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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

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Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN 

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. Maximum period of detention-The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.”

After the amendment in 2014, the Section 12 of the KAAPA reads as:

“12. Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

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Written by- Afshan Ahmad

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Law and Custodial Death.

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The death of a person in custody violates the basic rights of the citizens recognized by the Constitution of India. Typically, it is difficult to secure evidence against the police responsible for adopting third-degree methods since they are in charge of the police station records. The guidelines given by the Supreme Court under various cases provide protection such as the right to be informed about the grounds of arrest, the right to bail, the right to appoint a person to be informed of the arrest and place of detention, etc. The Constitution of India also provides various rights to a person in custody.

Introduction:

Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule of Law. Sometimes, custodial death happens due to not providing proper care at a proper time, due to complications of physical torture by police and some deaths remain suspicious. Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the most prominent factor responsible for deaths in prisons and lock-ups. The incident of custodial death in the world’s greatest democracy has risen. Our Constitution has set out fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of deaths in police custody is on the rise in the past decade. Many deaths have happened while in custody but no attention has been paid so far. The National Human Rights Commission has proposed that in custodial death cases the police officer in charge must be held liable and not the state. In India, police lock-ups are managed by the police, and such incidents are possible only by their actions. Thus, custodial death is an important issue for a country like India.

Custodial Death

The death of a person while in the custody of the police or judiciary will amount to Custodial Death. Custodial Death can happen due to Negligence by the concerned authorities in any form of torture or cruel, inhuman, or degrading treatment by the police officers whether it occurs due to investigation or interrogation, unlawful detention of a person more than a stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian Constitution while they are in custody. They are not deprived of basic human rights except those which are curbed by the court.

Custodial death generally refers to death either in police custody or judicial custody.

Police Custody: A police officer arrests the accused by following the receipt of information or compliant or report by police about crime and prevent him from committing further offenses and brings him to the police station is known as the police custody. In this, the accused is kept in the lock-up.

Judicial Custody: When an accused is kept in jail by the order of the concerned magistrate, then it is said to be under Judicial Custody. When an accused is presented before a magistrate, he can either be sent to jail or kept under police custody by the magistrate.

Offenses Committed by Police Misusing the Custody:

Police are misusing the Custody and causing torture to the victims in the custody. This generally means the action or practice of inflicting severe pain on someone as a punishment to force someone to make him give some information. Due to this, the victims get immense pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit suicide.

Rape: Rape is one of the prevalent forms of custodial torture. The Mathura rape case where Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of such custodial torture.

Harassment: In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and beatings by the police. Such actions are prevalent among the police and it leads to many sufferings to the victims.

Illegal Detention: In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his acquittal by the Sessions Court. Such action leads to immense pain and suffering.

Statutory Provisions:

The Constitution of India, 1950

Article 21:

Article 21 provides the citizens of India with the right to life and personal liberty. In the Case of D.K. Basu v. State of West Bengal, The Hon’ble Supreme Court held that the rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in custody, except according to the procedure established by law. The Supreme Court in this case laid down certain guidelines to be followed by the Centre and State investigating and security agencies in all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu guidelines” and are as follows;

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear clear identification and name tags with their designation.
  2. The police officer carrying out the arrest must make a memo of arrest at the time of the arrest.
  3. A friend or relative or any other person known to the arrestee shall be informed about the arrest as early as possible.
  4. If the next friend or relative of the arrestee lives outside the district or town, they must be informed through the ‘legal aid organization’ in the district and the police station of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
  5. The arrested person must be instructed about the right to have informed someone about his arrest.
  6. An entry should be made in the diary regarding the arrested person.
  7. The arrestee should be examined at the time of the arrest.
  8. The arrested person should be subjected to medical examination within 48 hours during his detention.
  9. Copies of all documents including the memo of arrest should be sent to the concerned magistrate for his record.
  10. The arrestee should be allowed to meet his lawyer during interrogation.
  11. A police control room should be set up in all district and state headquarters and information about the arrestee has to be communicated within 12 hours of effecting the arrest to the police control room.

There are certain rights for prisoners conferred in Article 21. They are:

  • Right to bail.
  • Right to free legal aid.
  • Right against Solitary Confinement.
  • Right against Handcuffing.
  • Right against inhuman treatment.
  • Right against Illegal Detention.
  • Right to a speedy and fair trial.
  • Right to meet friends and consult a lawyer. 

Article 20:

Article 20(1) provides that a person should be prosecuted as per those laws that were in force when he committed the offense.

Article 20(2) provides that a person shall not be prosecuted and punished for the same offense more than once.

Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself.

Article 22:

Article 22 guarantees protection against arrest and detention in certain cases and provides that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest. They shall not be denied the right to consult and defend themselves by a legal practitioner of his choice.Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the journey time necessary from the place of arrest to the Court of Magistrate.

The Code of Criminal Procedure, 1973

  • Section 49 provides that the police are not permitted to use more restraint than is necessary to prevent the escape of the person.
  • Section 50 lays down that every police officer arresting any person without a warrant to communicate to him the full particulars of the offense for which he is arrested and the grounds of such arrest. Further, the police officer is required to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offense.
  • Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a person dies in custody of the police.
  • There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing procedural safeguards to a person arrested by the police.

The Indian Penal Code, 1860 (IPC)

  • A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
  • A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
  • Once the victim has committed suicide and if it is proved that the police officer has abetted the commission of such suicide, then the police officer will be held liable for punishment under section 306.

Punishment for custodial violence

  • If a police officer voluntarily causes hurt or grievous hurt to extort confession, then such police officer shall be punished under section 330 of IPC for voluntarily causing hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
  • A police officer can also be punished for wrongful confinement under Section 342 of IPC.

Compensation to the victim

The court has the power to award monetary compensation in appropriate cases where there has been a violation of the constitutional rights of the citizens. Thus, the court can award compensation to the victims of state violence or the family members of the deceased victim. The Supreme Court directed the Delhi Administration to pay Rs 75,000 as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer. In Case of Saheli Vs Commissioner of Police.

Conclusion:

Today, custodial deaths are prevalent in India. It is one of the worst crimes in our society. Prisoner while in the custody of police is entitled to all rights under Article 21 of the Indian Constitution. Every month a new case is being reported in India. Since the police play a vital role in safeguarding our life, liberty, and freedom, they must act properly. The law cannot deny basic rights like the right to life, liberty, and dignity to someone who is in the police custody and they must be protected.

References:

https://www.educentric.in/blogdetails.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal

https://lexforti.com/legal-news/custodial-death-in-india/#_ftn33

https://www.latestlaws.com/articles/rights-of-prisoners-against-custodial-torture-in-india-by-shivam-jasra/#_ftn9

https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece

https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18

https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class

https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-1#:~:text=Custodial%20death%20is%20a%20death,or%20abuse%20by%20the%20authorities.

https://legalserviceindia.com/legal/article-9887-custodial-deaths-in-india.html

https://www.lawctopus.com/academike/custodial-deaths-india/

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 ARTICLE WRITTEN BY: JANGAM SHASHIDHAR.

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Madras High Court orders Compensate to the illegal detention of the women and minor.

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Case Title:   Guru @ Paramaguru

                                               … Petitioner / Husband of the detenue                                     
                                              Versus

The Superintendent of Police, Trichy District, Trichy and  Anrs    

                                                                                  …Respondents

Date of Decision:  Pronounced On 28.06.2023

Coram: THE HONOURABLE MR. JUSTICE R. SURESH KUMAR 

                                      AND

            THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Citation: H.C.P. (MD) No. 697 of 2023 

Introduction:

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, directing the 1st  respondent to produce the person or body of the petitioner’s wife, namely, Saktheeswari, W/o.Guru @ Paramaguru, aged about 37 years from the illegal custody of the respondents 2 to 4 before this Court and set her at liberty. When this Habeas Corpus Petition is taken up for hearing, the learned Additional Public Prosecutor for the respondents would submit that he has received instructions from Mr.Asra Garg, Inspector General of Police, Madurai South Zone, Madurai that he has completed enquiry only by 22.06.2023 as directed by this Court and he would file a report before this Court on 28.06.2023without fail. It is made clear that the evidence that has been produced before this Court by way of electronic form (pen drive) along with the report filed by the Inspector General of Police, South Zone, Madurai, shall be preserved by the Additional Registrar General of this Bench for future usage.

Facts: 

  • Summons were issued to a woman to appear in Police Station for examination in violation of section 160 of Criminal Procedure Code.
  • Detention of three persons including a woman anda child aged 16 years for more than 24 hours.
  • Unwarranted registration of a criminal case against Tmt. P. Saktheeswari and Tr. S. Sethupathi in Thottiyam PS Cr.No.154 of 2023 u/s 294(b) IPC to screen the detention.
  • The petitioner, seeking production of his wife, namely, Saktheeswari, aged about 37 years, has filed this Habeas Corpus Petition.
  • The husband of the detenue has beenarrayed as an accused, the respondents 2 to 4 had tortured her and she literally cried before this Court, saying that her and her children’s life are in danger at the hands of the respondents 2 to 4.

Issues:

  • Whether the summon issued to the women person is in violation of proviso to Section 160 Cr.P.C?
  • Whethe the three persons were detained, including the women and a child aged about 16 years more than 24 hours without the authority of law?
  • Whether there was an unwarranted registration of criminal case against the detenue and another person one Sethuraman in Crime No.154 of 2023 under Section 294 IPC to screen the detention?

Legal Analysis:

The enquiry report submitted by the Inspector General of Police, South Zone, Madurai, is exhaustive with supportive and corroborative elements with circumstances and other statements that have been recorded from the persons or witnesses or police officials or police
men and produced before this Court in electronic form. Therefore, prima facie the Court has to accept the report, as there has been no reason to raise any doubt over the said report submitted by the Inspector General of Police, South Zone, Madurai.

On three grounds, there has been a complete violation on the part of the respondent Police in dealing with the matter. The first one is that summon issued to the women person is in violation of proviso to Section 160 Cr.P.C.. The second is that the three persons were detained, including the women and a child aged about 16 years more than 24 hours without the authority of law and the third one is an unwarranted registration of criminal case against the detenue and another person one Sethuraman in Crime No.154 of 2023 under Section 294 IPC to screen the detention.Since these three violations are serious in nature, which have been found out by the Inspector General of Police, South Zone, Madurai in his enquiry and it has been stated in the report, we, having accepted the said report, feel that further follow up action by way of proper enquiry on these violations shall go on.

The Court directs the Inspector General of Police, Central Zone, Trichy to take further action on the three violations pointed out by the Inspector General of Police, South Zone, Madurai in his report dated 28.06.2023. In this regard, an independent team shall be formed to further enquire the matter on the basis of the evidences collected by the Inspector General of Police, South Zone, Madurai and accordingly, necessary disciplinary action shall be initiated against the erring police officials as well as the police men, who involved in such violation and such
disciplinary proceedings shall be permitted to reach its logical conclusion on merits.

Judgement:

Insofar as the illegal detention of the detenue women and minor ie., under the age of 18 is concerned, it is open to the detenue to seek for remedial measure, including the compensation before the concerned forum in the manner known to law. Since the detenue has been set at free and the learned Additional Public Prosecutor for the respondents has submitted that there is no arrest in any case and she is not in the custody and she is free now, the detenue can either join with the family or can lead her comfortable life.
Therefore, this Habeas Corpus Petition can be closed to that extent, accordingly, it is closed.
However, insofar as the criminal case that has been registered against the husband of the detenue is concerned, it is open to the respondent Police to proceed with the investigation further in accordance with law and let the case be taken into its logical conclusion based on the evidences to be collected by the respondent Police. The Inspector General of Police, Central Zone, Trichy shall file a compliance report with regard to the aforesaid directions after three months.
For the said purpose, The matter was posted on 03.10.2023. It is made clear that the evidence that has been produced before this Court by way of electronic form (pen drive) along with the report filed by the Inspector General of Police, South Zone, Madurai, shall be preserved by the Additional Registrar General of this Bench for future usage.

Conclusion:

When this Habeas Corpus Petition came up for hearing on 15.06.2023, the respondent Police had produced the detenue before this Court, who had made some allegations against the respondent Police ie., the respondents 2 to 4 that in the name of enquiring the detenue in connection with the case, where the petitioner ie.,the husband of the detenue has been arrayed as an accused, the respondents 2 to 4 had tortured her and she literally cried before this Court, saying that her and her children’s life are indanger at the hands of the respondents 2 to 4. Since there was illegal detention of the respondents should compensate to the detenue.

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 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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