The law on interstate arrests: Who’s right and who’s wrong as Himachal Police and Delhi Police face off over procedure in the case of alleged Youth Congress workers?

How do arrests across states and jurisdictions work, and what broad legal processes are required to be followed?

Limits of jurisdictions, protocol and grey areas

Police is a state subject, and the jurisdiction of the police of a state is limited to that state.

In 2023, a Supreme Court Bench of Justices B V Nagarathna and Ujjal Bhuyan underlined that “Prior to effecting the arrest outside a particular jurisdiction, the police is obligated to secure the transit remand, i.e., the remand of the accused, for taking him from one place to another in their own custody, usually for the purpose of producing him before the concerned magistrate who has jurisdiction to try/ commit the case.” (Priya Indoria vs State of Karnataka)

A transit remand is essentially permission granted by a local court to take an accused person to another state, where the case has been registered, within a specified time frame.

Inter-state arrests also usually require that the local police be informed of the arrest/ raid by the police of another state. It is learned that the Delhi Police team that picked up three members of the Indian Youth Congress (IYC) from a resort in Shimla on Wednesday morning did not inform the local police beforehand.

Retired Delhi Police assistant commissioner of police (ACP) Ved Bhushan said the protocol of informing the local police becomes especially significant if there is a possibility of unrest or objections during the operation. Once they have been informed, the local police are expected to provide assistance to the visiting team, Bhushan said.

However, it is not mandatory to loop in the local police in every case, senior police officers said. If the operation is sensitive or secret, the raiding team may go ahead without informing the local police, and then produce the accused before a local court seeking transit remand, Bhushan said.

A retired senior IPS officer from the AGMUT cadre flagged the problem of lack of trust among police forces that often emerges in these cases.

“In inter-state arrests, there is sometimes apprehension that if information is provided ahead of time, the information could leak, allowing the accused person to escape. So while informing the local police beforehand is considered mandatory, there is some leeway there, and often the local police are informed only after the arrest has been made,” this officer said.

View taken by Delhi High Court on inter-state arrests

In 2018, the Delhi High Court constituted a committee comprising High Court Justice S P Garg (retired) and retired IPS officer Kanwaljit Deol, a former DG (Investigation) of the National Human Rights Commission (NHRC), to examine existing norms and protocols of inter-state arrests and offer suggestions for improvement.

The report of the committee, which was accepted by the HC in 2019, recommended the following:

The investigating officer (IO) must record in writing the reasons why the out-of-state arrest is necessary and, at the first instance, move the jurisdictional magistrate, seeking an arrest/search warrant. Had the Delhi Police followed this procedure in the case of the IYC suspects, they would have had to approach a magistrate in Delhi, where the FIR has been registered.

This step can be missed if it is assessed that the time taken to obtain the warrant could allow the accused to escape or disappear. However, the reasons why the arrest should be made without the warrant must still be recorded.

Before visiting the other state, the IO must “endeavour” to establish contact with the police station in whose jurisdiction he intends to carry out the investigation, and he must carry translated copies of the necessary investigation record, i.e., the FIR or complaint.

After reaching the destination, the IO “should” inform the local police station of the purpose of the visit “to seek assistance and co-operation”, and the local police should enter this in the record.

The arrested person must be given an opportunity to consult their lawyer before they are taken out of the state.

While returning, the police officer must visit the local police station and have an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the state, and articles if any recovered from them.

“Endeavour should be made” to obtain transit remand after producing the arrestee before the nearest (local) Magistrate. The arrested person is entitled to be informed of the grounds of arrest as soon as possible.

The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours after the arrest, excluding the journey time. The arrested person cannot be detained in police custody for even “a minute longer than is necessary for the purpose of investigation” and, in any circumstances, beyond 24 hours.

A “failure to adhere to the rules/ guidelines should render the police officer liable for departmental action as well as contempt of the Court,” the committee recommended.

Politics and inter-state police operations

Accusations of unlawful or illegal detention and of not following legal procedures are most common in cases involving political leaders, and where different political parties are in power in the states concerned.

In May 2022, Delhi Police registered a case of kidnapping against a Punjab Police team that had apprehended BJP leader Tejinder Bagga. Bagga was accused of making death threats to then Delhi Chief Minister Arvind Kejriwal, and the Punjab Police had registered an FIR against him in Mohali.

As the Punjab Police were taking Bagga away to Punjab, the team was intercepted en route by the Haryana Police, and questioned on the basis of a warrant obtained by Delhi Police from a city court. Later that day, Delhi Police escorted Bagga back to the capital.

The AAP was in power in Delhi and Punjab at the time, while the BJP ruled Haryana. The Delhi Police reports to the central government, which is led by the BJP.

In October 2022, the Punjab and Haryana High Court quashed the criminal case against Bagga. But the Punjab government’s plea filed before the Delhi High Court in May 2022 seeking the quashing of the Delhi Police FIR against the Punjab Police personnel remains pending.

In April 2022, Jignesh Mevani, an independent MLA from Gujarat, was arrested by a team of the Assam Police in Banaskantha district in Gujarat late in the night, and flown to Guwahati the following morning. The Assam Police action came after a BJP leader in Kokrajhar district in Assam filed a complaint in connection with a purported post on X against Prime Minister Narendra Modi. The Gujarat Police said that they had not been informed of Mevani’s arrest.

A court in Kokrajhar gave bail to Mevani within days, but he was re-arrested in a fresh case filed in Barpeta district on a complaint by a woman police officer who accused the MLA of “assaulting” her and “outraging her modesty”. He was given bail in this case too, with the district and sessions judge in Barpeta making adverse observations on the Assam Police’s “excesses”, and urging the Gauhati High Court to direct the police to “reform itself”.

The state police challenged the adverse observations made by the district and sessions court, and the observations were stayed by the High court. The case remains pending a final decision, said senior advocate Angshuman Bora, who represented Mevani.