Can the state police arrest an army officer in Uniform

In recent years, we have seen multiple incidences where state police confronted Army Personnel. This often results in debates about whether the state police can arrest an army officer in Uniform or not. What if a serious crime is committed by an army officer on duty? Well, there are provisions in our constitutions that prevent the trial of army officers in civil court. At the same time, a serious crime can result in a completely different scenario. Go through this post to understand the rights of an army officer against his arrest by the state police.

Can Police Arrest an army officer in India?

This situation is quite complex. Still, we have compiled the following points by which you can understand what will happen in such a situation.

• The State Police can not arrest an army officer no matter if he is in uniform or not. There are some protocols that the state police have to follow in case they are looking for an arrest. The protocols are as follows.
  • The state police have the authority to arrest an army officer without any permission only if he is indulged in heinous crimes like rape, murder, Kidnapping, abduction, etc.
  • In all other cases, the state police are not allowed to arrest an army officer directly.
  • Before arrest, the police have to present the memorandum of the arrest. Plus, an army officer can not be handcuffed.
  • Apart from this, the police can not keep the army officer in custody for more than 2 hours without informing and getting permission from the nearest military station headquarters.
  • The permission of the arrest will be given by the Station Commander with the rank of Major General or above.
  • In case the military state headquarters denied the permission then the state police has to hand over the officer to the military police.
  • The judiciary of India grants the army permission to carry out the court of inquiry on the basis of the first report followed by a summary of evidence and summary general court-martial.
  • Please note that the judgement of the Court Marshal is accepted and respected by the Indian civil Judiciary and the final judgement by the civil judiciary is according to the summary of the general court martial.

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What Police can do if they want to arrest an army officer?

If the state police have decided to arrest an Army officer then they need to follow rules explained below.

• First of all, police have to inform the nearest military station headquarters in writing along with a memorandum of the arrest.
• The army officer should be taken into custody by an IPS or state police officer of rank of equivalent or above seniority.
• In case the crime committed by the officer is not heinous then the duration of custody can not be more than 2 hours without further permission from the military authorities.
• The military authorities have the permission to take over the custody of the officer from the police and investigate the case as per the military protocols.
• In case the station commander of military doesn’t want the custody of the army officer then the police are free to investigate.

What Indian Constitution Says?

There are various constitutional remedies that provide immunity to an army officer from the state police arrest.

Code of Criminal Procedure, 1973

• Section 45 – Privilege in Matter of Arrest

As per Section 45 of this rule, no member of the Armed Forces can be arrested by civil police for anything done or purported to be done by him in discharge of his official duties, except with the consent of the Central Government. In other cases, the civil police can arrest but is immediately required to inform the Commanding Officer about the said arrest.

• Section 197(2) – Privilege of Protection from Prosecution.

According to this section, no prosecution can be entertained against Armed Forces personnel for an offense alleged to have been committed by them while acting or purporting to act in discharge of their official duty.

• Section 475 – Delivery to Commanding Officers of persons Liable to be Tried by Court Martial.
  • The Central Government may make rules, consistent with this Code and the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950 and any other law, relating to the Armed Forces of the Union , for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies, or by a Court Martial; and when any person is brought before a Magistrate and charged with an offense for which he is liable to be tried either by a Court to which this Code applies or by a Court Martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offense of which he is accused, to the Commanding Officer of the unit to which he belongs or to the Commanding Officer of the nearest military, naval or air force Station, as the case may be, for the purpose of being tried by a Court Martial.
  • Every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offense.
  • A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court Martial for trial or to be examined touching any matter pending before the Court Martial.

Apart from the sections mentioned above, The Army Act 1950, provides immunities not only to army officers but also to Air Force and Navy officers. It is mentioned in this act that when army personnel is not even serving his duties, he will still continue to be protected with the immunities given to him under the army act 1950 and cannot be arrested by civil authorities.

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