Criminal justice I: police, FIR, arrest and custody

Detail

1. The criminal justice chain

• Criminal justice system: the chain of bodies that deals with a crime from start to end:
• Police find out what happened (investigation) and arrest people.
• Prosecution (the government's lawyers) argues the case in court.
• Courts decide guilt and sentence.

• Prisons hold people who are under trial or convicted.

• These links depend on each other. A weak FIR or a poor investigation can make the whole case fail in court.

2. Police: who controls them

• Police: the state government's force that keeps law and order. The police may lawfully use force to keep people safe. They must still respect the rights in the Constitution (NCERT Class 7: the people–police–government diagram, Fig. 6.6).
• Federal placement: "Public order" is entry 1 and "Police" is entry 2 of the State List (Seventh Schedule). So each state makes its own police laws and runs its own force.
• Colonial law: the Police Act 1861, passed after the 1857 revolt, still governs police in many states. It was written to control the people, not to serve them.
• Commissionerate system of policing: in big cities a Commissioner of Police (CP) gets magisterial powers, such as issuing prohibitory orders and licences.
• Usual district model (dual control): the Superintendent of Police runs the force, but the District Magistrate (DM) holds magisterial powers.
• Case for it: quick decisions and one clear chain of command in crowded cities.

• Case against it: police and magisterial power sit in one office, with less civilian check.

• Police reform (National Police Commission 1977-81; Prakash Singh v Union of India, 2006; Model Police Act 2006) is covered in the civil-services note.

3. Types of offence

• Offences are classed in the First Schedule of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023. The BNSS replaced the CrPC 1973 from 1 July 2024. It has 531 sections, compared with 484 in the CrPC.

Feature	Cognizable offence	Non-cognizable offence
Arrest	Police can arrest without a warrant	A warrant is needed
Investigation	Starts without a magistrate's order	Needs a magistrate's order
Examples	Murder, rape	Defamation
Record	FIR under BNSS s.173	Entered in a book and referred to a magistrate (s.174)

• For non-cognizable cases, the police must now send the daily diary report to the magistrate every fortnight (BNSS s.174(1)(ii)) [2].
• Bailable and non-bailable offences are covered in the bail section.

4. Setting the law in motion: the FIR

• First Information Report (FIR) (BNSS s.173): the first police record of a cognizable offence. It sets the criminal law moving.
• How it can be given [2]:
• Orally: the officer writes it down, reads it back, and the informant signs it.

• By electronic communication: it is taken on record once the informant signs it within 3 days. This is the e-FIR.

• Free copy: a copy must be given at once, free of cost, to the informant or victim (s.173(2)) [2].

• Registration is mandatory: for a cognizable offence the police must register an FIR (Lalita Kumari v Govt. of Uttar Pradesh, 2013).
• Preliminary enquiry (new): for offences punishable with 3 years or more but less than 7 years, the station officer may hold a preliminary enquiry. This needs permission from an officer not below Deputy Superintendent of Police (DSP) and must finish within 14 days. It decides if there is a prima facie case (a case that looks valid at first sight) [2].
• If the police refuse: the person can go to the Superintendent of Police, and then apply to the magistrate (s.173(4)) [2].
• Zero FIR: an FIR filed at any police station, whatever the place of the crime. It is then sent to the station that has jurisdiction (the legal power to deal with the case).
• It was recommended by the Justice Verma Committee (2013) after the December 2012 Delhi gang-rape.
• It is now statutory: s.173(1) says information may be given "irrespective of the area where the offence is committed" [2][3].

5. From investigation to court: the charge sheet

• Forensics: for offences punishable with 7 years or more, a forensic expert must visit the crime scene. The process is filmed on a mobile or other device (s.176(3)) [2].
• Audio-video recording: searches (s.185) and search-and-seizure (s.105) must be recorded by audio-video means [2].
• Charge sheet (police report, s.193): the police's final report after investigation. On this report the court takes cognizance, which means it formally starts the case.
• Rape and POCSO cases: investigation must finish within 60 days (s.193(2)) [2].
• The police must tell the informant or victim about progress within 90 days, by any means including electronic (s.193(3)(ii)) [2].

6. Arrest safeguards

• Article 22 (protection against arrest and detention):
• 22(1): the arrested person must be told the grounds of arrest. They have the right to consult and be defended by a lawyer of their choice.
• 22(2): they must be produced before the nearest magistrate within 24 hours, not counting travel time.

• 22(3): these rights do not apply to enemy aliens or to people held under preventive detention.

• BNSS s.58: the 24 hours rule now says the person goes to a magistrate's court "whether having jurisdiction or not" [2].

• Notice instead of arrest (BNSS s.35): for offences punishable with up to 7 years, the police should first issue a notice of appearance (an order to come to the police). The old CrPC ss.41 and 41A are merged into s.35 [2].

• New compassionate rule: to arrest a person who is infirm or above 60 years for an offence punishable with less than 3 years, the police need the permission of a DSP [2].

• Arnesh Kumar guidelines (Arnesh Kumar v State of Bihar, 2014): no automatic arrest for offences punishable with up to 7 years.

• The police must record their reasons for arresting.

• The magistrate must check those reasons before allowing detention.

• D.K. Basu guidelines (D.K. Basu v State of West Bengal, 1997):

• an arrest memo signed by a witness;
• informing a relative or friend of the arrest;
• a medical examination of the arrested person;

• and more. These were later codified (written into the law).

• Where D.K. Basu now sits in BNSS [2]:

• A designated police officer (not below ASI rank) in every district and police station keeps arrest details. These are displayed, including in digital form.
• s.48: the person making the arrest must inform a nominated person and the district's designated officer.
• s.53: the arrested person gets a medical examination. A female is examined only by or under a female medical officer.

• s.43(1): when a woman is arrested, the people she names are told where she is held.

• Handcuffs (s.43(3)): allowed only for listed cases, such as habitual or repeat offenders, escapees, organised crime, terrorism, murder, rape, acid attack and offences against the State [2].

• CCTV in police stations: ordered in Paramvir Singh Saini v Baljit Singh (2020) to deter custodial abuse.

7. Custody

• Police custody: the accused is held at the police station so the police can question them. The magistrate decides this.
• Judicial custody: the accused is held in jail under a magistrate's order. Police cannot question them without the court's permission.
• BNSS s.187: a person may be held only in a police station (police custody), a prison (judicial custody) or a place declared a prison. House arrest is not allowed [2].

Offence	Total detention before charge sheet	Window for police custody	Maximum police custody
Death, life imprisonment or 10 years or more	90 days	First 60 days	15 days, whole or in parts
Any other offence	60 days	First 40 days	15 days, whole or in parts

• What changed: under the CrPC, police custody was allowed only in the first 15 days. Now the 15 days can be split and used at any time in the 40 or 60 day window [2].
• Criticism: this may lead to bail being refused during that period, because the police can say they need the person back in police custody [4].

8. Custodial violence

• Custodial violence: torture, ill-treatment or death of a person while in police or judicial custody.
• Scale (NHRC data):
• NHRC registered 31,845 custodial death cases in 1993-2018. The highest was 1,981 in 2007-08 [5].

• At least 17,146 deaths in judicial or police custody in 2010-2020, nearly 5 a day [6].

• NHRC's view: death in police custody is "one of the worst kinds of crimes in a civilized society governed by the rule of law" [7].

• International law: India signed the UN Convention against Torture (UNCAT) in 1997 but has not ratified it. Ratifying would make it binding. NHRC has asked the government to ratify it [7].
• Law Commission 273rd Report (submitted 27 October 2017): "Implementation of UNCAT through Legislation". It proposed a separate anti-torture law [8].

Prelims Hooks

• "Police" and "Public order" → State List entries 2 and 1 (Seventh Schedule). They are not Concurrent List entries.
• Zero FIR → recommended by the Justice Verma Committee (2013), now statutory under BNSS s.173(1).
• e-FIR → taken on record only once the informant signs within 3 days [2].
• Preliminary enquiry under BNSS s.173(3) → offences punishable with 3 to 7 years, needs DSP permission, finish in 14 days [2].
• Lalita Kumari (2013) → FIR registration is mandatory for cognizable offences. Arnesh Kumar (2014) → no automatic arrest for offences up to 7 years. D.K. Basu (1997) → arrest memo, informing a relative, medical check. Paramvir Singh Saini (2020) → CCTV in police stations.
• Trap: police custody is still 15 days at most. What changed under BNSS s.187 is that the days can be taken in parts within the first 40 or 60 days [2].
• Victim must be told of investigation progress within 90 days → BNSS s.193(3)(ii) [2].
• Arresting a person above 60 or infirm for an offence punishable with less than 3 years → needs DSP permission (BNSS s.35) [2].
• UNCAT: India signed in 1997 but has not ratified it. Law Commission 273rd Report (2017) proposed an anti-torture law [7][8].

Mains Points

• The police are still colonial: the Police Act 1861 and policing as a State List subject leave reform to each state. Most states have not fully followed Prakash Singh (2006). Political control and few officers per person weaken the first link of the chain.
• Citizen-friendly FIR against police discretion: Zero FIR, e-FIR, a free FIR copy and the 90-day update help victims [2]. But the new 3-7 year preliminary enquiry may let police delay FIRs, which goes against the spirit of Lalita Kumari.
• Liberty against investigation needs: BNSS s.35 (notice first), Arnesh Kumar and audio-video recording protect liberty. Spreading police custody across 40 or 60 days (s.187) gives investigators more room, but it can block bail and keep the accused open to pressure [2][4].
• Custodial torture: with 31,845 NHRC custodial-death cases in 1993-2018 [5], the case for a stand-alone anti-torture law and for ratifying UNCAT is strong (Law Commission 273rd Report, 2017) [8]. Other needed steps: working CCTV (Paramvir Singh Saini, 2020), independent Police Complaints Authorities, and compensation for victims.