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Inter-state arrests: A messy affair

  • Category
    Polity & Governance
  • Published
    17th May, 2022

Summary:

  • Context
  • Background
  • What are the Constitutional Provisions with respect to Police Jurisdiction?
  • What has been the Observation of Supreme Court on this issue?
  • What are inter-state arrest procedures?
  • The guidelines proposed

Context

Inter-state arrest procedures of police came into question after the arrest and subsequent release of Tajinder Pal Singh Bagga.

Background

  • Delhi BJP leader Tajinder Pal Singh Bagga was arrested from his home by the Punjab Police.
  • The Punjab Police team though was stopped while en-route to their state by the Haryana Police.
  • Tajinder Pal Singh Bagga was though later brought back to him home by Delhi Police.
  • This incident has sparked row over police jurisdiction and inter-state police cooperation.

What are the Constitutional Provisions with respect to ‘Police Jurisdiction’?

  • Entry 2, List II of the Seventh Schedule of the Indian Constitution puts ‘Police’ in the State list, implying that all matters relating to police will be adjudicated upon by the state government.
  • Thus, it can be inferred that the police comes directly under the control of the state government and that the jurisdiction of the police is limited to the area inside its state boundary.

In Punjab, the Aam Aadmi Party (AAP) has full control of the police, while in Haryana, the power is held by Bharatiya Janata Party (BJP).

And in the case of Delhi, the police comes under the control of the Union Home Ministry even though the government is led by the AAP.
  • Rival parties in power in different states therefore can sometimes come in the way of mutual cooperation between police forces, hampering a fair and proper investigation.
  • The ramifications of such a politically-driven process are nothing but a challenge to fairness and equality.
  • Rather than becoming a topic of justice, the matter turns into the topic of political rivalry.
  • An absence of cooperation amongst state police makes the goal of attaining justice a far-fetched one.

What has been the observation of Supreme Court on this issue?

  • Even the Supreme Court acknowledges that political interference is acting as an impediment to a fair investigation.
  • Additionally, the Second Administrative Reforms Commission in 2007 also mentioned that increasing political interference has taken a toll on tis accountability and the politicians are using the police for personal or political reasons.

What are inter-state arrest procedures?

  • While Section 41 to 60 of the Criminal Procedure Code gives the police prerogative to arrest, Section 78 to 81 of CrPC provides for arrest procedure outside the jurisdiction of particular place.
  • Despite having an established methodology its implementation has remained toothless.
  • There have been instances where the police of one state arrest a person from another without informing the local police and the court has objected to the same by directing the police to revisit the rules to ensure that rights of the people are not under threat.
  • The Delhi High Court had appointed a two member committee to look into inter-state arrest procedures.
  • The panel, comprising retired High Court Judge, S. P. Garg and IPS Officer Kanwaljeet Deol have given detailed suggestions based, inter alia, on Sections 48, 77, 79 and 80 of the Code of Criminal Procedure.

The guidelines proposed include:

Primary procedure to be followed by police officer are as follows-

  • The police officer must seek prior permission of superior officers in writing or on phone to go out of state/UT to carry out investigation.
  • In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing.
  • He should move the Jurisdictional Magistrate to seek arrest/search warrants under section 78 and 79 CrPC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose.
  • Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his police station.
  • If the possible arrestee is a female, a lady police officer be made part of the team.
  • The police officer should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification.
  • Before visiting the other State, the police officer must endeavor to establish contact with the local police station in whose jurisdiction he is to conduct the investigation.
  • He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
  • After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down under Section 100 of CrPC.
  • In case of arrest, the police officer must follow the procedure under Section 41A and 41B and Section 50 and 51 of CrPC.
  • The process of arrest carried out by the police must be in compliance with the guidelines given in D. K. Basu case and provisions of CrPC.
  • The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
  • While returning, the police officer must visit the local police station and cause an entry to be made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered.
  • On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered.
  • The superior police officer shall personally supervise such investigation.
  • Endeavour should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of Sections 56 and 57 of CrPC with 24 hours.

Other Directions:

  • Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him, his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate.
  • Such family member would be able to arrange legal assistance for him.
  • The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by judicial order.
  • The 24 hours period prescribed u/s 57 CrPC is the outerpost limit beyond which a person cannot be detained in police custody.

Guidelines for when it is not feasible to inform the local police in advance-

  • In case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.
  • In all cases a dairy entry should mandatorily be made in the police station of jurisdiction.

Practice Question

Q1. What are the rules for making Inter-State arrests? Discuss the Supreme Court guidelines for inter-state arrests.

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