Friday, July 22, 2011

Your are under Arrest- How to protect your self from police harassment

Your are under Arrest- How to protect your self from police harassment?

Introduction:

Your are under Arrest [it sounds like a movie dialogue] ,most people have no idea what it means in real sense. Normally people get nervous or panicky, once, they see the policeman near their door steps, don’t know how to react to the situation. The tempers run high in entire family, once unexpected guest in police uniform lands in your house in the name of arrest or search or enquiry .The on-lookers and neighbhors gather to watch the entire drama. Everyone starts raising their eyebrows, its time to hold your nerve and act wisely. The police has unlimited power to arrest in cognizable offences without permission of magistrate and police can also detain any suspected person as preventive or precautionary measure. One should know rights under our legal system and constitutional protection accorded to accused persons.It may be the case of false implication or harassment by corrupt police man. It’s time to act prudently. Police also behaves with brutality while arresting a person or during law& order enforcement.

The Constitution of India, The Criminal Procedure Code, 1973, and The Indian Evidence Act, 1872, expressly provided special safeguards to accused persons during investigation, enquiry or trial of an offence and also prevent the misuse of powers by state machinery like police. The article 19-22 of Indian Constitution guarantees the rights of the accused and the Art. 20 and 21 (Constitution of India) provide the basis for Human Rights of an accused under the Indian Criminal Jurisprudence. 
The Supreme Court of India and High Courts has power to issues writs under Article 32&Article 226 of Indian Constitution to prevent the abuse of fundamental rights.  


Joginder Kumar v. State of U.P. (1994)and D.K. Basu(1997) are landmark judgements in India pertaining to arrest. In Maneka Gandhi case ,Hon’ble Supreme Court of India opined that every individual have right to just, fair and impartial trail[1] and dignity of individual is respected under constitutional laws. 


The 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”.

What is arrest?
Arrest means apprehending a person by legal authority resulting his deprivation of his/her liberty[2].

When a person can be arrested?

  • Securing a person who is suspect of crime or trial of crime
  • Preventive or precautionary measure to stop committing a crime
  • For obtaining correct name &address[if person refuses to give address]
  • If person obstruct police man on duty, while discharging duties.
  • Taking person under custody, who has escaped from police or prison?

Who can arrest?
  • A police officer may arrest a person without warrant [cognizable offences or apprehension of committing a crime or preventive measure for public order  or other purposes],
  •  Police officer in charge of police station may arrest a person as preventive measure without warrant
  •  A private person
  •  Any magistrate may arrest a person without warrant

Arrest &Powers of Police 
  • A person can be arrested with or with out warrant from magistrate
  • Power to use force, there is resistance or evades arrest. 
  • Power to search place acting under warrant power. 
  • Power to arrest &pursue such person any place in India 
  • Power to seek assistance of any person for arrest or preventing the escape of person. 
  • Power to re-arrest escapee

Some of important rights of accused persons.

The constitutional protection of accused starts the movement a formal accusation is made or an First Information Report [FIR] registered against person, before or after commencement of proceeding against person.

1.Right to know the grounds of Arrest& police can not resort to arrest without probable cause.
2.Right against arbitrary arrest[3]  
3.Right to consult legal practitioner& have him during questioning.[Article 22][4]-Right to free legal assistance [5][6][7]
4.Double Jeopardy[8] :No person shall be convicted for same offence more than once& no one should be compelled to witness against himself[9]-Article 20
Doctrine of autrefois  convict or autrefois acquit[offence must be same involving same ingredients ]
5.Right to be medically examined[10].
6.Right to remain silence[remember anything you say ,it can be used against you, caution to be  silent is not unconstitutional ][11]
7.Accused should not detained beyond period of 24 &should be produced before magistrate within 24 hrs[12]
8.Right to speedy trial 
9.Right to bail [not a absolute right]
10.Right to confront witnesses[13]

11.Prohibition against unreasonable search &seizure 
12.Right to Appeal against Conviction [14]
13.Male police should not arrest accused women& no arrest of  accused women during night hours.
14.Women accused should be placed in separate cell .when under police custody.
15.Right to compensation for illegal detention[15]
16.Its illegal to imprison insane person[16]
17.Right to claim compensation for police excesses &fundamental rights violation
   [17][18]
 
18.No torture in prisons –right to seek compensation[19]
19.A punishment which is too cruel or torture some is unconstitutional[20]
20.Inordinate delay in trial is unconstitutional[21]
21.Right to pre -trial release on personal bond ,where is no risk of absconding[22]  
22.Right against custodial violence[23]& Compensation for custodial death, custodial death is one of worst crime in a civilsed  society [24]
23.Right against handcuffing[25] ;
 
24.Unreasonable Delay in execution is unconstitutional[26]
25.Right against handcuffing[27]
Supreme Court of India guidelines in D.K Basu vs. State of West Bengal [28]



The Hon'ble Supreme Court of India in "D.K. Basu v. State of West Bengal   laid down the following guideline:

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 at least 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 and 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 lives outside the district or town through the Legal Aid Organization 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/ her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and a copy provided to the arrestee.
8.The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a trained doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should prepare such a panel for all Tehsils and Districts, as well. 

Police Brutality &Human Rights abuse




According to Jerome Herbert Skolnick,”in dealing largely with disorderly elements of the society, some people working in law enforcement may gradually develop an attitude or sense of authority over society, particularly under traditional reaction-based policing models; in some cases the police believe that they are above the law”

The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v. Delhi Administration (1980). In this case, the validity of certain clauses of the Punjab Police Rules, which made handcuffing mandatory during arrest, was challenged. In his opinion, Justice Krishna Iyer eloquently stated:  “The guaranty of human dignity which forms a part of our constitutional culture . . . spring[s] into action when we realize that to manacle man is more than to mortify him, it is to de-humanise him and, therefore, to violate his very person- hood too often using the mask of dangerousness and security.”[29]





Police brutality and uncivilised behavior includes 
1.False arrest,
2.False &unlawful detention,
3.Intimidation,
4.Corruption  
5.Excessive use of force,
6.Unnecessary/unwanted  use of force ,
7.Unnecessary surveillance,
8.Vulgarly abusive words
9.Calling first name ,racial &caste abuse [calling person by caste name &abusing on religious identity&regional identity,
10.Abusive treatment of female by male police[unwanted touching or pushing /touching private parts /pulling dress ] including sexual abuse
11.Frisking of female by male police, unneccsssary frisking people without any reasonable cause.
12.Unnecessary lath charge[beating on private /sensitive parts ,endangering life]
13.Hurling back stones in retaliation  to violent protest,
14.Excessive use of teargas shells jeopardizing the health of people,
15.Sudden &un-provoke firing without any warning [with out following due procedure &with out permission of lawful authority ]
16.killing unarmed innocents with out any provocation,



International Human Rights Instruments& Torture Convention :
Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and forms the basis for the Convention against Torture (CAT). The ICCPR also contains the related right of ““[a]ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person.” These international instruments are all binding on India:[30]
 
The UDHR is considered part of customary international law and the Indian Government has ratified the International Covenant on Civil and Political Rights [ICCPR] on 10 April 1979 and signed the Convention against Torture on 14 October 1997.
UN Instrument on Treatment of Prisoners:

The Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations in 1955, addresses restraints in Sections 33-34. According to the Rules, instruments of restraints can never be used for punitive purposes, or for longer than is strictly necessary. Although the Rules do allow the use of restraints during transfer to prevent escape.[31]

European Union[32] &Accused persons:

The right to an effective remedy and to a fair trial , presumption of innocence and a right of defence are laid down in The Charter of Fundamental Rights of the EU and The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR).
  •  Rights to a fair trial& Right to legal assistance : 
  • Article 6 of the ECHR' (which protects the right to a fair trial) applies to the pre-trial stage of criminal proceedings:
  • A suspect must be able to benefit from the assistance of a lawyer already at the initial stages of police interrogation and as soon as he is deprived of his liberty, irrespective of any interrogation.
  • Protection against ill-treatment in custody& prevent intimidation, including threats and abuse, notably by police in the crucial period immediately following arrest.
  • Family members and employers to be informed of the detention
  • Detained person is a non-national, it is appropriate for the consular authorities of the person's home state to be informed.
  • Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the Vienna Convention on Consular Relations (VCCR)

New Initiatives of E.U:
2011, the Commission will be presenting draft legislation covering these rights.The draft Directive proposes that a suspect can see a lawyer before the first police interview.It covers:
  • what activities a lawyer can carry out on behalf of his client;
  • confidentiality;
  • waiver/mandatory defence;
  • notification of the custody to the detainees relatives and consular authorities; and
  • legal representation in European Arrest Warrant (EAW) cases.
Miranda Rights &US protection of Accused: 

The Miranda warning[33] (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona[34], the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights.
In 2010, In Berghuis v. Thompkins[35] case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police in order for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police.



Conclusion: 


The Hon'ble Supreme Court of India cautioned the police for  indiscriminate use of arrest , preventive custody ,use of force during agitations and also  warned custodial death &extra -judicial killing [fake encounters]
V.R Krishna Iyer. J, delivering the judgement of Nandini Sathpathy v. P L Dani[36] held that the prohibitive sweep of Art 20 (3) goes back to the stage of police interrogation- not commencing in court only.
The words used for such subversion have always been "law and order", "Public Order" and "security of State" As Noam Chomsky described, these are powerful semantic tools, which define and justify themselves.[37]


[1] Maneka Gandhi  v. Union of India. AIR 1978 SC 597
[2] R.V Kelkar :Lectures on Criminal procedure code ; 4th Edition 2006,EBC.
[3] Joginder Kumar Vs State Of UP , 1994 AIR 1349 1994 SCC (4) 260
[4] Article 22 of Part-III of  Indian constitution
[5] Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) 1 SCC 98
[6] Khatri[II] v state of Bihar[1981]1SCC627
[7] Khatri v state of Bihar,AIR 1981SC 928
[8] Makbool v state of Bombay,[1953]SCR 730;AIR 1953 SC 325:56 Bom LR 13
[9] Dastagiri v state of Madras ,AIR 1960 SC 756,;palani.[in re ]AIR 1955 Mad 495;56Cri LJ 1197
[10] Sheela Barse v State of Maharashtra,[1983]2 SCC 96 ,1983 Cri LJ 642
[11] Sampath Kumar V Enforcement Directorate ,Madras ,AIR 1998 SC 16;(1997) 8 SCC 358.
[12] .Article 22[1] &Sec 303 ,State of Bombay v. Kathi Kalu, AIR 1961 SC 1808:
[13] Section 138 of Indian evidence act, 1872, Section 33 of Indian evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission
[14] Section 374 of the Criminal Procedure Code, 1973
[15] Meera V state of Tamil Nadu ,[1991]Cri LJ 2395
[16] Veenu v state of Bihar ,AIR 1983 SC 339
[17] People’s Union for Democratic Rights v Police Commissioner ,[1989]4SCC 730 under Article 32
[18] Bhim Singh V state of Jammu &Kashmir,1986 Cri LJ 
[19] Sheela Barse v state of Maharashtra,AIR 1983 SC 378
[20] Inderjeet V State of Uttar Pradesh ,AIR 1979 SC 1867
[21] Rudul Shah v state of Bihar AIR 1983 SC 1086
[22] Supra 3
[23] Supra 17
[24] D.K Basu v ,AIR 1997 SC 610,(1997) 1SCC, 416
[25] A person is arrested based on a warrant of arrest that is issued by a Magistrate, the police shall not handcuff the said person unless the Magistrate has ordered handcuffing-Citizens for Democracy v State of Assam, (1995) 3 SCC 743,
[26] Sher Singh v state of Punjab ,AIR 1983 SC 465
[27] Prem Shankar Shukla v. Delhi Administration (1980
[28] Supra 22
[29] http://www.hrdc.net/sahrdc/hrfeatures/HRF63.htm
[30] ibid
[31] ibid
[32] http://ec.europa.eu/index_en.htm
[33] http://en.wikipedia.org/wiki/Miranda_warning
[34] 384 US 436.
[35] 560 U.S. (2010) (docket 08-1470)
[36] AIR 1978 SC 1025
[37] http://www.pucl.org/Topics/Law/2003/malimath.htm
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