In India, a police officer can arrest a soldier immediately only under three circumstances – when the soldier is accused of rape, murder or culpable homicide not amounting to murder.
Section 70 of the Army Act, 1950, section 72 of the Air Force Act, 1950 and section 50 of the Coast Guard Act, 1978 state that a person subject to the said Act won’t be triable by Court Martial if they commit the offences mentioned above while on active service or any place outside India, against anyone except individuals subject to Military, Air Force or Navy.
Whereas section 45 of the Criminal Procedure Code, 1973 protects army officials from arrest. Under this section, a police officer can arrest army officials during discharge of official duties for any offence (except the three mentioned above) only after getting prior permission from the central government.
Section 41(1)(f) of the Criminal Procedure Code, 1973 also gives power to the police officer to arrest an army officer who is reasonably suspected of being a deserter from any of the armed forces of the Union without any prior permission.
Civil authorities can also arrest a member of the armed forces of the Union, accused of any offence under the Army Act, Air Force Act or Coast Guard Act upon receipt of a written application signed by a commanding officer. The police officer is required to deliver the official to the commanding officer as soon as he arrests him as per section 104 of the Army Act, section 105 of the Air Force Act and section 61 of the Coast Guard Act.
Members of the armed forces of the Union have also been provided with the privilege of protection from prosecution, i.e. no court shall take cognisance against any official during discharge of his duties except with the prior approval of the central government.
Ankita Trivedi has written this post. She is a practising advocate in New Delhi, having expertise in various legal fields.