Below is a comprehensive checklist of mandatory pre-arrest formalities that police officers need to ensure.

I. General Requirements for Arrest and Detention:

• Identification of Personnel:
  • Police personnel carrying out the arrest and handling the interrogation must bear accurate, visible, and clear identification and name tags with their designations.
  • The particulars of all such police personnel who handle the interrogation of the arrestee must be recorded in a register.
• Memo of Arrest:
  • The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest.
  • This memo shall be attested by at least one witness, who may be a member of the arrestee’s family or a respectable person of the locality from where the arrest is made.
  • The memo shall also be countersigned by the arrestee and shall contain the time and date of arrest.
• Information to Arrestee’s Contacts:
  • A person who has been arrested or detained and is being held in custody shall be entitled to have one friend, relative, or other person known to them or having an interest in their welfare informed as soon as practicable that they have been arrested and where they are being detained, unless the attesting witness of the memo of arrest is already such a friend or relative.
  • The police officer shall inform the arrested person of this right when they are brought to the police station.
  • An entry shall be made in the diary at the place of detention disclosing the name of the next friend who has been informed of the arrest, and the names and particulars of the police officials in whose custody the arrestee is.
• Medical Examination and Records:
  • The arrestee should be examined at the time of their arrest, and any major and minor injuries present on their body must be recorded.
  • The “Inspection Memo” must be signed by both the arrestee and the police officer effecting the arrest, and a copy must be provided to the arrestee.
  • The arrestee should be subjected to medical examination by a trained doctor every 48 hours during their detention in custody.
  • Copies of all documents, including the memo of arrest, should be sent to the Illaqa Magistrate for their record.
• Police Control Room and Public Information:
  • A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest.
  • This information should be displayed on a conspicuous notice board at the police control room.
• Right to Legal Counsel:
  • The arrestee may be permitted to meet their lawyer during interrogation, though not throughout the interrogation.
• Judicial Scrutiny and Officer Accountability:
  • It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy themselves that these requirements have been complied with.
  • Failure to comply with these requirements shall render the concerned official liable for departmental action, and potentially punishable for contempt of court [239, 285, 37, 54, 72b, 405, 451].
• Reporting Arrests of Public Servants and Juveniles:
  • Whenever a public servant is arrested, the matter should be intimated to their superior officers, if possible, before the arrest and in any case, immediately after the arrest.
  • For members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs immediately after the arrest.
  • Officers in charge of police stations shall report to the District Magistrate or Sub-Divisional Magistrate (if directed) the cases of all persons arrested without warrant, within their respective stations, whether such persons have been admitted to bail or otherwise.

II. Conditions and Justification for Arrest (Section 41 & 41A of CrPC):

• Necessity of Arrest (for offenses punishable with imprisonment up to seven years):
  • For cognizable offenses punishable with imprisonment for a term of less than seven years or up to seven years (with or without fine), arrest is NOT mandatory.
  • A police officer can arrest only if they have reason to believe on the basis of complaint, information, or suspicion that such person has committed the said offense.
  • AND, the officer must be satisfied that such arrest is necessary for one of the following reasons:
    • To prevent the person from committing any further offense.
    • For proper investigation of the offense.
    • To prevent the person from causing evidence to disappear or tampering with it.
    • To prevent the person from making any inducement, threat, or promise to witnesses so as to dissuade them from disclosing facts to the Court or police.
    • As unless such person is arrested, their presence in the Court whenever required cannot be ensured.
• Recording Reasons for Arrest/Non-Arrest:
  • The police officer shall record their reasons in writing when making an arrest.
  • Similarly, the police officer shall record reasons in writing for not making the arrest if it is not required under Section 41(1).
  • The practice of mechanically reproducing reasons from Section 41 CrPC in the case diary for effecting arrest must be discouraged and discontinued.
  • The gravity of the charge and the exact role of the accused must be properly comprehended before arrest is made.
  • Arrest should be the last option and restricted to exceptional cases where it is imperative.
• Checklist and Magistrate’s Role (Section 41 & 41A):
  • All State Governments must instruct police officers not to automatically arrest when a case (e.g., under Section 498-A IPC or Section 4 Dowry Prohibition Act, or offenses punishable with imprisonment up to seven years) is registered, but to satisfy themselves about the necessity for arrest under the parameters of Section 41 CrPC.
  • All police officers must be provided with a check-list containing specified sub-clauses under Section 41(1)(b)(ii).
  • The police officer shall forward the check-list duly filled and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention.
  • The Magistrate, while authorizing detention, shall peruse the report furnished by the police officer and only after recording their satisfaction, will authorize detention. This satisfaction must reflect from their order, not just be based on the police officer’s ipse dixit.
  • Issuance of notice (Section 41A): In all cases where arrest is not required under Section 41(1) CrPC, the police officer is required to issue a notice directing the person to appear before them.
  • If the person complies with this notice and continues to comply, they shall not be arrested unless, for reasons to be recorded, the police officer is of the opinion that arrest is necessary. This necessity is subject to the same scrutiny by the Magistrate as for Section 41.
  • All State Governments and Union Territories are directed to facilitate standing orders (like Delhi Police Standing Order No. 109 of 2020) to comply with Section 41A’s mandate [56, 73d].
  • Courts are expected to “come down heavily” on officers effecting arrest without due compliance of Section 41 and 41A.

III. Specific Case Categories:

• Police Encounters (leading to death or grievous injury):
  • Initial Recording: Whenever police receive intelligence or tip-off regarding grave criminal movements, it shall be reduced into writing (preferably in a case diary or electronic form). Higher authorities must also note such information.
  • FIR Registration (in case of death): When a police officer receives information about death in an encounter, they shall enter that information in the appropriate register.
  • Independent Investigation: Where police officers from the same police station are members of the encounter party, it is desirable that such cases are made over for investigation to an independent investigation agency like the State CBCID.
  • FIR for Criminal Act by Police: Whenever a specific complaint is made against the police alleging a criminal act (e.g., culpable homicide), an FIR to this effect must be registered under appropriate sections of the Indian Penal Code. Such cases shall be investigated by State CBCID or other specialized investigation agency.
  • Preservation of Evidence: The police officer involved in the encounter or the investigating officer shall take all necessary efforts to preserve fingerprints of criminals/weapons and send them for chemical analysis.
  • Inquest Examination: The inquest examination shall be conducted by the investigating staff on the spot itself without any delay. Statements of inquest witnesses are to be recorded under Section 161 CrPC, and the inquest panchnama sent to the Court with the FIR without delay.
  • Medical Aid and Statements of Injured: If injured criminals are found alive, they should be provided medical aid immediately, and arrangements made to record their statements under Section 164 CrPC by a Magistrate or Medical Officer, duly attested by hospital staff.
  • Timely Reporting to NHRC: Six-monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs by January 15th and July 15th, in a specified format including post-mortem, inquest, and inquiry reports.
  • Disciplinary Action/Suspension: If investigation concludes death occurred by firearm amounting to an offense under IPC, disciplinary action against such officer must be promptly initiated, and they must be placed under suspension.
  • Surrender of Weapons: The police officer(s) concerned must surrender their weapons for forensic and ballistic analysis, and any other material required by the investigating team, subject to rights under Article 20 of the Constitution.
  • Compensation: Compensation to dependants of victims who died in police encounters must apply the scheme provided under Section 357A of the Code.
  • Avoid Out-of-Turn Promotions: No out-of-turn promotion or instant gallantry rewards shall be bestowed on concerned officers soon after the occurrence, only when gallantry is established beyond doubt.
  • These guidelines also apply to grievous injury cases in police encounters, as far as possible.
• Corruption Cases (Prevention of Corruption Act – PC Act):
  • Preliminary Inquiry (Non-Mandatory but Desirable):
    • Preliminary inquiry is not mandatory before registering an FIR under the PC Act if the information received discloses the commission of a cognizable offense at the outset. In such situations, no preliminary inquiry is permissible, and FIR registration is mandatory.
    • If the information does not disclose a cognizable offense but indicates a necessity for inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offense is disclosed.
    • The scope of preliminary inquiry is not to verify the veracity of the information, but only to ascertain if a cognizable offense is revealed.
    • If the inquiry discloses a cognizable offense, the FIR must be registered.
    • If the preliminary inquiry closes the complaint, a copy of the closure entry must be supplied to the first informant forthwith (not later than one week), disclosing brief reasons for closure.
    • A preliminary inquiry, if conducted, should be time-bound and not exceed 7 days. Any delay and its causes must be reflected in the General Diary entry.
  • Approval for Investigation (Section 17 PC Act):
    • No police officer below the rank of Superintendent of Police shall investigate an offense referred to in Section 13(1)(b) of the PC Act without the order of a police officer not below the rank of a Superintendent of Police.
    • The Superintendent of Police is competent to issue a composite order for FIR registration and investigation under Section 17 of the PC Act if the source information prima facie discloses offenses. This authority is not dependent on a pre-existing FIR or exhaustive preliminary inquiry.
    • Prior approval under Section 17A of the PC Act is required for any inquiry or investigation into an offense alleged to have been committed by a public servant where the offense is relatable to a recommendation made or decision taken in discharge of their official functions or duties.
• Missing Children Cases:
  • Any complaint regarding missing children made in a police station should be reduced into a First Information Report (FIR).
  • Appropriate steps should be taken for immediate follow-up investigation.
  • There will be an initial presumption of either abduction or trafficking unless investigation proves otherwise.
  • For complaints under Section 155 CrPC (non-cognizable) regarding a child, after making an entry and referring information to the Magistrate, the inquiry into the complaint must continue.
• Human Trafficking Cases:
  • It must be made mandatory for Anti-Human Trafficking Units (AHTU) or the Police to report every case of human trafficking.
  • Police are advised to follow strategies to build trust with victims, including assuring victims they are not the subject of inquiry, treating them with respect and decency, employing a translator if needed, protecting their identity and privacy, keeping the accused separate, and ensuring compliance with Section 228A of the Indian Penal Code and Section 21 of the Juvenile Justice Act. Victims should also be informed of investigation developments and allowed to keep their belongings.

IV. Issuance of Warrants and Custody:

• Sequence of Processes: Courts should adopt the procedure of first issuing summons, then a bailable warrant, and then a non-bailable warrant if warranted, with valid reasons given for not exercising discretion in favour of the person.
• Non-Bailable Warrants: Non-bailable warrants should never be issued without proper scrutiny of facts and complete application of mind.
• Warrant Records: High Courts must ensure subordinate courts use printed and machine-numbered Form No. 2 for arrest warrants, and each form is accounted for.
• The presiding Judge or authorized officer must put full and legible signatures on the process, ensuring the court seal is prominently endorsed.
• The court must ensure the warrant is directed to a particular police officer or authority, and is returnable (executed or unexecuted) by a specified date unless open-ended.
• Every court must maintain a register for warrants of arrest, with chronological entries and serial numbers. No warrant shall be issued without being entered in this register.
• A similar register shall be maintained at the concerned police station for received warrants.
• Courts should not give long times for return or execution of warrants.
• On the return date, the court must insist upon a compliance report on action taken by the Station House Officer or concerned agency, which must be clear, cogent, legible, and forwarded by a superior police officer.
• For execution beyond jurisdiction, Sections 78 and 79 of the Code must be strictly followed.

V. Search and Seizure:

• Witnessing Searches: Before making a search, the authority shall call upon two or more persons to attend and witness the search.
• The search shall be made in the presence of such persons.
• The authority shall prepare a list of record or property seized during the search and obtain the signatures of the witnesses on the list.
• Right to Witness during Search (NDPS Act): The empowered officer must explicitly inform the suspect of their right to be searched in the presence of a Gazetted Officer or a Magistrate if they require it.

VI. Disclosure of Documents to Accused:

• Upon filing of the chargesheet (Section 207 CrPC), the accused is entitled to copies of:
  • The police report.
  • The First Information Report (FIR) recorded under Section 154.
  • Statements recorded under Section 161(3) of all persons whom the prosecution proposes to examine as witnesses.
  • Confessions and statements, if any, recorded under Section 164.
  • Any other document or relevant extract forwarded to the Magistrate with the police report under Section 173(5).
• The Magistrate may direct furnishing of a copy of parts of Section 161(3) statements requested for exclusion by the police officer, after considering reasons, and is not bound by the police officer’s request.
• If any document referred to in Section 207(v) is voluminous, the Magistrate shall direct the accused be allowed to inspect it personally or through their pleader in Court, instead of furnishing a copy.
• The list of statements, documents, material objects, and exhibits supplied to the accused shall specify statements, documents, material objects, and exhibits that are not relied upon by the investigating officer.