May 21, 2013 | 08:09 PM (BD Time)
21 May, 2013 Tuesday
Abusive exercise of police powers under Section 54
(From previous issue)
Now, as regards the custodial death and torture we have already mentioned about the provisions of the Constitution that is Clause (4) and (5) of Article 35 of the Constitution. Torture or cruel, inhuman or degrading treatment in police custody or jail custody are not permissible under the Constitution. So, any such act is unconstitutional and unlawful. Now, a question is raised whether this court is competent to award compensation to a victim of torture or to the relation of a person whose death is caused in police custody or jail custody. We have considered the principle laid down in the case reported in AIR 1977 (SC) 610. According to us, this Court, in exercise of its power of judicial review when [sic] finds that fundamental rights of an individual has been infringed by colourable exercise of power by the police under Section 54 of the Code or under Section 167 of the Code, the Court is competent to award compensation for the wrong done to the person concerned. Indian Supreme Court held the view in the above case that compensatory relief under the public law jurisdiction may be given for the wrong done due to breach of public duty by the state for not protecting the fundamental right to the life of citizen. So, we accept the argument of the learned Advocate for the petitioner that compensation may be given by this Court when it is found that confinement is not legal and death resulted due to failure of the state to protect the life but at the same time we like to emphasis that it will depend upon the facts and circumstances of each case.
If the question of custodial death becomes a disputed question of fact, in that case under the writ jurisdiction it will not be possible to give compensation but where it is found that the arrest was unlawful and that the person was subjected to torture while he was in police custody or in jail, in that case, there is scope of awarding compensation to the victim and in case of death of a person to his nearest relation. As regards the occurrence of death which are mentioned in this writ petition it appears that specific cases were filed and trial of those cases were completed in accordance with law and appeals are now pending. In those cases, the Writ Petition has not given any decision as to whether the arrest or detention were unlawful. In view of this position we do not think it proper to award any compensation in this writ petition.
In the above we have scrutinised two sections of the Code and have found that the provisions of these sections are to extent inconsistent with the provisions of the Constitution and requires some amendments. To remove the inconsistencies now we would like to make some recommendations which are as follows:
54(1) Any Police officer may, without an order from a Magistrate and without any Warrant, arrest-first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned.
(1) The first condition may be amended as follows:
first, any person against whom there is a definite knowledge about his involvement in any cognizable offence or against whom a reasonable complain has been made or credible information has been received or a reasonable suspicion exists of his having been so involved;
(2) The seventh condition may be also amended like the first condition.
(3) A sub-section (2) shall be added which shall contain the following provisions:
(a) Whenever a person is arrested by a police officer under sub-section (1) he shall disclose his identity to that person and if the person arrested from any place of residence or place of business. He shall disclose his identity to the inmates or the persons present and shall show his official identity card if so demanded.
(b) Immediately after bringing the person arrested to the police station, the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognizable offence, particulars of the offence, circumstances under which arrest was made, the source of information and the reasons for believing the information description of the place note the date and time of arrest, name and address of the persons, if any, present at the time of arrest in a diary kept in the police station for that purpose.
(c) The particulars as referred to in clause (b) shall be recorded in a special diary kept in the police station for recording such particulars in respect of persons arrested under this section.
(d) If at the time of arrest, the police officer finds any marks of injury on the body of the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital or to a Government doctor for treatment and shall obtain a certificate from the attending doctor about the injuries.
(e) When the person arrested is brought to the police station, after recording the reasons for the arrest and other particulars as mentioned in clause (b), the police officer shall furnish a copy of the entries made by him relating to the grounds of the arrest to the person arrested by him.
Such grounds shall be furnished not later than three hours from the time of bringing him in the police station.
(f) If the person is not arrested from his residence and not from his place of business or not in presence of any person known to the accused, the police officer shall inform the nearest relation of the person over phone if any, or through a messenger within one hour of bringing him in the police station.
(g) The police officer shall allow the person arrested to consult a lawyer, if the person so desires. Such consultation shall be allowed before the per
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