Found this useful/interesting/provoking judgment/order of Chennai HC. There are several important points mentioned below regarding arrests, investigation by police, judicial remand etc. Read the original judgment/order in italics interspersed with my comments below as noted by an Indian Citizen:
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2008
CORAM
THE HON'BLE MR. JUSTICE R.REGUPATHI
M.P. No.1 of 2008
in
Crl.O.P. No.10896 of 2008
ORDER
Pursuant to the direction of this Court dated 07.07.2008 to file compliance
report, the Director General of Police in consultation with the Government, has
issued the following Circular Memorandum:-
" Circular Memorandum
Sub- Filing of cases registered under Dowry Death / Suicide in All
Women P.S. - Instructions issued.
*****
The Honorable High Court has issued the following observation in M.P. No.1/2008
in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.
i) Except in cases of Dowry Death/suicide and offences of serious nature, the
Station House Officers of the All Women Police Stations are to register F.I.R.
only on approval of the Dowry Prohibition Officer concerned. ii) Social
workers/mediators with experience may be nominated and housed in the same
premises of All Women Police Stations along with Dowry Prohibition Officers.
iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick
persons and minors, shall not be made by the Station House Officers of the All
Women Police Stations.
iv) If arrest is necessary during investigation, sanction must be obtained from
the Superintendent of Police concerned by forwarding the reasons recorded in
writing.
v) Arrest can be made after filing of the final report before the Magistrate
concerned if there is non-cooperation and abscondance of accused persons, and
after receipt of appropriate order (Non-Bailable Warrant). vi) Charge sheet must
be filed within a period of 30 days from the date of registration of the F.I.R.
and in case of failure, extension of time shall be sought for from the
jurisdiction Magistrate indicating the reasons for the failure. vii) No weapon
including Lathis/physical force be used while handling cases at the All Women
Police Stations.
Indian Citizen: Not sure if this 30 day timelimit for filing of chargesheet is for a specific offence or police station. But it would be hilarious to read I know of cases where chargesheet is not filed for year or 2 altogether.
viii) Complainants/victims should be provided with adequate
security/accommodation at Government Home and interest of the children must be
taken care of.
ix) Sridana properties/movables and immovable to be restored at the earliest to
the victims/complainants and legal aid may be arranged for them through Legal
Services Authority for immediate redressal of their grievances.
2) The Commissioners of Police in cities and Superintendents of Police in
Districts are requested to strictly follow the above instructions without any
deviations.
3) Receipt of the same should be acknowledged.
Sd/- (29.07.2008)
For Director General of Police."
2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter,
dated 01.08.2008, of the Director General of Police, it has been stated as
follows:-
" 2) With regard to the suggestion No.8, i.e., "A different Uniform other
than the regular one may be recommended for these police officers" - the matter
requires deliberations at length with Senior Police Officers in the State. All
the Senior Officers have been addressed to send their view on the subject. After
obtaining their views the matter will be discussed at State Headquarters and a
report in this regard will be sent. 3) With regard to suggestion No.11 -
Director General of Police, Training has been addressed to initiate action to
conduct Education programme for Police Officers on the objects of the
legislation, judicial pronouncements and development of law. Further progress
report will be sent. "
3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above
Circular Memorandum, all the Commissioners of Police and the Superintendents of
Police in the State have been instructed to scrupulously follow the suggestions,
enumerated in the form of instructions, and therefore, in effect, the order of
this Court has been complied with.
4. The complaisant reaction to the suggestions made by this Court and issuance
of the aforesaid Circular Memorandum with suitable instructions by the Director
General of Police deserves deep appreciation of this Court. It must also be
pointed out that though several such suggestions and instructions were earlier
made/issued in that perspective by the Honourable Supreme Court as well as this
Court, there was no expected progress or outcome since, in course of time, the
system started trailing with the same deviation and anomalies to reform/correct
which the instructions were issued. At least now, this Court is anxious to see
that the directives are strictly followed perpetually with letter and spirit by
the Investigating Officers of the Department in particular the officers posted
at the All Women Police Stations.
Indian Citizen: And what are the incentives or disincentives it that will make the police stations and investigation officers follow any directives?
5. Before parting, having regard to the directions issued to the Police
Department, this Court deems it necessary to outline certain aspects with regard
to the role of the Judicial Magistrates and their effective functioning in
deriving a positive outcome. As could be seen, though suitable directions have
been given to the police, in particular to the Station House Officers, still
there may be scope for misuse of power. The directions/instructions are only
illustrative and not exhaustive. When the investigating officers seek for remand
of the accused, the Magistrates must examine the necessity for the same and only
where there are valid grounds for believing that the accusation or information
is well-founded and it appears that the investigation cannot be completed within
a period of 24 hours, remand may be ordered.
Indian Citizen: Remand is granted for purpose of investigation? It seems like a ray of enlightenment to me. For the impression seems to be that in all 498A cases at the least, the judicial remand of 15 days is given as a standard thing like brushing your teeth every morning. Judges -- judge thyself.
Violation of human rights and
infringement of personal liberties must be viewed seriously. Except in cases of
grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters
like matrimonial disputes between spouses where it may not take much time for
the police officer to interrogate/investigate, remand should not be ordered
mechanically, for, remand of an accused by a Magistrate is not automatic one on
the mere request of the investigating officer and sufficient grounds must exist
for the Magistrate to exercise the power of remand. To put it clear, a
requisition of remand by the police must accompany the Case Diary, whereupon,
the Magistrate must satisfy himself as to the adequacy and genuineness of the
grounds necessitating judicial custody and while passing orders for remand or
extension of remand, he must be alert to see that the liberty of the citizen is
not violated by the police due to arbitrary exercise of power. Though a detailed
speaking order is not required for remand, application of judicial mind is
absolutely necessary.
Indian Citizen: Justice in India requires no application of mind. A case in point a recent judgment of SC where previously a lower court had granted maintenance to wife of Rs 5,000 per month and it became Rs 50,000 per month on appeal to higher court. Which of the two courts had lost application of mind -- it is difficult to say but quite evident that one of them had no mind to apply in the first place.
Of course, it is provided in the Code that remand should
not exceed 15 days at a time, but, it does not mean that in all cases, remand
for 15 days should be ordered invariably. At the time of production of the
accused before the Magistrates, they should examine the necessity and even at
the time of initial remand, if it appears that remand is not necessary, bail
application can be entertained provided the accused is prepared to furnish
necessary surety or security as may be directed by the court. Likewise, in cases
where remand is required to be ordered, the period must be circumscribed
depending upon the nature of the case, the materials produced by the prosecution
and the actual requirement.
Indian Citizen: Any material is required to be produced by prosecution apart from some senseless sounds of a female gorilla captured into an FIR ? (no offence meant to gorrillas, we are all part of same nature).
Though the law is manifestly clear, plain and
patent, in many cases, it is witnessed that, on the mere request of the
investigating officers, remand is ordered mechanically without application of
mind and such illegal practice must be avoided.
Indian Citizen: Illegal practice -- hmmm... so who is being accused of illegal practice here? Is it investigation officer? Quite evidently not since he is merely a requestor and a supporting party at best. Then who is to be held guilty of illegal practice? The judge of course.
It must also be borne in mind
that the object behind the enactment of Section 498-A IPC and the Dowry
Prohibition Act is to check and curb the menace of dowry and at the same time,
to save the matrimonial homes from destruction. Our experience shows that, apart
from the husband, all family members are implicated and dragged to the police
stations. Though arrest of those persons is not at all necessary, in a number of
cases, such harassment is made simply to satisfy the ego and anger of the
complainant. By suitably dealing with such matters, the injury to innocents
could be avoided to a considerable extent by the Magistrates, but, if the
Magistrates themselves accede to the bare requests of the police without
examining the actual state of affairs, it would create negative effects thereby,
the very purpose of the legislation would be defeated and the doors of
conciliation would be closed forever.
Indian Citizen: Magistrates acceeding to the bare requests of police ... hmmm... remember that movie Dumb and Dumber? Now just try to fit the judiciary and police into roles of Dumb and Dumber? Is it tough? You bet it is!
The husband and his family members may
have difference of opinion in the dispute, for which, arrest and judicial remand
are not the answers. The ultimate object of every legal system is to punish the
guilty and protect the innocents. It is only before the jurisdiction Magistrate
concerned, on conclusion of the investigation, final report is filed, whereupon,
trial of the case is taken up and, in matters relating to serious offences,
committal proceedings are initiated. It is the learned Magistrates who are
empowered to order maintenance under Section 125 Cr.P.C. and award compensation
in appropriate cases. Pending investigation, for grant of instant relief viz.,
to award interim maintenance, interim compensation, entrust custody of minor,
forward the victims to Govt. Homes, issue search warrant, order bailable or non-
bailable warrant, restore sridana properties, send the injured to the Hospital,
provide security, etc., to the complainant/wife/victim, the learned Magistrates
can be approached and at such point of time, the Magistrates must see to it that
orders are passed without any delay. The preliminary job of an Investigating
Officer including that of the Officers posted at the All Women Police Stations
is only to collect the materials in respect of the dispute they are
investigating and place the same before the court/Magistrate.
Indian Citizen: Oh bhai saab! what planet did you just land from? Come to India.. Mera Bharat Mahan. Saari duniya ki hai shaan. Here the investigation officer are the police, lawyer, mediator, and judge all combined into one grotesque super-hero who will save all the abla-naaris and punish all the bad men who beat up the abla-naaris. He or She will take a fat cut to save abla-naaris from the bad men.
For adjudicating
any issue, the dispute must be forwarded only to the learned Magistrate or the
Family court. In this type of fragile matters, in the name of 'petition enquiry'
or investigation after registration of F.I.R., the police should not be allowed
to conduct lengthy panchayats in police stations.
Indian Citizen: You mean to say the lengthy panchayats are only allowed to be held in magistrates' courts? Jago re, Jago re, Jago re.... thodi chai peejiye.
If the dispute could not be
resolved within a period of one week, a conclusion must be reached one way or
the other and the matter must be forwarded to the learned Magistrate concerned.
Therefore, while considering such cases, the learned Magistrates are directed to
apply their judicial mind having regard to the propounded principles and
procedure and the various aspects pointed out in the course of this order and
also to monitor scrupulous adherence to the instructions referred to above by
the police officers concerned.
6. With the above observations and direction, the petition is closed.
7. Registry is directed to immediately circulate copy of this order as well as
the earlier order dated 07.07.2008 to the Director General of Police, Tamil
Nadu, and all the Judicial Magistrates for compliance.
Indian Citizen: All judges of India's courts are hereby ordered by Indian citizens to publish details of their assets on courts' registry and courts' website. It should be prominently displayed in courts' notice boards at all times. Till that time courts should stop giving orders to lesser mortals on dos and donts.