PREVENTIVE DETENTION LAW MISUSED! By Vinayak D Porob

DETAINED: Amongst the activists detained for allegedly contributing to the riots attributed to the Elgar Parishad is Dr Anand Teltumbde, a professor of Big Data in the Goa Institute of Management.

The Supreme Court has ruled that bail and not jail should be the rule. Under the Preventive Detention Law activists are taken into custody for several years without trial or bail — as in the case of Elgar Parishad.

By Vinayak D Porob

THE concept of arrest in anticipation of a cognizable offence being committed is defined under the Code of Criminal Procedure as Preventive Detention. Chapter XI, Sections 149 to 152 of the Code of Criminal Procedure, 1973(CrPC) deals with the provisions relating to preventive detention. Under Section 149 of CrPC, every police officer shall do his best to prevent commission of a cognizable offence. Under Section 151 of CrPC a police officer, knowing of a design to commit any cognizable offence by any person, may without orders from a magistrate or without a warrant arrest such person. However, no person arrested under section 151 of CrPC shall be detained in custody for a period exceeding 24 hours from the time of his arrest, unless his further detention is required or authorized under any other law.
The power of the police officer to prevent commission of a cognizable offence and the consequent arrest under section 151 of CrPC is oftentimes misused by the Police Department according to its whims and fancies. To commit any offence, intention to commit the offence, that is, mens rea is a crucial factor. How can the police officer conclude that there is intention in a person to commit a cognizable offence only because there is a mere complaint filed against him? Intention is something which is inherent and cannot be ascertained until and unless the offence is committed.

COGNIZABLE OFFENCE OR NOT?
A PERSON with an intent to commit a cognizable offence may take all the steps towards commission of the said offence, however at the very last moment his intention may change and he may refrain from committing the said offence. Intention is such a factor that it is uncertain and has to be ascertained based on the circumstances involved in the commission of offence and therefore, the intention of a person cannot be ascertained prior to commission of the offence — so as to detain someone under the guise of preventive arrest.
The power to release a person arrested under Section 151 lies before the Sub-Divisional Magistrate in the State of Goa. A person arrested under Section 151 of CrPC can be released on bail by filing an application for bail no sooner he is arrested; however, in cases where bail application is not filed it is the statutory duty of the police officer arresting such a person to produce him before the nearest Sub-Divisional Magistrate within 24 hours of arrest and get him released with or without executing personal bond.
Offences are broadly divided into two categories for the purpose of bail, that is bailable offence and non-bailable offence. In bailable offences jurisdiction to release on bail lies with the Judicial Magistrate as well as the police officer doing the arresting. In bailable offences a police officer arresting the accused can accept surety and personal bond and without an order from the Judicial Magistrate release a person so arrested.

NON-BAILABLE OFFENCE
IN CASE of a non-bailable offence if the offence is triable by a Judicial Magistrate than an order from the Judicial Magistrate is mandatory to release such a person on bail. In case of a non-bailable offence which is triable by the Session’s Court, an order from the Session’s Judge to release such an accused is mandatory.
In the State of Goa, Sub-Divisional Magistrates are Deputy Collectors who are Junior Scale Officers primarily appointed through the Goa Civil Service (GCS), however, certain IAS officers (Indian Administrative Service) of AGMUT cadre are also initially on probation posted as Deputy Collectors or Sub Divisional Magistrates. While granting or rejecting any bail a person’s constitutional right of liberty has to be considered, more so in cases of preventive arrest as the person is detained in custody without committing an offence and on a mere suspicion.
Officers posted as Deputy Collectors of IAS cadre no doubt are intelligent, however, being on probation and new to the services, lack practical experience and in most of the cases such officers in their attitude lack the human touch required in a Sub-Divisional Magistrate dealing with the public at large. Just as the law provides a person to be detained in custody for 24 hours, it does not mean that the person should be detained for that long a period. It is always not the case that the person so arrested to prevent a commission of a cognizable offence is the guilty party as in many cases due to political interference, the victim is portrayed to be the aggressor and is arbitrarily arrested by misusing section 151 of CrPC.
All the IAS officers in Goa posted as Deputy Collectors and Sub Divisional Magistrates are from other states and being new to the chair, most are arrogant and out of arrogance consider themselves to be bestowed with all the knowledge of law when in fact, their knowledge of law is weaker than the officers posted as Deputy Collectors from the Goa Civil Service. Bail applications are to be entertained for 24 hours whether in the office or at the residence and no Sub-Divisional Magistrate for his/her comfort can refuse to entertain a bail application, especially when the arrest is made only on mere suspicion under section 151 of CrPC.

A SHAME!
IT IS a shame that an IAS officer posted as Deputy Collector recently refused to accept a bail application filed by three persons arrested under section 151 of CrPC at her residence and directed the advocate appearing for the arrested persons to file the bail application the next day in the morning session or to file it before the Judicial Magistrate. The Hon’ble Supreme Court is clear on the point of law that no Magistrate or Court can refuse accepting or entertaining a bail application. If intelligence and knowledge is bestowed only on IAS officers or if they presume it so, than being human enough they should have at least not refused to entertain the bail application. Authority and power without knowledge of law is very dangerous to society and refusal to entertain the said bail application caused great injustice to the persons arrested, as they were detained in custody for the entire night.
The polite insistence on the part of the advocate to entertain the bail application was also not paid any heed to by the said IAS Sub- Divisional Magistrate and on the contrary in blind arrogance, he threatened to file a complaint against the advocate for insisting that the bail application be entertained. A public officer exercising magisterial powers is duty bound to be sensitive enough to understand the importance of bail in cases of arrest under section 151 of CrPC as a person’s liberty is at stake without committing any offence and on a mere suspicion. Power drives a person crazy and leads to abuse of power and as such section 151 of CrPC is abused by police officers to humiliate a person so arrested by detaining him in custody for an entire night in order to please their godfathers.

SATURDAYS & SUNDAYS
IN most cases arrest under section 151 of Cr PC are affected or made mostly on Saturdays and Sundays when the Sub-Divisional Magistrates are not in office being holidays and therefore in such cases, the representatives of the arrested persons are compelled to file for bail at the residences of the Sub-Divisional Magistrates. These IAS officers posted as Sub-Divisional Magistrates and District Magistrates should be imparted training to understand the local laws and the customs and traditions of the State in which they are posted. Practically everything that is stated in the book of law is not possible to be executed and many times human emotions and instincts come into play while deciding cases or bail applications.
Framing rules or regulations is different to that of judging a case or a bail as to judge a case or a bail one would require a judicial mind. Deciding a bail application is not an administrative function to strictly abide by the books as circumstances play a major role in deciding a bail application.
It would be appropriate for the Government of Goa to appoint local Goa Civil Service officers as Sub-Divisional Magistrates rather than the IAS officers who I feel are only administratively good, but lacking in human feelings required in exercising a judicial mind. Officers exercising powers as Sub-Divisional Magistrates should not forget that the advocates appearing on behalf of the arrested persons have no personal interest in the matter and are doing their duty professionally and hence, such officers I feel should be cordial rather than arrogant and callous. Ultimately, it is important in life that the power of the chair should not strike the mind of the officer to such an extent that a person loses his human feelings and instincts to apply his or her judicial mind, which is the case as far as these new IAS officers on probation are concerned. I regretfully feel that due to the lackluster attitude of such Sub-Divisional Magistrates, injustice is caused to people.

(This article is the personal opinion of Adv. Vinayak D Porob and is written based on the incident faced by his junior colleague Adv Baggio P Monteiro.)

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