TODAY -

The Armed Forces (Special Powers) Act, 1958 : A commentary
- Part 3 -

Col SS Khulem (Retd) *



General Provisions Relating to Searches

Searched of arrested person. [CrPC, S. 51]

(1) The Officer making the arrest (NOT private person) may search such person, and place in safe custody all articles, other than necessary wearing apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the officer shall be given to such person. [CrPC, S. 51(1)]

(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regards to decency. [CrPC, S. 51(2) & 100(3)]

Persons in charge of closed place to allow search

(1) Any person having authority to arrest, has reason to believe that the to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid allow him free ingress thereto, and afford all reasonable facilities for a search therein. [CrPC, S. 47]

(2) Whenever, any place liable to search or inspection is closed, on demand of the person having authority to search, any person residing in, or being in charge of, such place shall, allow him free ingress thereto, and afford all reasonable facilities for a search therein. [CrPC, S. 100(1)]

(3) If no such facilities are afforded, the officer may affect entrance into such place by breaking open any door or window of the place.[CrPC, Ss. 47(2) & 100(2)]

(4) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched.[CrPC, S 100(3)]

(5) Before making a search, the person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do [CrPC, S. 100(4)]. Person refusing to be witness without reasonable cause shall be deemed to have committed an offence under section 187 of IPC [CrPC s.100(8)]

(6) The search shall be made in their presence, and a list of all things seized in the course of such search and the places in which they are respectively found shall be prepared and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned. [CrPC, S. 100(5)]. Note - 1. Search memo not signed by independent witnesses.- Where the search memo was signed only by the policemen accompanying the Head Constable and not any independent witnesses though present the matter was not free from doubt (1976) I SCC 15 1975 SCC (Cri) 737.

(7) The occupant of the place searched or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person [CrPc, S100(6)]

(8) When any person is searched under CrPC, S. 100(3), a list of things taken possession of shall be prepared, and a copy thereof shall be delivered to such person [CrPC S100(7)]

(9) Seized property or arms, ammunitions etc should be handed over to officer in charge of nearest police station. [A.I.R 1998 SC 431 para 74(16)].

(10) Illegal search and seizure.- Information gathered from illegal search and seizure can be used as evidence. (1974) 1 SCC 345: 1974 SCC (Tax) 114.

5. Arrested persons to be made over to the police. - Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

Comment

(1) It is misinterpreted that Armed Forces can detain a person arrested under the Act for 24 hours or for as long as they like (as reported in some news papers).

(2) The arrested person has to be handed over to the officer in charge of the nearest police station with the least possible delay. If a person is arrested at the gate of a police station he should be handed over immediately after making out the report of the circumstances occasioning the arrest. In another situation, if an arrest has been made in a remote area, which involves walking for (say) three days to reach the nearest police station, the delay in handing over the arrested person on third days is justified.

(3) Maximum permissible duration of detention in military/police custody (from the time of arrest to time of production of the arrested person before the judicial magistrate) is 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. (s. 57, CrPC)

(4) Armed Forces have not been given power by this Act to detain a person in military custody for interrogation (investigation). If interrogation is required, the arrested person may be remanded to police custody by the concerned judicial magistrate as per provision of Sec 167, CrPC and interrogation may be done by 'Joint Interrogation Cell' (JIC) [An interrogation team comprising police and military personnel].

(5) It will be seen from the above that the Armed Forces have no power of trial and punishment. They may take certain conditional preventive actions but no punitive action can be taken. The persons offending under these enactments can be tried for the offence committed by them in accordance with the civil laws only. Powers of the Armed Forces in regard to dealing with hostile elements are restricted only to apprehending them and handing them over to the civil authorities for their trial. They should only provide proper evidence to ensure conviction.

(6) Report of the circumstances occasioning the arrest must include Evidences such as items seized with proper documentation.

6. Protection to person acting under Act. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Comment

(1) The protection given under Section 6 can not be regarded as conferment of immunity on the persons exercising the powers under the Act. This section only gives protection in the form of previous sanction of the Central Government before a criminal prosecution or a suit or other civil proceeding is instituted against such person. (A.I.R 1998 SC 431)

(2) The order of the Central Government refusing or granting the sanction under section 6 is subject to judicial review, the Central Government shall pass an order giving reasons. (A.I.R 1998 SC 431)

(3) In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the Armed Forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act such complain/allegation should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the state and requisite sanction under section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation. (A.I.R 1998 SC 431) (Confusion still exist in this regard a clear cut mechanism has to be put in place)

(4) It is evident that the protection is provided to the Armed Forces Personnel for the acts done while engaged in their official duty.

(5) Sec-197(2) of Cr PC also provides a similar protection "No court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in discharge of his official duty, except with the previous sanction of the Central Government." Sec 45 of CrPC also provides that "No member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining consent of the Central Government"

(6) The Himachal Pradesh High Court has observed that in order to determine whether a particular case, a public servant is entitled to the protection of S. 197, all that has to be seen is whether the act complained of was committed by him while discharging his duty. One safe and sure test would be to consider if the omission of that act could have made the officer answerable for a charge of dereliction of his official duties. A negative answer may not clinch the issue, but if the answer is in the affirmative, it can be said without any hesitation that the act was committed by him in discharge of his official duties.[Darshan Kumar v. Sushil Kumar Malhotra, 1980 Cr. L. J. 154]. "Public Servant"- Every Commissioned Officer in Military, Naval or Air Forces of India; is a Public Servant [S.21, IPC].

(7) Supreme Court has given the following ruling in (Satwant, - AIR 1960 SC 266; Ronald, - 1955 1 SCR 216) in regards to Sec 45 of Cr PC 1973 "A member of the Armed Forces cannot make a pretended or fanciful claim under this provision, that he did the act in performance of his duties'. Thus, acts like cheating or taking bribe would fall outside the scope of the expression 'discharge of official duties'".

(8) A bench of the Supreme Court comprising justice Arjit Pasayat and SH Kapadia also held that sanction under section 197 CrPC was not necessary as taking a bribe while in office would not form part of discharge of official duties. The bench gave this ruling while hearing a batch of appeals filed by Railway Minister Lalu Prasad, his wife Rabri Devi, and former Chief Minister of Punjab Prakash Singh Badal, former Kerala Chief Minister K Karunakaran and several former ministers who had challenged the sanction accorded for prosecuting them.

(9) No previous sanction of the Central Government would be required for Rape committed by any armed forces personnel because there can be no such order/operation /official duty in the execution of which rape has to be done.

(10) Provision of Army Act section 70 (a) 'while on Active Service' may need a review for those places where law enforcement agencies and Judiciary are functioning effectively.

Concluded....




* Col SS Khulem (Retd) wrote this article for e-pao.net
The Writer is BA, LLB, MDBA and can be contacted at sorojitkhulem(AT)yahoo(DOT)in
This article was webcasted on April 11 , 2018.



* Comments posted by users in this discussion thread and other parts of this site are opinions of the individuals posting them (whose user ID is displayed alongside) and not the views of e-pao.net. We strongly recommend that users exercise responsibility, sensitivity and caution over language while writing your opinions which will be seen and read by other users. Please read a complete Guideline on using comments on this website.




LATEST IN E-PAO.NET
  • Naorem Kalimohon Singh : A Profile
  • Floral tributes to PLA members #2 : Gallery
  • May I tie the knot with a Muslim woman ?
  • Quiz Competition at DM College
  • Cyber warfare: Estonia attack
  • Discussion : South China Sea Disputes
  • The Readers :: Book Discount @MU
  • Democracy: Is the countrymen listening?
  • From Nobap to the top stage
  • Cheiraoba Thabal by LGBTQ #1 : Gallery
  • Cheiraoba @ Kolkata : Gallery
  • Manipuri speaking diaspora in Assam
  • Mangginlian, Lalromawi :: eMing
  • Lomba: best garnish for Yongchak iromba
  • Modern civilisation in Manipur revisited
  • Earning the real good time
  • Meghalaya to consider implementation of ILP
  • NE girls held in Raipur for alleged sex trade
  • Pushing NH-37 to the back burner
  • Cheiraoba Chak Katpa [14 Apr] : Gallery
  • Brajabashimayum Gopal : Akademi Award
  • EEVFAM vs UoI case at Supreme Court
  • Litmus test for Mizoram
  • The present trend of our educational system
  • The rift between parents & children
  • Everything to know about Dermaplaning
  • A heady affair
  • Raped and defiled : India's shame
  • Leima Jagoi @ JNMDA Day: Gallery
  • Right to Religion is a fundamental right
  • Who are Meeteis
  • Naga Peace Process :: News Timeline
  • Meeting of Manipur photography Club
  • Dynamic Manipur's committee for 2018-20
  • BJP's Booth Level Training at Patsoi
  • Sexual violence against women
  • Yaoshang Halankar #2 : Gallery
  • Eyek Tamba :: Learn Manipuri script
  • TRAU Vs Mohammedan #2 : Gallery
  • Black sheep in ILPS movement #2
  • SC / HC verdict on Merger Agreement
  • How to practice homoeopathy
  • Sonowal's gesture to Assam journalists
  • Manipur observes flag hoisting day
  • Many unaware of sacrifices made by NE
  • Mary Kom claim gold in CWG
  • 573 identified for 'Smokeless Villages'
  • Floral tributes to PLA members #1 : Gallery
  • Sikkim University Prospectus : Download
  • Schools are fine, colleges are not
  • The Deceptive Appearance :: Poem
  • Sports for peace and development
  • On organizing Thabal Chongba in Delhi
  • People's bishop gets Bharat Gaurav Award
  • Inner Line Permit (ILP) Demand :: Timeline
  • Banning the Bandh
  • A strong Opposition is healthy
  • Yangkhulen (57 Km from Maram) : Gallery
  • Statehood Women's Polo #2 : Gallery
  • An autobiography of MK Priyobarta
  • Lamkoi Shirui Camp 2.0 at Ukhrul
  • RIST Talk -35 @MU : Thermal plasma
  • Police Harassment of Human Rights Activist
  • Favouritism of PDA Govt is shameful
  • Where the mind is without fear
  • End authoritarian rule call of Cong
  • 'HUN' Thadou Cultural Festival #1 : Gallery
  • Kabui Dance @JNMDA : Gallery
  • Gangmei Aluna Kabuini : Nrityabhusan
  • Good & bad of Nung hawai consumption
  • Sadar Hills District Demand :: Timeline
  • Meitei - Scheduled Tribe ?
  • Career options after graduation
  • Food safety concerns
  • Response to Rijiju: Stand off on sovereignty
  • Two Princes :: Funga Wari
  • Yaoshang Sport @Bamon Leikai: Gallery
  • Armed Force (Special Power) Act 1958 #3
  • Cry of a Dying River - 25 :: Poem
  • Centre for Vietnam Studies, New Delhi
  • Leingakki Firem Handoktriphaoba..
  • Seeking report on Thoungamba's death
  • 3rd Northeast Fiesta 2018 : Event Report
  • Traffic: Still yet to find a lasting solution
  • From Go to Hills to Go to Village
  • NESO demands ILP in Northeast
  • Md Awaysh Khan: Mr. India : Gallery
  • Horizon : An Exhaustive Review
  • Is Delhi serious to resolve Naga issue?
  • JRF position wanted at Manipur University
  • Dams & hydropower push in Himalayas
  • Can satan encourage hard work ?
  • DGP distributed DG Commendation Discs
  • Of attack and threat to common men
  • Ruling out sovereignty, integration
  • Folk Dance @Retreat ceremony #4: Gallery
  • The entry of Gorkha in Manipur
  • Khelen Thokchom, some fond memories
  • The Singing Stones :: Poem
  • 109 Bn, CRPF celebrated 28th Raising day
  • Swarajya Magazine tender apology
  • Cheiraoba Chak Katpa #2 : Gallery
  • Women Final: Governor Polo #2 : Gallery
  • Air pollution is an invisible killer
  • Manipur as part of India during Krishna
  • Global Shapers is calling for Application
  • Heart OPD & Free Echo Screening Camp
  • Winter School 2018 at NEHU concluded
  • On forged cheque issue: Pandora Box
  • Accounting for two of 4 won so far
  • Naga pact wont affect territorial integrity
  • Mahesh Thounaojam #2 : eRang Photos
  • TRAU Vs Mohammedan #1 : Gallery
  • Science of stink: Dealing with odour
  • Time lost cost in cyber crime: IGI Airport
  • BJP Patsoi : 38th Foundation Day
  • The making of sports powerhouse
  • Rape in the land of Meira Paibis
  • Kamo Hau Culturals @Kamjong: Gallery
  • Armed Force (Special Power) Act 1958 #2
  • Cry of a Dying River - 24 :: Poem
  • Tribute to Khelen Thokchom
  • Last of his ilk
  • Open letter to Jaideep Majumdar- Swarajya
  • Effort to make our leader understand
  • RIMS road heist : Daylight robbery
  • Major Bob Ralengnao Khathing
  • Pung Chollom @JNMDA : Gallery
  • Mnipur Ima :: Seireng
  • Kou-kha : Wetland tuber cash crop
  • Jobs at Don Bosco Tech Society
  • NPF replies to news portal report
  • The Killing Fields (2013-17) :: Timeline
  • Prohibition against peoples' will
  • Congress in its avatar as an Oppn
  • Mukna Khong Kangjei #2: Gallery
  • Partnerships should be based on solidarity
  • Volunteers for Green Khamasom (VGK)
  • Social media: Boon or medium to hurt..
  • A requiem for Ta Khelen
  • Northeast Fiesta 2018 at Jalandhar, Punjab
  • Jobs @ PR Enterprises, Khurai
  • Vegetables grown @Thanga #2: Gallery
  • Khaidem Tarubi :: Akademi Awards
  • Angaobi :: Poem
  • A cocktail of mythology, science & religion
  • Beauty benefits of tomatoes
  • Condolence message for Khelen Thokchom
  • Communal politics in social media
  • RIP Tamo Khelen .. always in our heart
  • Blank Editorial
  • Tributes to Khelen Thokchom : Gallery
  • Men Final: Governor Polo #1 : Gallery
  • Armed Force (Special Power) Act 1958 #1
  • Scientific Perspective: Biren's speech
  • Ukhrul Sanitary Movement & social evil
  • JFA express grief at Thokchom's demise
  • Yaoshang Nakatheng Chatpa #3 : Gallery
  • April Calendar for Year 2018 :: Tools
  • Thangjiyen: Culinary item during Cheiraoba
  • Nongthombam Biren hasn't a clue
  • Easter: A moment of reorganization
  • A Spark of My Poem :: Poem
  • Asian solidarity on the Rohingya crisis
  • The blunder in Indian Political system
  • Respecting the essence of Good Friday
  • Folk Dance @Retreat ceremony #3: Gallery
  • Sajibu Cheiraoba Chingkaba #3: Gallery
  • Dr. Athouba honored Hindi Sevi Pracharak
  • Jobs for Imphal & Other District
  • Response to N Biren's shameful speech
  • CM Biren must apologize to the people
  • Manipur CM's derogatory statement
  • Being Hindu does not required Mythological..
  • Women Final: Governor Polo #1 : Gallery
  • Ringui Luira Phanit @Ukhrul : Gallery
  • Powerlooms' entry should not be invasive..
  • Rethinking on Yaosang: Sports & tourism
  • Cry of a Dying River - 23 :: Poem
  • Surprising myths & facts about makeup
  • On CM speech at Gujarat : Safronising NE
  • Ongoing talks with UNC : April 10 deadline
  • Landscape from Koubru #1 : Gallery
  • Yaoshang Sport - Marathon #2: Gallery
  • Old Imphal town and Meitei Yumjao
  • Migrants trapped in quagmire
  • Doubling farmers income: Strategies
  • Airtel: preferred network for Aircel customers
  • Haunted by the past
  • Stand off over 7th Pay
  • Kabokki Nong :: Funga Wari
  • Governor's Cup Polo #2: Gallery
  • PM at Science Congress @MU #2: Gallery
  • Architecture as career choice
  • Bhabananda visit Manipur House, Delhi
  • Seminar on role of CBOs & NGOs at RGU
  • Cross border smuggling: lures & liabilities
  • Addressing gap between hills and valley
  • Lui-Ngai-Ni @Longmai (TML) #5 : Gallery
  • Tripartite Talks with UNC : Gallery
  • Manipur Documentary & Animation Festival
  • Sanakhya Ebotombi Haorokcham: Biography
  • PM Narendra Modi @Imphal #2 : Gallery
  • Sajibu Cheiraoba Chingkaba #2: Gallery
  • Challou River, Ukhrul District : Gallery
  • Shopping: Sajibu Nongma Panba #2: Gallery
  • Jobs @SAIRAM at Langjing Achouba
  • Enakta Leiringei (Film) #2 :: eRang
  • Stall @Science Congress, MU #2: Gallery
  • Cheirao Chingkaba @Singjamei : Gallery
  • Yaoshang Cooking Contest #2 : Gallery
  • Yaoshang Mei Loukhatpa #4 : Gallery
  • Bor-keina race @Yaoshang Fest : Gallery
  • Front Page Photo 2018 #1: Gallery
  • Temples of Manipur : Gallery
  • Recipients of Akademi Awards for 2014
  • Old Manipuri Movie #1 :: eRang Classic
  • SPONSORED ADS