OF ILLEGAL ARRESTS and MECHANICAL REMAND!!

OF ILLEGAL ARRESTS and MECHANICAL REMAND!!

'Let a hundred guilty be acquitted, but one innocent should not be convicted’.

A LEGAL MAXIM

 

The edifice of the Indian Criminal justice administration system is based on certain fundamental maxims and beliefs. These maxims have been indoctrinated in the system to such depth that they have in fact led to the emergence of various presumptions which envelop to a criminal trial even before it initiates. One of these is the presumption of innocence of the accused, requirement of proof beyond reasonable doubt in order to establish the guilt of the accused.


The efforts of the Madras High Court to ensure that the arrest and remand are only resorted to, if necessary under law, appears to be slow in taking effect in a recent case involving the arrest of an engineering student is any indication.



“REMAND (also known as pre-trial detention or provisional detention) is the process of detaining a person who has been arrested and charged with an offense until their trial. A person who is held on remand may be held as a prisoner in prison. Varying terminology is used, but "remand" is generally used in common law jurisdictions. Detention before charge is referred to as custody and continued detention after conviction is referred to as imprisonment. Because imprisonment without trial is contrary to the presumption of innocence, in liberal democracies pre-trial detention is usually subject to safeguards and restrictions. Typically, a suspect will only be remanded if it is likely that they could commit a serious crime, interfere with the investigation, or fail to turn up in court. In the majority of court cases, the suspect will be outside of custody while awaiting trial, often with restrictions such as bail”.

 IN FURTHERANCE,

In a recent case involving the arrest of an engineering student is any indication, in a bail plea before Justice Anand Venkatesh, the petitioner claimed that he was never informed of the reasons for his arrest and judicial remand. The facts of the case also lead Justice Venkatesh to remark,

An illegal arrest is the worst form of violation of the liberty of a person. That is why the Courts are repeatedly striving to sensitise the police to be doubly careful whenever the Police resorts to an arrest”.

The case has also prompted the Court to issue a warning to errant police Officers and Magistrates who make illegal arrests or allow judicial remand mechanically. The Court order states,

This Court has already given a very long rope and has attempted to sensitise and educate Police and Magistrates regarding arrests and remand. It is time for action.

This case must send clear indications to the Police as well as the Judicial Magistrates that this Court will not hesitate to give directions to take disciplinary action against police for illegal arrest and against Magistrates for mechanical remand, in violation of law and the guidelines given by the Hon’ble Supreme Court and this Court in the decision referred supra”.

Accordingly, the Metropolitan Magistrate concerned has been directed to furnish an explanation as to why remand was allowed by February 28th, Thursday. The Court has also called for the initiation of disciplinary action against the errant officer in the case.

It is to be mentioned here that, the petitioner was one among five accused of having smuggled red sanders wood, which is prohibited under the Tamil Nadu Forest Act, 1882. “In the State of Tamil Nadu, the species, such as sandalwood, teak, red sanders, black wood, rosewood are notified as scheduled timber and are well protected in the forest areas by enforcing the special provisions under the Tamil Nadu Forest Act, 1882 and the amendments thereon”. The police claimed that a random inspection of the petitioner’s vehicle had led to the discovery of the red sanders wood in the possession of the petitioner and the co-accused. This being on one side.

On the other side, as per the police version of events, the accused and the vehicle were then taken to the Police station. Following this, the District Forest Officer was informed immediately. The arrest memo was prepared by the Forest Ranger Officer also stated that four accused persons were found to be in possession of the wood. The accused were produced before an Egmore Magistrate, who remanded them to judicial custody. The fifth accused in the case is absconding.

However, as one would predict, the version of events presented by the petitioner sharply contradicted the account narrated by the Police. The petitioner told the court he was an engineering student and a State-level billiards player. The petitioner also happened to be a student of one of the co-accused.

As per the petitioner’s versions, he had agreed to drop off his coach after training one day. On the way, the coach had requested that the petitioner to halt hear Thambu Chetty Street. The coach then requested the petitioner to wait, while he struck up a conversation with another person over the phone.

At this point, the police from Muthialpet Police Station arrived and took away both the coach and the petitioner, without giving any reason for the arrest. A forest ranger was then called. Afterward, both the coach and the petitioner were produced before the Egmore Metropolitan Magistrate who allowed the judicial remand.

“An arrest is the act of apprehending a person and taking them into custody, usually because they have been suspected of committing or planning a crime. After the person is taken into custody, they can be questioned further and/or charged. An arrest is a procedure in a criminal justice system”.

Importantly, throughout the course of these events, the petitioner submitted that he has not informed why he was being arrested in the case. Appearing on behalf of the petitioner, Advocate Sarath Chandran, pointed out that the arrest and remand were in complete violation.

In the current case, it was also highlighted that the Tamil Nadu Forest Act only allows for arrest where an accused refused to give information or gives information believed to be false. No such circumstances had arisen in this case. Taking serious note of the apparent violations, Justice Venkatesh observed,

“This is yet another case which brings to focus the sordid state of affairs prevailing in this State with regard to arrest and remand of accused persons.

The respondent, contrary to what is found in the records, has gone to the extent of recording in the arrest memo as if all the four accused persons were arrested in the scene of occurrence, where the vehicle was intercepted and red sanders was seized. The respondent did not even bother to prima facie satisfy himself as to whether this petitioner had anything to do with the alleged offence. The respondent also did not satisfy the requirements of section 51 of the Forest Act referred supra”.

The Court went on to conclude that the arrest and remand, in this case, was in violation of the guidelines which were expected to be followed,

In the considered view of this Court, the arrest and remand of this petitioner is in direct violation of the guidelines given by this Court in State Vs Nakeeran Gopal referred supra. It is really unfortunate that the in charge Magistrate has also acted mechanically in remanding this petitioner to judicial custody”.

In view of these observations, the bail plea was allowed subject to the cooperation of the petitioner in the case investigation. Notably, bail was allowed even though there was no intervening bail process before the Magistrate or Sessions Court.

All the same, the Court opted to entertain the plea directly given the extraordinary circumstances in the case. However, it was emphasised that this case cannot be relied upon as a precedent. The order states,

Under normal circumstances, bail petition should be moved only before the concerned Magistrate Court or the Sessions Court, as the case may be and only thereafter it can be filed before this Court. However, considering the enormity of the situation and blatant violation of Article 21 of the Constitution of India which has brought to the notice of this Court, as an extraordinary case, this Court thought it fit to directly entertain the bail petition, in the High Court….

The High Court must show faith and respect for the lower Court. However, when it comes to matters of personal liberty, these procedures cannot come in the way of this Court in entertaining bail petitions directly. It is made clear this bail petition is entertained by the Court, taking into consideration the extraordinary circumstances and this case cannot be cited as a precedent in all cases to justify filing a bail petition directly before this Court”.

“LET A HUNDRED GUILTY BE ACQUITTED, BUT ONE INNOCENT SHOULD NOT BE CONVICTED”.

“” This concept is wrongly interpreted by taking its meaning word for word. This actually results in injustice to the victims of those ‘100 criminals’ who get acquitted. Those victims are actually ‘innocent’ ones who get punished because of the acquittal of the ‘100 criminals’. Therefore, does this legal maxim in reality, has an effect of a perversion, in our judicial system????””

 

VIJAYASHREE RAMESH, CHENNAI BASED ADVOCATE