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Mainstream, VOL LVIII No 31, New Delhi, July 18, 2020

Police Cannot Infringe The Constitutional Mandate | Chittarvu Raghu

Friday 17 July 2020

by Chittarvu Raghu

In the midst of sever Covid-19 pandemic the world is witnessing human right violation exhibited by the police force whose primary duty is to enforce law and order. In US George Floyed was arrested by police outside a shop, hand cuffed and a white police officer knelt on his neck resulting in his death. It demonstrates infringement of due process of law as envisaged under the fifth and fourteenth amendments of the US constitution. The brutal treatment of father and son in Sathanakulam Police Station of Tootipudi District in Tamilnadu resulted in their death, and the alleged encounter of Vikas Dubey in the vicinity of his town, warrants examination of the rights guaranteed under the constitution of India in this regard.

A dreaded criminal like Vikas Dubey has to be punished as per law. He cannot go scot-free. The narrative given by the police is that after the ambush nearby his house, he escaped to Ujjain - Madhya Pradesh. He was arrested at Ujjain and was being brought to Kanpur - Uttar Pradesh and on the way the alleged encounter took place. The explanation given by the police regarding the encounter is that the car in which Vikas Dubey was travelling had overturned and taking advantage of the same he tried to escape.

It is not explained as to why after the immediate arrest of Vikas Dubey outside the Ujjain temple, he 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) of the Constitution mandates that every person who is arrested and detained in custody shall be produced before the ‘nearest’ magistrate within a period of 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 mandates that a person who is arrested immediately has to be produced before the ‘nearest’ 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 him and such magistrate shall remand 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 which are taken cognizance by the said ‘nearest’ magistrate before whom the arrested person is produced.

Any violation of the constitutional mandate that a person arrested should be produced before a ‘nearest’ magistrate constitutes infringement of a constitutional right. The State actors are bound to abide by the mandate contained in the constitution.

Sec.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 Sec.167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate court.

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

The Hon’ble Supreme Court in CBI Vs. Anupam J Kulkarni case held that Article 22(2) of the constitution of India and Sec.57 of Cr PC give a mandate that every person who is arrested and detained in police custody shall be produced before the ‘nearest’ magistrate within a period of 24 hours and further held that the said two provisions clearly manifest the intention of law in the said regard. Hon’ble Supreme 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 Vikas Dubey though he was arrested near Mahakaleshwar Temple in Ujjain - Madhya Pradesh, it appears that he was not produced before the ‘nearest’ magistrate. Though he is 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, burden heavily lies upon them to show that it was a genuine encounter.

The Hon’ble Supreme Court in Civil Liberties and another Vs. State of Maharashtra observed that Article 21 of the constitution of India guarantees ‘Right to live with human dignity’. Any violation of the human rights has to be viewed seriously by the court as a right to life is the most precious right guaranteed by Article 21 of the Constitution 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 officer 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. This is displayed throughout the police forces worldwide. The said mind set has to be changed and the police have to strive to protect the constitutional and statutory rights enjoyed by the common man or else the very protection guaranteed under the constitution and the statutes in this regard would be futile.

Author:

Chittarvu Raghu, Advocate, at High Court’s of A.P. & T.S.
E-mail: craghuadvocate[at]gmail.com.

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