LAWLIGHTS – PROCEDURE OF ARREST, CUSTODIAL DEATH AND RIGHTS OF AN INDIVIDUAL AGAINST ILLEGAL DETENTION UNDER LAW.

LAWLIGHTS – PROCEDURE OF ARREST, CUSTODIAL DEATH AND RIGHTS OF AN INDIVIDUAL AGAINST ILLEGAL DETENTION UNDER LAW

Introduction:

• v Many laws and freedom with a proper limit make us to live a peaceful life with our surroundings. Despite of this in and around events are seems to be more grievous and life threatening.
• v Familiar with terms and conditions prevailing to legal system is not only respect to lawyers but as an individual all are responsible and turned to be respective regarding law and order of our nation. Towards this main thing is to know about the very important rules and rights on arrest and inquiry, what law says about this?

  Our Constitution itself says under ARTICLE 22

• 1.    It states that the person shall be informed of the grounds of his arrest.
• 2.    He shall have legal practitioner of his choice.
• 3.    And that he must be produced before the nearest Magistrate within 24 hours of his arrest.

Article 22(2)

1.    No person who is arrested shall be detained in custody without being informed as soon as may not be of the grounds of such arrest nor shall he is denied the right to consult and to be defended by a legal practitioner of his choice.

Article 20(3)

1.    No person accused of any offence shall be compelled to be a witness against himself.

THE CODE OF CRIMINAL PROCEDURE 1973:

1.    Under CRPC what sections clearly speaks about arresting procedures and limits of the police officer over normal person.

2.    Actually before entering into this sections and act just we are going to over view a basic system of arrest.

LET YOU KNOW ABOUT THE PROCEDURES OVER ARREST WARRANT.

• v The code of criminal procedure 1973 clearly speaks about the arrest of a person under chapter V which is a strong controversial subject is going on for a decade of years by the law enforcement.

CHAPTER V OF CRPC 1973:

When a police can arrest a person without warrant?

1.    Cognizable offence committed by a person in presence of a police officer. section 41(i) (a)

2.    A reasonable complaint should be made against the person who committed offence. Section 41(ii) (b)

3.    Police officer can arrest a person who committed a non-cognizable offence in that case if the furnished information seems to be ascertained.(arrest on refusal to give name and residence) [SEC 42]

4.    Every police officer who tends to arrest a person without warrant should communicate full particulars of the offence and other grounds for which he is to be arrested. SEC 50(1).

5.    Arresting without warrant for a non - bailable offence the officer should inform the person that he is entitled to be released on bail and he may arrange for sureties on his behalf. Sec 50(2)

ARREST HOW MADE? SECTION 46

• 1.    “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person actually to be arrested, unless there to be a submission to the custody by word or action”. SEC 46(1)
• 2.    In case of woman is to be arrested female police officer should be accompany to the place and the police officer shall not touch the person of the woman for making her arrest.
• 3.    Mainly nothing in this section gives a right for custodial death of a person who is not accused of an offence punishable with death or imprisonment for life. SEC 46(3)

      EXCEPTIONAL CIRCUMSTANCES: SECTION 46(4)

1.    No woman shall be arrested after sunset and before sunrise.

2.    The woman police officer should make a written report and obtain prior permission from the judicial magistrate of the first class within the, local jurisdiction of the offence committed.

NO UNNECESSARY RESTRAINT: [SEC 49]

1.    No person shall be restrained than is necessary to prevent his escape.

PROCEDURE OF ARREST AND DUTIES OF OFFICER MAKING ARREST SECTION 41B:

1.    The officer must bear an accurate and clear identification over the issue and visible by him.

2.    PREPARING Memorandum: sec 41(B) (b)

a.     Attested by one witness at least, this attestation must get from any one member of the family of an arrested person or any respectable person from the locality where he is arrested.

b.    Countersigned by the person who is attested?

 c.     Information should be given regarding the arrest to his family members or any of his family members or any other relatives who is nominated by the arrested person.

  RIGHTS OF AN ARRESTED PERSON:

1.    During investigation or interrogated by a police officer the arrested person shall have the right to meet an advocate of his choice.[ SEC 41D]

2.    Obligation of an arrested person to inform about the arrest of him to his friends or relatives or whom he is nominating. Sec 50(A)

3.    The police officer should inform the rights of an arrested person under sub section (1) of sec 50 as soon as he is brought to the police station. [SEC 50(3)].

4.    Duty of the magistrate seems to be that he supposed to check whether the requirements under –section50 (2) and sub-section50 (3) have been done with respect of arrested person. [SEC 50 (4)].

5.    It is the duty of the police officer who is having custody of an accused to take care of his health and safety of the accused.[SEC 55A]

6.    Police officer making an arrest without warrant should produce an arrested person in front of the magistrate without any unnecessary delay. [SEC 56]

7.    No police officer should keep an arrested person in his custody more than 24hours in case of arresting without warrant under the absence of special order of a magistrate under sec 167 of CRPC. [SEC57]

8.    The police officer should give all particulars regarding the case and the person arrested of committed offence before the magistrate or sub-divisional magistrate. [SEC 58].

9.    The police officer who arrested the person not to discharge him except the special order from magistrate or on his own bond or on bail. [SEC 59].

 

POLICE OFFICERS USING FOUL LANGUAGES AGAINST A PERSON:

v Actually the action of using foul language is not encouraged and found to be wrong. On 2016 Nov 20 in Lucknow, IPS officer lodged an FIR against his subordinate officer for using abusive language over him.

v  Amounting to defamation, intentional insult and criminal intimidation these are file under IPC Sections 504 (intentional insult), Sec 506 (criminal intimidation), and Sec 294 (actions leads to obscenity).

POLICE EXCESS TORTURE:

There is a survey of excess torture by police, false implication, illegal detention, failure in taking action, custodial death etc.

1.    YEAR 1993-94

Alleged amputation of male organ in police custody- Rajasthan

2.    YEAR 1998-1999

A college lecturer becomes a victim of police officer brutality in Kerala Case no: 166/11/98-99).

3.    YEAR 1999-2000

Torture by police officer leads to death of the person namely Husain in Kerala case no: 64/11/1999-2000

Torture by Tiruchi police officer resulting in death of a arrested person. Case NO: 4444/95-96/NHRC

 

RECENT CASES DUE TO POLICE TORTURE AND CUSTODIAL DEATH.

1.    27.06.2020- kumaresan 25yr old auto rickshaw driver was arrested in land dispute case and died after 6 days due to police torture in custody.

 

2.    On same date 27.06.2020 19year old heart patient died in front of SSLC examination center due to lathi-charged by the police, in Bijapur, Karnataka

 

3.    22.06.2020 custodial death of father and son they had been treated so badly and beaten up grievously brutally tortured and sexually assaulted in the police custody leads to death of them, Tuticorin, Tamilnadu.

 

4.    21.04.2020 Mohammed ghouse a resident of venkatapati colony in sattenapalli, Andhra Pradesh who has a heart patient was severely beaten up to death by the police officer for no valid reasons.

 

5.    20.04.2020, 50 year old farmer questioned by group of 6 police officers based on the suspicion about gambling and the man denied the allegations the police started beating him unconsciously with lathi and he tried to stop and not able to bear the pain he was died.

 

6.    16.04.2020 Mohammed rizwan who was died due to beaten up by police for the reason of stepping into market for purchasing biscuit packet, Narahi market area in Lucknow.

 

7.    11.04.2020 one diabetic person who went to buy a medicine with his wife stopped by the cops in road and started beating him with lathis.

 

8.    10.04.2020 Bhairon lal lohar with his brother with an ambulance driver going for their mother’s funeral brutally beaten by the police in Gujarat even though they got permission from the authorities.

 

9.    26.03.2020 group of people were lathi charged by the cops for no substantial and apparent reasons and one man who came to buy milk was killed on the spot.

 

 

10.           24.03.2020 a doctor was slapped by a cop and asked her inappropriate questions and forcibly taken her to the police station while she was returning home from work. Based on this recent order passed by the supreme court who are making inappropriate cause to the doctors and health workers they may punished with imprisonment of 6 months may extend up to  7years or fine or both.

 

Case laws:

DK Basu vs. State of West Bengal case:

This land mark case has given us a different horizon over the issue regarding the wrongful detention by police and there are fundamental rights for an arrested person.

This case is based on the grounds:

1.    Increase in custodial death, torture by police

2.    Not following the requirements of arrest by police

3.    If any requirements should be added for making an arrest?

Judgment:

1.    RATIO DECIDENDI: the point which decides the judgment of the case or the principle lying over the case and it is important to decide over the case.

 

2.    ARTICLE 21 of our constitution guarantees the right of life and property, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

 

3.    OBITER DICTA: death under custody and torturing the arrested person in lock ups which turns the law into a question mark and striking the rules. This should be considered by the court as one of the worst and heinous crime in an independent and lawful nation.

4.    This case made a referral case of NEELABATI BAHERA V.STATE OF ORISSA(1993) in this case the supreme court held that article 21 does not deprive the rights of any one’s life and property but only the applicable law is there to make everything in a line.

 

5.    Then the court had made 11 GUIDELINES as the duty and requirement of the police while arresting.

 

 

JOHINDER SINGH VS.  STATE OF 

UTTAR PRADESH.

An advocate is called for inquiry to the police station regarding some case and he went there with his brother later they asked his brother to leave and he will be freed after some time., without anyone knowledge he was detained under police custody in undisclosed place after few days hi brother investigated about the same and the case had been filed under ARTICLE 32 of the Indian constitution and the court held few provisions over the detention and arrest of a person which again turns to be a landmark case.

CONCLUSION:

This has been in a so long debating topic that no one should take law in their own hands but the death occurring due to torture, violence, assault, brutality and arbitrarily causing someone causing mental trauma and even death by a government servant (police) is really a tragedy and to minimize this issue all the people should open their eyes and came to know about the rights they haven and should go forward to ask their rights and laws are needed to be turn more cautious and speedy while handling towards these type of issues. It ought to be minimized because it seriously taking a nation into a most vulnerable one and people are really tend to be afraid about whom to be believed for their causes, “LAW MAKER SHOULD NOT BE A LAW BREAKER” ,authorities who are appointed for safeguarding the people are to be more careful and sincere in their duty many dedicated officers are here to serve the people and for the nation but the wrong doers in those sectors vanishes the good intention of good people. Try to know your rights and follow the rules and enjoy your rights.