Saturday, June 20, 2009

ARREST & RIGHT TO INFORMATION

Arrest & Right to Information
U.N.Biswas
Bhavana HRD Centre of NCMB Memorial Trust.
CG 22, Sector II, Salt Lake City,
Calcutta-700091

All citizens of India, irrespective of position, status, religion, caste or creed are subservient to the Constitution of India. In the democratic system of India, the Constitution of India is supreme. Each Indian has to recognize the supremacy of the constitution.
The Indian Constitution has laid down specific provisions to protect citizens from abridgements of human rights and rule of law. Notwithstanding the protection provided by the Constitution of India, reports of violation of fundamental rights and basic human rights are regularly reported in the media. Those who have been given the responsibility of protection of human rights are often found to be the violators. Custodial violence strikes at the roots of the rule of law.
I. Article 21 of the Constitution of India guarantees protection to life and liberty: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
1. When a person is arrested, his personal liberty is denied. An arrest must be strictly according to the Constitution and laws. Denial of constitutional and legal rights under detention is a serious violation. “Custodial death is, “one of the worst crimes in a civilized society, governed by the rule of law.” [D.K.Basu vs. State of West Bengal, AIR 1997 SC 610, paragraph 36: (1997) I SCC 416]
2. Handcuffing a person under arrest can be done only in exceptional circumstances. [Sunil vs. State of Madhya Pradesh, (1990) 2 SCC 409]
3. An illegally detained person may be compensated, Merra vs. State of Tamil Nadu, [1991 Cri L J 2395(Mad)].
4. The court has the jurisdiction to compensate a victim of police atrocities, Nilabati vs. State of Orissa, (1993) 2 SCC 746.
5. Right to life also means right to live with dignity. No one can deny individual dignity. (Francis Coralie Mullin vs. Administrator, Union territory of Delhi, AIR 1981 SC 746). A person under arrest enjoys the right to dignity.
II. Article 22 lays down protection against arrest.
1. “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
2. Every person shall be produced before a magistrate within 24 hours of the arrest excluding the time required for the journey from the place of arrest to the court of the magistrate.
3. These rights are not available to the person under arrest if the person is detained under Preventive Detention acts.
III. Notwithstanding these rights of a person in custody, the public, particularly the socially challenged communities who are often arrested than others, continue to be ignorant of these rights. In D.K.Basu vs. State of West Bengal, the Supreme Court of India, issued specific directions, which ‘flowed from Article 21 and 22(a) of the Constitution’ of India, regarding the rights of a person under arrest. (Appendix-1)
Section 50 of Criminal Procedure Code, 1973, gives a person the right to be informed of the grounds of arrest and right to bail by police. In 2005, it was amended and a new section, 50A, was added. The new section, in brief, codifies the directions of the apex court and mentions the obligation of a person making the arrest to inform about the arrest.
5. “(1) Every police officer or other person making any arrest under this Code shall forthwith give information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.”

Appendix-1
In D.K. Basu Versus .State of West Bengal with Writ Petition (Crl.) No.592 of 1987 Ashok K. Johri vs. State of U.P. the Supreme Court of India held that transparency and accountability are two important safeguards against abuse of police power and issued the following orders for strict compliance:-
“ 35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in the behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it ,should be displayed on a conspicuous notice board.
36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
39. The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to) circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.” [D.K.BASU vs. STATE OF W.B. (1997)1 Supreme Court Cases 416, Paragraphs, 35-39].

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Unknown said...

Very good article and should be made available to the citizens in general in the remotest corners of our country.

tanmoy said...

Oh Lord!
How more days to get the justice!!