Introduction:
The Police play the most important role in the system of criminal administration of Justice. Police is an essential organ of every Government whose main function is to enforce the laws that are been made by the Legislature of a State. The police are also been entrusted by the State to ensure the protection of the vulnerable sections of the society comprising of women, juvenile and transgender. The legal functions of the police are to deal with the detection and investigation of crime, arrest of offenders, collection of evidence, production of evidence, maintain case-diary and also to produce any person arrested within 24 hours from the time of arrest before the Court having competent jurisdiction to trial such offence. The powers of the police as conferred under the provisions of Chapter XI from Sec. 149 to 153 of Code of Criminal Procedure, 1973. Police officials are also given powers u/s 41, 42 and 151 of CrPC, 1973, to make an arrest without a warrant taking into consideration the circumstances. Legitimate functions of the police include the conditional release of accused on bond, etc. u/s 438 of CrPC, 1973, which is often regarded as Anticipatory Bail, interrogation of offenders and suspects, search and seizure. The search and seizure may be conducted by the police with or without a warrant but it should not be unreasonable. Whenever the Police unreasonably and without any proper and justified reason withholds any person then such detention or withholding is regarded as the Illegal Detention of the Police in its custody.
Illegal Action by the Police
The basic and primary duty of the Police is to maintain law and order, protect the human right, prevent crime, register complaints in form of an FIR, carry out investigate and also to apprehend and ascertain crimes and offences that may be committed. But it is often seen that while discharging official duties, police officials do not undertake their responsibilities in a proper and effective manner and their acts and/or actions often abuse their power for personal or official gain. Police forces are often accused of their over-actions which may any time cause disturbance in the law and order of the society. Many prompt actions of the police lead to a miscarriage of justice, discrimination and involve obstruction of justice. Though the goals and objectives of police are noble they have been criticized and condemned for committing acts which are just contrary and this is because the powers given to them to fulfil their social responsibilities are capable of being abused by them to infringe upon the constitutional rights of the community. The abuse of power by the police authorities have become very much popular in the present socio-economic scenario, though such over-action of the Police Authorities must be discouraged at large.
Types of Illegal Action by the Police [1]
- Illegal arrest or Unlawful detention.
- Tampering of Evidence by the Police.
- Brutality by Police.
- Over action by the Police in surveillance, searches and seizure of property.
Illegal Arrest or Unlawful Detention
The word “arrest” is not defined under any of the provisions of the Criminal Procedure Code, 1973. Chapter V (Five) of The Code of Criminal Procedure, 1973 u/s 41 to 60 deals with the provisions relating to arrest of persons. Arrest means deprivation of a person of his liberty by legal authority. It is expected that every arrest must be in accordance with the procedure established by law, for example, Article 21 and Article 22 of the Indian Constitution. Article 21 of the Constitution of India clearly enumerates that no person shall be deprived of his right to life and personal liberty and hence arresting a person means to temporarily suspend his/her right to personal liberty. In the landmark case of D.K. Basu –versus- State of West Bengal,[2] the Supreme Court of India had held detailed guidelines to be followed by the police at the time of arrest and detention. Whenever any arrest is been done dehorns the principles of law as enshrined in the provisions of the Criminal Procedure Code, 1973 then any detention in regard to such arrest is often regarded as Illegal Arrest or False Arrest and such arrests shall be and highly condemning the society at large.
Remedies Against Such Illegal Arrest or Unlawful Detention
Part III of the Constitution of India provides for certain fundamental rights. The right to life and personal liberty has been guaranteed by the Constitution of India under Article 21. Article 21 of the Constitution says that ”no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The writ of “Habeas Corpus” is one of the important remedies for an illegal or false arrest or for unlawful detention by police authorities. The Supreme Court of India and High Court of all states can issue this writ of “Habeas Corpus” under Article 32 and Article 226 respectively in order to enforce the fundamental rights as has been guaranteed under Part III of the Constitution of India.
In Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur PS and Ors[3], the Hon’ble Division Bench of A.P. High Court directed the state as well as the police personnel responsible for illegal arrest and wrongful detention to pay compensation to the appellants who were purposely and deliberately implicated in a grave charge of murder and were illegally detained by the police authorities.
Tampering of Evidence by the police
The police authorities sometimes distort and/or tamper with the actual evidence of a particular case, thereby resulting in innocent people being wrongly convicted based on false evidence. The police officials are often caught with corruption like falsifying reports. There are a huge number of cases in India, were the Police Authorities have been charged for misleading the court due to deliberate tampering of evidence. The Investigating Officers dealing the case are often found tampering with confessions, witness statements, testimonies in order to develop a false report, not complying with the fact that police report is a document that is heavily relied upon by the court for giving an order or judgment.
Remedies for Tampering Evidence
Section 193 of the India Penal Code[4] provides for punishment for tampering the evidence. In any judicial proceeding, whoever knowingly or intentionally gives false evidence, thereby misleading the court with some malafide intention and making the court to believe it to be true and consider it as evidence, shall be punished with imprisonment for a maximum of seven years with fine. Intention is the main ingredient for this type of wrong. Mens rea is a Latin term which means “evil intention”, whenever any Police Officer intentionally tampers any oral evidence or any other written or documented evidence then such shall tantamount and construe to be an offence involving an “evil intention” ie. mens rea.
Sec 194 of the Indian Penal Code, 1860, states that the punishment for giving false evidence with the intention thereby to wrongly convict a person for an offence which is capital by law for the time being in force in India, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Sec 191 of the Indian Penal Code, 1860 provides that any person who is legally bound by an oath or any express provision of law to state the truth or to make any statement or declaration makes a false statement knowingly or believing it to be false. In Baban Singh And Anr vs Jagdish Singh & Ors[5], the Hon’ble Supreme Court held that by swearing a false affidavit, the accused makes himself prima facie liable under section 193 read with Sec 191 and 192 of the Indian Penal Code.
Brutality by Police
Another very celebrated illegal action of the police is in the form of brutality. The landmark case of Nilabati Behra v/s State of Orissa & Ors.[6] is an example of death caused by police brutality. In this particular case, the State was held liable by the Hon’ble Court and was directed to pay a hefty amount of compensation to the appellant. This brutal act of police was regarded as a gross violation of the rights enshrined under Article 21 of the Indian Constitution. In Saheli v/s Union of India [7], the Supreme Court of India awarded Rs. 75,000 as damages to the mother of the child who died as a result of police brutality. In another notable case, Bhim Singh Versus State of J & K,[8] the apex court of India directed the State Government to pay a compensation of Rs 50,000 for illegal arrest and detention of Bhim Singh by the police in order to prevent him from attending the Assembly Session.
Remedies in case of Brutality by Police
Sec 197 of the Criminal Procedure Code, 1973 which provides certain immunities to the public servants from prosecution, for any misappropriate act done during the discharge of duty, needs to be amended and few stringent laws need to be enacted to check this type of corruption in future. The courts must necessarily be vested with little more power to look into every complaint and bring the offenders of police brutality to justice. Both the Central Government and the State Governments must provide detailed instruction to a police force that unnecessary use of power cannot save them from the eye of law even though, they are entrusted in maintaining law and order in the society.
Over Action by the Police in Surveillance, Searches and Seizure of Property
Section 93 of the Code of Criminal Procedure, 1973 provides circumstances under which a search warrant can be issued. The place, date and time for conducting the search should be mentioned specifically and clearly in the warrant. It must be conducted in compliance with the provision to Section 100 of the Code of Criminal Procedure, 1973.
Though, police officials, under Sec 165 of CrPC, are empowered to conduct search or surveillance of the property, person without a search warrant. It is an exception and is applicable only in case of certain limited emergencies. In most of the cases, it is found that the powers which the law provides to the police officials under Sec 165 are misused and used as an arbitrary power. In, fact, police officials sometimes use it even as a tool for harassment.
Under no circumstances, the police officials are authorized to conduct unjustified or unreasonable searches. Certain rights are also given to the occupants such as the person can ask for identification, they can even ask for an explanation as to why such a search is conducted at his property. The police officials are supposed to restrict the surveillance or search to that particular area specified in the warrant and if they go beyond it and search areas that are not specified in the warrant, such search can be rightly challenged by the occupants.
Conclusion
The police are the most essential organ of a State. The Police are entrusted with the function of maintaining law and order and also to enforce the laws made by the Legislature. So, in every case, the Police has to act responsibly and must necessarily act in strict compliance with the powers as prescribed by the prevailing laws of the State. The police shall not perform any illegal act or any act which dehorns the prescribed law of the land since the Constitution of India always provides remedies against illegal action by the Police.
References:
[1] Tirumala Chakraborty(2017,February,20) https://blog.ipleaders.in/remedies-illegal-police-action/
[2] (1997) 1 SCC 416; AIR 1997 SC 610
[3] 2010 (3) U.P.L.J 19 (HC)
[4] Indian Penal Code, 1860
[5] 1967 AIR 68, 1966 SCR (3) 552
[6] 1993(2) SCC 746
[7] AIR 1990 SC 513
[8] (1985) 4 SCC 677; AIR 1986 SC 494,
0 Comments