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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