Friday, August 27, 2004

What are your RIGHTS if the police call you for questioning? - lgbt-india

From: lgbt-india
The following document on legal rights in the case of police arrest or harassment was prepared by the Lawyers Collective HIV AIDS Unit and circulated. It was done in view of the latest police questionning of gays and Kothis in Delhi. - Aditya


Lawyers Collective HIV/AIDS Unit

I. What are your RIGHTS if the police call you for questioning?

   The police must make a formal request through a notice requesting you to be available at a particular place and time (S.160, Cr.P.C)

   Notice should give you time of up to seven days to make yourself available for questioning

   You can consult a lawyer and be accompanied by him/her at the time of questioning

   You can refuse to answer any question that incriminates you (S.161, Cr.P.C)

   Any statement recorded by the police has to be read out to you, before you sign it.

You can refuse to sign any statement

Any statement/confession made before the police is not admissible in evidence while prosecuting a case (S.25, Indian Evidence Act).

II. What are your RIGHTS if the police arrest you?

   To be informed of why you have been arrested

   To make a phone call

   To inform at least one friend or relative or other person known to you that you have been arrested and where you are being detained

   To consult a lawyer and be represented by her/him in Court

   If you cannot afford a lawyer, you have the right to ask for Free Legal Aid. The Magistrate who is hearing your case will provide you with a lawyer to help you in your case.

   You cannot be handcuffed, but all means necessary to arrest you can be used if you resist

   To be produced before a Magistrate within 24 hours of being arrested

   To be released from police custody on bail if you have been charged with a bailable offence

   To apply for bail in the Magistrate’s Court if you have been charged with a non-bailable offence

   To be examined at the time of your arrest. Any injuries on your body must be recorded

   To have a medical examination by a trained doctor every 48 hours during your detention

   To meet your lawyer during interrogation

III. The police have no right to harass you

   Police persons are bound to act within the law Harassment and extortion amount to misconduct

Police persons may be suspended and action taken against them for misconduct under the Indian Penal Code (If a public servant disobeys any law, knowing that such a disobedience will cause injury to some one, he/she can be punished)

IV. What are the provisions of Criminal law that can protect me from harassment/violence?

Coercion and physical violence is punishable by law. The Indian Penal Code makes the following acts punishable:
   Assault, which includes a threat of physical violence
   Wrongful restraint
   Wrongful confinement
   Voluntarily causing hurt
   Causing hurt in order to extort money or even a confession

V. What action can I take if I face harassment/violence?

   You can contact a human rights organization for support and legal advice

   Family/relatives or a friend can send an urgent telegram to the Commissioner of Police, if you are picked up by the police or any other investigating agencies for questioning or any other purpose without a formal arrest and they are unaware of the place of detention.

   You can make a criminal complaint at the police station and make sure that a First Information Report (FIR) is registered

   You also have the option of making a complaint to the Magistrate. This may be a better idea where you have faced violence of harassment at the hands of a police person

   If the person harassing you is a police person, you can make a complaint to the Commissioner of Police and ask for a departmental inquiry against him/her

Being gay is not a crime in India. S.377 of the IPC only criminalizes sexual acts like anal/oral sex, not any sexual orientation. The section applies to all persons equally, including heterosexuals.

This is not a legal advice or opinion and we are not liable for any person acting or any act committed pursuant to the abovementioned statements. You may take appropriate legal opinion/advice in the matter.

Lawyers Collective HIV/AIDS Unit
Phone # 24321101/2,


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