INVESTIGATION AND ARREST (Informative Subject)

51st Update

Hello Friends, after a long break and off course long time gap between my updates on blog , here again I have come with the topic for which everyone is curious about. The Subject of the topic is Investigation and  Arrest.

1. How the Investigation is  begin...???
2. What is the Investigation...????
3. How arrest will take place ...???
4. What are the ways to get the Bail...????

All these and many more questions I have tried to cover under this short topic. Investigation and Arrest. But still if you want to know it in details then do the following:

ASK THE ADVOCATES NEAR YOU.

LETS BEGIN WITH OUR TOPIC:-
Before this let me clear all of you one thing : The Information given herein under is generic information which may differ and depends on the Facts and Circumstances of the Case, So I recommend all of you to take proper legal advice.
Now I am starting with my Topic:

                                                                        Investigation

                                                       I. Understanding Investigation

·        What is investigation?

                                                            Section 2(h) of the Cr.P.C.:

“Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”

•  The Cr.P.C. together with Police Station Rules laid down the powers and procedures by which the police are to conduct investigation.

• A thorough knowledge of these procedures will enable the legal aid lawyer to identify lacunae in procedure/contradictions/illegalities which will be useful in cross-examination and preparing the defense.

• For example, the Police Station Rules enumerate the various registers that are to be maintained at police stations for recording of DD entries, manner of maintaining the case diary, etc.

Ø    Broadly, investigation includes the following powers/procedures:

·        Recording of FIR and sending FIR to Court

·        Examination of witnesses (S. 160 Cr.P.C.) and summoning of documents (S. 91 Cr.P.C.)

·        Recording of confessions/statements before Magistrate (S. 164 Cr.P.C.)

·        Examination of the crime scene

·        Inquest proceedings under Section 174 Cr.P.C.

·        Forensic examination/post mortem/expert’s evidence (FSL etc).

·        Medical examination of accused persons/prosecutrix

·        Arrest

·        Recovery

·        Search and seizure (S. 165, 166 Cr.P.C.)

·        In doubtful cases there can be preliminary investigation before an FIR is registered

·        At the conclusion of the investigation, the investigating agency is to submit either a closure report (S. 169 Cr.P.C.) or a police report/charge sheet(S. 173 Cr.P.C.)

·        The investigation of a case punishable with death, imprisonment for life or a term of not less than ten years, is to be completed within a period of 90 days from the date of the arrest of the accused person, or in case of any other offence, within 60 days from the date of arrest. If the charge sheet has not been filed within this period, the person may be released on bail (we will return to this later.)

·        A client coming to a legal aid lawyer will have concerns about arrest, both before and after, and secondly about various aspects of the investigation.

·        Thus we need to see:

            -Action to be taken before, during and after arrest

            -Factors to be considered during the investigation

            -Preparation of the case after filing of chargesheet

Ø  Pre-arrest action:

  A. Find out the nature of the allegation/the alleged offences :

 Although legal aid clients would rarely approach Counsel at the pre arrest stage, in the event they do as in the present case, the following issues need to be raised with the client:

·        The history of the accusation which is likely to be made and the facts surrounding it.

·        On this basis, determine the nature of the offence, whether Bailable or non-Bailable and likelihood of arrest.

·        If arrest is likely, the client should be informed of his constitutional safeguards at an early stage so that s/he can assert them if arrested.

      ·        If the offences are Bailable, Anticipatory Bail cannot be applied for.

·        If the offences are Non-Bailable, decision would have to be taken whether to prefer an Anticipatory bail.

        B. Whether to Move for Anticipatory Bail (Section 438 Cr.P.C.)

Ø  Anticipatory bail can be applied for when the person has reason to believe he may be arrested (apprehension of arrest).

The court considers the following parameters when considering whether to grant AB:

·        The nature and gravity of the accusation

·        The antecedents of the person, including previous imprisonment

·        The possibility that the applicant may flee from justice

·        That the accusation has been made to humiliate the person

·        In serious hurt cases (such as the present case), as per the case given to us, normally anticipatory bail is not granted by the Courts and more often than not there is no time or opportunity to seek this remedy. But before moving an anticipatory bail, it would have seen whether the person falls within the parameters and whether he is a previous convict or has a previous criminal record as these factors would limit application of the relief.

·    Anticipatory bail too has its pitfalls, namely, that such a petition proceeds on the assumption that a person is likely to be arrested and therefore that he is an accused. Often people who apprehend an accusation may not be arrested. Although the law requires arrest not to be rushed into, increasingly there is a practice to arrest by the State Police so an increase in anticipatory bail, as arrest is used to obtain confession and drive the investigation.

Ø  Further, when deciding whether to move for anticipatory bail, it must be kept in mind that the court can impose certain conditions while granting AB:

· That the person makes himself available to the police whenever required for interrogation.

·   That the person shall not, directly or indirectly, make any inducement, threat or      promise to

any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court/police officer

·     That the person shall not leave India without the previous permission of the Court

·     Conditions which may be imposed when granting regular bail under S. 437 Cr.P.C.

        C.   Pre arrest detention

Apart from arrest, there is the fear of pre arrest detention which is done under the guise   of a notice under Section 160 Cr.P.C. or a summons by specialized agency that restrained a      person and restricts his liberties without affecting arrest, but under the threat of arrest. In such cases Counsel have to be vigilant and either:

• Move habeas corpus petition;

• Send a telegram to the authorities or move an application before a Magistrate or otherwise create documentary evidence to show unlawful detention which may help at some stage to argue that the confession (if any) was not voluntary.

• When moving an application for anticipatory bail or bail, keep in mind that at this stage you are not aware of the extent of allegations or material against you. Do not hastily put forward a defense at this stage.

v Arrest and Post-arrest action:-

          The initial custody and remand is thus a crucial stage in the criminal justice process and          it falls to the legal aid counsel to ensure that the rights of the accused are protected.

A.     Right of access to a lawyer :-

Ø  The right to have access to a lawyer has been recognized by the Hon’ble Supreme Court in Nandini Satpathy [(1978) 2 SCC 424] and thereafter in Joginder Kumar[(1994) 4 SCC 260] and DK Basu [(1997) 1 SCC 416].

Ø  In Delhi, the right of access to a lawyer is also incorporated in the Delhi High Court Rules and in Administrative Directions issued by the Punjab Government as far back as 1936.

Ø Under the Cr.P.C., a person accused of any offence before a Criminal Court, may of right be defended by a pleader of his choice [S. 303 Cr.P.C.] and in case of a Sessions trial, where the accused is not represented by a pleader and appears to the Court to not have sufficient means to engage a pleader, shall be represented by a pleader appointed by the State [S. 304 Cr.P.C.].

            B. Arrest:-

·  The legal aid lawyer must have a legal interview with the arrestee as soon as possible after the arrest.

v Every person has rights upon arrest and should be made aware of them:

–Under Section 50 of the Cr.P.C. the arrested person is to be informed of the particulars of the offence or any other grounds for arrest. Further if arrested without a warrant for an offence which is Bailable, he must be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf.  –Under Section 50A of the Cr.P.C. the arrested person is entitled to have a person nominated by him informed about the arrest and moreover the Magistrate is required  to satisfy himself that the provisions of this Section are complied with.

 –Under Section 51 Cr.P.C. a person who is arrested may be searched and a list shall be prepared of any articles found on his person. This personal search memo is especially important if there is any allegation of recovery of incriminating material from the person of the accused.

–Under Section 54 Cr.P.C. the arrested person can request that he be examined by a  medical practitioner if the examination of his person will either disprove the  commission of the offence by him, or will prove the commission of any offence against his body by another person. Under Section 53 and 53A Cr.P.C. the police can send the arrested person for medical examination.

Ø  DK Basu’s case:-

DK Basu’s case has also stipulated 11 requirements to be met in all cases of arrest and   detention:

·   The police persons carrying out the arrest should be easily identifiable, bearing clear identification tags with their names and designations.

·    A Memo of Arrest mentioning the date and time of arrest shall be prepared at the time of the arrest, signed by at least one witness, and countersigned by the arrestee.

·        A friend or relative of the arrested person must be informed of the arrest.

·      The next friend must be informed of the time, place of arrest and venue of arrest.

·       The arrested person should be informed of his right to have the next friend informed.

·    An entry must be made in the diary at the place of detention regarding the arrest of the person, which also states the name of the next friend who has been informed of the arrest and the particulars of the police officers in whose custody the accused is placed.

·     At the request of the accused, any injuries on the person of the arrested person at the time of his arrest must be recorded.

·      The arrestee should be examined by a medical doctor every 48 hours.

·      Copies of all documents including the memo of arrest must be forwarded to the Ilaqa        Magistrate.

·    The arrestee may be allowed to meet his lawyer during interrogation, though the  

     lawyer may not be present throughout the interrogation.

·  The police officer must communicate information of the arrest to the police control room within 12 hours of the arrest, and the fact of the arrest must be displayed on a conspicuous notice board.

     C. Remand

•  Remand is a crucial stage in a criminal trial, when the police action is for the first time supervised and overseen by a Magistrate, who has to independently assess the justification of the arrest and subsequent police action. The Magistrate must, on each date, see that the remand is granted in accordance with the Cr.P.C. the Delhi High Court Rules and the Punjab Police Rules.
• Under Section 57/167 Cr.P.C. the accused must be produced before a Magistrate within 24 hours of arrest.
• At this stage, Magistrate determines whether to send the accused to judicial or police custody.

Ø  The following rules apply to remands:

·        The Accused can be remanded to police custody for a maximum of 15 days, and that too in the first 15 days after the arrest.

·   The Order of remand can only be passed in the presence of the accused and the Magistrate must record reasons for allowing remand (Rule 10, 11 of Chapt. XI Part A Vol. III of the Delhi High Court Rules)

·   The Magistrate and the legal aid counsel must ensure that the person arrested is accompanied by Zimnis which are duly signed by the Magistrate when the accused is produced. This prevents addition/tampering/ interpolation.

·        Remand is only to be granted in cases of real necessity, when it is shown that there is reason to believe that the accused can point out property or otherwise assist the police.

v The Delhi High Court Rules stipulate that:

·        Remand should only be granted if here are grounds for believing that the accusation against the person sent up by the police is well founded; and there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in magisterial custody.

·        Remand ought not to be granted to enable the police to obtain an admission of guilt.

·        A general statement by the investigating officer that the remand is necessary because the accused may be able to give further information should not be accepted.

·   The presence of the accused should be necessary to serve some important and specific purpose connected with the investigation.

·        The period of police custody remand should be as short as possible.

·  In all ordinary cases in which time is required by the police to complete the investigation, the accused person should be detained in judicial custody.

·   If only verification is required of the accuser’s statement, he should be detained in police custody.

·     If the accused has made a confession to a Magistrate, he should be sent to judicial custody and not police custody after recording the confession.

·  Further, under the Circular Letter no. 6091-J-36/39829 (H-Judl) of the Punjab Government, it has been stated that:

·     Before a remand is granted in any case, the Magistrate should inform the accused that he is a Magistrate and that a remand has been applied for, and should ask the accused whether he has any objection to the remand. The order granting remand should be written at the time at which it is announced, and in the presence of the accused.

·     It the accused wishes to be represented by a Counsel, the Magistrate should allow time for the counsel to appear and argue the matter before him. The Magistrate may grant temporary remand until the arguments have been heard.

·        The accused person should not be shifted to a place which is inaccessible or which is unknown to his friends or his counsel. Information regarding the place of confinement should be given to the friends of the accused on their application, and the prisoner should be informed that he is entitled to have the assistance of a counsel and to communicate with his relatives and friends.

·        On each date of remand, the legal aid counsel must insist on legal interview, obtain copies of all remand papers, and seek copies of all search and seizure memos.

·        The legal aid counsel may also seek interview on behalf of the family members of the accused person.

·  Remember for a poor litigant, you are the only access to justice, take time to understand, communicate with the client and explain the legal processes in simple terms and act in consultation both with the arrested accused and his family members.

·     Seek medical advice and help for the accused or protection during custody or other special requirements such as spectacles, walking sticks, medication, if necessary.

·  Apply for personal search memo, if necessary but avoid admitting seizure of incriminating material, which may be reflected in the seizure memo.

D. Bail

·        Analyze the case and apply for bail accordingly. Do not rush into bail application pre-maturely as dismissal of bail in quick succession will prejudice the client.

·  Is the client a professional criminal/ history sheeter/is he on a bad character roll/previous convict/absconder? Or on probation? Is there likelihood of a look out circular against him? These factors would effect your chances of getting bail.

·        Before filing of charge sheet, you may not have a clear idea of the allegations against you. Do not disclose your defense prematurely and bind yourself to a defense!

·        In a Sessions Trial, bail can be moved before the Magistrate, which may not succeed but would result in reply/objections by the police and in fact the nature of offence against the accused.

·        Section 167(2) Cr.P.C. –Statutory bail –the legal aid lawyer should calculate the 60/90 days period, and move default bail immediately without any delay.

·        If the Court provides for heavy surety, you may seek reduction before the same court or higher courts.

·        As far as possible sureties should be available when moving for bail, with all the required papers (ID, proof of residence, passport size photographs) and the requisite bond amount.

E. Confessions

·        Under Section 164 Cr.P.C., a person can make a judicial confession. Such a confession is admissible as evidence against the person making the statement.

·        Such a confession may be made with a view to becoming an approver [S. 306 Cr.P.C.] however, it should be noted that the decision to make a person an approver is in the hands of the investigating agency and to be verified by the Magistrate. Thus no assurance can be given upon making a judicial confession that it will result in the person becoming an approver.

F. Article 20(3): Right against Self-Incrimination

·        The right against self-incrimination is provided under Article 20(3) of the Constitution of India, which stipulates that “No person accused of an offence shall be compelled to be a witness against himself”. However, the following restrictions are placed upon the right following factors have to be considered:

·       Only such documents/statements are protected as are within the personal knowledge of the accused, and thus records that are maintained in fulfilment of a statutory requirement may not be protected. Further, the accused can be required to give a handwriting sample/blood/DNA sample as thesame are not within the ‘personal knowledge’of the accused.

·     The protection against Article 20(3) protects the accused only against being compelled to produce documents. The Supreme Court has held that a search and seizure does not amount to ‘compulsion to produce’and is thus outside the protection of Article 20(3).

·        Summons under Section 91 Cr.P.C. cannot be issued to an accused person, however, a general search warrant under Section 93(1)(c) Cr.P.C. is not protected under Article 20(3) Cr.P.C.

II. Filing of charge sheet and analysis of case

·     Step wise analysis of the case:

·   First see all statements and documents. Check by inspection whether the documents are originals or photocopies.

·   See allegations in charge sheet and which witnesses/documents support the allegation.

Ø Prepare time line based on documents/statements and check for:

·        Discrepancies between statements and documents/materials

·        Discrepancies between witnesses inter se

·        Once time line ready, examine for:

·        Contradictions in version of public witnesses and official witnesses

·        Check each document for cutting/interpolation

·        Correlate and see if all documents proved, whether witnesses areavailable on record to prove documents.

·        Analyze witnesses version with other evidence

Ø  Analyze the transaction/incident:

·        Preparation

·        Pre-incident conduct

·        Actual incident

·        Post incident conduct

·        Arrest/search and seizure

Ø  See if any contradiction can be found within these categories Consult client for:

·        General Defenses

·        Alibi

·        Pleas of Mitigation etc

Ø  Formulate tentative arguments:

·        Assess legal strength of arguments by researching law.

·        Determine how formal witnesses are to be treated

·        Expert evidence –analyze. Prepare/research/read up not only law but text books on the subject

·        Consult senior colleagues if possible, or experts e.g. consult a doctor on nature and extent of injuries -% of burns could indicate truth or falsity of prosecution version.

·        Search and seizure witnesses are crucial and need to be examined to see whether case of false plantation of evidence or defective seizure by the police can be made out.