FIR AND ARREST :TWO SIDES OF A COIN


By-Nihala Jasmin K K.

Introduction

As the title mention itself we can say that FIR and arrest are closely related. Through this article we have a look over both these concepts .Now a days we are undergoing through a situation where basic right of us even to register an FIR is misused and where the arrest is not conducted in the proper manner. Our justice system provides some constitutional protection over these issues.


Life and liberty is a sacred freedom of our vindicated constitution under Article 21, but it has been hampered by the ill treatment done by the police through the enormous powers given to them by the Code of Criminal Procedure (CrPC) enacted by the Parliament in 1973.A widely discussed and controversial issue has been the perpetual abuse of personal liberty and constitutional rights by the police officials. Media and court records exhibits instances of such abuse by the police force.


FIR and who can file FIR?

The first information report means an information recorded by a police officer on duty given either by the aggrieved person to the commission of an alleged offence .It is the first report of the crime and so it is a valuable document that throws much light on the crime .On the basis of the FIR the police institute its investigation .Section 154 of CrPC defines FIR and related provisions.


FIR can be filed by any person. It is not necessary that the person should be the victim or the aggrieved or an eye-witness .It can be given by any person who has first hand knowledge of the facts. Having first hand knowledge doesn’t mean he need to know the very minute elements in the case and the FIR can be filed in the concerned area in whose jurisdiction the offence has occurred and make sure that it is filed promptly, diligently and without wasting any time in order to avoid the possible chance of giving rise to suspicion.


What to do if police refuses to file FIR?

In case the crime be reported to the police is of cognizable offense the police is duty bound to register FIR. Now , let’s have a look on the remedies available to the person if police refuses to register that cognizable offence into FIR and refuses to investigate .

There are 3 remedies:-


In case the crime be reported to the police is of cognizable offense the police is duty bound to register FIR. Now , let’s have a look on the remedies available to the person if police refuses to register that cognizable offence into FIR and refuses to investigate .


2)If the superintendent of police or DCP also fails to register your FIR, you can file a complaint or petition under section 156 (3) of CrPC for directions to register an FIR before the metropolitan magistrate.


3)In case if the metropolitan magistrate also refuses to pass a direction for registration of FIR then you can file the petition before the honourable High Court. Now what is crucial that you need that you have been persuading with the police is the proof and now the proof is the acknowledgement receipt..e., Acknowledgement receipt of your complaint being pursued with the police.


Now what if they’re denying to register complain, how they will give complain acknowledgement receipt? There is another way to deal with it. You may send your complaint to respective police station through government post office and take receipt of the delivery of post. Submit a complaint to “police vigilance department” or “grievance monitoring system” or “police complaint authority” mentioning your issue along with that post office receipt.


Importance of FIR through brief case descriptions


1)Thulia Kalia v. State of TN, stressed the importance of recording prompt report to the police regarding the commission of cognizable offence. It also declared that FIR is mandatory under section 154 of CrPC if the information reveals commission of a cognizable offence and no preliminary inquiry is licitable under such a situation.


2)Ram Kumar v. The State of Madhya Pradesh ,it was held that the FIR is a previous statement which strictly speaking the first hand information and can only be used to corroborate or contradict the maker of it. This information which forms the basis of the case is very productive and efficacious if recorded before there is time and opportunity to emblazon or before the informant’s memory fades.


3)Dharma Rama Bhagar v. State of Maharashtra the honourable S Cheld that FIR doesn’t amounts to substantiative piece of evidence, it can be used only for corroborating or contradicting the informant or it’s makers when he appears in court as a witness.


4)In Nisar Ali v. State of UP ,it was held that in regard to certain facts under Section 21 of the Indian Evidence Act,1872 a non confessional FIR submitted by the accused can be used against him to prove his admission and prevent him from stepping back from the truth.


5) State of Punjab v. Gurmit Singh

In this court discussed the importance of prompt, expeditious record and lodging of FIR without any delay. Here a young girl below age of 16 years was abducted from her school by three accused person and she was threatened with death. Despite her refusal she was made to drink liquor, she was raped by each person and due to threat she kept quiet and when the case came before the court ,the sessions judge acquitted all accused because of the delay in lodging FIR.


ARREST


Black's Law Dictionary, 5th Edition 1979, gives the following definitions: Arrest : to deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him the answer a criminal charge or civil demand.......Arrest involves the authority to arrest, the assertion of that authority with the intent to effect an arrest, and the restraint of the person to be arrested......All that is required for an 'arrest' is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, as formal declaration of arrest is required.


In the dictionary of English Law 1959 by Earl Jowitt, volume I, the meaning of the word is given at page 152 as follows: “The restraining of the liberty of a man's person in order to compel obedience to the order of a court of justice, or to prevent the commission of a crime, or to ensure that a person charged or suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain him of his liberty by some lawful authority.”


The term ‘Arrest’ has not been strictly defined anywhere. CrPC from section 41 to 60 covers the‘arrest of persons'. Indian constitution stands at the top among any other law when it comes to India, meaning, if there is anything said in the Indian Constitution then all other laws should follow it and has to be consistent with the law of the land. What Indian constitution says about arrest? It is not exactly about arrest.


The term ‘Arrest’ has not been strictly defined anywhere. CrPC from section 41 to 60 covers the ‘arrest of persons'. Indian constitution stands at the top among any other law when it comes to India, meaning, if there is anything said in the Indian Constitution then all other laws should follow it and has to be consistent with the law of the land. What Indian constitution says about arrest? It is not exactly about arrest. to understand the meaning of term arrest let’s have a look on three important case laws.


1)R.R Chari vs. State of UP (1951AIR 207 , 1951 SC 312)

It was held that the act of being taken into custody to be formally charged with a crime is arrest.


2) State of Punjab vs. Ajaib Singh (1953 AIR 16 1953 SCR 254)

In this case it was held that physical restraint put upon an abducted person in the process of recovering and taking that person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence is arrest.


3) Roshan Beevi vs. Joint secretary to the Govt. of Tamil Nadu(1984 (15)ELT 289 Mad)

Four requirements of case was established in this case. There must be

  • a) an intent to arrest under legal authority.

  • b) seizure of detention of person.

  • c) the person must be in lawful custody of arresting person.

  • d) actual confining of person and not mere oral declaration of arrest.


Why to arrest?

We cannot arrest someone who is just walking on the road. The police cannot randomly arrest a person, there should be sufficient reason for it. Arrest is made by the police with a belief that the suspect has committed or is committing or is about to commit a crime.


Arrest is done for securing the attendance of the accused at trial; for prevention of an apprehended offence or as a precautionary measure; for obtaining the correct name and address of the person arrested i.e., if a police enquires the name and address just say the truth ,if you do unnecessary drama by not revealing your true address it may lead to problems and cause a suspicion and stumbling block in the minds of police; for retaking a person from escaped from custody.


TYPES /WHO CAN ARREST?

As we already know, CrPC is not an independent act or law. The procedure on ' arrest of persons' are developed based on many other laws like IPC, Indian constitution, the Police Act and many other acts.

Arrest can be done by the police officers with warrant for non cognizable and,

Without warrant for cognizable offence.


There are 5 important sections saying about who can arrest.

  • · Arrest by police without warrant.( Section 41)

  • · Arrest for non cognizable offence (Section 42).

  • · Arrest by private person (section 43) i.e., you being the citizen of India can arrest someone if you are suspecting that somebody has committed a crime ,has committing a crime or going to commit a crime. In such case the first important thing you need to is after the arrest you have to handover them as soon as possible to the police and then the police will assess whether they have committed cognizable offence or non- cognizable offence and they will take the further steps.

  • · Arrest by Magistrate (section 44).i.e., as per the order of magistrate the police can arrest the person.

  • · Protection of members of armed forces from arrest (section 45)

  • Usually the police officers cannot arrest armed persons .But with the order of central government, the police can arrest the armed forces also.


Section 46 explains the procedure to arrest.

a) Arrest by Police office-Here actual touch and confining the body is necessary. But in case of self submission this is not required.

b) Police can use force if warrant with magistrate signature is available .However the police have to ensure that the force should not be so much that it cause death of the person even though they had warrant from magistrate.

c) Force can’t be excessive and should not cause death .

d) Women can be arrested only between sunrise to sunset. And also a lady officer should be there while arresting a women.


Important case laws


In Joginder Kumar v. State of UP.(1994 4 SCC 260)the Supreme court laid down certain guidelines governing arrest of a person during investigation .Further it is said that it is the responsibility of Magistrate to make sure that there is a justifiable reason to arrest.

In D.K Basuv. State of West Bengal (AIR 1997 SC 610).Here in detail discuss the requirements to be followed in arrest as well as the rights of the arrested person . Arrest of women at night is discussed in detail here.

Bir D.K Basu v. State of West Bengal-Here it was held that the arrest can be made without handcuffing also.

State v. Behra - Here the court held that reasonable suspicious and creditable information must be there with police before arrest. Police cannot randomly arrest someone without reasonable apprehension and information.


Conclusion

It is the duty and responsibility of the police force to lead the investigation in the right manner and bring the convict before the court of law and thereby unraveling the truth. They have a major role in protecting the normal citizens and provide them justice. But now a days we are witnessing a number of cases where police force use their arbitrary power for their own personal gains. Rather than unravelling the truth the police officers adopt corrupt practices which is a unhealthy emotion of greed for their own needs, gains, power, money and for reputation. Due to this unethical and corrupt practice by some of the police officers even the honest individuals of the force must bear on their shoulder which results in a decreasing level of trust from public. Now the time and each incidents are asking the police force and all the governmental officials to recover and retain the trust, faith and confidence of public in the justice system.

Reference

· www.indiankanoon.org

· https://www.lawtecher.net

· www.legalservicesindia.com


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