Criminal Law

Unlawful detention and arrest means detention of a person without any law and prescribed procedure of law.

Unlawful Arrest and Detention

Preventive detention means detention of a person without trial and conviction by a Court but merely on suspicion.

Necessity of Preventive Arrest and Detention

Preventive detention is a specific law in which the executive authority can impose restrain upon the liberty of a man:-

• Who may not have committed a crime but;
• There is apprehension of committing acts that are prejudicial to the public safety etc.

Validity of Unlawful Arrest and Detention

A person can be detent by the rule which is fair, just and reasonable.

It must not arbitrary if it will arbitrary it will be void and the detention of that person will illegal or unconstitutional.

The aim behind the preventive detention law is to prevent a person from doing something which would be to danger for pubic peace or safety or concerning public disorder.

Constitutional Provisions on Arrest and Detention

In the Constitution of India, Article 22, including any law enacted by legislature can deprive a person of his personal liberty.

Under Article 22(1) and (2) are also rights for an arrested person. Executive must inform the individual for reason of arrest and detention. 

Arrested person has right to meet his legal practitioner of his choice. It means every arrested person have the opportunity of hearing.

Arrested person can consult with a legal practitioner and appointed to defend them. Police would produce him before the nearest Magistrate within 24 hours.

Article 22(1) and (2) of our Constitution provides that the police cannot detain a person into the custody beyond the said period by the Authority of Magistrate. 

Supreme Court Analysis on Preventive Detention

In Joginder Kumar v. State of Uttar Pradesh (AIR 1994 SC 1349), the petitioner was detained by the Police Officers and his whereabouts were not told to his family members for a period of five days.

The Supreme Court laid down the guidelines governing arrest of a person during investigation

(i)  An arrested person can meet is friend, relative or other person including legal practitioner;

(ii) The Police Officer shall inform the arrested person about timing of arrest when he is brought to the Police Station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.

Further in D.K. Basu v. State of West Bengal (AIR 1997 SC 1349), the Supreme Court laid down detailed guidelines to be followed by the Central and State Investigating Agencies in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures.

The Supreme Court also held that any form of torture, cruel, inhuman or degrading treatment, whether it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21.

Pre-requisite Condition for Detention and Arrest

The Supreme Court in Maneka Gandi vs Union of India (AIR 1978 SC 597) held that Article 21 of the Constitution now protects the right of life and personal liberty.

And such liberty of citizens not only from the executive action but from the legislative action also.

In following two conditions executive can deprive a person of his life and personal liberty :- 

• First, there must be a law and;
• Secondly, just, fair and reasonable procedure prescribed by law.

Refusal of Bail is restriction on personal liberty ? 

The Supreme Court in Sanjay Chandra vs CBI (AIR 2012 SC 830) held that the Court should keep in view that principle that grant of bail is the rule and committal to Jail an exceptional.

Refusal of Anticipatory Bail automatically restrict personal liberty of the individual guaranteed by Article 21 of the Constitution.

Action After Unlawful Arrest and Detention

On unlawful arrest, individual of Rajasthan should immediately contact to the best criminal lawyer in Jaipur. 

Supreme Court has given guidelines on law of arrest and bail many times however police are still violating guidelines.