By Johan Sequeira

"Arbitrary power is most easily established on the ruins of liberty abused to licentiousness." – George Washington

The news article of Steven D’Silva, a resident of Bantwal who was arrested by excise department officials after allegedly finding stock of liquor in excess of permitted quantity at his house for celebrating a party brought familiar memories of my arbitrary arrest at the hands of power intoxicated and negligent government officers. The above mentioned quote of one of the founding fathers of democracy holds true in these modern times where the arbitrary power of arrest is so often misused.

A cursory reading of the Karnataka Prohibition Act will show that the offences allegedly committed by Steven were punishable by less than 6 months and bailable, that is, the prohibition officer or the magistrate could have granted immediate bail on furnishing of surety/personal bond and there were no reasons for extended judicial custody of Steven. This laid down law was reiterated by the Apex Court in Rasiklal vs Kishore where it held that "There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him."

But what stands out here is the outright contempt of the directives of the Supreme Court by most government officials and magistrates involved in the process of mechanically sending a person to custody. The Apex Court in Arnesh Kumar vs State of Bihar & Anr had come down heavily on arbitrary arrests and had passed directives and strictures against the police officers and magistrates. The Apex Court held inter alia:

"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the state governments to instruct its police officers not to automatically arrest when a case under Section of the IPC(offences punishable by less than 7 years) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, CrPC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the magistrate for further detention;

The magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the magistrate will authorize detention.

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before high court having territorial jurisdiction.

Authorizing detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the appropriate high court."

So what legal recourse do Steven and people who find themselves in a similar situation have? The most immediate action is to get a copy of all the documents like FIR, arrest memo, 41A checklist and remand report U/S 76 of the Indian Evidence Act. Using these certified copies a complaint should be made against the arresting officer to his superiors asking for departmental action. A complaint can also be made against the magistrate by writing a complaint along with an affidavit and copies of above mentioned documents to the jurisdictional high court. Within a period of 1 year a contempt petition should be filed in the high court against the arresting officer. In this case particularly a complaint can be filed against the arresting officer U/S 81 of the Karnataka Prohibition Act for vexatious arrest.

Lastly, whenever a government official violates the fundamental right of a citizen like in this case the violation of right to life and liberty, the aggrieved party can claim compensation from the state and arresting officer by filing a writ petition under Article 227 in the jurisdictional high court. If only a handful of citizens are brave enough to seek the above mentioned legal remedies it will greatly abate the arbitrary abuse of power by these irresponsible government officers whose duty mandates that they uphold the law of the land.

Disclaimer: The views and opinions expressed in the above article are solely those of the author. Daijiworld does not assume any responsibility or liability for the same.

About the Author

Johan Sequeira is an engineer by vocation and a men's rights activist by avocation. He can be reached at johanseq@gmail.com.