INTRODUCTION
The case was decided in the light of the Human Rights commission directives of protection of human rights in reference with criminal procedure code and constitution of India. The case attracted the certain principles from section 41 and section 46 of Criminal procedure code that referrers to powers conferred by the police officer in relation to arrest and detention as well as the manner of arrest.
According to the legal dictionary by Farlex “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.”[1]
The term “Arrest” implies apprehension of a person by legal authority so as to cause deprivation of his liberty.[2] The reason of an arrest is to bring the arrestee some time recently a court or something else to secure the organization of the law. An arrest moreover serves the work of informing the community that a person has been charged of a wrong doing and may advice and discourage the arrested person from committing other wrong doings. In this case Bombay High court in order to maintain the dignity and nobility of a woman , There are constitutional provisions supporting the same, though we have Article 14 in the Indian Constitution stating that both men and women should be treated equally, we also have Article 15(3) which gives the state powers to make some special provisions for women so as to remove the gap between both the genders and to ensure their vulnerability in view with this point followed a rule where by females cannot be arrested in the absence of a lady constable neither can any female be arrested after the sun set . But this case absolutely stood as an exception to the certain section sections of the CrPc where by the Supreme Court crushed the previous judgment given by the lower court and opined at certain exceptional cases where the nature of the crime is serious and there’s adequate reasons for arresting a female , even in the absence of a lady constable they can be arrested. There are a lot of South Asian countries which have provisions regarding the procedure for arrests and custody. They talk about the medical examination of the arrested or detained persons. They have some special laws for the safety of women.
In India, after this judgement has been passed in 2005 the CrPC has been amended which gave a middle view of the Bombay High Court and Supreme Court. But still there are a lot of violation of these regulations and a lot of injustice is being done. There are a lot of arrested persons who are in the custody of the police and are being mistreated and are being killed under the disguise of encounters. In a nutshell I conclude there should be proper guidelines made for punishments as well as a clear custodial procedure should take place before every trail.
RESEARCH OBJECTIVES
- To understand what is arrest, detention and custodial deaths
- To understand the history and the background of the case of State of Maharashtra v. Christian Community Welfare Council of India.
- To analyse the judgement given by the Hon’ble Supreme Court of India.
- To explore case laws in relation to the same.
- To understand the statutory provisions given in India regarding arrests of females and custodial deaths.
RESEARCH QUESTIONS:
- What are the legal provisions relating to the procedure of arrests of females and custodial death in other countries?
- What was the condition in India before the passing of the judgement passed in the case of State of Maharashtra v. Christian Community Welfare Council of India?
- What is the main Object behind the particular statutory provision?
- What are the consequences of the judgement given by the Supreme Court in 2003?
LEGAL PROVISIONS REGARDING ARREST OF WOMEN
‘Arrest’ means deprivation of liberty of a person by legal authority.[1] The term arrest has not been exceptionally defined under any particular section of criminal procedure code . Arrest is considered to one of the important ingredients of the criminal justice system as well as considered to be the essence of the criminal law. It is severed on purpose to prevent the offenders from committing crimes and represent them in the court of laws.
But however the arrest needs to be justified with a reasonable cause otherwise any arrest by any lawful person without any reasonable cause and apprehension does not amounts to a lawful arrest. This was held in the case of Joginder Kumar v. the State of UP[2].
Generally the Criminal procedure code gives the provision which states who can arrest any person and according to the provision on reasonable grounds a police officer in power, a magistrate in power and any private person has the power to arrest any person who appears to have committed a crime but this provision is not applicable in case of the arrests of women. Criminal law is generally known to be gender biased. That is true to a certain extent. It seems that in the course of its development the criminal law system has held’ fair-man’ as its basic unit in view. This much is also evident from the current practice. Still now, the’ reasonable man’ sneaks into the judge’s mind when reviewing the facts or judging the actions.
But According to Article14 of the Indian Constitution, men and women are equal, but at the same time Article15(3) empowers the state to make arrangements for women because of their vulnerability. Because of biological facts women are more prone to violence. Most enactments and courts bridge the gap, if any created by law, were enacted to remove such limitations and to countenance her modesty legislature.
So in the case of arrest of women Under the Criminal Procedure Code a woman can be arrested by male constables, though in due regard to decency she may be searched by a female officer only.[3]
The CRPC’s concern to protect women’s interests is expressed in the proviso of Section 47 which requires that if an apartment to be searched by the police is in the occupancy of a woman who does not appear in public according to tradition, then the police should provide her with a notice to leave the place during the quest.
Recognizing the importance of arrest of a woman, it has been suggested that a male officer should avoid touching the woman’s body while effecting arrest. It has also been suggested that a woman shall not be arrested after sunset and before sunrise.[4] If she is to be arrested, the police officer has to seek prior permission of his seniors. If this is not possible then the arrest can be made but the fact has to be reported to the senior officers with reasons for not taking prior permission. The magistrate is also to be informed of this fact.[5]
The law commission report has suggested number of provisions satisfying the condition of protection of women even in the case of arrest of and one of such proviso which is incorporated in the section 46 of CrPc is “Provided that where a woman is to be arrested then, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation’, of arrest shall be presumed and unless the circumstances otherwise require or unless the police officer arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest.”[6]
Section 46(4) of the Code of Criminal Procedure in Chapter V specified that the arrest was totally illegal in terms that it was clearly stated in Section 46 for “Arrest how it was made.” The said clause is a salutary one that provides protection against a woman’s arrest after sunset and before sunrise, and the protections have to be strictly adhered to according to the learned counsel. Therefore, on documenting the petitioner’s grievances and considering the facts and circumstances of the case, the Honorable High Court briefed on the point that the precious protection of ‘ Life and Liberty ‘ enshrined in Article 21 of the Indian Constitution can not be denied to a prisoner or accused at trial and it is the duty of the State to ensure that the right is not infringed.
However, the Court concluded by noting that any deviation in the manner of arrest from the prescribed procedure could therefore not be countenanced and could be declared illegal. Allowing the written appeal, it was held that the officials responsible for the violation of Section 46(4) of the Code of Criminal Procedure will be liable for the arrest of the accused after sunset.[7]
LEGAL PROVISIONS REGARDING CUSTODIAL DEATH
The term custody in general signifies guardianship or protective care under the guardianship of a person and to the condition where it is applied in the case of arrest and detention, violence and torture is not justified in custody.
According to the legal terminological mean the term custody implies imprisonment of a person or in a lay mans language it a manual possession of a person under the legal justified provisions.
A petitioner must be “in custody” to be entitled to Habeas Corpus relief which provides for release from the unlawful confinement in violation of constitutional rights.[8]
All around the world no civilized law in any civilized society never prescribes custodial torture , custodial cruelty or custodial torture is considered to be an inhuman trait which is morally as well as legally against the human rights of a person. A civilized society represents the norms of rule of law according to which a society is governed but in a society where custodial torture is justified it not only violates the human rights but it is against the rule of law too. Prisoners have human rights, and slavery in jail is a declaration of failure to do justice to living human beings. All fundamental rights are an enforceable truth for an inmate, although limited by the fact of imprisonment. Simply stated, a person in custody, whether from the police or the judiciary, is going to die in custody. No doubt the police have a crucial role to play in protecting our lives but
It is also the duty of the police as a part of the legal fraternity to uphold the provisions of law and respect the provisions of human rights .
According to a statistical data by Amnesty International of 1992 reports suggests that the number of deaths that occurred between 1985 to 1991 due to custodial torture was something around 415.
As per article 21 of the Indian constitution , Right to life and liberty is a fundamental right that encompasses everybody and gives the rights of basic conditions of life to everybody even to the prisoners. Any person subjected to torture or to cruel, inhuman or degrading treatment or punishment can move the higher Courts for various judicial remedies under Article 32 and 226 of the Constitution.[9]
The Supreme Court initiated the development of “Custodial Jurisprudence” in D.K Basu v State of West Bengal.[10] In this particular case a writ petition was under article 32 of the Indian constitution by a NGO , A notice was brought into the attention of the chief justice of India through a newspaper that was published in a well known newspaper editor which mentioned about the custodial deaths that happened in west Bengal in a substantial year. In this case the Court outlined the following requirements that should be taken as preventive measures in all cases of arrest or detention:
- Police personnel performing the arrest and handling the arrester’s interrogation should bear correct, visible and clear identification , name tags with their designation so that police staff conducting the investigation. The identification of all such police personnel who performs the arrester’s questioning must be documented in a register.
- The police officer performing the arrest of the arrested person shall prepare a memo of arrest at the time of the arrest and such memo shall be approved by at least one witness, who may be either a member of the arrested person’s family or a respectable person of the place from which the arrest is made. This shall also be countered signed by the arrester and shall include date and time of detention .
- Any person who has been detained and is kept in the police custody for interrogation has the right to have a friend, relative or any person very c lose to him/her who has interest in the welfare of the detained person .
- The date, place of arrest and place of custody of an arrested person shall be informed by the police if the next friend or relative of the arrested person resides outside the district or city by telegraph through the District Legal Aid Organization and the police station of the region concerned within 8 to 12 hours of the arrest.
- As soon as the person is arrested and kept in the custody for interrogation , the arrested person must be given the reasons of his arrest and must be told under what grounds the person has been arrested .
- The entries regarding the arrested person shall be made in a small diary just after his arrest which shall record the details of the arrestee , the next friend who is along with the arrested person as well as the details of the officer who is appointed as the custody for the detained person.
- The arrester should also be checked at the time of his arrest, if he so asks, and major and minor injuries must be reported at that time if any injury is found on his / her body. The “Inspection Memo” must be signed by both the arrester and the police officer making the arrest and supplying the arrester with a copy thereof.
- During his detention in custody, the arrestee should be subject to medical examination by a trained doctor every 48 hours by a doctor on the panel of approved doctors appointed by the Minister, Health Services of the State or Union Territory concerned. Health Services Manager, should also plan such a panel for Tehsils and Districts.
- Copies of all records, including the arrest report referred to above, should be sent for reporting to the Magistrate.
- During this detention period the arrestee has the rights to meet and talk to his lawyer at the time of interrogation.
- A police control room should be given to all district and state offices where the arresting officer shall communicate information about the arrest and position off custody of the arrested person. It should be shown on a conspicuous board within 12 hours of the arrest and at the police control room.
In the further observation by the court it was concluded that these requirements are necessary and these points flow through the guidelines given under Article 21 and 22(1) of the Indian constitution which strictly needs to be followed while arresting any person.
In another case of Nilabati Behra v State of Orissa[11] The court while deciding this case opined that the prisoners or the detained person are denude of their fundamental rights its just they are restricted under this provision . And under this article , a person who is detained is subjected to adhere to this provision . In this case Court granted the mother an amount of Rs. 1.5 lakhs as her son had died in police custody. The judgment of the Court also referred to Article 9(5) of the International Civil and Political Rights Treaty, which states that an enforceable right of reimbursement is not foreign to the principle of protection of a guaranteed right. Anyone who has been the victim of unlawful detention or arrest shall have the enforceable right to compensation.
salus populi est suprema lex and salus republicae est suprema lex , the latin maxims basically means State security is the supreme law is not only an essential but is the center of the doctrine that an individual’s well being must yield to that of the nation.
In the case of Sunil Batra Vs. Delhi Administration[12]the question before the court of law was to determine the validity of solidarity confinement , Justice Desai opined that there is no such specific provision in the Indian constitution in comparison to the eight amendment to the American constitution that prohibits cruel and unusual punishment . Nevertheless, he pointed out that conviction did not weaken the convict as a non-person, subject to severe penalties levied by the prison authorities without proper procedural guarantees. He too stressed upon the duty of the courts towards the detained persons . He held “We cannot be oblivious to the fact that the treatment of a human being which offends human dignity imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”.[13] In another case of Raghubir singh v state of Haryana[14]the court opined that the diabolic recurrence of police brutality leads to horrifying remarks in the minds of the ordinary citizens that their lives and freedoms are under new threat and unjustified cause torture violates human rights and rule of law. Further the supreme court quoted Abrahim Linconl in its judgment “ if you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all people some of the time and some of the people all the time but you cannot fool all the people all the time”.[15] Prisoners’ rights have been recognised not only to protect them from physical discomfort or torture in the prison but also to save them from mental torture.[16]
Critical analysis of the case
The fact of the prominent case stated that some police men of the crime branch department of Nagpur police station while being in their duty took into custody to a person named Junious Adam Illamatti , it was later on found that Adam died in the custodial interrogation . The facts of the case stated that further when his wife reached the police station to enquire about his husband she was allegedly molested by the cops in the police station and later on a charge sheet was filed against all the officers under section 302 of Indian Penal Code.
Here the question before the court of law was whether the their was an abuse of power on behalf of the officers , whether the fundamental principle of rights of an arrested person was violated and whether the arrest of the female was justified or not.
The court in this case stated about the abuse of power of the officers and held them guilty as well as opined about the rights of the arrested person , mentioning the guidelines as given in the case of D.K Basu v state of West Bengal[17]. Further the court answered with regards to the question raised on the arrest of the women where in the court stated The arresting authority must be told that, while the female person is being arrested, every effort should be made to have a lady constable present However, in situations where the arresting officers are reasonably satisfied that such presence of a lady’s constable is not necessary or practicable and/or that the delay in arresting a lady’s constable will preclude such arresting officer from carrying out the investigation for reasons to be reported either before the arrest or immediately after the arrest.
Conclusion
The case state of maharastra v Christian community welfare society is one of the landmarks judgments which brought about a new change in the judicial procedures regarding Rights of an arrested person , it answered fundamental questions relating to arrest of women and established a whole new concept and procedures that needs to be followed while the arrest and detention of a female person. It not only declared custodial tortures unconstitutional and violent but also restored the faith of the ordinary citizens in the justice system by punishing the officers.
[1] Chapter V. CrPc 1973
[2] Joginder Kumar v. the State of UP (1994) SCC 4 260
[3] Section 51, CrPC 1975 and the observations in Kamalabhai v. State of Maharasthra AIR 1962 Sc 1189.
[4] The proposed provision runs as follows: Except in unavoidable circumstances, no woman shall be arrested after sunset and before sunrise, and where such unavoidable circumstances exist, the police officer shall by making a written report, obtain the prior permission of his immediate superior officer not below the rank of an Inspector for effecting such arrest, or if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall after making the arrest, forthwith report the matter in writing to his immediate superior officer with the reasons for arrest and the reasons for not taking prior permission as aforesaid and shall also make a report o the magistrate within whose local jurisdiction the arrest had been made, ” Lae Commission of India, 135 the Report on Women in Custody, Controller of Publications, Delhi, 1989, p.33.
[5] Law Commission of India, 84th Report Rape and Allied Offences: Some Questions of Substantive Law Procedure and Evidence, Controller of Publications, New Delhi, 1980, p.14. The Law Commission in its report, Supra n.3 at p.33 has reiterated this suggestions.
[6] Section 46 of Crpc.
[7] Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095.
[8] https://legal-dictionary.thefreedictionary.com/custody by Farlex legal dictionary.
[9] Sukhla V. N., Constitution of India. Eastern Book Compnay, 10′” edition. (200 I). reprinted (2007) , Lucknow, p-277 and 542.
[10] D.K Basu v State of West Bengal AIR 1997 SC 3017
[11] Nilabati Behra v State of Orissa, (1993) 2 sec 746.
[12] Sunil Batra v Delhi Administration, AIR 1980 SC 1579.
[13] Ibid.
[14] Raghubir Singh v state of Haryana, AIR1980 SC 1088.
[15] Ibid
[16] Kishore Singh v State of Rajasthan, AIR 1981 Sc 625.
[17] Supra note 12 .
[1] https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320
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