Cognisable Crimes

The Code of Criminal Procedure 1973, segregates all the offences listed in the Indian Penal Code (IPC) in to ‘cognisable ‘and ‘non-cognisable ’crimes.

Cognisable crimes are the more serious ones such as murder, rape, child molestation or rioting. Police have the right to take immediate action when these crimes are committed. They can arrest any suspected person, conduct searches of a person or property without a warrant and question witnesses, all without having to wait on the orders of a magistrate so that there is no delay in the investigation of the crime.

FIR’s can only be registered for cognisable crimes.

Procedure For Taking One Into Custody

Anticipatory Bail

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:

• The person will make him/herself available for interrogation by the police as and when required by them
• The individual shall not directly or indirectly  make any threat, promise or offer any bribe to any person who is connected to the case or knows        facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police  
•  An assurance that the person shall not leave India without prior permission from the court 

Non-Bailable Offences

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

In the case of a non-bailable offence the police cannot release anyone on bail and so the arrested person has to make an application for bail before a magistrate or court.

After consideration of factors such as the seriousness of the offence, the chances that the accused will interfere with the investigation by tampering with evidence or threatening witnesses or if the accused is likely to go into hiding or leave the country to escape, the court will decide whether he/she can be allowed to be let out on bail or not. 

If someone is refused bail, he/she can appeal to a higher court.

If the police do not complete their investigation within 60 days for a crime that is not punishable with death or life imprisonment, then the accused gets bail. For offences that are punishable with death or life imprisonment, the investigation must be concluded within 90 days, or the accused will have the right to bail. 

Procedure For Search

It is your right to demand that a woman police officer be present to conduct a search of a house or office is there are 'purdah' women present on the premises. You can also insist that the search be conducted with strict regard to decency.

Can Police Enter My Home Uninvited And Without A Warrant?

Yes, the police can enter your private residence or office without a warrant, but only under very limited circumstances. If a police investigation leads them to believe that there is an object which counts as evidence, that they must procure immediately, or if there is a criminal hiding in your house who might flee, then they can enter without a warrant so that they may secure the evidence or felon without any delay.

Under non-emergency circumstance, if the police have reasonable grounds to suspect that you are harbouring a suspect, conducting illegal activities, are hiding stolen goods or evidence or have an illegal weapon in your home then they must first obtain a warrant from a magistrate before they can enter your home.

If the police come to your house to question you or any member of your family in connection to a case, they may only enter at your invitation. 

Custody Of Women And Children

A woman who has been taken into custody has to be kept in a separate lock up in the police station and any examination or body search must be conducted by a woman officer or doctor.

Under the general law, children under the age of 7 years cannot be accused of a crime, hence cannot be taken into police custody. However, the procedure for questioning, apprehension, custody, release and bail of children up to the age of 18 is all governed by the Juvenile Justice Care and Protection of Children Act of 2002.

It states that each police station must have a juvenile police unit with specially trained officers. A child must not be kept in lockup at all, but instead must be immediately handed back to the parents on bail and 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. 

It is in the best interests of the police officers themselves to make sure that all procedures relating to women are carefully followed and are recorded meticulously, as by law, if a woman in custody complains of rape it will be accepted unequivocally, unless the police officer can prove without any doubt that it did not take place.

Torture Or Coercion While In Custody

It is illegal for the police to slap, beat, threaten, intimidate or torture any person who is being held in custody. Policemen can be removed from service and can also go to jail for doing this.

The police are responsible for the wellbeing and safety of an arrested person. If anyone suspects torture of a person who is in police custody, they can report it to the National or State Human Rights Commission, to a magistrate or to the Legal Services Authority. The matter can also be taken directly to the High Court or Supreme Court.

It is also against the law for the police to force an individual into making a confession. The police have the right to interrogate an individual but they cannot strong-arm one to say anything that he/she has no knowledge of or to confess to some crime that he/she has not committed. 

Remember that under any circumstance and in any case, a confession that is made to a police officer is not admissible in court. A confession is only valid if it made  to or before a magistrate.

Can The Police Hold An Individual At An Undisclosed Location?

No, the police cannot take anyone into custody and hold them at a secret location. As soon as the police make an arrest they have to do prepare an Arrest Memo and send that to the local magistrate. They must also inform a family member or friend of the arrested individual’s choosing about where they are holding the suspect.

The police are duty bound to make a record indicating the time of all those who are brought into the station in their station’s general diary. These details must also be entered in the case diary of the investigating officer. It is also mandated by law that the police control room display an updated list of all those arrested in the last 12 hours.

If the police don’t follow these procedures they will have to answer to the courts.

Can The Police Keep A Person In Custody For As Long As They Want?

Absolutely not, 24 hours in custody is the absolute maximum.

Once the police make an arrest and take the arrested individual to the police station, the longest time the suspect can be kept in custody at the station is for 24 hours.  

The police must produce anyone who is in their custody before the magistrate within 24 hours of the arrest, with all the necessary papers that justify the said arrest.

Often police arrest a person on Friday and keep them in custody until the following Monday, citing that there is no magistrate available over the weekend. This is illegal, as in reality there is always a magistrate on duty and available 24 x 7.

 If a person’s 24 hour custody hold ends after court working hours, he/she can always be produced before the magistrate at his residence. The magistrate cannot refuse to see the suspect.