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Published : May 31, 2012 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 2901 | Unrated

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

 Illegal Arrest

''The wrongdoer is accountable and the State is responsible
if the person in custody of the police is deprived of his
life except according to the procedure established by law.
''

It is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Arrest can be made on not only in Criminal cases but also in Civil cases. In order to bring arrestee before a Court of Law or otherwise secure of the administration of the law, an arrest will usually be made. Arrest notifies a person who has been accused of a crime and can deter and admonish such persons from committing some more other crimes. It is already discussed by me in my previous Article titled '' Guidelines on arrest of women and Judicial Officers'', that Chapter V of Criminal Procedure Code,1973 deals with ''Arrest of persons''. To know about guidelines to be followed before arrest, it is essential to refer the ruling Joginder Kumar vs State of Utter Pradesh. To know more as to guidelines during arrest, it is necessary to refer the decison D.K.Basu vs State of West Bengal. Further, to know about guidelines after arrest, it is essential to refer the ruling Sunil Batra vs Delhi Administration, Prem Shankar Shukla vs Delhi Administration and D.K.Basu's case. A fortiori, it is also necessary to see Article 20(3) of Indian Constitution, the provisions of Criminal Procedure Code,1973 relating to arrest, Article 7 of International Covenant on Civil and Political Rights,1966 and National Human Rights Commission guidelines on arrest and National Police Commission: Third report etc.

Meaning Of Arrest:
The word '' ARREST'' is not defined in Code of Criminal Procedure,1973. But, Section 46 of Cr.P.C explains '' Arrest how made''. Under this section, a police officer is given power to use all means necessary to effect the arrest in case of such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest. If we refer a legal dictionary, it conveys the meaning that ''to deprive one of his liberty by virtue of legal authority.'' It gives another meaning: '' to stop''; and also conveys meaning: '' to seize''. Thus, it is known that arrest means'' A seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge''.However, if we go through the rulings given in this article, the meaning of arrest can succinctly be understood.

False Arrest:
''A tort (a civil wrong) that consists of an unlawful restraint of an individual's personal liberty or freedom of movement by another purporting to act according to the law.'' An action can be instituted for the damages ensuing from false arrest, such as loss of salary while imprisoned, or injury to reputation that results in a pecuniary loss to the victim. Ill will and malice are not elements of the tort, but if these factors are proven, Punitive Damages can be awarded in addition to Compensatory Damages or nominal damages. In view of this, it is clearly knwon that if illegal arrest is made, punitive damages in addition to compensatory or nominal damages can be awarded. In this context, it is very essential to go through the following case-law to know the consequences of illegal arrest.

Related Case-Law:
-In Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur PS and Ors (2010 (3) U.P.L.J 19 (HC)), the Hon'ble Andhra Pradesh High Court Held. ''Despite having sufficient material to reach a finding that the arrest and detention caused by the police are illegal, if we direct further enquiry to be made into the allegations leveled against the investigation agency, it is nothing but diluting the issue and it may also afford an opportunity to the police to harass the witnesses to speak on their behalf. Therefore, we think it just and proper to record a finding since the material available on record in the facts and circumstances of the case,enables us to record a finding that the investigation conducted by the police is false to their own knowledge and that the arrest and detention of the appeallants caused by the police are illegal.''

In Boya Nallabothula Venkateswarlu and Ors'case (Cited supra), 2010 (3) U.P.L.J 19 (HC), the appellants were deliberately and purposely implicated in a grave charge of murder. Therefore, in this case, 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. And held that the compensation shall be in addition to the compensation for whcih the appellants are entitled under private law remedy. It is also directed to recover the compensation paid, from the police personnel who are responsible for illegal arrest and wrongful detention of the appellants. It is further directed to the State to pay an amount of Rs.9,000/- to the appellants towards expenses defrayed by them in prosecuting the writ petition and the writ appeal.

- Manka Gandhi vs Union of India, AIR 1978 SC 597, it was held that Article 21 is controlled by Art 19, that is it must satisfy the requirement of Art.19 also; Mal-treatment of Woman prisoners in Lock-up: Sheila Barse vs UOI, AIR 1986 SC 1773; Bar against solitary confinment: Sunil Batra vs Delhi Administration, AIR 1978 SC 1675; Bar against Handcuffing and fetters: Prema shankar vs Delhi Administration, AIR 1980 SC 1535; Illegal arrest: Joginder Singh vs State of UP, (1994) 4 SCC 280; Arvind Singh Bagga vs St. of UP, AIR 1985 SC 117.

- In Nilabati Bahera's case , it was held : Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by molding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord Denying in his own style warned:-

"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do thing which they ought not to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence... This is not the tasks of Parliament.... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must even be allowed in this country".

- The informative and educative observations of O’ Dalaigh CJ in The State (at the Prosecution of Quinn) v. Ryn [1965] IR 70 (122) deserve special notice. The Learned Chief Justice said:

"It was not the intention of. the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at bought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at bought or circumvent them, and that the Court's powers in this regard are as ample as the defence of the Constitution requires."

- In Byrne Vs Ireland (1972) IR 241, Walsh J opines at p264: '' In several parts in the constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizen and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of thse rights. It follos that , where the right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed.''

- In Joginder Kumar Vs State of U.P And Others, the Hon'ble Supreme Court of India held that '' the arrest should not be merely on suspicion about the person's complicity in the crime and the police officer must be satisfied about necessity and justification of such arrest on the basis of some investigation and the reasons for arrest must be recorded by the police officer in his diary and the arrest should normally be avoided except in cases of heinous crime.''

- In Bhim Singh, MLA Vs State of J&K And others, the Hon'ble Supreme Court held that '' the police officers should have greatest regard for personal liberty of citizens, their mala fide, high handed and authoritarian conduct in depriving the personal liberty of person has to be strongly condemned.'' In this case, the Hon'ble Supreme Court directed the Respondent no.1, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000/- within two months.

- In Lucknow Development Authority Vs M.K.Gupta , it was held that '' when public servant by mala fide, oppressive and capricious acts in performance of official duty causes, injustice, harassment and agony to common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public fund, State or its instrumentality is duty bound to later recover the amount of compensation so paid from the public servant concerned.''

- In Sanganagouda A. Veeranagouda and others vs State of Karnataka, in this case, '' one ''V'' was arrested in a murder case on the direction of Office-in-charge of the police station and subsequently died by hanging himself in the police station, the Hon'ble Supreme Court considering the undisputed facts viz that at the relevant time A.1 was in charge of the police station, A2 to A5 were working as police constables in the said police station, the injuries sustained by the deceased Guddappa to his death was caused in the said police station, the fact that the IO did not produce ''V'' before the nearest Magistrate within 24 hours by his arrest as required under Code of Criminal Procedure, held that the death of the deceased has since occurred beyond 24 hours it would amount to wrongful confinement as contemplated under Section 348 of IPC and accordingly upheld the order passed by the Hon'ble High Court.''

- In Hindustan Transmission Products Ltd Vs. State of Kerala,, a petition filed under Article 32 of the Constitution of India for issuance of a writ of Hebeas Corpus to produce two persons, the Hon'ble Supreme Court directed the Hon'ble District Judge, Ludhiana to conduct an enquiry into the allegations made in the affidavit and counter affidavits and submit a report as to the veracity of the statements made by either of the parties particularly in relation to the illegal detention of the aforementioned two persons. Thereafter on receiving the report of the District Judge, the Hon'ble Apex Court held that the two persons were wrongfully deprived of their right to personal liberty by the police authorities of the State of Punjab during the period from 09-08-1993 to 02-10-1993 and directed the State of Punjab to pay each of them a sum of Rs 10,000/- by way of compensation within a period of one month. The Hon'ble Supreme Court furthe made it clear that the payment of this amount by way of compensation would not preclude Dalit Saini and Omprakash from pursuing the remedy, civil as well as criminal, that is available to them in law in respect of their wrongful confinement during this period.

- The Requirements To Be Followed in All Cases Of Arrest Or Detention As Per Ruling Shri D.K. Basu Vs State Of West Bengal:
''A. The following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measurers : (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 designations. 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 atleast one witness, who may be either 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 counter signed 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 an 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 fives 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/herbed, 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 concerned State or Union Territory. Director, Health Services should prepare such a penal 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 illaga 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 conspicous notice board. (Para 36). B. 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 arrestee. (Para 39)''

Conclusion:
A fortiori, it is apt to reminisce that'' procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detention should conform to Art. 22.'' Let me conclude this article with a hope that no person shall not deliberately and purposely be implicated in any crime.
********************
. SMT. NILABATI BEHERA ALIAS LALIT BEHERA (THROUGH THE Vs. STATE OF ORISSA AND ORS., 1993 AIR 1960, 1993 SCR (2) 581
# Article ' Guidelines On Arrest of Women and Judicial Officers'' published in LAW SUMMARY 2010 (1) L.S, 15-04-2010,Part-7; and also published in online www.airwebworld.com
# 1994 (4) SCC 260
# AIR 1997 SC 610
# (1978) 4 SCC 494
# (1980) Cr L J 930
# (1979-1981),Page 32,PARA 15,48
. http://legal-dictionary.thefreedictionary.com/arrest
. It was further held'' Basing on the above material, we arrive at a definite and positive conclusion that the investigation conducted by the police is false to their own knowledge and to somehow close the case file, they gave their own conclusion to the case by involving the appellants in a false charge of murder and the alleged deceased was in fact found to be very much alive. The police personnel concerned are, therefore, guilty of illegal arrest and wrongful detention of the appellants and also liable for the offence of wrongful confinement, which is punishable under Section 342 of IPC.''
. (1994) 4 SCC 260
. (1985) 4 SCC 677
. (1994) 1 SCC 243
. (2005) 12 SCC 468
. (1997) 11 SCC 623
. MANEKA GANDHI Vs. UNION OF INDIA, 1978 AIR 597, 1978 SCR (2) 621




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