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....