Bombay HC fines state for illegal police arrests and excesses
The state was asked to pay Rs 2.5 lakh each to Ramesh (66) and Hansa (63) Jariwala by Bombay High Court, who were illegally detained by the Navghar police for around 36 hours.
A complaint of dowry harassment was filed against Niraj Jariwala and his elderly parents Ramesh and Hansa by his wife in Mulund. On December 2, 2011, around 8.20pm, sub-inspector Mahadeo Nikam, investigation officer in the case, picked up Ramesh and Hansa from their home in Aurangabad. They were first taken to Solapur and then brought to Mulund on December 3 at 8.20pm. The next day, on December 4, at 8.10am, they were officially shown as arrested. The Bhoiwada court released the senior citizens on bail the same day. “Show us any provision in law that allows the police to keep someone in custody for questioning without showing him as arrested,” judges had said during an earlier hearing. “The state cannot deny responsibility (for police action). The state allows such police officers to continue till superannuation; then it has to bear the consequences,” the court had added. The second case dealt with 56-year-old Matunga resident Bharati Kandhar, who was illegally detained for three hours and arrested after sunset in violation of rules on June 13, 2007. The court directed the state to pay her Rs 5,000 as compensation on Friday.
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Illegal police action included arresting a woman after sunset without following proper procedures, illegally keeping an elderly couple in custody for 36 hours, and illegal detention of three persons. A division bench of Justices Abhay Oka and Sambhaji Shinde allowed the state to recover damages awarded to the victims from the police officer concerned and also ordered departmental action against them.
There were some more suck kinda orders from various Indian High Courts as well as Supreme Court of India.
“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. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.“
I realized that the Indian criminal justice system was acting in contravention of Indian laws when dealing with 498A cases. It is easy to explain how this happened: Over the decades, a belief was propagated in India that the police had the outright authority to arrest anyone implicated in a criminal case and corrupt policemen did so with impunity. This belief remained unquestioned and was promoted by police officers and lawyers.
Unfortunately, these same beliefs were packaged and presented to the public as facts at web sites of organizations committed to fighting 498A. I created this site/blog to dispel these beliefs and raise awareness of the laws and judgments which protect the rights of Indians though posts at this site. Over a span of several months, I devoted hours each day to reading and compiling judgments and articles about Indian laws.
Due process lays down that the procedure for depriving a person of his life or liberty must be lawful, reasonable, fair, and just. Due process means that no police officer has the right or the authority to effect the arrest of an individual merely because the person has been accused in a criminal case. Every member of the judiciary is also duty bound to respect the right to due process and cannot automatically send individuals to jail on account of being produced in a court room by the police.
Above all, Article 21 of the Indian Constitution asserts the importance of due process. It says: “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
Sadly, despite the existence of this order, the police and the lower courts colluded and jailed hundreds of thousands of innocent Indians accused under 498A for over a decade. I am amazed that this fact doesn’t seem to bother anyone in this country of a billion people.
The only way to end this tyranny is to fight using the RTI Act and having the courage, resilience, and the fortitude to resist the calls to pay bribes and make the case go away. Also, the judiciary falls under the RTI Act and know that the magistrates who summon you to face charges are not silent spectators. They must apply their heads to see if the accusations in the FIR (police complaint) constitute a crime.