Legal Q&A

‘COGNISABLE‘AND ‘NON-COGNISABLE ’CRIMES

The Code of Criminal Procedure 1973, segregates all the offences listed in the Indian Penal Code (IPC) in to ‘cognisable‘ and ‘non-cognisable ’crimes.

Non-Cognisable crimes are the pettier offences like cheating, fraud, forgery, bigamy or creating a public nuisance.  These are crimes that do not necessitate an immediate action or response from the police. Investigation on cases of non-cognisable crimes begin only after a magistrate has taken the complaint on record and directs the police to start on the case.

Cognisable crimes are the more serious ones such as murder, rape, child molestation or rioting. Police have the right to take immediate action when these crimes are committed. They can arrest any suspected person, conduct searches of a person or property without a warrant and question witnesses, all without having to wait on the orders of a magistrate so that there is no delay in the investigation of the crime.

FIR’s can only be registered for cognisable crimes.

BAILABLE OFFENCES

Bailable offences are those offences or crimes that are not very serious in nature. In such cases bail is a right and the arrested person must be released after depositing the bail with the police. The police have the power to grant bail in these types of cases.

The ‘bail’ amount or assurance is collateral that insures that the suspect will make him/herself available to the police during the investigation and will appear at the trial.

It is the right of an accused person to be released on bail (in the case of bailable offences) as soon as all the requirements of the set bail has been met. Police cannot refuse to release a person from custody if he/she fulfils all the necessities.

Once bail is granted to a person, it does not mean that they are free. The individual is still a suspect and must appear at court for the trial that will determine whether the accused is guilty or innocent.

NON-BAILABLE OFFENCES

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

In the case of a non-bailable offence the police cannot release anyone on bail and so the arrested person has to make an application for bail before a magistrate or court.

After consideration of factors such as the seriousness of the offence, the chances that the accused will interfere with the investigation by tampering with evidence or threatening witnesses or if the accused is likely to go into hiding or leave the country to escape, the court will decide whether he/she can be allowed to be let out on bail or not.

If someone is refused bail, he/she can appeal to a higher court.

If the police do not complete their investigation within 60 days for a crime that is not punishable with death or life imprisonment, then the accused gets bail. For offences that are punishable with death or life imprisonment, the investigation must be concluded within 90 days, or the accused will have the right to bail.

ANTICIPATORY BAIL

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:

The person will make him/herself available for interrogation by the police as and when required by them

The individual shall not directly or indirectly make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police

An assurance that the person shall not leave India without prior permission from the court

CAN POLICE ENTER MY HOME UNINVITED AND WITHOUT A WARRANT?

Yes, the police can enter your private residence or office without a warrant, but only under very limited circumstances. If a police investigation leads them to believe that there is an object which counts as evidence, that they must procure immediately, or if there is a criminal hiding in your house who might flee, then they can enter without a warrant so that they may secure the evidence or felon without any delay.

Under non-emergency circumstance, if the police have reasonable grounds to suspect that you are harbouring a suspect, conducting illegal activities, are hiding stolen goods or evidence or have an illegal weapon in your home then they must first obtain a warrant from a magistrate before they can enter your home.

If the police come to your house to question you or any member of your family in connection to a case, they may only enter at your invitation.

DO I HAVE TO GO IF THE POLICE ASK ME TO COME TO THE STATION?

No, not unless the police are arresting you.

If the police want to question you about a crime that you might be witness to or are suspected having a part in then, they must summon you to the police station in writing.

If you are simply walking down the road or are at home, having committed no offence then the police cannot ask you to come with them without stating a solid reason and you are within your rights to refuse to go with them.

Women or children below 15 can only be questioned by the police in their homes. They can never be summoned or forced to go to a police station.

PROCEDURE FOR SEARCH

It is your right to demand that a woman police officer be present to conduct a search of a house or office is there are ‘purdah’ women present on the premises. You can also insist that the search be conducted with strict regard to decency.

WHAT TO DO IF THE POLICE REFUSE TO REGISTER AN FIR?

If you are reporting a cognisable crime and the police refuse to register your FIR, you can make a complaint to a higher ranking officer such as the Superintendent of Police (SP), the Deputy Inspector General (DIG) or the Inspector General of Police (IGP).

You can also complain to the nearest judicial magistrate, who will order the police to register the FIR if deemed necessary. Ensure that you get a receipt of your complaint being registered.

You can also:-

Send your complaint in writing to the Superintendent of Police (SP) by registered post.

Make a written complaint to the concerned State Human Rights Commission or the National Human Rights Commission that the police are not doing their duty of enforcing the law or that they are being negligent, biased or corrupt

You can file an online complaint, find relevant information and also get the contact details of each State’s own Human Rights Commission office on the website of the National Human Rights Commission http://nhrc.nic.in

WHAT HAPPENS ONCE AN FIR HAS BEEN REGISTERED?

Once an FIR has been filed the police are legally bound to start investigating the case.

The process of investigation includes, but is not limited to, collecting evidence, questioning witnesses,  inspecting the crime scene, forensic testing, recording statements and so on.  If the criminals are found, the police will make arrests.

Once the investigation has been concluded the police will record all their findings in a ‘Challan’ or charge sheet.  If it is deemed that there is enough proof on the charge sheet the case goes to court.

On the flipside, after their investigations if the police conclude that there is not enough evidence or proof that a crime has been committed they can close the case after justifying their reasons in court.  If the police decide to close the case, they are bound to inform the person who filed the FIR of their decision.

PROCEDURE FOR ARREST

Police must tell the individual the reason for his/her arrest at the time of making the arrest

A police officer must be in full uniform with nameplate when making an arrest

  • If the accused person goes willingly with the police, then no restraint can be used
  • The police must prepare an Arrest Memo at the time of arrest or as soon as they enter the police station with the accused
  • The Arrest Memo must contain the name of the arrested person, the FIR number, the crime for which he/she is being arrested, the time, date and place of arrest
  • The Arrest Memo must be signed by two independent witnesses
  • If desired, the arrested person can demand that the police record his/her physical condition on arrival at the police station
  • Family members have the right to accompany an arrested person to the police station
  • Any arrest made must be recorded at the police station in a special register and the District Control Room must be informed about it
  • An arrested person must be produced before a Magistrate within 24 hours of the arrest. This is compulsory and mandated by law

One should ensure that the two witnesses who sign the Arrest Memo are independent of police influence. The witnesses should preferably be family members or friends. Accompanying policemen or other police who are present at the station are not independent witnesses.

PROCEDURE FOR TAKING ONE INTO CUSTODY

step 1

An Arrest Memo must be made by the police either at the time of arrest or the instant the suspect is brought into the police station

step 2

A family member or friend of the arrested person must be informed, by the police, of the arrest and the location that the police are holding the person at

step 3

An Inspection Memo detailing the physical condition of the arrested person on his/her arrival into custody must be prepared by the police

step 4

Legal representation for the arrested individual must be provided

step 5

The police must present the arrested individual before a magistrate within 24 hours of the arrest

ARREST MEMO

The memo of arrest must detail the name of the arrested person, the time, date and place of arrest along with reasons for the arrest and what the suspected offence is.

An Arrest Memo or ‘Memo of Arrest’ is a document that the police must file at the time of arrest or immediately on bringing the arrested person back to the police station. It acts as a safeguard against illegal detention by the police.

It has to be signed by the police, two independent witnesses and the arrested person in order to ensure that the memo accurately details all of the facts.

It is very important to check the date and time of arrest as entered by the police on the arrest memo before signing it. If the police detain an arrested person for more than 24 hours before producing him/her before a magistrate, the arrest memo will be proof of police misconduct.

CAN POLICE HANDCUFF WHILE ARRESTING

In Prem Shankar Shukla vs. Delhi Administration (1980) the Court held that handcuffs are prima facie inhuman, unreasonable, and at first blush arbitrary without fair procedure and objective monitoring. The Court recognized the need to secure the prisoner from fleeing but asserted that this does not compulsorily require handcuffing.

Supreme Court Directives on Use of Handcuffs

Prem Shankar Shukla vs. Delhi Administration 1980

To be used only if a person is :-

  1. a) involved in serious non-bailable offences, has been previously convicted of a crime; and/or
  2. b) is of desperate character- violent, disorderly or obstructive; and/or
  3. c) is likely to commit suicide; and/or
  4. d) is likely to attempt escape.

Reasons for handcuffing must be clearly recorded in the police Daily Diary in order to reduce discretion.

Police must first seek judicial permission for the use of restraint during arrest or on a detainee.

At first production of an arrested person, the Magistrate must inquire whether handcuffs or fetters were used, and if so, demand an explanation.

TORTURE OR COERCION WHILE IN CUSTODY

It is illegal for the police to slap, beat, threaten, intimidate or torture any person who is being held in custody. Policemen can be removed from service and can also go to jail for doing this.

The police are responsible for the wellbeing and safety of an arrested person. If anyone suspects torture of a person who is in police custody, they can report it to the National or State Human Rights Commission, to a magistrate or to the Legal Services Authority. The matter can also be taken directly to the High Court or Supreme Court.

It is also against the law for the police to force an individual into making a confession. The police have the right to interrogate an individual but they cannot strong-arm one to say anything that he/she has no knowledge of or to confess to some crime that he/she has not committed.

Remember that under any circumstance and in any case, a confession that is made to a police officer is not admissible in court. A confession is only valid if it made  to or before a magistrate.

CAN THE POLICE KEEP A PERSON IN CUSTODY FOR AS LONG AS THEY WANT?

Absolutely not, 24 hours in custody is the absolute maximum.

Once the police make an arrest and take the arrested individual to the police station, the longest time the suspect can be kept in custody at the station is for 24 hours.

The police must produce anyone who is in their custody before the magistrate within 24 hours of the arrest, with all the necessary papers that justify the said arrest.

Often police arrest a person on Friday and keep them in custody until the following Monday, citing that there is no magistrate available over the weekend. This is illegal, as in reality there is always a magistrate on duty and available 24 x 7.

If a person’s 24 hour custody hold ends after court working hours, he/she can always be produced before the magistrate at his residence. The magistrate cannot refuse to see the suspect.

CUSTODY OF WOMEN AND CHILDREN

A woman who has been taken into custody has to be kept in a separate lock up in the police station and any examination or body search must be conducted by a woman officer or doctor.

Under the general law, children under the age of 7 years cannot be accused of a crime, hence cannot be taken into police custody. However, the procedure for questioning, apprehension, custody, release and bail of children up to the age of 18 is all governed by the Juvenile Justice Care and Protection of Children Act of 2002.

It states that each police station must have a juvenile police unit with specially trained officers. A child must not be kept in lockup at all, but instead must be immediately handed back to the parents on bail and assurances. If the parents are not available, or it is felt that the child is at risk of falling into bad company then the child must be sent to the local observation home till he/she is brought before the juvenile court.

It is in the best interests of the police officers themselves to make sure that all procedures relating to women are carefully followed and are recorded meticulously, as by law, if a woman in custody complains of rape it will be accepted unequivocally, unless the police officer can prove without any doubt that it did not take place.

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