Human Rights Violation - Illegal detention (498a case)Following is a letter written by Asian
Rights Commission (AHRC) to highlight the series of law violations
committed by both Police and Judiciary (the same is true for
thousands of other 498a cases, where common law and decenct
is overlooked by Judiciary and Police to make easy money. ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM 8 February 2005 INDIA: Illegal detention; Rule of law Dear friends, The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal, of the illegal detention of Mr. Ashok Gupta by the Serampore police, in Hooghly District, West Bengal, India. Although the Serampore police had an arrest warrant for Mr. Gupta, based on a complaint of assault made by his ex-wife, the warrant was issued at a court outside the Serampore police's jurisdiction. In such cases, the law requires the arrested person to be produced before the warrant-issuing court within 24 hours. Mr. Gupta however, was illegally remanded by the Serampore magistrate until 11 January 2005. Furthermore, Mr. Gupta's arrest had many irregularities and violated numerous guidelines regarding arrest procedures, including those relating to late night arrests, the producing of memos of arrest by the police and the presence of female officers when women are likely to be present at the place of arrest. All of this illustrates the flagrant violation of a person's fundamental rights by the police. Such violations occur due to police negligence; it is imperative for police officers to be fully aware of domestic laws and guidelines and to follow them. We call for your urgent intervention into this matter. Please send a letter to the local authorities to take appropriate action against the concerned police officers and to strictly implement domestic laws and guidelines regarding arrests and detentions so that errant police officers can be held answerable to the justice system. Urgent Appeals Desk DETAILED INFORMATON: Name of the victim: Ashok Kr. Gupta, a businessman,
residing in 583 Naya Basti, Simla Satgaha Road, Serampore Police
Station, Hooghly District, West Bengal, India Case details: At around 1:45am on 15 December 2004, police officers from the Serampore Police Station arrested Ashok Gupta under an arrest warrant issued by the Aligarh Judge Junior Division in connection with a complaint of assault filed by his ex-wife at a court in Aligarh, where she lives (Case no.: 239/2004 under section 498A/506 of the Indian Penal Court at Aligarh Police Station). Circumstances during and after Mr. Gupta's arrest clearly point to numerous irregularities practiced by police officers with impunity throughout India: At the time of the arrest, the Serampore police forcefully entered Ashok Gupta's house by breaking down a brick wall and dragged him outside in front of his wife and children as if he was a notorious criminal (although he has no criminal record). Such action by the police is in violation of the guidelines set down by the Supreme Court on 'late-night arrests'. According to these guidelines, the police should only conduct arrests at night if absolutely necessary - in the case of detaining a "dangerous criminal or terrorist" for instance. The police also failed to provide a memo of arrest to Mr. Gupta's family. No female officer was present, although late-night arrest procedures require this presence when there is a chance women will be present at the place of arrest and the question of invasion of privacy arises. Late-night arrest procedures also include that the police officer carrying out the arrest not use undue force or intimidating tactics unless absolutely necessary. Further, late-night arrest procedures include that the police come equipped with a proper arrest warrant. Mr. Gupta's lawyer pointed out that as the warrant, on the basis of which Mr. Gupta was arrested, was issued by an Aligarh court, not by the local court, his arrest would have been legal only when the police produced him before the arrest-issuing court (Aligarh) within 24 hours. However, all of these regulations were violated in the case of Mr Gupta. After the arrest, the police took Mr. Gupta to the Serampore Police Station and some 36 hours later, on December 16, produced him before an executive magistrate at Serampore (not before the arrest-issuing court, Aligarh). The executive magistrate did not inquire why Mr. Gupta was not produced within 24 hours from the time of arrest as stipulated by domestic law. In fact, Mr. Gupta's bail application was rejected and he was remanded to the Serampore Sub-jail, although the executive magistrate of Serampore has no jurisdiction to deal with non-bailable offences under the execution of a warrant of arrest outside the jurisdiction of the said court. This is also in violation of Section 81 of the Indian Penal Code which allows that only the Chief Judicial Magistrate or Sessions Judge has the authority to grant bail. More seriously, after Mr. Gupta was remanded, the Serampore police did not produce him before the warrant-issuing Aligarh Court on December 27, which was the date on the arrest warrant for Mr. Gupta to be produced. Finally, Mr. Gupta's wife, Mrs. Soni Gupta, filed a public interest litigation petition together with human rights group MASUM, in the Calcutta High Court regarding this matter on 6 January 2005. Based on this petition, on January 10 the Calcutta High Court instructed the Hooghly Superintendent of Police to clarify why the guidelines of the Supreme Court were not followed during the arrest, why the police had delayed producing Mr Gupta before a judicial magistrate unnecessarily, and to submit his report at the next court hearing on January 19. In addition, the Calcutta High Court directed the concerned authority to produce Mr. Gupta before the Chief Judicial Magistrate, Hooghly, on January 11, when he was subsequently granted bail. The Court passed this order on the prima facie finding of illegal detention. As of yet, however, no disciplinary/legal action has yet been taken against the Serampore police officers responsible. Mr. Gupta's case illustrates the flagrant violation of a person's legal rights while being arrested - especially at night. Throughout India, the police quite often arrest a person although an arresting warrant is issued outside of their jurisdiction and very often the detainee unfairly languishes in police or judicial custody. Moreover, many of them are illegally detained after being produced before the executive magistrates, who have no authority for bail. In light of the above, the AHRC urges the local authorities to take appropriate action against the concerned police officers. We also urge the Government of India to strictly implement domestic laws and guidelines that lay down the procedure of arrests and detention, ensuring that errant police officers committing illegal arrests/detentions are held answerable to the justice system. SUGGESTED ACTION: Sample letter: Dear Shri Buddhadeb Bhattacharjee, Re: INDIA: Police violations of arrest and detention procedures in West Bengal Name of the victim: Ashok Kr. Gupta, a businessman,
residing in 583 Naya Basti, Simla Satgaha Road, Serampore Police
Station, Hooghly District, West Bengal, India I am writing to express my concern regarding the illegal detention of Mr Ashok Gupta. He was arrested by the Serampore police at his house in Hooghly District, West Bengal, India at 1:45am on 15 December 2004, under an arrest warrant issued by the Aligarh court in connection with a complaint by his ex-wife. However, Mr. Gupta's arrest had many irregularities and violated numerous guidelines regarding arrest procedures, including those relating to late night arrests, the producing of memos of arrest by the police and the presence of female officers when women are likely to be present at the place of arrest. All of this illustrates the flagrant violation of a person's fundamental rights by the police. Such violations occur due to police negligence; it is imperative for police officers to be fully aware of domestic laws and guidelines and to follow them. Also, Mr. Gupta was illegally detained for about 36 hours at the Serampore Police Station even though the arrested person must be produced before a magistrate within 24 hours from the time of arrest by law. Further, after being produced before an executive magistrate at Serampore (not before the arrest-issuing court, Aligarh) on December 16, Mr. Gupta was remanded to the Serampore Sub-jail, although the executive magistrate has no jurisdiction to deal with non-bailable offences under the execution of a warrant of arrest outside the jurisdiction of the said court. This is also in violation of Section 81 of the Indian Penal Code which allows that only the Chief Judicial Magistrate or Sessions Judge has the authority to grant bail. Mr. Gupta was then illegally remanded by the Serampore magistrate until 11 January 2005, as the Serampore police did not produce him before the warrant-issuing Aligarh Court on December 27, which was the date on the arrest warrant for Mr. Gupta to be produced. Mr. Gupta could be released on 11 January 2005 only after his wife filed the writ petition before Calcutta High Court on 6 January 2005. As of yet, however, no disciplinary/legal action has yet been taken against the Serampore police officers responsible. Mr. Gupta's case illustrates the flagrant violation of a person's legal rights while being arrested - especially at night. Under such circumstances, I urge you to inquire into this matter immediately and take appropriate action against the concerned police officers. I also urge you to strictly implement domestic laws and guidelines regarding arrests and detentions so that errant police officers can be held answerable to the justice system. Yours sincerely,
1. Shri Buddhadeb Bhattacharjee SEND COPIES TO: 1. Shri Justice A. S. Anand 2. Justice Shyamal Kumar Sen 3. Shri Shivraj Patil 4. Ms Manuela Carmema Castrillo
Urgent Appeals Programme |
