As per the order passed by the High Court of Delhi by Hon'ble Justice S.N. Dhingra the police would require the permission of DCP of the area concerned before they can arrest in such cases. Unless the case is grave like suicide, death, arson etc., police is not capable of arresting the husband and his family members.
RIGHTS EXTENDED TO THE PERSONS ARRESTED, DETAINED IN POLICE CUSTODY AS PER NHRC GUIDELINES AND HON’BLE SUPREME COURT JUDGEMENT DATED 18.12.96 IN CRL. C.W.P NO. 539/86- D.K. BASU VS. STATE OF WEST BENGAL.
PRE-ARREST
a) The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest.
b) Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.
c) The question whether the power of arrest has been exercised reasonable or not is clearly a justiciable one.
d) Arrest in cognizable cases may be considered justified in one or other of the following circumstances: (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law. (ii) The suspect is given to violent behaviour and is likely to commit further offences. (iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested. (iv) The suspect is a habitual offender who unless arrested, is likely to commit similar or further offences.
e). Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission.
f). The power to arrest must not be exercised where the offences are bailable unless there is a strong apprehension of the suspect absconding.
g). Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designation. The particulars of police personnel carrying out the arrest or interrogation should be recorded simultaneously, in a register kept at the police station.
ARREST:
1. As a rule use of force should be avoided while affecting arrest. However, in case of forcible resistance to arrest minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided.
2 That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3 The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost.
4 Searches of the person arrested must be done with the due respect to the dignity of the person, without force or aggression and with care for the person’s right to privacy. Searches of women should only be made by other women officers with strict regard to decency.
5 The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained.
6 A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
7. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
8. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
9. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
10. As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise must be avoided.
11. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
12. Where children or juveniles are sought to be arrested, no force or beatings should be administrated under any circumstances. Police officers, may for this purpose, associate respectable citizens so that the children or juveniles are not terrorized and minimal coercion is used.
13. Where the arrest is without a warrant, the person arrested has to be immediately informed of the grounds of arrest in a language, which he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well and also given a copy on demand.
14. Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense.
15. When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of his right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner.
16. Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police control room and District/State Headquarters. There must be a monitoring mechanism working round the clock.
17. The information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest to the District Control Room and Police Control Room within 12 hours of effecting the arrest. Further at District/Central Police Control Room it should be displayed on a day to day basis at a conspicuous place on a notice board. Every police station shall also display the details of arrestees at a conspicuous place for the knowledge of the public.
18. As soon as the person is arrested, police officer affecting the arrest shall make a mention of the existence or non-existence of any injury(s) on the person of the arrestee in the register of arrest. If an any injuries are found on person of the arrestee, full descripttion and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above affect under the signature of the police officer shall be issued to the arrestee.
19. If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to the medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating wherein the factual position of the existence of non-existence of any injuries on his person.
20. Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
AFTER ARREST
(i) The person under arrest must be produced before the appropriate court within 24 hours of the arrest.
(ii) The person arrested should be permitted to meet his lawyer at any time during the interrogation.
(iii) The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Govt. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place.
(iv) The methods of interrogation must be consistent with the recognized rights to life, dignity and liberty and right against torture and degrading treatment.
