What to do when questioned/arrested?

KNOW YOUR RIGHTS

GAY SPECIFIC INFORMATION:

1. If you find yourself being interrogated, it is not necessary or advisable to describe your sex life or sex acts that you commit. If someone keeps insisting, respectfully say "It is my private business", or suggest that it’s none of their business. Though some homosexual acts are a crime in India, it is NOT A CRIME TO BE GAY. If the fact of your sexual orientation comes out, it does not make you a criminal in the eyes of the law, even with the presence of Sec 377 I.P.C. I think not knowing this fact is the ESSENCE of the fear and ignorance of gay men that leads to their harassment, blackmail etc., and I cannot overstress this point enough.

2. Also, if someone threatens you with Sec 377, know that you have a VALIANT SOLDIER on your side, called Section 389.

Section 389: Offence: Putting a person in fear of accusation of an offence punishable by death, imprisonment for life or imprisonment for 10 years IN ORDER TO COMMIT EXTORTION. Punishment: Imprisonment for 10 years and fine. If the offence is an unnatural offence, the punishment for the extortion attempt is an imprisonment for life!

What this means is that if someone threatens to have you arrested under 377 in order to blackmail you or extort money you, you can turn right round and tell him, "I will have YOU arrested under section 389 for threatening me with extortion!"

3. Will the police call my parents? If you find yourself in trouble and the police threaten to phone/meet your parents, mention that you are an adult and not a minor. Say that you are capable of handling your own affairs, and that they should not be involved. However there is nothing you can legally do to prevent them from contacting your parents in the course of their investigation. But if they are contacting your parents with the sole aim of extorting money from them/scaring you into paying up, then that is a crime.

4. While filing a complaint, giving a false name and address is an offence. It is necessary to give your name and contact information.

5. If they demand to have your mobile phone, wallet or any other object, ask for them to make the demand in writing, take their signed written demand and then hand the phone etc. over.

6. If a policeman says he is going to arrest you, he should be wearing a visible name tag with his id and designation.

7. Respectfully ask for the policeman's id and take down all the details on the ID card and keep them with you. Address the officers as "Sir" always, however low his rank may be, or however high your social status may be.

8. If you get a blackmailer punished for harassing you, and he gets out on bail, don't worry. A precondition of the bail is that he cannot intimidate you, or else the bail stands cancelled.

9. Anyone can file an FIR, even a friend of yours if you cannot at that moment. Also you cannot be made to run around from one station to another. As mentioned previously the nearest police station has to take the complaint and then forward it to the jurisdiction police station.

10. If you get into trouble on a local train, or the tracks, or the stations - the offence comes under the jurisdiction of the railway police and they have to be contacted. The railway police booth station is usually on the platform and just outside the station, any railways staff or the food stall-wallahs will direct you to it.

11. Do not use obscenities to show that you are not scared. Do not threaten to contact some mythical higher-ups in the police. You will bring out hostility in the cops and make matters worse.

12. Preferably talk in Marathi, as the police force is overwhelmingly Maharashtrian. If you can, take along a respectful friend who speaks good Marathi.

13. If you hire a lawyer, tell them everything about yourself, including your sexual orientation. it will help them to fight the case better. Besides they are obligated to respect your privacy and confidentiality.

14. Don't start with the assumption of corruption and run around trying to bribe everyone. A vast number of police offers are honest and clean. Stand tall and have no fear. You are not in the wrong simply for being gay.

15. Tell your gay friends what's happened to you. Share it with each other and with mailing lists like Gaybombay. It will enable others to help you, support you, as well as will prevent others from having the same problem. It will also enable us to catch the blackmailers and get them punished.

16. Don't tease or deliberately provoke the police or people in public. You can stand on Marine Drive and smooch your boyfriend in broad daylight, but be prepared to face the consequences of your actions, and to stand your ground.

17. Porn CDs: It is an offence to distribute them under Sec 108 of Cr.P.C. and Section 292 of the IPC. Never accept/buy such materials from a stranger.

18. Contact Lawyers Collective or India Center for Human Rights and Law in case you have such a problem. LC is another organization that has done fantastic work in this regard.

Criminal Justice Initiative

4th Floor, CVOD Jain High School,

Pala Gali, Dongri,

Mumbai - 9

Ph: 022- 23439651 / 23436692

Ph : 022-23439651/23436692

Fax: 022-23433698

Email: cji@ [cji at ichrl dot org]

ICHRL:

4th Floor, CVOD Jain School, 84 Samuel Street, Dongri Mumbai 400009 India.

Tel: 2343 6692; 23439651.

Email: huright@ [huright at vsnl dot com]

Website: www.indiarights.com

Lawyers Collective:

61 Jalaram Kripa, Ground Floor,

Janmabhumi Marg, Fort, Mumbai.

India 400001

Tel: 22875482, 22875483

Email: lawyers@ [lawyers at vsnl dot com]

Website: www.hri.ca/partners/lc

Criminal law in India has mainly 3 acts: Indian Penal Code, Criminal Procedure Code, and Indian Evidence Act.

OFFENCES:

Types:

Cognizable: A police officer can arrest without a warrant. He/She can investigate the matter without the order of a magistrate. E.g. Theft, housebreaking.

Non-cognizable: A police officer cannot arrest without a warrant. A police officer cannot investigate without the order of a magistrate.

E.g. Criminal intimidation.

Bailable: The arrested accused is entitled to bail as a matter of right under section 436 of the Cr.P.C. The bail can be furnished in the police station. The police themselves can and should release the accused on bail after arresting him. In Bombay the police can grant bail up to Rs. 950 in bailable offences. If the police do not grant him bail he can apply to the court for bail. Example: Causing simple hurt, kidnapping.

Non-Bailable: The arrested accused is not entitled to bail as a matter of right. The accused can apply to the court for his release on bail immediately after his arrest [Section 437 or 439 of Cr.

P.C.]. The court has the power to grant or refuse bail. E.g. Murder, theft, rape, robbery.

Compoundable: The injured party/complainant and the accused can enter into a settlement. Compounding has the effect of an acquittal. Ex:

Theft, where the value of the property stolen is Rs. 250 or less.

Non-compoundable: No settlement can be entered into between the injured party/complainant and the accused. Ex: Rape, murder.

These definitions basically explain the seriousness of the offence.

Section 377 of the Indian Penal Code is cognizable, non-bailable and

Non-compoundable. [377: Unnatural Offences: "Whoever has carnal intercourse against the order of nature, with man, woman or animal is liable to imprisonment and/or fine for term from ten years to life."

Explanation: Penetration is sufficient to constitute the offence.]

ACCUSED:

An accused is a person suspected, arrested or charged with the commission of a crime.

SUPREME COURT GUIDELINES ON ARREST:

1. Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. The police officer carrying out the arrest of the arrestee shall prepare a memo of the arrest at the time of the arrest. This memo shall be attested by at least one witness. It can either be a member of the family of the arrestee or a respectable person of the locality from which the arrest is made. It shall be countersigned by the arrestee. It shall contain the date and time of arrest.

3. Consider a person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up. He/she shall be entitled to have one friend or relative, or other person known to him having interest in his welfare, to be INFORMED, as soon as practicable. The information is that he has been arrested and is being detained at the particular place.

4. If the next friend or relative of the arrestee lives outside the district or town, the time, place of arrest, and venue of custody of an arrestee must be notified by the police through the LEGAL AID ORGANIZATION in the district, and the police station in the area notified telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person. It should disclose the name of the next friend of the person who has been informed of the arrest.

Also it should contain the names and particulars of the police officers in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of arrest. Major and minor injuries if any are present on his body, must be recorded at that time. The "Inspection memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody.

9. Copies of all the documents including the memo of arrest referred to above should be sent to the `ilaaqa' Magistrate for his record.

10. The arrestee is permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. Information regarding arrest and place of custody must be sent to the police control room at state and district headquarters. It is to be communicated by the officer making the arrest within 12 hours of effecting the arrest. It should be displayed on a conspicuous notice board at the police control room.

INFORMATION TO THE ACCUSED/ARRESTEE:

1. The accused must be informed of the grounds of his arrest.

2. The accused must be told the offence in connection with which he/she as been arrested.

3. If the accused is arrested in connection with a bailable offence, the police must inform him of his right to bail.

4. If the accused is arrested in connection with a non-bailable offence, the police should inform him of his right to apply for bail.

5. The police must inform the relative/next friend of the accused about the time and place of arrest as well as the venue of custody.

STAGES OF A CASE

Registration of an offence/complaint (in the form of an FIR, a first information report for a cognizable offence, or an NC for a non- cognizable offence.

Investigation by police or magistrate.

Arrest of accused.

Remand: Accused is produced before magistrate, remanded to police or judicial custody and then interrogated by the police.

Bail

Discharge of accused by police

Filing of charge sheet: Filed by the police if they find enough evidence against the accused. Includes all documents relied on by police.  Contains list of witnesses prosecution would like to call. A copy of charge sheet along with all documents must be given to accused.

Committal of case to Sessions court

Discharge of accused by court

Framing of charges

Accused pleads guilty

Accused pleads not-guilty

Summons/warrant to prosecution witnesses

Examination of prosecution witnesses

Statement of accused

Examination of defence witnesses

Final arguments

Judgment/sentencing

COMPLAINANTS:

REGISTERING AN OFFENCE

A victim of any criminal offence has the right to complain regarding the offence. The complaint can be made at a police station, or in court.

Non-Cognizable offence [sec 155 of CrPC]:

The police will register an NC and enter a brief statement of facts into the NC register. To investigate the offence the police require a magistrate’s permission. If the police do not take steps to get permission for investigation, complainant can apply to the court for such permission.

Cognizable offence [sec 154 of CrPC]:

If the offence is a cognizable one the police will register a cognizable offence in their cognizable offences register.

Since it is the first piece of information that pertains to the commission of a cognizable offence, it is called a First Information Report or FIR.

ESSENTIALS OF AN FIR:

A complaint regarding a cognizable offence may be given orally or in writing. When a complaint is given orally it has to be reduced into writing in the form prescribed for that purpose.

The FIR is required to be a brief statement of facts.

It must be signed by the complainant.

The complainant is entitled to a copy of the FIR free of charge, immediately after the registration of the FIR.

The FIR should be specific about:

What exactly happened - the facts which make out the offence.

Sequence of events.

Name and description of the offender if possible.

Date and time of offence.

Place of offence.

Description of property stolen if any. Attach receipts or bills for the same. Description of weapons used if any.

Description of injuries sustained, if any, with attached medical certificate, if any.

WHO CAN FILE AN F.I.R.?

Any person who has first-hand knowledge of the facts.

Can also be filed by any person who has just heard or read about the commission of the offence, but does not have first-hand information about the facts.

WHEN:

An FIR should be registered at the earliest possible opportunity.

Delayed F.I.R.: any delay in the FIR should be properly explained.

Effect of unexplained delay: it casts doubt on the complaint.

WHERE:

Register the FIR at the police station within whose jurisdiction the scene of the offence lies. If you are not sure about the police station that exercises jurisdiction, register the FIR at the nearest police station. They must take down your complaint, and forward it to the police station exercising jurisdiction.

The police have a duty to register an FIR whenever they receive any information about the commission of a cognizable offence.

The police cannot refuse to register the FIR on the grounds that the offence was not committed within their jurisdiction, or that the information is not true.

PROCEDURE:

Go to police station. Meet officer in charge.

Narrate step by step in an orderly sequence to the officer, every bit of information about the offence.

The officer should reduce the orally given information into writing.

It should be read to you.

It should be signed by you.

It should be entered in a book to be kept by the officer.

If given in writing, it should be in the format of a formal letter, addressed to the senior police inspector of the concerned police station.

Carry a photocopy of the letter and take an acknowledgement of receipt on it from the police station after handing over the original.

If given orally ensure it is reduced to writing immediately.

A copy of the FIR must be given to you free of charge.

There are many more useful things in the book, about witnesses, appeals, juveniles, women and chapter cases. Also sample applications for exemptions, cancellation of warrant, application for bail and reduction of bail. Also a fantastic tale of classification of offences under the Indian Penal Code.