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Personal liberty, the most precious among all rights



Introduction: If you can read this article, because you are a free “man”, and if I am writing this article because I too enjoying my personal liberty. Personal liberty is dear to all, be it leftist or rightist, human being or animal being, Prime minister of a country or the poorest sovereign. It is said that, “you take my life when you take away the means whereby I live”. This is true for a family whose sole bread earner is arrested. The importance of personal liberty to a civilized society cannot be over stated.

The Constitution of India, under Article 21, has placed the importance of personal liberty at par with our life, and guarantees that life and personal liberty of a person cannot be taken away, except by strictly following the procedure established under the law.

The scare by Police: The Independence of India has come but Police in India continues to inspire fear. One thing that terrorizes the most to a common man is fear of highhandedness of the police who has presumably unbridled power to detain / arrest any person. The personal liberty of an individual suddenly is in peril when a complaint is registered before the Police or before the Court of law. However, a Judge stands firmly as a thick wall between “Little Man” and “mighty transgressing State”, acting through the machinery of Police.

The law which regulates the law of arrests: When a cognizable offence is alleged to have been committed by any person, and an FIR is filed before the Police station, naming a person therein having committed that offence, the designated Police officer may arrest and detain that person (sections 41, 41A, 41B, 41C, 41D of CrPC), but only in strict compliance and in accordance with the provisions of CrPC [Chapter V, Section 41 to 60A r/w Section 157 of CrpC, 1973], and the law laid down by Apex Court in its various Rulings, more particularly the Joginder Kumar case [AIR 1994 SC 1349] & Arnesh Kumar case [AIR 2014 SC 2756]

Arnesh Kumar Ruling: The observations:
Para 8: ….In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.

Para 12: The direction of Apex Court:

a)     No automatic arrest on registration of FIR (for an offence punishable with imprisonment which may extent upto seven years);

b)     Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case;

c)     The police officer shall in writing record reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

d)     Failure to comply with aforesaid directions will call for departmental action alongwith contempt of court.

Joginder Kumar case Ruling: Observations:

Para 24: No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so.

Steps by Police before arrest: Whenever Police intends to arrests any person, it is also obligatory upon police, among other things (a) to clearly inform him about the offence he is alleged to have committed – section 50 of CrPC 1973; (b) the Police are obliged to immediately inform to any of the friend or relative of the arrested person about the arrest of that person and the place of his custody – section 50-A (c) if the offence / offences alleged is/are defined as bailable offences, then, Police must inform the accused person about his right of immediate release on furnishing of Bail (Surety) (section 50-A) or by executing a Bond (Section 441 of CrPC, 1973) in lieu of Bail. The Police may also release a person on deposit of certain sum of money for accused person to arrange for the surety.

Legal options when illegal arrest / detention is made or anticipating arrest:

Bail: The personal liberty of the person is secured by obtaining “Bail” in the form of, either furnishing “surety”; or by “depositing of certain cash amount” in lieu of Surety; or by “executing a Personal Release Bond”, before the Court / Officer In-Charge of the Police station, thereby securing to the Court / Police that the person seeking the release, would make himself present during the trial of the offence for which he is alleged to have committed.

Anticipatory Bail: Where any person has reason to believe that he may be arrested on accusation of having committed an cognizable and non bailable offence, he may by making Anticipatory Bail Application before the concerned High Court or the Court of Sessions, that in the event of such arrest he shall be released on bail.

Writ of Mandamus: Even a Writ of Mandamus can be filed before the concerned High Court, inter alia, praying that before arrest is made, the Police must strictly follow the mandate of sections 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973, and also strictly follows the guidelines framed by Apex Court in the Joginder Kumar case and Arnesh Kumar case.

Writ of Habeas Corpus: When the Police arrest a person without following the procedure established under the law, the said arrests is illegal in the eyes of law and Writ of Habeas Corpus may be filed in the respective High Court, to produce the arrested person in the Court.

Confronting with Police carrying out illegal arrest: The arrested person or his relative / friend may orally or record a Letter to the concerned Police station, stating therein about the position of law as regards to restrictions in powers of arrests, and that the Police officer effecting arrest is not following the mandate of law as set out in sections 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973) and also knowingly disregarding the guidelines framed by SC in the case of Joginder Kumar versus State of U.P., and Arnesh Kumar case, for effecting arrests, and thereby advising the Police to release the arrested person forthwith.

Bail Application before Magistrate Court: Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest (Section 57 of CrPC, 1973). When the arrested person is so produced, the arrested person or his relative / friend may present a simple Bail Application, and inform the Magistrate, among other things, that the said arrest is patently illegal, for being effected without following the due process of law and in wilful disregard / defiance of guidelines framed by SC in the case of Joginder Kumar case and Arnesh Kumar case; and may pray for immediate release, on Bail on furnishing of Surety or execution of Personal Release Bond; and where court insists for surety, then, some reasonable time may be sought for furnishing of surety and release may be sought on depositing of reasonable amount of cash in lieu of furnishing surety thereof.   

Bail Application before High Court / Sessions Court: Where the Bail is refused by the Magistrate, thereby committing the accused to either Police custody or to Judicial custody (Jail), then, immediately, a fresh Bail Application may be filed before Sessions Court or before High Court u/s 439 of CrPC, on the same grounds which were agitated before Magistrates Court.

Developing a frightened democracy: Our Govts are found fascinated to enact stricter Penal laws, making vulnerable their citizenry the gross and rampant misuse of those laws; and the enactment of such laws jeopardize the liberty of the entire nation. The validity of such laws may be challenged on the grounds that the law is vague and uncertain or the procedure to deprive a person of his treasured personal liberty, is excessive, unfair and unreasonable, and the law has the tendency to frustrate the personal liberty of the people cheaply and casually. The freedom of an individual must be secured, for, threat to individual freedom is, shall threat to freedom of society.

ADM Jabalpur case [AIR 1976 SC]: The discussion on personal liberty would be incomplete without the mention of ADM Jabalpur case. In this case, whereas Emergency was declared on 27th June, 1975, wherein people were indiscriminately arrested, the issue reached the Apex Court. It was contended by the Govt that, on the proclamation of Emergency, the Citizens’ fundamental right of liberty, recognized under Article 21, is suspended and the arrested citizen would have no access to court of law for his alleged illegal arrest.

The Apex Court, most shockingly, upheld the contention of the then Govt. Justice H.R. Khanna dissented, and said, right to life is a natural right which is incapable of suspension, and advanced the proposition that even assuming that Article 21 is suspended, the right to life and personal liberty cannot be taken away, for being they are natural rights; without such sanctity of life and liberty, the distinction between a lawless society, and one governed by laws would cease to have any meaning. The aforesaid Ruling of Apex court was neutralized by 44th Constitutional Amendment wherein it is declared that right to life and personal liberty cannot be suspended even during the proclamation of emergency.


Sandeep Jalan
Advocate


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Thank you.

Comments

Hemant Agarwal said…
Thanks to Shri Sandeep Jalan, Advocate, for this simple and explanatory analysis. It would be most helpful to needy persons.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

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