Illegal detention by police, What is the law ???

Shipra Dwivedi

As the society evolves, the socio – economic and political developments are faced and adapted accordingly. Therefore, the manners and methods of curbing the injustices and crimes in the society are developed to keep up with the social needs of the nation. Often, if and when the circumstances demand, detention is used on a person to restrain him from any illegal act or omission. Sometimes, detention is a necessity in order to prevent any further interruption in a legal proceeding. 

It also serves the purpose of informing the society of the accused so that nobody, under any influence or force to protect the accused. Being an administrative authority, the police is empowered to arrest a person in the cognizance of his offence. It may be for the protective or preventive purposes. 

Scope and Extension

Betimes, only criminal offences attracted arrests of persons. The criminal policies relating to arrests and trials were stringent that left a great impact on the potential criminals. However, on the other hand, civil offences had no such provisions for arrest which led people to believe that civil offences had lenient and diluted proceedings with trifling punishments that can be dealt in terms of money. This led to a sense of lenient attitude of offenders of civil wrongs. Thus, the concept of arrest entered in the civil proceedings as well. The arrest of an offender or accused extends to the Indian territorial jurisdictions. In matters concerning international crimes or civil wrongs, the principles of international law takeover to be dealt accordingly. Although, it should be duly noted that arrest in any civil wrong is dealt differently than in criminal matters. Generally, in civil matters, arrest takes place after the person has repeatedly refused the court’s summons to appear in the proceedings. Whereas, in criminal matters, arrest takes place after the FIR is filed against the accused. In the recent years, arrest procedure has developed in order to meet the needs of the society as to prevent any rupture to the investigation or proceeding. 

Safeguards or whims?

Before independence, the Indian were treated as slaves and deprived off any humane behavior. The framers of the Constitution, thus, kept it in mind to not deprive any person off his basic human rights, which are recognized under Part III of the Constitution as Fundamental Rights. No person can be deprived off his freedom in any way except in a manner prescribed by law. This provision itself makes it distinctive that no person, who is required by law to be detained for any charges thereupon, shall not be detained on the whims of the executive body. Even in times of greatest disparity, the statutes laid down for the purposes of detention have provided several safeguards to the accused so as to protect his fundamental rights. The Supreme Court has repeatedly pointed it out that the rules of law are the fundamental grounds on which the judiciary practices the justice delivery system. It largely provides for the safeguards of rights to ensure harmony in the socio – political structure of the society. Furthermore, it expressly stated in the landmark judgment of Maneka Gandhi Vs. Union of India that the phrase, “procedure established by law”, clearly means a fair and reasonable procedure, a term and condition, more than once emphasized by the Apex Court. 

As far as the criminal law is concerned regarding the arrest, the Code of Criminal Procedure, 1973 exhaustively lays down provisions for arrest and safeguards against it, to ensure that the executive body does not force its whims and wishes upon the public. 

However, there lies a fine silver line between detention for preventive measures and illegal detention, more so in the matters of a person so accused. It is so because often it is very difficult to identify whether the accused, who has been detained, had tried to escape the hold of law, or he has been detained due to excessive exercise of power by the executive body of the system. Any accused, who has been detained, is mandatorily required by the law to be presented before the Magistrate of the concerned jurisdiction, to proceed further with the legal proceeding. An arrest for preventive measures can be taken only when the police officer has knowledge of the accused of commissioning any cognizable offence, or if he knows that a cognizable offence cannot be prevented unless the preventive active is taken by him. It can drawn from the above statement that the police officer can act on his knowledge and power to prevent an offence. 

However, this grey area is often misused to mislead the enquiry and save lots of legal formalities. It has become a general practice of the police officers to illegally arrest and detain the accused and exercise force upon them. Reports of custodial deaths hike mostly because of the torture faced by the accused during the detention. With the immensely increasing custodial deaths, government has managed to curb the situation, but somewhere lurking in the corner, is the issue of fake encounters rooted as a result of illegal detention, which still is a matter of grave attention. An encounter, which once seemed the last resort for the offender, now has become a milestone for early and ensured promotion in the ranks. When professional pressure meets the hiked corruption rates, fake encounters result as the first page headlines in the newspapers. 

Conclusion

Despite the ill – efforts of the executive body to deliver justice, the judiciary is forever bent on serving the righteous purpose of its existence. The judicial system has maintained the faith of its people in delivering just and reasonable parameters to check and control the uses of the executive body on one hand, and educate people of their rights and duties on the other hand. It is the rigorous efforts of the judicial system and activism that now – a – days, and illegal detention or and any proceeding that amounts to torturous exercise of powers is prevented and curbed. The victims are not only delivered justice but assistance against such time period which had been wasted in the detention, which can range up to Rs. 5,00,000/- are also taken care of to ensure the fidelity of the system. 

Author is a law student