interest of social justice, individual freedom and indigent persons
rights
53
to enable release of poor and impoverished people on a personal bond without
having to arrange for surety.
(ii) Bail amounts should be fixed after ascertaining the paying capacity and
monetary condition of the accused. The Court said that it shocks ones conscienceto
ask a mason to furnish a sum as high as Rs 10,000 for release on bail.
(iii) There is no sanction in any law to make geographical discriminations such as
not accepting sureties from another part of the country or not accepting an affirmation in
a language other than the one spoken in the region. India is one and not a
conglomeration of districts untouchably apart. A person accused of a crime in a place
distant from her/his native residence cannot be expected to produce sureties who own
property in the same district as the trial court. The Supreme Court asserted that provincial
or linguistic divergence cannot be allowed to obstruct the course of justice.

52
Sections 436-450 of the Code of Criminal Procedure, 1973 [CrPC] deal with bail and bonds.
53
Referring to bail related provisions of the CrPC, the Court said that the truth perhaps, is that indecisive
and imprecise language is unwittingly used, not knowing the draftsmans golden rule: In drafting it is not
enough to gain a degree of precision which a person reading in good faith can understand, but it is
necessary to attain if possible, a degree of precision which a person reading in bad faith cannot
misunderstand .

33


1. Bail should be given liberally to poor people simply on a personal bond, if
reasonable
54
conditions are satisfied.
2. The bail amount should be fixed keeping in mind the financial condition of the
accused.
3. The accused person should not be required to produce a surety from the same
district especially when s/he is a native of some other place.

The Supreme Court has strongly condemned the practice of asking migrants or tourists to
arrange for financially sound sureties from the same district to stand bail for them. It is
unreasonable and leads to unnecessary and undue harassment. Many a time, poor people
go to jail despite being granted bail because no one comes forward to stand as surety for
them. If it can be found out that the accused is connected to the community through
family or other emotional ties, which will prevent her/him from fleeing, bail should be
given simply on a personal undertaking to abide by bail conditions.
55

54
Hussainara Khatoon and Others v Home Secretary, State of Bihar (1) AIR 1979 SC 1360 lays down that
the length of residence of the accused in the community; the employment status and history of the accused;
family ties and relationships of the accused; the reputation, character and monetary condition of the
accused; any prior criminal record including record of prior release on bail; the existence of responsible
persons in the community who can vouch for the reliability of the accused; the nature of the offence that the
accused is charged with; probability of conviction; and likely sentence insofar as these are relevant to risk
of non-appearance of the accused should be taken into account while determining bail conditions.
55
In addition, the proviso to Section 436 (1) CrPC states that if the police officer or court thinks fit, an
arrested person who is accused of a bailable offence may be discharged on executing a bond for appearance
without sureties in lieu of bail.

34
Compensation
NILABATI BEHERA V STATE OF ORISSA 1993 SCC 746

Nilabati Behera, a distressed mother, wrote a letter to the Supreme Court asking that she
be monetarily compensated for the death of her 22 year old son in police custody. She
said that her son, Suman Behera was beaten to death at a police post after being detained
in connection with a theft.

The Supreme Court immediately admitted a writ petition on her behalf and took up the
case. Rejecting the police version that Suman Behera was killed by a running train after
he escaped from police custody, the Court asserted that the post-mortem report clearly
showed that he died as a result of being beaten up. The question before the Court was
whether Nilabati Behera had a right to claim compensation for the wrongful acts of the
policemen who caused her sons death.


Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays
down that anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation. This Covenant has been ratified by India,
56
which
means that the State has undertaken to abide by its terms.
The Supreme Court asserted that convicts, prisoners or undertrials are not
denuded of their fundamental rights under Article 21[Right to Life and Personal
Liberty] of the Constitution and there is a corresponding responsibility on the police and
prison authorities to make sure that persons in custody are not deprived of the Right to
Life.
The State has a duty of care to ensure that the guarantee of Article 21 is not
denied to anyone. This duty of care is strict and admits no exceptions the Court said.
The State must take responsibility by paying compensation to the near and dear ones of a
person, who has been deprived of her/ his life by the wrongful acts of its agents.
However, the Court affirmed that the State has a right to recover the compensation
amount from the wrongdoers.
They said that the purpose of law is not only to civilize public power but also to
assure people that they live under a legal system which protects their interests and
preserves their rights. Therefore the High Courts and the Supreme Court as protectors of
civil liberties not only have the power and jurisdiction but also the obligation to repair the
damage caused by officers of the State to fundamental rights of citizens.

56
Though India had expressed reservations to this particular article at the time of ratification, the
reservations have ceased to have meaning as an enforceable right to be compensation has come to be
accepted as a part of international customary law. Also the Supreme Court in various judgements even
before Nilabati Beheras case has upheld the right to be compensated for wrongful acts of State agents. See
Rudul Sah (1983) 4 SCC 141; Sebastian M. Hongray (1984) 1 SCC 339; Sebastian M. Hongray (II) (1984)
3 SCC 82; Bhim Singh (1985) 4 SCC 677; Ravikant S. Patil (1991) 2 SCC 373.

35

1. The State has an obligation to give compensation to a victim or to the heirs of a
victim whose fundamental rights have been violated by its agents.
57

2. The State has a right to recover the compensation amount from the guilty officials
after appropriate proceedings or inquiry.
3. An order of compensation by the State in a criminal case
58
does not prevent the
victims or their heirs from claiming further compensation in a civil case [for loss
of earning capacity].

While it is mandatory to conduct a magisterial inquiry into every case of custodial
death,
59
the State also has a duty not only to register criminal cases, but also to pay
monetary compensation where human rights are violated by its officers.
60
Courts and
human rights commissions regularly give directions to the government to monetarily
compensate victims or their families for incidents of custodial death, rape, violence or
assaults on dignity. In the majority of these cases, compensation amounts are recovered
from the salaries and other benefits of the guilty officials.

57
This principle has been reaffirmed in D.K Basu v State of West Bengal AIR 1997 SC 610.
58
Section 357 (1) (b) of the Code of Criminal Procedure, 1973 [CrPC] also empowers criminal courts, at
the time of sentencing, to make the perpetrator pay a fine which may in whole or in part be paid to the
victim for any loss or injury caused by the offence committed.
59
Section 176 CrPC
60
In State of Maharashtra v Ravikant S. Patil 1991 SCC 373, the Supreme Court upheld the award of
compensation by the High Court for violation of the fundamental right to Life and Personal Liberty [Article
21of the Constitution] of an undertrial prisoner, who was handcuffed and taken through the streets in a
procession by the police.

36
Encounter Deaths
NATIONAL HUMAN RIGHTS COMMISSION [NHRC] GUIDELINES ON
ENCOUNTER DEATHS March 29, 1997 and REVISED GUIDELINES
December 2, 2003

The Andhra Pradesh Civil Liberties Committee [APCLC] complained to the NHRC that
the police was killing people whom they suspected to be members of the Peoples War
Group, a militant organisation, in fake encounters. The police said that the deaths took
place when armed militants resisted arrest but the Andhra Pradesh Civil Liberties
Committee insisted that these were extra-judicial killings amounting to unjustified and
unprovoked murders. They gave details of 285 such incidents. The NHRC was unable to
take up all the cases because many of them had occurred prior to one year, which is the
limitation
61
period for taking up complaints by human rights commissions. Ultimately six
cases involving the death of seven people were taken up by the NHRC and guidelines
detailing the procedure in respect of encounter deaths were issued in 1997.

However, in 2003, the NHRC noting that matters in respect of encounter deaths were not
encouraging - as the guidelines were not being followed in their true spirit - made some
additions to its existing guidelines. The Commission also expressed concern that all
states were not sending information about deaths in encounters and asserted that
availability of proper statistics was necessary for the effective protection of human rights
and discharge of the NHRCs duties.

Under the law, no one including the police has an unqualified right to take the life
of another person. Death of a person by a police officer amounts to culpable homicide not
amounting to murder, unless it is established that the causing of death is not an offence in
law. If a police officer kills someone in an encounter, s/he must prove that the death was
caused either in the legitimate exercise of the right of private defence
62
or in the use of
force, proportional to the resistance offered, while arresting a person accused of an
offence punishable with death or life imprisonment.
63
This can only be ascertained by a
proper investigation and not otherwise.

First Information Reports [FIR] recorded at police stations invariably say that, on
sighting the police, the other party opened fire with a view to kill. They give the
impression that the concerned officers are justified in causing death, exercising their right
of self-defence. So, no attempts are made by the police to find out whether officers who
fire the bullets are justified in law to doing so.

61
Section 36 (2) of the Protection of Human Rights Act, 1993 lays down that human rights commissions
cannot take up a fresh complaint if more than one year has elapsed since the human rights violation was
committed.
62
Under Sections 96-106 of the Indian Penal Code, 1860 [Private Defences]
63
Section 46 (1) of the Code of Criminal Procedure, 1973 [CrPC] empowers a police officer to touch or
confinethe body of a person being arrested if s/he does not submit to the officers custody by word or
action(2) empowers a police officer to use all means necessaryto effect an arrest if the person being
arrested forcibly resists the endeavour to arrest him(3) includes a rider that nothing in this section gives
a right to cause death of a person who is not accused of an offence punishable with death or with
imprisonment for life.

37

Responding to public concerns that in reported encounters, sufficient efforts are
not made to ascertain the cause of death and whether the deceased have committed any
offences, the National Human Rights Commission has directed all states and union
territories to ensure adherence to proper police procedure and conduct of impartial
investigations.

NHRC Guidelines

1. As soon as information about death being caused in a police encounter is
received, the officer in-charge of a police station must record it in the appropriate
register.
2. It is desirable that the investigation should be handed over to an independent
investigation agency such as the Criminal Investigation Department [CID], if
members of the encounter party belong to the same police station.
3. Whenever a specific complaint is made against the police for committing a
criminal act that amounts to culpable homicide, an FIR should be registered under
appropriate sections of the Indian Penal Code and investigation should invariably
be handed over to the CID.
4. A magisterial inquiry must invariably be held in all cases where death has
occurred in the course of police action. The next of kin of the dead person must
invariably be associated with the inquiry.
5. Prompt prosecution and disciplinary action must be initiated against the officers
found guilty in the magisterial inquiry/ police investigation.
6. The question of compensation being given to the dependents of the dead person
will depend on the facts and circumstances of each case.
7. No out of turn promotion or instant gallantry rewards will be given to the
concerned officers soon after the occurrence. It must be ensured [at all costs]
that they are given only after the gallantry of the officer concerned is proven
beyond doubt.
8. A six monthly statement of all cases of deaths in police action in the state shall be
sent by the Director General of Police to the NHRC by January 15 and July 15
every year. The statement may be sent in the following format along-with post-
mortem reports and inquest reports [wherever available]and also the inquiry
reports:

(i) Date and place of occurrence
(ii) Police station and district
(iii) Circumstances leading to death:
(a) self defence in encounter
(b) in the course of dispersal of unlawful assembly
(c) in the course of effecting arrest
(iv) Brief facts of the incident
(v) Criminal case number
(vi) Investigating agency
(vii) Finding of the magisterial inquiry/ inquiry by senior officers:

38
(a) disclosing in particular names and designations of police officials,
if found responsible for the deaths; and
(b) whether use of force was justified and action taken was lawful.

Eliminating suspected members of outlaw or militant organisations by staging fake
encounters amounts to murder. Article 21 of the Constitution lays down that no one shall
be deprived of life or personal liberty, except according to the procedure established by
law. The Supreme Court has said that even a person under death sentence has human
rights which are non-negotiable and even a dangerous prisoner, standing trial has basic
liberties which cannot be bartered away.
64

64

39
Lie Detector Tests
POLYGRAPH [LIE DETECTOR] TESTS January 11, 2000

Complaints came to the NHRC that the police, without explaining to people, the full
implications of a lie detector test - which requires prior injection a drug - was making
them take it, in violation of their fundamental right against self-incrimination.
Since lie detector or polygraph tests are not regulated by any particular law as such, the
NHRC has laid down guidelines for the conduct of these tests. While issuing these
guidelines, the NHRC followed the principle: in the absence of a specific law, any
intrusion into fundamental rights must be struck down as constitutionally invidious
[violative].
65

Lie detector tests can become an instrument to compel the accused to be a witness
against her/himself, in violation of Article 20 (3) of the Constitution [Right against Self-
Incrimination].
The NHRC said that it was aware that lie detector tests have been held consistent
with due process of law by courts in the United States, on grounds that they are a part of
everyday life.
66
However, in Indias context the immunity from invasiveness [as an
aspect of Article 21- Right to Life and Personal Liberty] and from self-incrimination
must be read together.
General powers of the State cannot intrude upon the liberty or constitutional rights
of a person. The invasiveness of a lie detector test overrules the argument of the police
that the authority to use lie detector tests comes from their powers under the Code of
Criminal Procedure [CrPC]
67
to question and interrogate suspects.
Holding of such tests is the prerogative of the individual and not an
empowerment of the police..it must perforce be regarded as illegal and unconstitutional
unless it is voluntarily undertaken under non-coercive circumstances.

NHRC Guidelines

1. Lie detector tests must not be carried out without the consent of the accused.
2. If the accused volunteers to take a lie detector test, s/he must be given access to a
lawyer to explain the physical, emotional and legal implications of the test. The
implications must also be explained by the police.
3. Consent to take a lie detector test must be recorded before a Judicial Magistrate.
4. The magistrate must take into account, the time the accused has been in detention
and the nature of her/his interrogation. This should be done to find out whether
the accused is being coerced into giving consent.
5. At the time of recording consent, the accused must be represented by a lawyer.
The lawyer will explain that the statement [given during the test] does not have

65
Ram Jawaya Kapur (1955) 2 SCR 225; Kharak Singh (1964) 1 SCR 332; Benett Coleman (1972) 2 SCR
288; Thakur Bharat Singh (1967) 2 SCR 454; Bishamber Dayal (1982) 1 SCC 39; Naraindass (1974) 3
SCR; Satwant (1967) 3 SCR 525
66
Breithbaupht v Abram (1957) 352 US 432
67
Sections 160-167 CrPC

40
the status of a confessional statement given to a magistrate.
68
It will have the
status of a statement made to the police.
69

6. The actual recording of the lie detector test should be done by/in an independent
agency [such as a hospital]and in the presence of a lawyer.
7. A full medical and factual narration of the manner in which information is
received must be taken on record.

Forcing a person to take a lie-detector test is illegal. Consent must be taken before
subjecting a person to a lie-detector test. Also, there is no scientific evidence to prove
that results obtained from polygraph tests are conclusive. Failing a lie-detector test does
not mean that the person is guilty. Polygraph tests measure responses on the premise,
that a person is being untruthful, if there are sudden changes in her/his breathing, heart
and blood pressure rates. A truthful person can fail the test if s/he is nervous, has health
problems or is just surprised by the question.

68
Under Section 164 CrPC, this statement is admissible as evidence in a court of law
69
Under Section 161 CrPC, this statement is not admissible as evidence in a court of law

41
Police-Public Relations
POLICE PUBLIC RELATIONS December 22,1999

National Human Rights Commission guidelines on police-public relations are of
particular relevance to officers at the cutting edge level, i.e those who are posted at
police stations. These guidelines have been communicated to all chief secretaries and
police chiefs. They are in an invaluable aid for police officers to perform their duties in a
manner compatible with prevailing human rights standards.

Toll free telephone number for the public to convey crime information to the public

Police services of all states should set up a toll free telephone number for the publics
convenience. In Kerala, this number is 1090. The National Human Rights Commission
has recommended that for the purpose of uniformity, all states should have the same
number i.e 1090. They have advocated that:

! The number should be dedicated to public use and installed in the Police Control
Room/Police Station/ Sub-Divisional Office.
! The number should be toll free within the state, enabling people from remote parts
or interiors of districts to access it.
! Callers should not be compelled to reveal their identity. They may be given a
code number to identify themselves to know the result of the investigation.
! Callers should be rewarded for their public-spirited service by issuing
commendation certificates if the information results in detection of crimes.

Registration of offences and information about progress in investigation

Transparency in the investigation process must be maintained. The Commission has
stressed that complainants must have access to information about their cases. They have
said that:

! A First Information Report [FIR] should be registered promptly on receiving a
complaint about a cognizable offence.
70

! A copy of the FIR should be given to the complainant and an entry about this
should be made in the First Case Diary.
71

! If the complaint does not make out a cognizable offence, the police should explain
to the complainant, the reasons why the complaint cannot be registered.
! If investigation is not completed within three months of the FIR being registered,
the complainant should be informed in writing giving specific reasons for the
delay.

70
State of Haryana v Bhajan Lal AIR 1992 SC 604
71
Section 154 (2) CrPC lays down that a copy of the FIR shall be given free of cost to the complainant

42
! Proof of having informed the complainant [postal acknowledgement or written
acknowledgement] about reasons for the delay in investigation should be kept on
the Case Diary file.
! If investigation is not completed within six months of registering the FIR, the
complainant should be informed again in writing about the reasons for non-
completion of investigation, and the acknowledgement should be kept on the Case
Diary file.
! If the investigation is not completed within one year, a more detailed intimation
[memo] should be prepared by the investigating officer giving reasons for the
delay to the complainant. The intimationshould be endorsed by a gazetted
officer who directly supervises the work of the investigating officer. The gazetted
officer should personally verify the reasons for delay given by the investigating
officer. A record of the intimationand its acknowledgement by the complainant
should be kept on the Case Diary file.
! The complainant should be informed once the investigation is completed and a
charge-sheet is filed before the court. A copy of the charge-sheet should be given
to the complainant by the police. In case the complainant is not available for some
reason, her/his family should be informed.

Meeting of Station House Officers with the Public

In order to strengthen police-public relations, Station House Officers [SHO] must
hold regular monthly meetings in areas falling under their jurisdiction. This will enable
people to voice their grievances to the SHO. It will also give the police an opportunity to
inform people about law and order issues and enlist their cooperation in maintaining
peace and preventing crime. The Commission has advocated that senior officers should
also take part in these meetings along-with Station House Officers.

In a democratic nation, peoples participation in governance is of utmost importance. As
a vital component of the governmental machinery, the police too, are under an obligation
to take into account community aspirations and tailor policing to serve the communitys
needs best. Transparency and openness in functioning are excellent ways to break
barriers and engage in people-oriented policing.

43
Arrest
ARREST November 22,1999

Concerned with the large number of complaints about abuse of police powers,
particularly in relation to arrest and detention, the National Human Rights Commission
has drawn up a set of guidelines. They are based on constitutional provisions, existing
laws, Supreme Court decisions and National Police Commission recommendations.
The Commission has said that these guidelines should be translated into regional
languages and made available in all police stations throughout the country. They have
also said that the police must set up a complaints redressal mechanism to promptly and
effectively investigate complaints regarding violation of NHRC guidelines.

Procedure to be followed prior to arrest

The Supreme Court has laid down in Joginder Kumars case
72
that arrest without
warrant should be carried out only after reasonable satisfaction is reached about the
genuineness of a complaint; a persons complicity in the offence; and the need to make
an arrest.
The National Human Rights Commission on its part has asserted that arrests in
bailable offences must be avoided unless there is a strong possibility that the person will
run away. A police officer must be able to justify an arrest. An arrest without warrant can
be justified only in the following circumstances:

i. Where the case involves a grave offence such as murder, dacoity, robbery,
rape etc. and it is necessary to arrest the suspect to prevent her/him from
escaping or evading the process of law; and/or
ii. Where the suspect is given to violent behaviour and likely to commit more
offences; and/or
iii. Where the suspect needs to be prevented from destroying evidence;
interfering with witnesses; or warning other suspects who have not yet
been arrested; and/or
iv. The suspect is a habitual offender, who unless arrested is likely to commit
similar or further offences. [3
rd
Report of the National Police
Commission]
73

Procedure to be followed at the time of arrest

Human dignity must be upheld and minimal force should be used while arresting and
searching suspects.

! As a rule, use of force should be avoided while making an arrest.
! In case the person being arrested offers resistance, minimum force should be used
and care should be taken to see that injuries are avoided.

72
Joginder Kumar v State of U.P 1994 SCC 260
73
Government of India, 1980

44
! Dignity of the arrested person should be protected. Public display or parading of
the arrested person is not permitted.
74

! Search of the arrested person should be carried out with due respect for her/his
dignity and privacy. Searches of women should only be done by women, with
strict regard to decency.
75

! Women should not be arrested between sunset and sunrise. As far as practicable,
women police officers should be associated when the person being arrested is a
woman.
! Force should never be used while arresting children or juveniles. Police officers
should take the help of respectable citizens to ensure children and juveniles are
not terrorised, and the need to use coercive force does not arise.
76

! The arrested person should be immediately informed about the grounds of arrest
in a language s/he understands.
77

! In case a person is arrested for a bailable offence, s/he must be informed about
her/his right to be released on bail.
78

! Information regarding arrest and detention should be communicated without delay
to the police control room and to the district and state headquarters. A round-the-
clock monitoring mechanism should be put in place in this regard.
79

Procedure to be followed after arrest

Constitutional and legal provisions requiring an arrested person to be informed
about the grounds of arrest, her/his right to be represented by a lawyer and to be
promptly produced before a court must be strictly followed.

Article 22 (1) of the Constitution lays down that an arrested person must be
informed as soon as possible about the grounds of arrest; s/he must not be denied the
right to consult and be defended by legal counsel of her/his choice. Section 50 (1) of the
CrPC requires a police officer to communicate to the arrested person, grounds of the
arrest and full particulars of the offence under which s/he is being arrested.
Article 22 (2) requires an arrested person to be produced before the nearest
magistrate within 24 hours. Section 57 of the CrPC says that an arrested person cannot be
in kept in custody for more than 24 hours without the order of a magistrate.

74
State of Maharashtra v Ravikant S. Patil 1991 SCC 373
75
Section 51 (2) CrPC
76
Section 10 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2000 lays down that as soon
a juvenile in conflict with the law is apprehended by the police, s/he should be placed under the charge of
the special juvenile police unit or the designated police officer who shall immediately report the matter to a
member of the Juvenile Justice Board.
77
Sheela Barse v State of Maharashtra 1983 SCC 96

78
Section 50 (2) CrPC. Section 436 (1) CrPC lays down that when a person is arrested for a balaible
offence, s/he has a right to be released on bail upon arrest.
79
D.K Basu v State of West Bengal AIR 1997 SC 610

45
Procedure in respect of interrogation

Methods of interrogation must be consistent with individual rights relating to life,
liberty and dignity.

! Torture and degrading treatment of suspects is prohibited.
80

! Interrogation of an arrested person should be conducted in a clearly identifiable
place, which has been notified for the purpose by the government.
! The place of interrogation must be accessible. Relatives or a friend of the arrested
person must be informed where s/he is being interrogated.
! An arrested person should be permitted to meet a lawyer at any time during the
interrogation.

NHRC Directions on Mandatory Reporting of Custodial Death/ Rape and Video-
Filming of Post Mortem Examinations

All cases of custodial death and custodial rape whether in police lock-up or in jail must
be reported to the NHRC within 24 hours of occurrence by the concerned District
Magistrate or Superintendent of Police. Failure to report promptly will give rise to the
presumption that there is an attempt to suppress the incident.
81

All post-mortem examinations in respect of custodial deaths should be video-filmed and a
copy of the recording should be sent to the NHRC along-with the post mortem report.
82

Autopsy Report forms prescribed by the NHRC should be used to record the findings of
the post-mortem examination.
83

80
Article 21 of the Constitution lays down that No person shall be deprived of his [her] life or personal
liberty except according to procedure established by law. When constitutional rights of a person are
invaded, the court has the jurisdiction to compensate the victim by awarding monetary compensation. Bhim
Singh 1986 Cri L.J 192 (SC); Nilabati Behera 1993 SCC 746; D.K Basu AIR 1997 SC 610; PUCL AIR
1997 SC 568.
81
This was communicated by the Commission to Chief Secretaries of all states and union territories in its
letter dated December 14, 1993.
82
The Commission in its letter dated August 10, 1995 to Chief Ministers of all states has recognised that
video- filming involves extra cost. But human life is more valuable than the cost of video-filming and
incidents when video-filming is warranted are limited.
83
These forms have been developed by the NHRC after obtaining views of experts. The Commission has
written to Chief Ministers/ Administrators of all states and union territories in its letter dated March 27,
1997 to prescribe its model autopsy form and inquest procedure.

46
Afterword

Good policing involves respecting human rights and upholding the Rule of Law. This has
been strongly emphasised by the Supreme Court and the National Human Rights
Commission. As protectors of peoples rights, police officers are expected to display
integrity, transparency, accountability and most of all respect for human dignity. Rule of
Law requires that the police an integral part of the criminal justice system must
respect and uphold the rights and liberty of individuals.

Sadly, despite democracy and freedom for over fifty years now, there still is a lot of
distrust between the public and the police. People see the police as an authoritarian
organisation, removed from society, with little or no respect for the rights of the ordinary
person. However, today we live in a democratic country and the police as a vital
component of the State must operate according to democratic norms. Individual rights
occupy a pride of place in our constitutional culture. Any encroachment upon them,
whether it is non-registration of a First Information Report [FIR]; launching a malicious
investigation; illegally detaining suspected persons or their families; carrying out an
improper arrest; using excessive force; or torturing suspects to extract confessions goes
against the basic principles of democratic policing.

Sharing information with the public, securing their cooperation in policing, and
acknowledging that individuals have a right to privacy and security of their person are
essential elements of democratic policing- the furtherance of which, is the aim of this
compilation.

In a democratic society, the police serve to protect, rather than impede, freedoms. The
very purpose of the police is to provide a safe, orderly environment in which these
freedoms can be exercised. A democratic police force is not concerned with peoples
beliefs or associates, their movements or conformity to state ideology. It is not even
primarily concerned with the enforcement of regulations or bureaucratic regimens.
Instead, the police force of a democracy is concerned strictly with the preservation of safe
communities and the application of criminal law equally to all people, without fear or
favour.
(United Nations International Police Task Force, 1986)

47
Code of Conduct for the Police in India
!

1. The police must bear faithful allegiance to the Constitution of India and
respect and uphold the rights of the citizens as guaranteed by it.

2. The police should not question the propriety or necessity of any law duly
enacted. They should enforce the law firmly and impartially, without fear or
favour, malice or vindictiveness.

3. The police should recognise and respect the limitations of their powers and
functions. They should not usurp or even seem to usurp the functions of the
judiciary and sit in judgement on cases to avenge individuals and punish the
guilty.

4. In securing the observance of law or in maintaining order, the police should as
far as practicable, use the methods of persuasion, advice and warning. When
the application of force becomes inevitable, only the irreducible minimum of
force required in the circumstances should be used.

5. The prime duty of the police is to prevent crime and disorder and the police
must recognise that the test of their efficiency is the absence of both and not
the visible evidence of police action in dealing with them.

6. The police must recognise that they are members of the public, with the only
difference that in the interest of the society and on its behalf they are
employed to give full time attention to duties which are normally incumbent
on every citizen to perform.

7. The police should realise that the efficient performance of their duties will be
dependent on the extent of ready cooperation that they receive from the public.
This, in turn, will depend on their ability to secure public approval of their
conduct and actions and to earn and retain public respect and confidence.

8. The police should always keep the welfare of the people in mind and be
sympathetic and considerate towards them. They should always be ready to
offer individual service and friendship and render necessary assistance to all
without regard to their wealth and / or social standing.

9. The police should always place duty before self, should maintain calm in the
face of danger, scorn or ridicule and should be ready to sacrifice their lives in
protecting those of others.

10. The police should always be courteous and well-mannered; they should be
dependable and impartial; they should possess dignity and courage; and should
cultivate character and the trust of the people.

!
Issued by the Ministry of Home Affairs and communicated to Chief Secretaries of all States/ Union
Territories and Heads of Central Police Organisations on July 4, 1985
48
11. Integrity of the highest order is the fundamental basis of the prestige of the
police. Recognising this, the police must keep their private lives scrupulously
clean, develop self-restraint and be truthful and honest in thought and deed, in
both personal and official life, so that the public may regard them as
exemplary citizens.

12. The police should recognise that their full utility to the State is best ensured
only by maintaining a high standard of discipline, faithful performance of
duties in accordance with law and implicit obedience to the lawful directions
of commanding ranks and absolute loyalty to the force and by keeping
themselves in the state of constant training and preparedness.

13. As members of a secular, democratic state, the police should strive continually
to rise above personal prejudices and promote harmony and the spirit of
common brotherhood amongst all the people of India, transcending religious,
linguistic or sectional diversities and to renounce practices derogatory to the
dignity of women and disadvantaged sections of society.

49
United Nations Code of Conduct for Law Enforcement Officials
!

Article 1
Law enforcement officials shall at all times fulfil the duty imposed upon them by law,
by serving the community and by protecting all persons against illegal acts, consistent
with the high degree of responsibility required by their profession.
Article 2
In the performance of their duty, law enforcement officials shall respect and protect
human dignity and maintain and uphold the human rights of all persons.
Article 3
Law enforcement officials may use force only when strictly necessary and to the
extent required for the performance of their duty.
Article 4
Matters of a confidential nature in the possession of law enforcement officials shall be
kept confidential, unless the performance of duty or the needs of justice strictly
require otherwise.
Article 5
No law enforcement official may inflict, instigate or tolerate any act of torture or
other cruel, inhuman or degrading treatment or punishment, nor may any law
enforcement official invoke superior orders or exceptional circumstances such as a
state of war or a threat of war, a threat to national security, internal political instability
or any other public emergency as a justification of torture or other cruel, inhuman or
degrading treatment or punishment.
Article 6
Law enforcement officials shall ensure the full protection of the health of persons in
their custody and, in particular, shall take immediate action to secure medical
attention whenever required.
Article 7

!
Adopted by General Assembly resolution 34/169 of 17 December 1979

50
Law enforcement officials shall not commit any act of corruption. They shall also
rigorously oppose and combat all such acts.
Article 8
Law enforcement officials shall respect the law and the present Code. They shall also,
to the best of their capability, prevent and rigorously oppose any violations of them.
Law enforcement officials who have reason to believe that a violation of the present
Code has occurred or is about to occur shall report the matter to their superior
authorities and, where necessary, to other appropriate authorities or organs vested
with reviewing or remedial power.
51
INDEX

Arrest

general 15-21, 43- 45

preventive 24,25

Bail 30-33

Commission of Inquiry 7, 8

Compensation 17, 34, 35, 37

Contempt of Court 19, 29

Custodial Death 17, 34, 35, 45

Custodial Rape 21, 45

Detention

general 17- 21, 44-45

preventive 21, 23

Encounters 36, 37

First Information Report (FIR) 3-8, 41, 42

Handcuffing 26-29

Illegal Detention 15-16

Interrogation 9, 10, 17- 20, 39, 40,
44, 45

Investigation (general) 3-12, 41,
42

Juveniles 44

Legal Aid 20, 21, 25

Lie Detector Test 39, 40

Magisterial Inquiry 35, 37, 38

Medical Examination 18, 21

Police- Public meetings 42

Rape 13, 14

Search 21, 44

Self Incrimination 9, 10, 39, 40

Telephone Tapping 11, 12

Toll free Telephone (crime
information) 41

Torture 9, 10, 17- 21, 45

Women 13, 14, 20, 21, 44

Description of Terms
*

Bailable Offence
**
- An offence in which, a person may claim bail as a matter of
right, on arrest. Bailable offences are laid out in the First Schedule of the Code of
Criminal Procedure, 1973 [CrPC].

Code of Criminal Procedure, 1973 [CrPC]
***
This Code contains the procedure
for registering and investigating offences; carrying out searches and arrests; bail and
bonds; and trial of criminal cases among other things.

Cognizable Offence
****
- An offence in which, a police officer can register a case and
start an investigation without a magistrates order, and carry out an arrest without a
magistrates warrant. Cognizable offences are laid out in the First Schedule of the
Code of Criminal Procedure, 1973 [CrPC].

First Information Report [FIR] - This is the first information about a cognizable
offence that is recorded in a police station. It sets the ball of the criminal justice
process rolling.

Indian Penal Code, 1860 [IPC] This Code contains an exhaustive list of criminal
acts along-with punishments.

Non-bailable Offence
*****
- An offence in which, a person cannot claim bail as a
matter of right. Bail is given at the discretion of the police/magistrate in such cases.
Non- bailable offences are laid out in the First Schedule of the Code of Criminal
Procedure, 1973 [CrPC].

Non- cognizable Offence
******
- An offence in which, a police officer cannot register
a case or start an investigation without a magistrates order. Non- cognizable offences
are laid out in the First Schedule of the Code of Criminal Procedure, 1973 [CrPC].

*
Descriptions are based on common understanding and accepted practice.
**
Section 2 (a) of the Code of Criminal Procedure, 1973 [CrPC] defines bailable offence as an
offence, which is shown as bailable in the First Schedule or which is made bailable by any other law
for the time being in force.
***
Many state legislatures have amended certain provisions of the CrPC for application within their
jurisdictions.
****
Section 2 (c) CrPC defines cognizable offence as an offence for which, and cognizable case,
means a case for which, a police officer may, in accordance with the First Schedule or under any other
law for the time being in force, arrest without warrant.
*****
Section 2 (a) CrPC defines a non-bailable offence as any other offenceother than a bailable
offence.
******
Section 2 (l) CrPC defines non-cognizable offence as an offence for which, and non-cognizable
case means a case in which, a police officer has no authority to arrest without a warrant.

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