This article is written by Shome Bhattacharjee, a student of Campus Law Center, Delhi University.
Today many young students and professionals move away from their home towns to a bigger city in search of work or education. If you happen to work or study in a big city, you may have experienced or have heard of a friend being harassed by policemen. It does happen that a party is gatecrashed by police. Incidents of abuse are not uncommon in these situations. There are a few things you need to know in order to deal with these situations.
Here is a case to show you what I am talking about:
Imagine that you throw a party make new friends in the new city. There is some alcohol flowing and music pumping to get everyone to dance and have a great time. Its 10:30 PM on a Saturday night and everyone is having a blast and its at about this time that the cops show up, force their way inside the apartment and find many bottles of alcohol. The cops then proceed to rip out the cables of your expensive new music system because they somehow seem incapable of understanding the concept of remote controls.
Common fears while interacting with cops
Here are some things that might be going on in your mind-
- None of your guests wants to go to a jail or to have a criminal case pending against them. What would they tell their parents? How would they justify all the loud music and the drinking to them? This means that contacting their family for help is out of the question.
- Let’s say the inspector threatens to call the press and show the media how these rich brats blow away their parent’s money. That starts off another scenarios like
- What if the article also slanders the name of their college and the college authorities decide to suspend or even rusticate them?
- What would the parents say?
- The idea of such a scandal is particularly disturbing for your female guests, who have been in the city for less than a month. This would ruin their reputation in college as everyone would brand her as a “Party Girl” which may be a euphemism for slut.
- The Inspector tells these scared young party goers that since it’s a Saturday, and the local court is shut because of some festival, it is going to be two weeks before they can be produced before a court and they will have to stay in jail till then. Your mind unleashes its creativity and here are the pictures it comes up with, each darker than the last one. Basically you see yourself getting the Shiney Ahuja treatment in prison.
- What if there was something “other” than just alcohol involved in the party? If you did smoke up, every one of your guests knows that this would probably get them in trouble.
Curiously enough, even though it has been almost an hour, these cops have made no move to actually arrest anyone. The suspense and the waiting is now unbearable and everyone just wants the night to end. You know that these cops will let you all go, if you pay them off. The questions that you are probably asking yourself at this stage ar
- Who makes the offer?
- How much?
- Will he be jailed for trying to bribe a cop?
In all the commotion, a friend of yours comes up to you and tells you that he can’t find his brand new phone. He says that he had plugged in the phone for charging in the bed room, before the cops came and that was the last time anyone saw it You remember that the police officers forced you to show them every inch of your house, including your bedroom. It was only you and two or three cops in the room for a few minutes. After their “investigation” you locked the room again. Could it really be that these policemen are corrupt enough to steal from your house? You don’t want to think about it, but there is no other alternative, is there?
Here are the issues involved–
- Can the police arrest anyone in this situation?
- Can they enter your home without your permission?
- If you are arrested, then how long will you have to stay in jail?
- When can you call a lawyer?
- Can the police actually get this incident published in a newspaper?
- What can you do about the missing phone?
- How much trouble are you in because of the alcohol? What if you also had some recreational drugs at your party?
- Should you just bribe them and be done with it?
Here are the Answers:
- The short version- no.
The long version- There are some offences which the police can arrest you for without a Warrant. These offences tend to be serious in nature (like murder or theft). For other offences, i.e. those which are less serious, the police cannot arrest you without a warrant. Offences where the police can arrest without an arrest warrant are called cognizable offences. The offence that you may have committed is that of “public nuisance”. Sections 268 and 290 of the IPC are the relevant provisions for this offence. Sec 268 remains silent on the issue of whether it is a cognizable offence, but Sec 290 makes it clear that it is not.
In order to arrest, the police will need an arrest warrant. What you need to know here is the offence which you are being accused of.
What you absolutely must do here
Ask the policemen if you are under arrest. If they say that you are, then you can take legal action against them. Even contacting the area SP can result in a departmental action against these cops for infringing on your right to freedom illegally.
If they say that you are not under arrest, you have no obligation to go with them. These are the most common example of the cops trying to trick you into coming with them.
- They may try to convince you to ‘cooperate’ with the investigation.
- They may try to get you to a police station for “questioning”.
- They may “just want to have a chat”.
The rule of thumb here is do what your mom told you- Never get into a stranger’s car, even if they are policemen. Cooperating with the investigation is a common excuse. Cooperation, however, does NOT mean that you have to go with them to the station. There is no such legal duty on you, in connection with public nuisance. For non-cognizable offences you may be required to report to the station only if a magistrate orders it. For cognizable offences, like a
murder or rape or another serious crime, it will be different).
You do not have to go with them. This is important because once you are in the station, you are in their environment, and they have more leverage on you.
Remember the fact that you always have a right to ask why you are being arrested.
- No, the police cannot enter your home without a search warrant for this matter. You can refuse them entry to the house.
- In case you are arrested (for a cognizable offence and without a warrant) the police must present you to the concerned are magistrate within 24 hours.
In the present case, the magistrate will order the police to free you as they had no authority to detain you in any way, since public nuisance is a non-cognizable offence.
- You have the right to call your friend/ relative/ lawyer within 24 hours. For all practical purposes, you need to insist on this right, as the police officers in question, probably would not bother to let you know about this in most cases.
You also have the right to ask for a medical examination when you are arrested. This will ensure that the police will have to answer for unexplained injuries or bruises on your body.
- Yes, there is no specific law barring the police from getting a bunch of reporters. This is, however, a clear case of police misconduct and you can file a complaint against them with the SP. You have the option of initiating legal proceedings against them for the offence of Defamation. You can also use this as an example of how these police officers tried to (on the face of it) scare you into bribing them.
This attempt to get you to pay them off commit an offence under the Sec 7, Prevention of Corruption Act and Sec 420 Indian Penal Code.
If the SP does not take any action, then you can approach a Magistrate to compel proceedings to be initiated.
- The matter of missing property is very tricky. Legally speaking, even if you can establish the misconduct of the police, and that they were trying to get you to bribe them, you don’t have much of a case. Your case, in the absence of any eye witness is circumstantial at best. In this situation, a complaint to the SP can be made, and a complaint can be filed for theft with either the area Magistrate or the Officer in Charge of the Police Station.
- Drinking alcohol, even if you are underage, is not an offence. Selling alcohol to underage persons is. This limit varies from state to state. Thus, you are in the clear. As far as other substances are concerned, it depends on the substance itself and depends from case to case. There are provisions in the Criminal Procedure Code which allow policemen to act on their own to prevent a crime or catch criminals red handed. The prerequisites for such action are –
- The officer must either they receive some information or have reason to believe that a cognizable (i.e., a serious crime) is about to be committed.
- There is no scope to inform the magistrate first and get a search warrant from him, due to the urgency of the situation. If they do not act immediately, the criminals will escape/ the crime in question would have been committed.
- After the criminals are apprehended or the crime is prevented/intercepted, the police officers must intimate the concerned magistrate as soon as possible.
Thus, in case of any drug use in a party, the police officials can claim that they received information about a drug They can also claim that they didn’t have any time to get a search warrant or arrest warrant. Now, what you need to keep in mind is the first prerequisite- a cognizable offence. Thus, the kind of drug and the quantity of drugs are going to be relevant.
Here is what a government website has to say-
“Possession of drugs is itself an offence under the NDPS Act(Narcotic Drugs and Psychotropic Substances Act, 1985) as much as sale, purchase, production, etc. The punishment does not depend on whether the possession or purchase is for personal use or for resale but depends on the quantity of the drug.
Consumption of drugs is an offence under section 27 of the NDPS Act and is punishable with imprisonment of up to one year (in case of some drugs) or six months (in case of all other drugs).”
So, if the type and amount of the drug in question is punishable with imprisonment for 6 months, then the offence is not a cognizable one, thus the search is void. In case you have just one joint in your party, you are not at risk of being jailed, since the search and seizure itself was illegal. This is not true if there is an independent witness which the police produces, or if one of your guests becomes a witness against you
Here is some good news about the NDPS Act
Even with the allegation of drug use, section 58 of the NDPS Act () makes arbitrary and baseless search and seizure by police officers punishable with imprisonment of up to 2 years. So if the cops make the argument about a tip off relating to drugs, you have another weapon against the,Thankfully, this provision makes sure that blatant abuse of power by the guardians of our society are kept in check.In some casesthese corrupt policemen have been known to carry away bottles of very expensive alcohol and other property. Most people don’t object due to a combination of ignorance and fear. Now you know what you can do.
Your rights against seizure of your property
Anything that is taken from your flat as “evidence” must be recorded in writing by the senior officer and be handed to you for your signature. Any evidence which is not collected in this manner by a search is about as useful to the prosecution as a fridge is to an Eskimo.
If they can submit a sample of the evidence in some other way (for example, finding suspicious substances outside the flat, where it seems that the substance was thrown from the flat) it is possible that the court will admit it. This is because these things were not in your premises when they were obtained by the police. There still needs to be something which links the accused (you) to these “samples”, independent of the police search for a conviction. The testimony of an eyewitness that corroborates the “sample” in question being thrown from the balcony may be such an independent link.
- That is up to you, although I hope that you do not. You could attempt to record the entire transaction on your phone and use it against these cops.
In the present case, what you need to do is remain calm and polite, while letting the policemen know that you know what your rights are and that their game will not work. Here are a few things that need to be remembered.
- Ensure that the policemen are aware of the fact that you know about the limits on their powers. This is especially important for arrests and searches without warrants.
- Any “evidence” that they collect is going to be inadmissible, since it was obtained without a search warrant.
- I would ensure that the entire thing is being recorded by as many people as possible on their phones (in secret). This recording needs to be uploaded to either an online storage service (like Google drive and Dropbox) or a pen drive. This is important because the cops will, if they come to know if the recording, try to seize/break the phones or delete the files. Remember to keep backups of these videos, even if you are submitting a copy to the SP or a Judicial Officer.
- Show absolutely no fear.
- Maintain some physical distance as it will help to keep you outside striking distance and also to keep things from escalating to a physical confrontation.
- As far as the missing items is concerned, assuming that you have ensured that you have greater leverage in this situation, and that the cops know it as well, and that the risk of doing this seems acceptable to you in light of the circumstances-
- Hint to the second highest ranking (NOT the senior most) officer in group. The reason for not talking directly to the senior is that even if he wants to hand back the property, he will not be able to do so if it means submission to you in front of his subordinates.
- Suggest that it would be convenient if you could find the phone, say with the watchman of the society or at a spot that you point out to them. Mention, as politely as possible, that if you don’t find a phone, you will have to report everything to the concerned authorities (the Anti-Corruption Bureau, the SP, Commissioner of Police or a Magistrate). Even if the allegation of the theft of the phone does not stick, the cops know that they will be put on the spot because of all of the other misconducts. Once you are done with explaining your point to the cops, take all of your friends and get back inside the flat. Make sure that no one is left behind. Once you know that the cops are gone, check the spot you had indicated to them earlier. If you are lucky, you just might get the phone back.