By Mr. Prajeish.D
1.INTRODUCTION
The recent custodial death and torture of Jayaraj and Bennix in the village of Sattankulam, Thoothukudi District, Tamil Nadu by the police officers has brought out a social outrage in the State. So, it is important for every common individual to know their rights in case of arrest and detention.
2.BACKGROUND
Jayaraj and Bennix, owning a phone shop in the village of Sathankulam. The police officers who arrested them filed the FIR for offences which were punishable under Sections 188, 269, 294(b), 353 and 506(2) of the Indian Penal Code. The father and son were locked up in the police station where they had been beaten and tortured by the police officers. The Magistrate did not physically examine them and remanded them to the Kovilpatti sub-jail where the accused police officers, friends of police had mutilated their knees, private parts and also had inserted lathi in the private part of Bennix. Later, the father and son were taken to the Government Medical Hospital where they died due to internal injuries suffered during the judicial custody.
The alleged offences in the FIR are as follows:
Section 188 – Disobedience to order duly promulgated by public servant.
Section 269 – Negligent act likely to spread infection of disease dangerous to life.
Section 294(b) –Whoever, to the annoyance of others sings, recites or utters any obscene song, ballad or words, in or near any public place.
Section 353 –Assault or criminal force to deter public servant from discharge of his duty.
Section 506(2) – Punishment for criminal intimidation.
3.PROTECTION UNDER THE INTERNATIONAL LAW
Universal Declaration of Human Rights (UDHR), 1948:
The UDHR is the origin to the concept of human rights. It also provides basic principles of the administration of justice. India is a signatory to UDHR since its adoption. The UDHR states that:
No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Everyone has the right to life, liberty and security of person.
No one shall be subjected to arbitrary arrest, detention or exile.
Every one charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
International Covenants on Civil and Political Rights (ICCPR), 1966:
The ICCPR is the core treaty which provides the protection of the rights of the prisoners. The convention has laid down the following provisions:
No one shall be subjected to cruel, inhuman or degrading treatment or punishments.
Everyone has the right to liberty and security of person.
No one shall be subject to arbitrary arrest or detention.
4. PROTECTION UNDER THE INDIAN LAW
Constitution of India:
Article 14 – Right to equality – A prisoner should be treated as a person in prison.[i]
Article 22 of the Constitution grants certain rights to a person who is arrested. Any person who is arrested has the following rights:
i) The right to be informed of the grounds of arrest.
ii) The right to consult a lawyer of one’s own choice.
iii) To be produced before a nearest magistrate within 24 hours of arrest.
iv) The period of detention cannot by beyond what is authorized by the magistrate.
The Prisons Act, 1894:
This Act is the first and forgotten legislation which deals with prison regulation in India. This Act provides the basic rights to the prisoners which are:
Accommodation and clean cells for prisoners.
Medical care for mental and physical State of prisoners.
Physical examination by a qualified medical officer.
Separation of prison for male, female, criminal, civil, convicted and under trial prisoners.
Criminal Procedure Code, 1973:
Section 41 of the Cr.P.C, 1973 was amended in the year 2009 which states that arrest for offences which are punishable with imprisonment up to seven years can be made only in exceptional circumstances. Further, the conditions stated under Section 41(b) should be fulfilled for the police officer to make an arrest for such offences. The Magistrate has to specifically state the exceptional circumstances which make remanding the person necessary.
This Section has been explained by the Hon’ble Supreme Court in the case of Arnesh Kumar v. State of Bihar.[ii] This landmark judgment had been relied upon in Rini Johar v. State of M.P,[iii] Subhash Kashinath Mahajan v. State of Maharastra[iv] and affirmed in Social Action Forum for Manav Adhikar v. UOI.[v]
Role of Judiciary in protecting the Right of an arrested person
In the case of D.B.M. Patnaik v. State of Andhra Pradesh,[vi] the Supreme Court ruled that a person cannot be denied of his fundamental rights guaranteed by the Constitution even though he/she has been detained. Further in the case of Manubhai Ratilal Pater Tr. Ushaben v. State of Gujarat,[vii] the Supreme Court emphasized the importance of the function of the Magistrate in situations of remand to prevent unlawful detention.
[i]Mudasir A. Bhat, Prison Laws in India: A Socio-Legal Study, UTTARAKHAND JUDICIAL & LEGAL REVIEW, 93, 93-108 (2011). [ii]Arnesh Kumar v. State of Bihar, A.I.R. 2014 S.C. 2756. [iii]Rini Johar v. State of M.P. (2016) 11 S.C.C. 703. [iv]Subhash Kashinath Mahajan v. State of Maharastra, (2018) 6 S.C.C. 454 [v]Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 S.C.C. 443 [vi]D.B.M. Patnaik v. State of Andhra Pradesh, A.I.R. 1974 S.C. 2092
[vii]Manubhai Ratilal Pater Tr. Ushaben v. State of Gujarat, (2013) 1 S.C.C. 314.