Police must function within law

Article 22 (2) mandates that a person who is detained shall be produced before the ‘nearest’ magistrate within 24 hours

By Author Chittarvu Raghu   |   Published: 28th Jul 2020   12:10 am Updated: 27th Jul 2020   9:37 pm

In the midst of the coronavirus pandemic, the world is witnessing human rights violation by the police, whose primary duty is to enforce law and order. In the US, a white police officer knelt on the neck of George Floyd resulting in his death. This is an infringement of the due process of law as envisaged under the fifth and 14th amendments of the US Constitution. The brutal treatment of a father and a son at Sathankulam Police Station of Thoothukudi district in Tamil Nadu resulted in their death. The alleged encounter of Vikas Dubey also warrants examination of the rights guaranteed under the Constitution.

A dreaded criminal like Dubey had to be punished as per law. The narrative presented by the police is that after the ambush near his house, he escaped. He was arrested in Ujjain and while he was being brought to Kanpur, the alleged encounter took place. The police justified the encounter stating that the car in which Dubey was travelling overturned and taking advantage of the same, he tried to escape.

Critical Lapse

The police did not explain as to why Dubey, immediately after being arrested outside the Ujjain temple, was not produced before the ‘nearest magistrate’. The Constitution and the Criminal Procedure Code contemplate certain procedural requirements post arrest to safeguard the rights of an individual vis-vis the police arrest.

Article 22 (2) mandates that every person who is arrested and detained in custody shall be produced before the ‘nearest’ magistrate within 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of the magistrate.

The Constitution does not stipulate that the ‘nearest’ magistrate should be a magistrate within whose jurisdiction the offence had occurred. Therefore, irrespective as to whether the ‘nearest’ magistrate has jurisdiction to monitor the proceedings or not, the person arrested has to be produced before her/him and such magistrate shall remand the accused to custody as per the procedure contemplated under the Criminal Procedure Code. The manner in which the person arrested is to be remanded for judicial or police custody depends upon various circumstances, and the said ‘nearest’ magistrate before whom the arrested person is produced takes cognisance of this.

Section 57 of CrPC

Any violation of this constitutional mandate is an infringement of a constitutional right. Section 57 of the Criminal Procedure Code specifically mandates that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in absence of the special order of a magistrate, under Section 167, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the magistrate court.

Sections 57 and 167 of the Criminal Procedure Code not only relate to the orders to be passed by a magistrate who has got the jurisdiction over the criminal case registered but are binding on all the magistrates before whom the accused is produced. The word ‘nearest’ magistrate in Article 22(2) has been mentioned consciously knowing that there would be arrests at distant places.

The Supreme Court in CBI Vs Anupam J Kulkarni case held that Article 22(2) and Section 57 of CrPC mandate that every person who is arrested and detained in police custody shall be produced before the ‘nearest’ magistrate within 24 hours, and the said two provisions clearly manifest the intention of law in this regard. The court also observed that the ‘nearest’ magistrate may or may not have jurisdiction to try the case, and if there is no judicial magistrate available, the arrested accused may be produced before ‘nearest’ Executive Magistrate on whom judicial powers have been conferred. Therefore, it is mandatory that once a person is arrested, he has to be immediately produced before the ‘nearest’ magistrate.

In the case of Dubey, though he was arrested near Mahakaleshwar Temple in Ujjain, it appears that he was not produced before the ‘nearest’ magistrate. Though he was a dreaded criminal, the mandate contained in the Constitution cannot be violated. The said lapse of the police resulted in suspicion of genuineness of the subsequent encounter. If the procedure established by law is followed, a presumption would arise in favour of the police. But, if there is any breach of procedure leading to violation of constitutional right, the burden heavily lies upon them to show that it was a genuine encounter.

Human Dignity

The Supreme Court in Civil Liberties and another Vs State of Maharashtra observed that Article 21 guarantees ‘Right to live with human dignity’. Any violation of the human rights has to be viewed seriously by the court as the right to life is the most precious right guaranteed by Article 21 and the same is available to every person and even the State has no authority to violate the rule.

The whole edifice of the constitutional will, maintenance of law and order, detection of crime and enforcement of process of social legislation rests on an effective police system. It is the fundamental duty of law enforcement officers to serve mankind, to safeguard lives and property. For the said purpose, ample powers have been conferred upon the police officers subject to certain restrictions.

Unfortunately, the police officers abuse the said powers in many cases. The police have to strive to protect the constitutional and statutory rights of the common person. Else, the very protection guaranteed under the Constitution and the statutes in this regard would be futile.

(The author is Advocate, High Courts of AP and Telangana)


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