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[ The Police Act, 1861 ] 1
Section 35 in [ The Police Act, 1861 ] 1
Section 23 in [ The Police Act, 1861 ] 1
Section 6 in [ The Police Act, 1861 ] 1
The Code Of Criminal Procedure, 1973

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Central India Law Quarterly
Police Act 1861 : A Critique
POLICE ACT 1861 : A CRITIQUE Dr. S.P. Singh Makkar * Dr. Abdul Hamid** Police Act, 1861 which as its. Preamble goes, was apparently, enacted to reorganise the Police and to make it a more efficient instrument for the prevention and detection of crime. This colonial bestowment was however, basically designed to safeguard the monarchical metamorphosis against the after effects of the first war of liberation. It will be relevant to recall here that the Police Commission of 1860 had observed that the organised police as proposed by them would be "politically more useful".1 Its precurssor may be traced in the year 1829 when Robert Peel, recognising the fact thai in the 19th century there was one criminal to every 22 of the population of London, laid the foundation of that organisation which Is known as police system. In 1939 and 1840 statutes were passed permitting the formation of a pa~ county police. The police act, 1856 made the existence of an adequate force compusorv , throughout England and Wales. For British Indian Police system the Court of Directors in their despatch of 24th September, 1856 realised the need for reorganisation of the police In India. The 'mutiny' however, doomed the company's fortune and opetled the doors for,the direct rule by British Crown. This novel experience of Mutiny of 1857 proved that a stable government was an Impossibility without a properly organised. loyal and disciplined police. So the earlier notions of reorganisation of police required a fresh consideration with the primary concern of "Increasing the efficiency (to make it politically more useful) and reducing the excessive expenditure". And with these Inherent objectives In view, the police act of 1861 was passed. 2. Erroneously titled 2 Police Act of 1861 begins with Preamble laying do'!"n the object of reorganisation of the police so as to make it more efficient instrument for the prevention and detection of crime. It runs into 47 sections and each section comprises a whole chapter in itself. Section I Is the Interpretation clause which deals with certain definitions * Reader in Law, Guru Nanak Dev University Regional c.ntre, Jalandhar, U.G.C. visit- ing Associate, Recipient of award of Indo- US fellowship 1990-91. ** Head, Dept. of Law, Govt. P.G. College, SUNOl, (Raj.) 1. Para 19 of the forwarding letter in Sept, 1860 (borrowed from the first Report of the National Police Commission Feb. 1979 p.7). 2. The Police Act, 1861 should have been entitled as Indian Police Act, 1861. 210 CENTRAL INDIA LAW QUARTERLY [ Vol. 4:2 which have direct bearing with the Act. Sections 2 to 10 deal with the constitution and structure of the police system. Section 11 is repealed by the Act of 1874. Sections 38, 39, 40, 41 are also repealed by the Act of 1895. Besides these all the other sections deal with the powers, functions and duties of the police personnel. Section 4 provides that the administration of the police through a province district shall be vested In I.G.P. Section 5 provides that a Magistrate of the District shall exercise general control and direction over the police throughout his. local jurisdiction but section 5 read with Section 3~ empowered the IGP to enquire into and determine as a Magistrate any charge against a police officer above the rank of a constable. Under Section 6 of the Act of 1861, A.S.P., S,P., Deputy Inspector-General of Police and the Inspector Generf;ll of Police were empowered with magistrial powers and this Section read with Section 35 provldes that any charge against a police officer of the rank of Constable under this Act shall be enquired into and determined only by an officer exercising powers of a Magistrate i.e. I.G.P. under Section 5 of the act of 1861. 3. There was thus contradiction between section 7 and Section 35. The provisions of Section 35 could be given effect to only when Section 6 was there In the statute but Section 6 was deleted subsequently by.the Central Act No. 10 of ~ 882 and so after Its deletion the provisions of Section 35 have become contradictory to Section 7. It seems that the legislature while deleting Section a had forgotten this aspect and so section 35 could not be deleted alongwith Section 6. So this contradiction. 4. Further Section12 deals with powers of Inspector General to make rules relating to police force subject to approval of the State Government. It basically vests power In I.G.P. Section 15 contains significant provision for controlling internal disturbance in the State under sub seeti6n (3) which lays down that the cost of the Additional police force shall be born by the Inhibitants of such areas described as disturbed in the proclamation. It would however, be contrary to the spirit of this provison to spare some members of a particular community on the basis of only caste or religion with the assumption that they were peace loving and law ablding,3 while they were onlooker or silent spectators of the 3. See State of Rajasthan V. ~ SInth AIR 1geO SC 1208 at p. 1210. --- - - -- --- -- - - - -- - - - 1991] POLICE ACT 1861 : A CRITIQUE 211 disturbance. In tune with Section 15, Section 15A enables the State Govemment through Magistrate to levy compensation from a disturbed area for serious outrages committed therein and pay It away to persons who have been Injured or to the families of the victims. Section 17 provides that In case of disturbance of public peace or tranqUility by way of unlawful assembly or riot or other threat, appointment of special police officer should be made. It Is not ultra vires the Constitution so long as 'Pollee' Is a state subject. Section 18 and 19 are ejusdem generis to Section 17. Section 20 puts the Police officers in the water tight compartment by laying down that they shall not exercise any authority, except authority provided for a police officer· under this act or any act regulating Criminal procedure. This provision outright defies his social accountabillity. Section 21 excepts the village pollee officers and police chaukldars from the mandates of this act provided they were not enrolled under the Act. Section 22 reminds of the age when man was no better than animal and liable for 24 hours service to his master. It is in no case justified In a welfare state. 5. Section 23 deals with duty of pollee officers to prevent commission of offences and to detect and bring offenders to justice as per the orders of warrants laWfully issued to him by any competent authority. They are also duty bound under section 23 to enter and inspect any drinking shop, gambling house and other place of resort of loose and disorderly characters without warrant. Thus they have wider functions under Section 23 to prevent both cognizable and non-cognizable offences. In a developing society there are however a number of offences which are non-cognizable, but which are yet to be specifically mentioned in section 23. They needed to be covered under this section. 6. The Police is bound to investigate into-the information relating to the commission of a cognizable offence. In case they investigate a non-cognizable offence, they are under chapter.14 of Cr.P.c. required to submit to the Magistrate any ·information to be direCled to investigate in non-cognizable offenqes. Section 24 of the instant act also enjoins upon the police to lay information before magistrate against any person who committed an offence. .It is not clear whether this information will be tantamount to Police Report either In the Cr.P.C. orin the instant Act as it was no where defined in the original Act. However, under Cr.P.C. 1973 Section 2 (d) a report made by a pOlice officer in a case which discloses, after-Investigation, the Commission of a non-cognizable offence shall be deemed to be a complaint; and the poiloe-offlcsr by whom such report is -- . 212 CENTRAL INOlA LAW QUARTERLY [Vol. 4:2 made shall be deemed to be the Complainant. Further under Section 23 the pollee Is under a duty to prevent commission of offences, but the word 'offence' is no where defined in the Police Act and in King Emperor v. Nga Kala 4 it was held that the word 'offence' is not governed by the definition as given in section 40 of the Original Penal Code. The aim of the police act was to give wider powers to the Police Force for preventing offences and breaches of law. Section 40 has since been amended so as to cover all the offences committed under the police act 1861. Still there is a valid reason to define the term In the Act it~e1f. 7. The proceedings under Section 25, 26, 27, of the Police Act relating to custody of unclaimed property and issue of proclamation, disposal, detention and confiscation of property, are of summary nature. They shali be governed by the provisions of Cr.P.C. Sections 28 and zs deal with two different subjects regarding judicial trial of police officers. Both these sections deal with penal measures. While under section 28 a police officer who has ceased to be a police officer and refuses to surrender his certificate, clothing etc. given to him for the execution of his duty, is held liable for conviction and punishment. But Section 29 applies to police officers guilty of violation of duty or neglect of any rule or regUlation or lawful order made by the competent authority and guilty of cowardice or offer -any unwarrantable personal violence to any person in his custody and imposes penalty upto three months payor imprisonment upto three months or both. This is a significant provision having far reaching consequences. 8. Section 3D, 30A and 31 deal with the regulation and powers relating to public assemblies and procession and to keep order on publle roads etc. Section 32 deals with the penalties for violating the orders issued under the aforesaid sections, Stciect to the general control of the District Magistrate. under Section 33. S ctlon 34 is also a penal provision for causing obstruction, Inconvenle ce, annoyance, risk, danger or damages of the residents or passengers, on any road or open place or street or thorough fare within the limits of the town, and provides a fine upto Rs. 50/- or irnprisonment upto eight days after conviction by the Magistrate. But the police officer Is empowered to take into custody without a warrant, any person who commits the offences of slaughtering 4. 17 Cr. L.J. 347. -- -- - - -- -_.- - -- -- c _ 1991] POLICE ACT 1861 : A CRITIQUE 213 cattle. riding furiously, commits cruelty to animals, obstruct passengers. expose goods for sale. throw dirt into street, found drunk or riotous, or Indecently exposes himself or neglects to protect dangerous places like tank, well etc. 9. Section 36 is a saving clause for other regulations, enactments providing higher penalties and bars double jeopardy as well. Section 37 deals with the recovery of penalties and fines imposed under this act. Sections 38 to 41 have been repealed by the SUbsequent amendments. Section 42 and 43 afford protection to the police employees in respect of anything done or intended to be done under this act and lays down certain limitations for prosecutions. Section 44 of the Act is complementary to sections 154 and 155 of Cr.P.C. and deals with the duty of the potloe officer to keep diary. Section 45 dealS with the form of returns prescribed by the State Government and Section 45 gives the scope of the Act empowering the State Government to adopt the Act by official notifications in the Gazzetteor frame rules consistant with this Act from time to time. And the last section (Section 47) empowers the State Government to authOrise by declaration to the effect that the District Superintendent of Police shall exercise authority over the village watchman or other Village police officer, subject to general control of magistrate of the District. 10. During the course of the present survey 5 It was realised that today the police has to encounter with the internal goondas besides decoits to deal with unlawful processionlsts and mobs, to tackle violent labour In the industrial establishments, to check students from using unfair means at the knock of knife during examinations, to facilitate taxation personnels to collect taxes,.to watch the interests of the party ·in power and to escort VIP besides numerous duties and functions. Further in the Act of 1861 Police was accountable only to the rulers. But in an independent welfare society of India Police is doubly accountable firstly to the state and secondly and significantly to the people. The question that comes to one's mind is that whether with the act of 1861 bearing distinct objective~ to fulfill, can the police system be held liable for the challenges that were not there at the commencement of the act, but emerged in a 5. Under theU.G.C. Major Research Project working .at Rajasthan. Police Academy, Jaipur. 214 CENTRAL INDIA LAW QUARTERLY [Vol. 4:2 developing society since its independence. Ouring our survey almost all the high ranking police officers opined that the Act of 1861 Is not viable to the present needs of the pollee as well as the people. However, some of them expressed their reservations that in the absence of viable alternative the act of 1861 with subsequent amendments and regulations is not bad. It is heartening that the Janata Government had instituted a National Commission 6 to look into this vibrant issue and the same had submitted its recommendation alongwlth a draft for new plice act as ear1y as in 1981. It Is to our dismay that the draft could not see the dawn till this date for reasons unknown inspite of the fact that It was very sincere, just and a lot of money, time and labour of the nation had been spent on It. 11. The draft bill given by the National Police Commission may be analysed vis-a-vis the Police act 1861 as under: 1. The object of the Pollee Act 1861 as givEm in its preamble was to reorganise the police and to make it more efficient instrument for the prevention and detection of crime. The draft bill which proposes to consolidate and amend the law for the regulation of pollee rightly Incorporates manifold objectives viz. to organize the police to promote the nations founding faith in rule of law, to oblige it to the requirements of the Constitution, law and democratic aspirations of the people; to require it to be professional, Impartially service oriented and accountable to the people, free from extraneous influences, and to the investigation and prevention of crimes, maintenance of pUblic order and security of state and other such objectives and purposes hereinafter appearing. And to achieve these objectives the preamble of the draft bill invests certain powers and Imposes certain responsibilities and duties upon the police officers. 6. National Police Commission constituted- by the Government of India in Ministry of Home Affairs vide Resolution No. VI 24021/36177/GPA 1dated 15 November, 19n submitted its first report on 7th February, 1979, 2nd report on 16th August, 1979, IIIrd Report on 1stFeb, 1980, Mh report in June, 1980, Vth report in Nov, 1980, Vtth report in March, 1981, Seventh report in may, 1981 and eighth and concluding report in may, 1981. 1991] POLICE ACT 1861 : A CRITIQUE 215 2. In the interpretation clause of the Act 6f 1861 some significant terms were left undefined. The draft bill has incorporated those terms the definition of which was the demand of the developing society viz Place, Public-Place, Place of public' amusements. Place of Public entertainments, vehicle, corporation, eating house, municipality, commission, street and police Officer etc. 3. Unlike the Act of 1861 (Section 2 to 10) which deals with the constitution and structure of the Police system, the new draft bill has Incorporated wide horizon In its chapters" and '" by establishment, organization of common services by maintaining forensic science laboratories and other services for promoting the efficiency of the pollee, organisation of research, establishment of Pollee Training Institutions, constitution of divisions and sections, appointment of Railway and additional police and commissioners and provided for the oath and affirmation of the faithfulnessto the constitution and people of India. 4. The powers, functions and liabilities of the police officers in the police act of 1861, were designed In view of the then interests of the ruling monarchs, while the powers, functions and liabilities in the draft bill are designed with a view to protect the larger interests of a developing nation viz duties of the police officers towards weaker sections, poor persons and public, in the discharge of their duty, to provide every kind of assistance to victims of road accidents and show by personal conduct that it Is in the .ge,neral interest of the society to abide by the law in operation, to enforce provisions, of this Act and other rules and regUlations to promote ruleof law and to regulate and control traffic and to prevent public nuisance, besides the miscellaneous emergency functions which may be entrusted upon It while the Government declares any service as an essential service. 5: The most significant common factor In the Act and the draft a bill Is that police officer is considered to be always on duty. In Chapter V of the Draft Bill provided for the framing of rules for the internal administration of the police force, 216 CENTRAL INDIA LAW QUARTERLY [ Vol. 4:2 6. The Act of 1861 incorporates only section 30. 30A and 31 for maintenance of peace and order in public places. while the Draft Bill incorporated as many as 25 items under section 61·70 dealing with maintenance of peace and order in public places. These provisions extended to the protection of the environment as well. 7. While the Act of 1861 and the draft bill provide for the employment of additional police force in disturbed and dangerous areas, from amongst the police. the draft bill devised a new mode to counter terrorists by constituing defence societies from amongst the people for the protection of persons. and property of the people. 8. While Section 34 of the Act of 1861 deals with only eight offences on roads and punishment thereof. the Draft Bill In Chapter X deals with the offences and punishment thereof. It includes variety of offences which could not be thought of at the time of the commencement of the Act of 1861. 9. The Act of 1861 does not provide any specific clause to protect the acts and omissions of the police officers In regard to the performance of their statutory duties. The draft bill has Innovated in this direction by giving various protective clauses in chapter XI to give full effect to the provtslons of the Act. Thus the Draft Act of 1981 has innovated In many directions in view of the demand of the new society. Its addition of manifold objectives in the Preamble is in the spirit of the constitution, and its list of the subsequent provisions is in tune with the twin chapters of fundamental rights and Directive Principlts Significally enough the Draft Act has unknowingly but rightly incorporated the provisions which reflect and remind the citizens of their fundamental duties as enshrined in Article 51A of the Constitution. ------- ------- --- 1991] POLICE ACT 1861 : A CRITIQUE 217 12. Inspite of these significant and meritorious aspects of the Draft Act some vital aspects are left untouched which require specific attention before giving breath to the draft Act. These vit~1 aspects are as under: (1) There is no mechanism to resolve the ·grievances of the police officers inter se. During our survey we find that the State Police authorities have made certain internal arrangements in the form of staff councils represented by the members of every cadre. But obvious and common . feeling is that it is not successful as a subordinate officer cannot put his grievance freely before the superior authority. In our survey an important point crept during interview with some police personnel. They said that in the name of discipline they are supposed to put their problem or grievance before the higher officer in attention positioli. They claim that a person cannot stand in attention position for more than one minute. F~rther in attention position his mind can not freely work. Scientifically also our expression has direct bearing with automatic action so no free expression is possible without corelated free action. So at least he must be a free man when he puts his grievance or problem before his officer. Further, if. he has a complaint against the superior officer sitting in the Board for hearing the grievances, the aggrieved subordinate member would be difident to put his grievance. Thissystem is not bad as it may promete harmony between different cadres of the police, but it is not a perfectly impartial mechanism. So to make·a mechanism work in an impartial manner to resolve the grievances of the police officers following grievance councils are hereby proposed. At the District level there may be a Grievance Resolving Council comprising of District Magistrate, Principal of the CoUege/Chairman of the Municipal Board, M.L.A., Opposition Party member who was defeated with the highest votes in the last election and a female member nominated by the District Magistrate. The Council may sit at least twice a year to hear the grievances of the police personnel. Each and every member individually or in a representative manner, would be able to put his/her grievance before the councn. The Council would be empowered to summon any Police Officer of the District to take his statement and give him directions accordingly. If 218 CENTRAL INDIA LAW QUARTERLY [Vol. 4:2 the grievances are such as not to be resolved by the Councils the later would send its recommendations to the State Grievance Resolving Council which also may consist of five members. The Home Minister would be the Chair person of the Council and Home Secretary, Opposition leader nominated by the Home Minister, retired judge of the High Court nominated by the Home Minister and Vice-chancellor and social scientists, may be the other four members of the Council. The Council will sit twice a year to hear grievances of all the IPS cadre officers and review the recommendations forwarded by the District Grievance Councils (DGC). This State Grievance Council (SGC) woUld be empowered to Issue such orders as it deems desirable to resolve the grievances to the DGP (Director . General of Police) and other officers to take necessary actions as per the orders. Tt\e same councils at the district and state level would be able to take into consideration the grievances of the people as well. 2. The laudable objectives enshrined in the Preamble of the proposed draft by the National police Commission, can be materialised unless and until the society is also involved to achieve those pursuits. For this purpose people's committee may be constituted at the level of every police station. 3. The third and the most Significant aspect incorporated In the draft and was also in existence in the act of 1861 U/s22 is about the twenty four hour's duty of the police officers. During the survey some pollee officers contended that 24 hour's duty is only In the concept and books. The actual fact is otherwise. However it is observed that for a constable at least, it is not possible to defy the orders of the higher officer. Further due to the thinly staffed police stations the work load is multiplied and fell on the shoulders of the constables. Besides this if a police officer keeps himself tied lip In the uniform for more than eight hours, the psychosis would itself be a cause of fatigue In him and for a man of average potentiality, It would not be possible to be equipped for duty, for all the 24 hours. Even if it is believed that the police officers do not actually perform duty for all the 24hours, it Is sufficient that they are 1991] POUCE ACT 1861 : A CRITIQUE 219 mentally prepared for it and this fact is itself a matter of concern in view of their private life. 13. In no democratic institution a person may be forced to work for more than eight or ten hours, then how and why these personnel be dragged to the age of surtdom. This is clearly eXploitation of labour and is in violation of Article 23 and 21 of the Constitution as it is a deprivation of life and liberty. So except for emergency, the working hours of the police officers are required to be fixed and section 58 Of the draft act should be' amended accordingly. 14. Inclusion of the aforesaid suggestions would make the draft Act suggested by the National Police Commission a workable instrument. It is submitted that the draft act suggested·by the NPC has consumed enough money, time and labour of the nation and it Is Intelligibly drafted. The opinions 'collected during the survey are also in favour of the early enactment of the recommendations of the NPC, so the draft act of NPC should not remain in cold storage for long. .•