Overview on Safeguards against Arrest

Introduction

Arrest is a legal process which takes away personal liberty otherwise recognized as a fundamental right and guaranteed as such to all persons. In Article 22 of the Indian Constitution it was mainly about one of the Fundamental rights which guaranteed under Constitution. Article 22 provides the procedural safeguards against arbitrary arrest and detention. All persons  have the right to freedom and protection and that is the responsibility of the State that such rights are protected such that all other freedoms are meaningful. To order to guarantee the right to security and equality, several procedural provisions have been introduced into the Code of Criminal Procedure. Under the Criminal Law it was a presumption of innocence till the guilt of the accused is proved beyond reasonable doubt. So, this article mainly talks about the defense of an arrested person, what are his rights and duties as an arrested person.

An International Scenario of Arrest

If there was a violation of any rights of a person then it will be considered as a Human rights violation. Various international legal rules governing arrest and detention have been included in Art. 3 of the Universal Declaration of Human Rights, 1948; Art.9(1) of the International Covenant on Civil and Political Rights, 1966; Art.6 of the African Charter on Human and Peoples‟ Rights, 1981; Art.7 (1) of the American Convention on Human Rights, 1969 and Art.5(1) of the European Convention on Human Rights, 1950.

Rights of an Arrested Person

There are certain rights given to arrested person:

  1. Rights to be informed of the ground for arrest – In every case of arrest in which it was whether with or without a warrant, the person arresting shall tell to the arrested person without delay, the grounds for his arrest. This was one of the fundamental rights of the arrested person which was given under the Constitution. Any arrest requires reason and justification, apart from and separate from the arrest power. It was held in the case of Joginder Kumar v. State of U.P,[1] that arrested person should know the cause of his detention as well as police officer must inform the third party as well whether it should be his/her friend or relative.
  • Rights to be produced before a Magistrate without delay – In case of every arrest Article 22(2) states that whether the arrest has been made with or without a warrant, the person arresting is required, without unnecessary delay and subject to the provision regarding bail, to produce the arrested person before the Magistrate or court having jurisdiction in the case.[2]
  • Right to be informed of right to bail – Every police officer arresting any person other than a person accused of a non–bailable offence , is required to inform the person arrested that he in entitled to be released on bail and that he may arrange for sureties on his behalf.
  • Right of not being detained for more than 24 hours without judicial scrutiny –  In this right it was stated that the person who is arrested should be detained for not more than 24 hours where the 24 hours exclude the time of travel from the place of arrest to the magistrate’s court. If it is not complied with, the detention shall be unlawful[3]. It protects the arrested person from being trapped into wrongful detention.
  • Right to consult a legal practitioner – There was a right of every arrested person to consult a legal practitioner of his choice. This right was given to the person from the moment of arrest. The consultation with the lawyer may be in the presence of the police officer but not within his hearing.

According to section 41D, Cr.P.C any person who is arrested and interrogated by the police shall be entitled to meet an advocate of his choice during the course of interrogation.

Apart from all this rights certain guidelines were also given by Supreme Court of India in D.K. Basu v State of West Bengal[4] and some of them are:

  1. Whosoever the police arrest, it was their duty to bear accurate, visible and clear identification and name tags with their designation and their particulars must be recorded in a register.
  2. A memo of arrest must be prepared by the police officer at the time of arrest, which shall be attested by at least one witness and the memo shall be counter-signed by the arrestee and it shall also contain the time and date of arrest.
  3. The arrested person must be aware at the moment when he is arrested or detained he has the right to give this information to someone.
  4. The arrested person, as per his request, shall be examined at the time of his arrest. Any major or minor injuries if 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. A copy of the same is to be provided to the arrested person.
  5. A trained doctor appointed by the Director on a panel of approved doctors Health services should be performing the arrester’s medical examination each 48 hours when he is in detention.
  6. The arrested person may be given permission to meet with his lawyer during the questioning, but not all interrogation.

Preventive Detention

Under Section 151 of The Criminal Procedure Code, 1973 preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned. A police officer can arrest an individual without a Magistrate’s orders and without a warrant if he receives any information that an individual can commit any offence. This is a drastic power to detain an individual without trial and is not available in many countries exercise allowed except in times of war or violence. In Britain, U.S.A. and Canada prevention detention has not been known here so there it was a unlawful conduct.

The purpose of preventive detention is not to punish an individual for any misconduct committed by him, but to curtail his freedom in order to prevent him from committing harmful conduct the society.  Preventive detention is thus preventive, not punitive, in theory. Preventive detention is the most controversial aspect of Fundamental Rights and it’s also known as necessary evil of constitution

History of Preventive Detention

The Parliament enacted the Preventive Detention Act in 1950. The main aim of this Act is to provide for detention in order to prevent any person from acting in a manner harmful to the protection of India. The validity of this act has been questioned by the A.K Gopalan v. State of Madras Court,[5] in the Supreme Court. In the exception of certain sections, the Supreme Court held the act constitutionally valid. The act passed in 1969 and was amended 7 times until it passed, each amendment was to make it legal for 3 more years and this was extended until December 31, 1969.

Grounds of Preventive Detention

There are certain grounds in which preventive detention can occur and these are:

  1. Security of state, maintenance of public order,
  2. Maintenance of supplies and essential services and defense,
  3. Foreign affairs or security of India.

Case Laws – Unlawful Detention

Boya Nallabothula Venkateswarlu and Ors’case[6]

In this case the appellants were deliberately and purposely involve in a grave charge of murder. The Hon’ble Division Bench of A.P. High Court directed the State to pay compensation at the rate of Rs 1,000/- per day to each of the appellants for causing their illegal arrest and wrongful detention for a period of 32 days.

Joginder Kumar V. State of U.P and Others[7]

In this case the Hon’ble Supreme Court of India said that except in cases of heinous crime the arrest should not be on the grounds of suspicion of the involvement of the person in the crime and the police officer must be satisfied with the necessity and justification of such arrest on the basis of any investigation and the reasons for the arrest must be reported by the police officer in his diary and the arrest should usually be prevented.

Bhim Singh v. State of Jammu and Kashmir[8]

In this case a Bhim Singh who is a member of Legislative Assembly who is detained by the police officer on the assembly session. The facts of the case were that he was not produced in front of the magistrate after 24 hours of arrest. From the given facts Supreme Court held that it was a violation of police officers who arrest Bhim Singh. The foregoing discussion duly shows the fact that individuals unlawfully deprived by the officials of individual rights are lawfully entitled to seek State compensation or damages.

Acts of Preventive Detention

There are some few acts in history which was framed by law in order to provide provisions of detentions in which a person is detained for more than 60days without an order of Magistrate and these are:

National Security Force – On 23 September 1980, under the government of Indira Gandhi, the National Security Act (NSA) came into effect. This law empowers the state and central government to detain a person who has become a threat to national security, or appears to be. Under the NSA the government will keep a suspect in prison without charge for 12 months. If an individual, who does not believe in the rule of law, harms Indian ties with other countries of the world, disrupts the maintenance or supply of public services, attacks police on duty and creates a threat to national security; under this act, the government concerned may arrest him.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)This was an Indian anti-terrorism law in effect from 1985 to 1995 (modified in 1987) in the sense of the Punjab insurgency and applicable to India as a whole. This came into effect on 23rd May 1985. It was the first anti-terrorism law which was governed by government. It gives wide power to government to deal with national terrorism and social disruption. In this a person can be detained for one year without trial.

Prevention of Terrorism Act (POTA), 2002 – This act was passed by the parliament of India in 2002 with the main objective is to strengthen the anti-terrorism operation. The Act was enacted as a result of several terrorist attacks being carried out in India, and especially in response to the Parliament attack. This act replaces the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).

Conclusion

While doing this article on safeguard against arrest it was concluded that under the preventive detention law, a person can be detained without trial merely on the basis of a fair belief in the executive’s mind that he has the potential to commit harmful act later on. There are certain procedural safeguards have been given to the accused and some of them are: Right to know the grounds of arrest, right to consult and be defended by the lawyer of one’s choice, right to be brought before the magistrate within 24 hours, and in case of the detenue in preventive detention the right of representation and the limit of three months detention etc. have been provided as safeguards.

References

  1. http://www.legalserviceindia.com
  2. https://www.jagranjosh.com
  3. https://www.indialegallive.com/
  4. https://indiankanoon.org/
  5. R.V.Kelkar’s Lectures on Criminal Procedure Sixth Edition by K.N. Chandrasekharan Pillai

Frequently Asked Questions

  1. Where did preventive detention originate?
  2. When Preventive detention originate in India?
  3. What are the right were given to arrested person?
  4. Explain some case laws regarding to illegal preventive detention?
  5. What are the different act which were made by the government if a person done a threat to national security ?

[1] 1994 AIR 1349, 1994 SCC (4) 260

[2] See, Ss. 56 and 76 of CrPc.

[3] Manoj v. State of M.P., (1999) 3SCC 715: 1999 SCC (Cri) 478

[4] (1997) 1 SCC 416 [35] 435-36

[5] 1950 AIR 27, 1950 SCR 88

[6] 2010 (3) U.P.L.J 19 (HC)

[7] 1994 AIR 1349, 1994 SCC (4) 260

[8] AIR 1986 SC 494, 1986 CriLJ 192, 1985 (2) SCALE 1117, (1985) 4 SCC 677, 1986 (1) UJ 458 SC

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