Sharjeel Usmani’s Illegal and Intimidating Detention
Mohd. Kumail Haider
The country recently witnessed the custodial deaths of a father and son duo, who were killed due to extravagant abuse they had to suffer at the hands of the Tamil police. Now a young man, Sharjeel Usmani seems to be suffering the scathe of non-adherence of due process of law.
As reported by Karvan India and via several outlets on social media, according to Sharjeel Usmani’s family members, five unknown people claiming to be from UP Crime Branch picked him from outside his house in Azamgarh, they narrate, “There was no warrant, no receiving, and all of them were in plain clothes. They also took away his laptop and books with them,” His father Amir Usmani refused to acknowledge this as an arrest and said, “They came without ant warrant, in plain clothes, and took his away, this is not how a legitimate arresting is done,” Though the police had not confirmed his arrest till late night.
An arrest is made in order to present the accused before the court or to keep a check on the administration of the law. It is also made to serve the purpose of informing the society who has been accused of a crime and warns the accused from committing other crimes, but at times it has been used as the mechanism to abuse and intimidate civilians. According to Indian legislation, the Criminal Procedure Code, 1973 mentions ‘arrest’ and its procedure under sections 41 to 61, as there is no specific definition of arrest provided under the CrPC.
The police department has been very casual in updating or answering questions made regarding Usmani’s whereabouts and arrest, there are certain facts that are crucial to be acknowledged and be cross-checked on the precinct of the legalities.
Apart from being a private person, a Police Officer, being the administrative authority, has the power to arrest any person, with or without a warrant (u/s 72 and 41, respectively). There are appropriate procedures enumerated in the code that are meant to secure the basics of the human rights of the person who is arrested. In relation to such arrests in the D. K. Basu case (1997) 1 SCC 416, the Supreme Court of India gave directions aimed at ensuring authorized arrest, to bar illegal detention, to devise procedural mechanisms where an account of the arrest is found in the case files of the Investigating officers, duly signed by witnesses and countersigned by the arrestees themselves and having a parallel record in the daily diary so that there is left no space for illegal detention and its cover-up pursuits. It further aims at ensuring the communication of arrest to the relatives/friends, so that every accused is represented and gets a fair opportunity to defend himself at every stage of criminal proceedings and finally it aims to secure to the arrestee a milieu wherein his fundamental rights under Article 21 of the Constitution are not violated and he doesn’t fell prey to custodial violence and atrocious behavior of the police.
But as it has been reported that family members did not witness any of such requisite procedures being observed by the arrestors, it is not only a severe threat to the person’s life but also an intimidating part of police proceedings that has been rampant in our legal system.
In Joginder Kumar v. State of U.P 1994 SCC (4) 260, it was held that there must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offenses, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do. As clear from the facts that there was no justification provided, wherein the default of the arrestee would be mentioned, had he not complied with the authorities.
It is immensely important to note what has been held in Arnesh Kumar versus the State of Bihar (2014) 8 SCC 273,“…Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve?..”
These are absolute legal conditions with all exceptions covered, in order to secure the arrested person his rights in the purview of rule of law and to avoid any abuse whatsoever. Has any of it been complied with and thought off by the personnel in the abovementioned?
But apparently, yet another Muslim student who has been vocal against the establishment has had to suffer the witch hunt at the hands of the officials for raising his voice, the poor position of rule of law in the state of Uttar Pradesh has gulped his liberty and the life which is a basic sense has to be sacrosanct to complete security cum dignity, consequently leaving his family and companions in torment, as they’re aware of the prevalent poor condition of the due process of law and the harassment that so often is in offer.
- The author is a final year law student at Faculty of Law at Aligarh Muslim University. He can be contacted at firstname.lastname@example.org , www.twitter.com/kumailhaider777