101 Things You Wanted To Know About The Police But Were Too Afraid To Ask
- Part 4 -

Commonwealth Human Rights Initiative *

Manipur Police Raising Day Parade at 1st Bn on October 19 2011 :: Pix by Bullu Raj

76. Can the police use force in breaking up a street meeting or procession?
Yes. Whatever the police do has to be reasonable. They are not there to punish people. They are there to ensure public safety and that law and order are not breached. So the rule is that the police must only use force as a last resort in controlling a crowd.

If it must be used at all, it must be minimal, proportionate to the situation and discontinued at the earliest possible moment. In fact, the police cannot use any force without the executive magistrate okaying it. The magistrate has to be present and give the order to use force. Then the police will decide how much force is needed.

77. Can the police fire at will?
Not at all. Deadly force is meant to be used in only the very rarest of instances when all other means of control have been tried and exhausted. Again, there must be a magistrate present who approves such action.

78. So what can the police do if the crowd is unruly and throwing stones or damaging property?
The police have a duty to protect life and property but there is a sequence to how they must go about their actions. First, plenty of warnings to the crowd to disperse must be given with time for the crowd to obey. Then teargas may be used or a lathi charge resorted to after another warning. Lathis cannot rain down blows on head and shoulders but must be aimed below the waist.

If the police are going to have to resort to firing there has to be a clear and distinct warning that firing will be effective. Here too the rule is to use minimal force. So firing must aim low and at the most threatening part of the crowd with a view not to cause fatalities but to disperse the crowd. As soon as the crowd show signs of breaking up the firing must stop. The injured must be assisted to the hospital immediately. Of course, every individual officer has to make a report of his role for the record.

79. Can the police hold me in a secret place or not tell anyone that they have got me?
No. The police are known to do this often but this is against the law. As soon as the police take you into their custody, your physical well-being and the protection of your rights becomes their responsibility.

If you come to any harm or your rights are not respected but violated in any way the police are responsible. This is an important legal point to keep in mind. Next, the fact that the police are duty-bound to make a record of all those who come to the station in their station's general diary will indicate what time you were brought in for questioning and when the arrest was made. This will also be in the case diary of the investigating officer. The police control room must also display an updated list of all those arrested in the last 12 hours. Finally, the fact that you are entitled to a lawyer during your interrogation means, at a minimum, that the place of custody must be known and accessible to friends or relatives.

80. Can the police officer hold me at the police station or can I leave when I want?
Unless you have been formally arrested for good reason you cannot be held in custody against your will. If the police have summoned you for questioning you have a duty to cooperate with them and help them with their inquiries. But the questioning has to be prompt and efficient and cannot go on and on. The police cannot make you wait endlessly at the police station. In any case, you can leave when you want.

81. Suppose the police officer does not let me go, what can I do?
Keeping you in custody against your will even for a moment if you are not under formal arrest is a serious offence. It is called illegal detention and either you or your family or friends can complain about the officer to his senior or even the magistrate. Most importantly, you can go to the high court or even the Supreme Court immediately through your lawyer, family or friend and file a habeas corpus petition seeking your immediate release.

82. What does habeas corpus mean?
This is a very old remedy against people being picked up by agents of powerful rulers and being helpless to protect themselves. It literally means "produce the body". It is a most practical remedy against wrongful detention. The courts – either the high court or the Supreme Court, deal with it on an urgent basis. Once the court gets an application indicating a disappearance that shows that the victim was last seen in the custody of the police, the court will ask the police to produce the person before it immediately and release him if the detention cannot be justified. If the detention has been illegal then the court can even grant compensation to the victim.

83. Is there any other way of finding out about a person who has been arrested illegally and I don't know where he is kept?
Yes. You can file a Right to Information application at the police station asking for the whereabouts of the person. Since the information is relating to the life and liberty of a person, the police are bound to give you the information within 48 hours.

84. Can a police officer arrest me without giving reason?
No. Police can make arrests only if there are good grounds for the arrest. Say if a person is caught red handed in the middle of some wrong-doing, or if many circumstances in the investigation point the finger of suspicion towards him, or a person is found to be helping someone else with a crime before during or after its occurrence, then he can be arrested. There has to be a "good reason" for making an arrest. Just because someone has named someone else in an FIR cannot be a reason for arrest. There has to be something more in the form of evidence to arrest you. Experts have repeatedly pointed out that as many as 60% of all arrests are unnecessary or unreasonably made.

85. If the police suspect me of committing a crime can they also arrest my family members?
No, never. There is no guilt by association. Each person's guilt or innocence has to be judged by their own individual actions and not because they are close to or related to someone else who is a suspect. No one's freedom can be taken away except for a specific lawful reason. The police cannot threaten family members or friends or take them into custody as bargaining tools.

This kind of hostage-taking would amount to the serious crimes of illegal detention or kidnapping, at a minimum. No matter how difficult the case is that the police are trying to solve, they cannot resort to illegal practices in order to put pressure on the suspect to give himself up or make a confession. The only people who can be arrested are those against whom there is a reasonable ground for thinking they have committed a crime.

86. Are there special rules for arrest and treatment of women in custody?
Absolutely! No woman can be arrested between sunset and sunrise unless there are very special reasons for doing so. Even then, special permission must be given in writing by a magistrate after the magistrate is satisfied that there are reasons for allowing this. A woman police officer has to be present with the police making the arrest.

The woman has to kept in a separate lock-up in the police station and any examination, body search, etc. has to be done by a woman officer or doctor. It is in the best interests of the police officers themselves to make sure that all procedures relating to women are carefully followed and records are meticulously kept. The law says that if a woman in custody complains of rape, it will be accepted unless the police officer can show that it did not happen.

87. What about children? Is there some special procedure for them?
Under the general law, children under seven years cannot be accused of a crime, so naturally they cannot be taken into police custody. However, the procedure for questioning, apprehension, custody, release, bail, of children up to the age of 18 is governed by the Juvenile Justice [Care and Protection of Children] Act, 2002. Each police station must have a juvenile police unit with specially trained officers.

They are responsible for the care and well-being of the child who must not be kept in the lock-up at all. Instead, the child must immediately be handed back to the parents on bail and their 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. The main principle that governs the treatment of a child in conflict with the law is that all processes must have a child-friendly approach "in the best interest of the child for their ultimate rehabilitation".

88. If the police arrest me, can they keep me for as long as they like?
Absolutely not. The longest time anyone can be kept in custody in a police station is for 24 hours. That is the maximum. The police must produce anyone in their custody before the magistrate with all the necessary papers that justify the arrest before the 24 hours are up and not later than that.

89. How then, are people arrested on Friday evening and kept in custody until the following Monday?
The excuse for continuing with this illegal practice is for the police to say that there is no magistrate available over the weekend. But in reality there is always a magistrate on duty available 24 x 7. A person in custody whose 24 hour time limit is ending after regular court hours can always be produced before the magistrate at his home. The magistrate cannot refuse to see the suspect.

90. How will anyone know where I am?
The law has plenty of safeguards against you getting lost in the system. As soon as the police have arrested you they have to do several things. They must prepare what is called a "memo of arrest" and send that to the local magistrate. They must make sure you know you can immediately get a lawyer – your own or from the legal aid system. They must inform a family member or friend of your choosing about where you are. All these things have been fixed by law to reduce the chances of abuse of power by the police. If the police do not follow these rules they will have to answer to the courts.

91. What use is a "memo of arrest" to me?
It is a safeguard against illegal detention. The memo of arrest must have your name, time, date and place of arrest, reasons for the arrest and what the suspected offence is. It has to be signed by the police, two witnesses and you to make sure that the record gives a truthful account of the facts. It is given to the magistrate and when the magistrate meets you for the first time he will double-check if what has been said is correct. The police also have to make up an "inspection memo".

92. What is an inspection memo?
It is a short description of your physical condition when you were taken into custody. It is expected to record your general physical condition and note major and minor injuries. Again, it has to be signed by you and the arresting officer and a copy is given to you. But the difference between this memo and the memo of arrest is that you have to request for it.

Otherwise it need not be done. This procedure is meant to ensure that there is no beating or torture in custody. But it is not clear who has to examine you. If the arresting officer himself is examining you there is little protection that a piece of paper can give. However, since an approved doctor's certificate has also to be given to the magistrate with all the other papers at the first appearance, a doctor must examine you and make a statement about your physical condition before you are first produced before a magistrate.

93. How am I supposed to know all this?
By law, at the time of arrest the police are supposed to inform you of all your rights. In addition, the guidelines mentioned above, which are sometimes called the D.K. Basu guidelines after the Supreme Court case that shaped them, have to be displayed on boards in all police stations and chowkis.
94. Can the police officer beat me in custody?
No. He cannot beat you, slap you, threaten or intimidate you in custody. It is against the law and the police officer can be punished for it.

95. Can the police officer force me to make a confession?
No. The police officer has a right to question you but he cannot force you to say anything you have no information about, anything you do not want to say, or confess to some crime that you have not committed.

A confession made to a police officer will not in any case be admissible in court.

96. Can the police do their jobs of arresting the guilty with so many restrictions?
First of all it is not the job of the police to decide who is guilty or who is not. The police are only to apprehend or catch suspects and accused people. But they cannot behave as if the person is already guilty and they have the right to punish them. That is a job for the courts. Meanwhile, people in custody must be given every protection from false accusations and mistreatment. That is why the "restrictions" are there. Actually they are not restrictions at all, but just procedures designed to make sure that everyone has a fair chance before the courts.

97. But aren't there too many rights for the accused person? What about the victims?
A lot of people think that no one is looking after the victim. But actually the whole might of the state is behind the victim. It is on behalf of victims that the state goes about looking for the criminal. It is on behalf of the victims that the state appoints a prosecutor to argue before the court.

It is on behalf of the victim that the state punishes the guilty. But the accused stands alone. He may not be guilty at all. So to balance the power of the state against one individual who has to defend himself, the law has created safeguards and given facilities like free legal aid to those who cannot afford it.

98. Can I get bail from the police?
It depends. If you have been arrested for a bailable offence then you can get bail from the police. But if you are arrested for a non-bailable offence then the police cannot release you on bail.

99. Is it important to know what is a "bailable" and "non-bailable" offence?
Yes. Bailable offences are less serious offences in which bail is a right. In such cases you must get bail immediately from the police. Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it.

100. Will I never get bail if I am accused of a nonbailable offence?
No, not necessarily. You can get bail even for non-bailable offences. You have to make an application for bail before the court. The court will look at the seriousness of the offence, whether you will run away if released on bail, whether you will threaten witnesses or tamper with the evidence. If the court feels that you will not do any of the above then it will grant you bail.

101. Does that mean I am now free?
No. You will still have to face the trial during which time the court will decide whether you are guilty or innocent.

Concluded ....

CHRI Programmes
CHRI’s work is based on the belief that for human rights, genuine democracy and development to become a reality in people’s lives, there must be high standards and functional mechanisms for accountability and participation within the Commonwealth and its member countries. Accordingly, in addition to a broad human rights advocacy programme, CHRI advocates access to information and access to justice. It does this through research, publications, workshops, information dissemination and advocacy.

Human Rights Advocacy:
CHRI makes regular submissions to official Commonwealth bodies and member governments. From time to time CHRI conducts fact-finding missions and since 1995, has sent missions to Nigeria, Zambia, Fiji Islands and Sierra Leone. CHRI also coordinates the Commonwealth Human Rights Network, which brings together diverse groups to build their collective power to advocate for human rights.

CHRI’s Media Unit also ensures that human rights issues are in the public consciousness.

Access to Information:
CHRI catalyses civil society and governments to take action, acts as a hub of technical expertise in support of strong legislation, and assists partners with implementation of good practice. CHRI works collaboratively with local groups and officials, building government and civil society capacity as well as advocating with policy-makers.

CHRI is active in South Asia, most recently supporting the successful campaign for a national law in India; provides legal drafting support and inputs in Africa; and in the Pacific, works with regional and national organisations to catalyse interest in access legislation.

Access to Justice:
Police Reforms: In too many countries the police are seen as oppressive instruments of state rather than as protectors of citizens’ rights, leading to widespread rights violations and denial of justice.

CHRI promotes systemic reform so that police act as upholders of the rule of law rather than as instruments of the current regime. In India, CHRI’s programme aims at mobilising public support for police reform. In East Africa and Ghana, CHRI is examining police accountability issues and political interference.

Prison Reforms: CHRI’s work is focused on increasing transparency of a traditionally closed system and exposing malpractice. A major area is focused on highlighting failures of the legal system that result in terrible overcrowding and unconscionably long pre-trial detention and prison overstays, and engaging in interventions to ease this. Another area of concentration is aimed at reviving the prison oversight systems that have completely failed. We believe that attention to these areas will bring improvements to the administration of prisons as well as have a knock-on effect on the administration of justice overall.