If police custody is bad first time it can`t be good second time27 May 2016 Editorial Desk
The High Court Division of the Supreme Court as far back in 2004 by a judgement issued 15 directions how arrest and police remand are to be dealt with keeping in mind the constitutional guarantees as regards the person to be arrested or the court will grant police remand for him. Their Lordships of the High Court Division took the pain to enunciate those detailed guidelines in the background of arbitrary arrests and torture on persons taken into police custody under a court's order. Death in police custody was also a factor weighed with their Lordships.The Supreme Court has now, at long last, confirmed the judgement upholding that the powers of arrest and interrogation by police have to be exercised being respectful to the aforesaid guidelines. It is indicated that the Supreme Court may also add some additional guidelines. That means there may be some improvement in the practice of police in the areas of arrest and treatment to persons in their custody for getting information.The decision of the Supreme Court has been extensively applauded.We have been expressing our anxiety about the misuse of the power of arrest without caring to follow the requirements of the laws. Any FIR was enough to arrest a person and thereafter he was treated as the most helpless person as if he has no right to be respected. No consideration was shown about the importance of informing his family that he had been arrested by the police. It was the concern of the person under arrest.It was also not binding on the police to let the arrested person know the grounds of his arrest. A vague forwarding report to the court of magistrate was considered enough. As the court was not strict so the police behaved in an unrestrained manner.Although the law requires that the person must be produced in the court within twenty four hours, the police could easily obtain from the court a remand order for keeping him in police custody for days in the name of interrogation. And remand has become a regular feature in criminal proceedings.This police custody was horrific of the constitutional protection for fair judicial process. The police could take the accused into their custody as many times as they chose to do so. The justice system became more a police affair than an affair of the judges.No due importance was given to the fact that it is not for the accused to admit his guilt. It is for the prosecution to prove the allegations brought against the accused. Unless the police had reasonable materials, it will be wrong to prosecute anybody.Though the guidelines issued by the High Court Division were binding both the police and the lower courts were unmindful to comply with these. Let us hope that this time all concerned will be respectful to the guidelines while arresting a person by police and also his lawyer's presence will be ensured at the time of interrogation by the police. The court used to grant an accused into police custody for mere asking. The police thought it was their right to treat the accused as completely at their mercy.According to the High Court Division's judgement now upheld by the Appellate Division, the court will not permit police to take the accused into their custody to interrogate. If they think it necessary the court shall order to interrogate the accused at the jail gate in the presence of his lawyer.In this context, we find it most difficult to understand as to why the next time, if police so want, the court will allow the accused to be into the police custody and be interrogated without the presence of his lawyer. It is true that such custody will not exceed more than three days.The second time police custody for three days should be enough for intimidation and torture by the police if they so want. In the judgement itself the High Court Division intimated anxiety for possible torture. It is hoped that the Appellate Division will review this part of the direction. It becomes clear that the protection that is given on one hand is taken away with another.We shall urge that this obvious contradiction of allowing police custody if asked for second time shall be changed by their Lordships of the Appellate Division when their full judgement will come out.If this part is thought necessary to be retained at least sufficient check against the power to police custody should be with the High Court Division and not with the court that first refused police custody. It does not need much explanation that whatever be the conditions for the court to be satisfied before granting police custody, the lower court will be under pressure of all kinds.Besides, the most important question is what the police want from the accused? Police have to collect evidence. The accused is not to convict himself. The investigating agencies have to work hard to prove their case.