Posts Tagged ‘Arrest’

Supreme Court directives regarding arrest of accused by police for offences punishable with seven years imprisonment or less

July 3, 2015
Supreme Court Guidelines regarding arrests of the accused by the police in cases punishable with 7 years imprisonment or less issued Arnesh Kumar Vs. State of Bihar and Another (Criminal Appeal No. 1277 of 2014):
1.All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41Cr.PC;
2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
9. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
10. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.
Advertisements

India: Moving Towards the New Police State

April 23, 2012

How is the Government of India moving to make the country ‘a new police state’ by arming its security agencies with the power of arrest without warrants and how do these moves infringe the sacrosanct principles of federalism of Indian Constitution and undermine the supremacy of the judiciary?  The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) issued on 23 April explores these questions. The Barak Human Rights Protection Committee re-posts the commentary here.

India: Moving Towards the New Police State

By – Suhas Chakma, Director, Asian Centre for Human Rights

The Government of India’s attempt to empower its security agencies with the power of arrest must not be countenanced as the same is being done by infringing the sacrosanct principles of federalism of Indian Constitution and undermining the supremacy of the judiciary. A number of bills currently being discussed in the parliament reflect the tendency to make India the new police state.

The Finance Bill of 2012-13 not only seeks to retrospectively amend the Income Tax Act with effect from April 1962 to nullify the Supreme Court judgement in the Vodafone tax evasion case but also proposes to amend Section 104 of the Customs Act, 1962 and Section 13 of the Central Excise Act of 1944 to make all offences that attract more than three years of imprisonment cognizable and non-bailable. The Supreme Court in its judgement on 30 September 2011 in the case of Om Prakash Vs Union of India ruled that all offences under the Excise Act and the Customs Act should be made non-cognizable and bailable. Obviously, Finance Minister Pranab Mukherjee has been ill-advised by the Central Board of Excise and Customs which lobbied for the amendments to circumvent the Supreme Court judgement on the ground that even those smuggling arms, ammunitions and fake currencies have been getting bail. This is despite that there are stringent provisions under the India Penal Code, Indian Arms Act, the Unlawful Activities Prevention Act and host of other legislations to sternly deal with smuggling of arms, ammunitions, fake currency etc.

The Rajya Sabha, upper house of Indian parliament, is also currently considering the Border Security Force (BSF) Amendment Act, 2011 under which Sections 4 and 139 of the BSF Act, 1968 are being amended to extend the area of operation of the BSF to include “such parts of the territory of India as are notified by the Central government”.  The BSF, according to the Government, are deployed “(a) to counter insurgency operations and anti-naxal operations; (b) for internal security duties, (including duties during elections, communal riots, maintenance of law and order)”. Once the Amendments are passed, the BSF will have the power to arrest under Sections 41(1), 46, 47, 48, 49, 51(1), 52, 53, 74, 100, 102, 129, 149, 150, 151 and 152 of the Criminal Procedure Code. The sacrosanct principle of Indian federalism wherein law and order is a State subject will be withered.

At present, the Border Security Force personnel are empowered to arrest, search and seizure within the prescribed border belt which is 80 Kms in the State of Gujarat, 50 Kms in the State of Rajasthan and 15 Kms in the States of West Bengal, Assam and Punjab.  No such limit has been prescribed with respect to Jammu and Kashmir and five North Eastern States of Meghalaya, Nagaland, Mizoram, Tripura and Manipur.

The Indo-Tibetan Border Police deployed along Indo-China border and the Sashastra Seema Bal deployed along Indo-Nepal and Indo-Bhutan borders have already been empowered with the power to “search, seizure and arrest” in border areas under the Customs Act, the Passport  Act, the Narcotic Drugs and Psychotropic Substances Act and the Criminal Procedure Code.

The Armed Forces Special Powers Act (AFSPA), 1958, which is imposed in Jammu and Kashmir and North East India already empowers the army to “arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”.

While the Central government has virtually empowered all its security forces to arrest, there is no protection for ensuring the rights of those detained by the army and the armed forces. The Guidelines issued by the Supreme Court in the case of D K Basu Vs State of West Bengal do not apply to the armed forces and the army. The army and armed forces are not required to maintain basic records of the persons arrested or detained. Further, there is no external oversight over these security forces.

The Supreme Court has also failed to address the need for protection of those who are arrested by the army or the para-military forces. In its judgement of 27 November, 1997 while upholding the constitutional validity of the AFSPA in the case of Naga Peoples Movement for Human Rights Vs Union of India, the Supreme Court held that “A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate”.  However, in reality, those detained by the army and the armed forces are seldom handed over to the nearest police station with the least possible delay. The detainees are mostly handed over only after interrogation. In conflict situations, once the detainees have no further intelligence value after interrogation; they are killed in fake encounters, often for the purposes of getting promotion.

The powers to arrest without ensuring the rights of those detained and/or arrested by the security forces under the control of the Government of India constitute a clear violation of India’s obligations under the International Covenant on Civil and Political Rights ratified by India. By equating customs and excise offences like duty evasion with terror offences with respect to grant of bail under the Finance Bill of 2012-13, India is setting a dangerous precedent on deprivation of personal liberty. If the Government of India continues to circumvent the Supreme Court judgement on personal liberty in such a manner and further empowers all its security forces to arrest, India will soon become the de facto police state ruled by the Centre.  [Ends]

The commentary can be accessed in the ACHR website at http://www.achrweb.org/Review/2012/238-12.html

Harassment and intimidation of BHRPC member by police

April 3, 2011

Waliullah Ahmed Laskar, member of the legal team of BHRPC was detained by Assam police on 4 December 2008 with a view to intimidate him. In the evening at approximately 8:00 pm, he was in an internet cafe in Guwahati when a group of armed police officers from Dispur Police Station, led by the Deputy Superintendent of Police (DSP), entered the café and approached him. The DSP demanded that Waliullah Ahmed Laskar show him what he was downloading, which he did. Waliullah Ahmed Laskar was then held in a police Jeep for 30 minutes while the DSP examined his computer. The DSP and police officers then searched Waliullah Ahmed Laskar´s room and confiscated all of his belongings pertaining to the BHRPC which included documents, his brief cases, laptop, USB flash drive and mobile phone.

Waliullah Ahmed Laskar was subsequently taken to Dispur Police Station where he was questioned by a team from the Subsidiary Investigating Bureau and the Intelligence Bureau until approximately 2:00am on 5 December 2008. Waliullah Ahmed Laskar was subsequently kept in detention while the police informed him that “experts” from outside of Assam were checking the items which had been confiscated. At 9:00 pm of the 5 December 2008 his items were returned to him and he was released without charge.

Prior to his arrest and interrogation Waliullah Ahmed Laskar had been assigned by the BHRPC to prepare a draft Project Proposal on ” The Right to Freedom from Torture and Violence: Compatibility of Indian Law and Practice with International Human Rights Standards (focusing on the North East Indian situation)”. As a member of BHRPC, he also participates in the ongoing policy making deliberations of the organization. For these reasons Waliullah Ahmed Laskar had been using the internet as his primary source of information concerning violence, torture, terrorism, counter terrorism, policing, human rights etc. The Dispur police allegedly informed Waliullah Ahmed Laskar that the basis of his interrogation was his research of information on these topics by internet.

BHRPC informed Front Line– the International Foundation for the Protection of Human Rights Defenders based Dublin about the incident. Front Line accordingly issued an Urgent Appeal on 10 December, 2008.

BHRPC also submitted a complaint to the National Human Rights Commission of India (NHRC) on 26 December, 2008 along with an Affidavit by Waliullah Ahmed Laskar. The NHRC registered a case as Case No.158/3/24/08-09/OC and transmitted the complaint to the Director General of Police, Assam on 15 January, 2009 asking him to dispose of the case.

The complaint was against the Assam Police and the NHRC transmitted it to the same Assam Police for disposal. Naturally they did not take any substantial actions. They submitted a report to the government and the NHRC absolving both Waliullah Ahmed Laskar and themselves without any proper enquiry trying to justify their actions on the ground of public welfare. No further actions were taken by either the government or the NHRC despite several reminder from the BHRPC. The case is still pending.

BHRPC wrote to the Uinted Nations Special Rapporteur on the situations of human rights defenders on 14 January 20011.

Submission of BHRPC to the UN SR on the Situation of HRDs in Barak Valley

January 14, 2011

Downlaod

To

Mrs. Margaret Sekaggya

Special Rapporteur on the situation of human rights defenders,

Office of the High Commissioner for Human Rights – Palais Wilson

United Nations Office at Geneva

CH 1211 Geneva 10

Switzerland

Subject: Cases of Harassment and Intimidation to Human Rights Defenders working in Barak Valley of Assam, India

Dear Madam,

Barak Human Rights Protection Committee (BHRPC) expresses its thankfulness for your visit to India and particularly for holding this regional consultation with Human Rights Defenders working in North East India under great risks in Guwahati today and welcomes you.

BHRPC is a small group of HRDs that endeavours to generate awareness of human rights among all stakeholders, monitors and documents cases of violations and offers legal interventions for remedies and justice on behalf of the victims. Its works mainly focus on the southern part of the state of Assam in India comprised of the districts of Cachar, Karimganj and Hailakandi known as Barak valley.

The valley is inhabited by about four million people, roughly 75% of whom are Bengali speaking. The rest is comprised of Hindi, Manipuri, Bishnupria etc. Geographically the area is separated from the main land Assam by Meghalaya and North Cachar hills. It is a remote and isolated area. There is a sense of double marginalisation among the inhabitants. The valley is marginalised as a part of the North East and due to the isolation from the mainland Assam. The people are educationally, financially and politically very backward.  Corruption and nepotism are accepted as a way of life.

The area is relatively peaceful, though it situates in the conflict zone of North East India. But, politicians indirectly nurture small armed groups of anti social elements or maintain nexus with them. It is now not a secret that there is a strong nexus between politicians, bureaucrats and such armed groups. The rule of law is easily trampled upon by this nexus, and thus they run the area as they wish.

In this backdrop BHRPC is struggling for practical realisation of universally recognised human rights as enshrined in the Universal Declaration of Human Rights, 1948 and other international instruments to which India is a party and the rights enumerated in the Constitution of India by means of peaceful legal and democratic methods. In this endeavour the members of BHRPC and other HRDs working in the valley face risks of life, harassment, intimidation from both the state and non-state forces.

Cases:

1. Waliullah Ahmed Laskar, member of the legal team of BHRPC was detained by Assam police on 4 December 2008 with a view to intimidate him. In the evening at approximately 8:00 pm, he was in an internet cafe in Guwahati when a group of armed police officers from Dispur Police Station, led by the Deputy Superintendent of Police (DSP), entered the café and approached him. The DSP demanded that Waliullah Ahmed Laskar show him what he was downloading, which he did. Waliullah Ahmed Laskar was then held in a police Jeep for 30 minutes while the DSP examined his computer. The DSP and police officers then searched Waliullah Ahmed Laskar´s room and confiscated all of his belongings pertaining to the BHRPC which included documents, his brief cases, laptop, USB flash drive and mobile phone.

Waliullah Ahmed Laskar was subsequently taken to Dispur Police Station where he was questioned by a team from the Subsidiary Investigating Bureau and the Intelligence Bureau until approximately 2:00am on 5 December 2008. Waliullah Ahmed Laskar was subsequently kept in detention while the police informed him that “experts” from outside of Assam were checking the items which had been confiscated. At 9:00 pm of the 5 December 2008 his items were returned to him and he was released without charge.

Prior to his arrest and interrogation Waliullah Ahmed Laskar had been assigned by the BHRPC to prepare a draft Project Proposal on ” The Right to Freedom from Torture and Violence: Compatibility of Indian Law and Practice with International Human Rights Standards (focusing on the North East Indian situation)”. As a member of BHRPC, he also participates in the ongoing policy making deliberations of the organization. For these reasons Waliullah Ahmed Laskar had been using the internet as his primary source of information concerning violence, torture, terrorism, counter terrorism, policing, human rights etc. The Dispur police allegedly informed Waliullah Ahmed Laskar that the basis of his interrogation was his research of information on these topics by internet.

BHRPC informed Front Line– the International Foundation for the Protection of Human Rights Defenders based Dublin about the incident. Front Line accordingly issued an Urgent Appeal on 10 December, 2008 (Copy is attached herewith as Annexure-1).

BHRPC also submitted a complaint to the National Human Rights Commission of India (NHRC) on 26 December, 2008 along with an Affidavit by Waliullah Ahmed Laskar (Copy of the complaint and Affidavit is attached as Annexure-II A & B). The NHRC registered a case as Case No.158/3/24/08-09/OC and transmitted the complaint to the Director General of Police, Assam on 15 January, 2009 asking him to dispose of the case (Copy of the letter of NHRC is attached as Annexure-II).

The complaint was against the Assam Police and the NHRC transmitted it to the same Assam Police for disposal. Naturally they did not take any substantial actions. They submitted a report to the government and the NHRC absolving both Waliullah Ahmed Laskar and themselves without any proper enquiry trying to justify their actions on the ground of public welfare (Copy of the report is attached as Annexure-III). No further actions were taken by either the government or the NHRC despite several reminder from the BHRPC. The case is still pending.

2. Sadique Mohammed Laskar, member of BHRPC, Shahidul Hoque Laskar, Secretary of Kishan Bikash Samity (KBS), a voluntary community organisation based at Banskandi in Cachar district and its other members were implicated in a false case, their houses were raided and local people of Banskandi were harassed in June 2008.

Kishan Bikash Samity works to expose corrupt officials using the Right to Information Act, 2005. On 4 June 2008 members of the public and students demonstrated front of the office of the Block Development Officer (BDO) of Banskandi to protest against corrupt practices of the officials regarding implementation of the Government welfare schemes exposed by the KBS. Police registered a false case against the demonstrators under section 143, 447, 341, 353, 383, 379 and 487 of the Indian Penal Code, 1860 vide Lakhipur Police Station Case No. 148/08 including 5 members of KBS and 30 other unidentified persons of the locality. Police started wholesale raiding and harassing of the local people. When Sadique Mohhamed Laskar on behalf BHRPC started documenting the rights violations of people during the raids, police threaten him and even raided his house, despite absence of his name in the First Information Report (FIR).

There was preparation to arrest Shahidul Hoque Laskar in order to prevent him to appear as a petitioner before the State Information Commission, Assam (SIC) in an appeal case against the BDO, Banskandi. Sahidul Haque Laskar applied for pre-arrest bail in the Gauhati High Court apprehending arrest though he was not named in the FIR. High Court granted him pre-arrest bail vide B A No. 2447 of 2008. The High Court accepted that the ground for apprehension of arrest is the date of hearing on 17 July 2008 before the SIC and mentioned in the bail order that bail should be granted so as he can appear before the SIC on that day (A copy of the bail order is attached herewith as Annexure-IV).

The false case is still pending with the police. No report was submitted to the court. No investigation was conducted to unearth the conspiracy to harass and intimidate the HRDs and to bring the perpetrators to justice.

3. Human Rights Defenders Mr Choudhury Charan Gorh and Mr Shyama Prasad Kurmi were subjected to physical assault on 30 June 2009 in Hailakandi, Assam. Mr Choudhury Charan Gorh is the secretary of NGO HELP, a grass-roots organisation which monitors corruption in the local self-government (the Panchayati Raj) and works for the practical realisation of rural development. Mr Shyama Prasad Kurmi is also a member of NGO HELP.

On 30 June 2009, NGO HELP convened a public meeting to discuss the scale of corruption in the implementation of rural development schemes by the local government in Assam, in conjunction with the Mazuri Shramik Union, a local labour organisation which raises awareness concerning the development schemes of the Union government of India and the State Government of Assam. At approximately 3.00 pm, a group of armed men, carrying daggers, sticks and swords, broke up the meeting and assaulted the attendees indiscriminately. Choudhury Charan Gorh and Shyama Prasad Kurmi sustained severe injuries and were admitted to hospital. The identity of the armed men who assaulted them is known to the human rights defenders; they are believed to be connected to the president of Aenakhal Gaon Panchayat, the village level unit of the institution of Pachayati Raj.

The organisers of the public meeting had previously informed the District Magistrate and Superintendent of Police of Hailakandi and Officer-in-Charge of Lala police station of the forthcoming meeting. They had also requested a police security presence for the meeting, fearing a potential disruption from those involved in corruption in local development schemes. No response to this security request was received. Following the attack, the organisers of the meeting filed a complaint with the Lala Police Station. As yet, no visible action has been taken by the police to investigate the case or bring the perpetrators to justice.

BHRPC informed Front Line regarding the incident with in turn issued an Urgent Appeal on 13 July 2009 (A copy is attached as Annexure-V). BHRPC also wrote to the Prime Minsiter of India and Prime Ministers’s Office forwarded the complaint to the Chief Secretary of Assam for taking actions. But no actions were taken despite several reminders.

4. BHRPC normally confines its focus on Barak valley but when grave cases of violations come to its view from beyond the valley it takes actions.

When information about assault and threat to Ms Hasina Kharbhih, leader of Impulse NGO Network received by BHRPC it wrote to the authorities. BHRPC also sent the information to the Fron Line, which issued an Urgent Appeal on 4 June 2009 (A copy is attached as Annexure-VI).

We request you to ensure that the authorities in India:

  1. Investigate impartially and thoroughly the complaints regarding:  (I) detention and intimidation of Waliullah Ahmed Laskar, (II) physical assault on Choudhury Charan Gorh and Shyama Prasad Kurmi,  (III) conspiracy to implicate in false charges and harassment of Shahidul Hoque Laskar and members of KBS and Sadique Mohammed Laskar of BHRPC and (IV)  assault and threat to Hasina Kharbih of Impulse NGO Network.
  2. Guarantee the protection of HRDs working Barak Valley.

Looking forward to your immediate action in this regard,

Yours sincerely,

14 January 2011

The Regional Consultation with HRDs

Guwahati

Sadique Mohammed Laskar

Joint Secretary

Barak Human Rights Protection Committee