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Prosecution by Police in India: Rights and Procedures

Updated: Jun 9, 2021

Crimes in India can be classified into two categories under the Criminal Procedure Code 1973, they are Cognizable and Non-Cognizable offenses. Criminal Procedure Code 1973, provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person, and punishment of the guilty. At the same time, the rights of individuals are protected to ensure they are not wrongly prosecuted or legal aid is denied to them as such.

Cognizable offenses are those offenses that are serious in nature. Example- Murder, Rape, Dowry Death, Kidnapping, Theft, Criminal Breach of Trust, Unnatural Offences. Non-cognizable offenses are those which are less serious in nature. Example- Assault, Cheating, Forgery, Defamation, etc.

  • Arresting without a Warrant: A person can be arrested without a warrant if he has committed a non-bailable and cognizable offense, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. Also, if the person has been caught in the act of housebreaking and stolen property is recovered under his premises or Obstructing a police officer while in the execution of his duty.

  • Refusal to Register and FIR: For an FIR to be undertaken by a police offer the crime should have undertaken under his jurisdiction. FIRs are lodged only for cognizable crimes, for non-cognizable crimes a complaint is submitted to the magistrate who in return directs the police for action. If a police officer refuses to file an FIR on a cognizable offence, he can be prosecuted under Sec 166 A of the IPC, which would carry rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

  • Using excessive force by Police: Section 49 of CrPC provides that there should be no more restraint than is justly necessary to prevent escape. Also, Restraint or detention without arrest is illegal.

  • Arresting of a female: No woman shall be arrested after sunset and before sunrise, except in exceptional circumstances and that too after obtaining the prior permission of the judicial magistrate. Only a female police officer can conduct any body search. The search should be carried out in a decent manner. During the time of arrest, there should be a presence of a female police officer to carry out the arrest of the individual.

  • Right to know the reason for arrest: Under sec. 50 of CrPC and article 22 of the Indian Constitution, it’s a fundamental right to be informed. It is the duty of the police officer to inform you and also tell whether the offense is bailable or non-bailable.

  • Legal Procedure at arrest: An arrested person needs to be produced before a Judicial Magistrate within 24 hours of the arrest. He has to right to consult and to be defended by a legal practitioner of his choice. And right to inform a family member, relative or friend of his arrest U/ sec 50 of crpc.

  • Procedure for applying for bail: In case of a bailable offense the rights of bail is applicable to the accused, it may either be granted by the police or by the court under whose jurisdiction the offense falls under. In the case of a non-bailable offense for the crimes which are cognizable offenses, the individual doesn't have the right and it is on jurisdiction to grant him bail based on the judgment. Bail might be refused if the crime is serious in nature, police have asked for custody for investigation or bail bond has not been duly executed. --------------------------------------------------------------------------- Read more: Female Prisoners in India and Procedure for Childbirth in Prison Drones in India: Regulation and Registration Process

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