-Sakshi Komal Dubey
Arrests are so fundamental to how we view law enforcement; we frequently assess the effectiveness of the police by the number of arrests they make.
The Code of Criminal Procedure, 1973 (“Code”) does not define the term “Arrest”. Having no standard definition, however, it can be defined as, when an officer takes a body of a person into custody, confines him to a police facility thereby depriving him of his personal liberty, detains him until release or judicial review. One of the important safeguards against abuse of power to arrest is that the arresting party is required to produce the person taken into custody before a Magistrate within 24 hours of the arrest.
Accordance with established practice, an accused may be arrested in more than one case at the same time. The expression ‘shown arrest’ can be understood as, when an accused is arrested in connection of an offence and during the investigation, it occurs to the police that he has committed a distinct offence and an independent case is instituted against such accused, he is “shown arrested” as regards the subsequent case, without his physical production before any Magistrate . The prayer for such practice is often made by the investigating officer to the Magistrate before whom the accused ought to have been produced.
One such episode sprang before the High Court of Calcutta in In Re: Md. Hanif Mondal & Anr. wherein the accused was under police custody on charges of assault. Whilst under investigation, the accused disclosed commission of a distinct offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”). The accused were not produced before any Magistrate and a prayer was made to the Special Judge, NDPS court to show the accused as arrested. The prayer made on behalf of the “State”, inter alia, stated;
“Considering the circumstances, I pray that PC accused persons named above may kindly be shown as arrested in c/w Duttapukur PS Case No. 420/18 dt. 16/05/2018 u/S. 21(c) NDPS Act, 1985. They will be produced before the court of the Ld. CJM, at Barasat today (17.05.2018)”.
Under any circumstance, the law prohibits a police officer to detain an arrested person for more than 24 hours. The practice of shown arrest is alien to the Code and violative of fundamental rights but is practiced prevalently by executive authorities and is sanctioned by judicial authorities. When judicial officers act in acquiesce and sanction such a practice, violation of Articles 21 and 22(2) directly stares us in the face.
The Constitution & The Code on impeding Shown Arrest
Article 22(2) of the Constitution of India mandates production of every person who is arrested and detained in custody before the nearest Magistrate within a prescribed period of 24 hours subject to exclusion of time taken for travelling. The constitutional mandate of such production is diluted only when either the person arrested is an “enemy alien” or the arrest is under any preventive detention law. Similarly, Section 57 and Section 76 (in case of arrest under a warrant) of the Code states that unless the police officer has special permission i.e., a remand order by the Magistrate under Section 167 of the Code, a person arrested sans warrant shall be produced before a Magistrate within 24 hours.
The intention of the Legislature is clearly reflected by the provisions that an accused person should be brought before a Magistrate who is either competent to try or commit as early as possible. The provisions aim that a judicial mind is applied immediately to the arrest made by a legal authority and the uniformity of the procedure adopted by him. However, the practice of ‘shown arrest’ disparages this objective of the provisions.
Uniformly, Article 9 of the International Covenant on Civil and Political Right (“ICCPR”) states that “Everyone has the right of liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The remedy sought by Clause 4 of the Article 9 is for the court to evaluate the lawfulness of the one arrested.
The Supreme Court in Maneka Gandhi v. Union of India while distinguishing A. K. Gopalan v. State of Madras held that the ambit of Article 21 is much wider. The right to personal liberty can be said to be abridged not only if it is not in continuance of procedure established by law but also it shall satisfy the test of reasonableness. Hence, the procedure must be ‘right, just and fair’. Thus, an arrest which has been made by subverting the statutory procedure or by exploiting the silence thereof would be ‘illegal’. But the question that looms subsequent to an illegal arrest is what would be the consequence of such an arrest.
Supreme Court on Non-Production of An Accused Before Magistrate
The Supreme Court while adjudicating upon a different issue in Central Bureau of Investigation v. Anupam J Kulkarni held that “if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for “formally arrested” in connection with other case and then obtain order of the Magistrate for detention in police custody”.
When an accused is shown to be arrested, the arrest is illegal from the beginning since there is failure to comply with the mandatory provisions for an arrest. An illegal arrest has two primary repercussions. It may either call for a criminal or civil action against the officer, or the trial may be rendered wholly invalid. The latter repercussion does not find a hold in the Indian criminal justice scheme. Section 29 of the Police Act, 1861 states penalties for neglect of duty which can either be wilful non-performance of duty or performance of any duty in a manner not authorized by the law. The practice of shown arrest falls under the latter category. A police officer failing to produce an arrested person is guilty of wrongful detention. Regrettably, the judicial bodies fail to effectively put an end to or even curb the misuse of authority and power by police who by practice are accustomed to disregarding the legal rights of an individual.
The Supreme Court in a similar occasion imposed exemplary costs on the State due to the acts of the defiant officers. In Bhim Singh v. State of Jammu & Kashmir & Ors., the order of remand to police custody was obtained from an Executive Magistrate without the production of the accused before the Magistrate. Subsequently, another remand order for police custody from Judicial Magistrate (First Class) was obtained without production on the pretext that the Petitioner was sick sans display of any medical certificate. The Apex Court simply condemned such action by stating that the police officer acted in “a most high-handed way” and the judicial officers were “casual” but no action was taken against them. However, later granted a sum of Rs. 50,000 as compensation.
In In Re: Mohd. Hanif Mondal (Supra), the High Court of Calcutta observed that the practice of shown arrest is not recognized in law and is not permissible. If the physical production before the Magistrate is unachievable, the aid of video conferencing can be taken. Even in case of commencement of trial before a proper court, the High Court of Allahabad in Swami Hariharanand Saraswati & Ors. v. The Jailor I/C Dist. directed immediate release of the Petitioners/Accused when there was no proper production of the arrested before Magistrate.
When the law vests the power of arrest in the police officer, it shall be exercised in conformity with the musts prescribed by the law. When the question is of restraint of one’s liberty and freedom, it is essential that the procedure mandated by the law is observed in the letter and spirit of the law. The provisions of the Constitution and the Code were not to subvert the objective of the duty but are necessary caution expressed to limit the unbridled exercise of power.
When India became a signatory to the ICCPR it agreed to take the essential steps in accordance with the Constitution, to espouse legislative and executive measures to give effect to the rights bestowed by the Covenant. When the onus of enforcing the remedies is with the same authority who is violating the rights, how will justice be served? The judicial bodies have been vested with the duty to guarantee the rights of an individual against the high-handedness of the executive authorities. If the Magistrates endorse the unlawful acts of the police officers, the situation turns out to be of a protector turning out to be a perpetrator. The judicial officers have a larger responsibility to protect the constitution values and not give them the colour of being merely a paper provision.
[Author is a 3rd-year student at Vivekananda Institute of Professional Studies]