The Communal Cane

Five members of a Muslim family had moved the Gujarat High Court seeking contempt action against several police officers for allegedly tying and beating them up in full public view. A Division Bench of Chief Justice Aravind Kumar and Justice AJ Shastri have sought a reply from the police personnel before December 12. The Muslim youths were arrested by the police for allegedly throwing stones at the participants of a Garba programme in Undhela village of Kheda district on October 3. After the arrest, the youths were tied to an electric pole and beaten up in full public view.

After this incident, on October 7, a voluntary organization in Gujarat sent a legal notice to the Chief Secretary and Director General of Police, Gujarat. The Convenor of the Minorities Coordination Committee, through a legal notice, appealed to the state government to take appropriate action against the erring police officers. 

In the High Court, they have demanded that the police personnel be punished for contempt and non-compliance of the directions issued by the top court in DK Basu vs the State of West Bengal which provides for guidelines to be followed by the police during arrest and detention. These are:

• Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name, clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee (a person who has been or is being legally arrested) must be recorded in a register.
• The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
• A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
• The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal aid organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
• The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
• An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
• The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee and the police officer effecting the arrest.
• The arrestee should be subjected to medical examination by a trained doctor, every 48 hours during his detention in custody, on the panel of approved doctors appointed by Director, Health Services of the state or Union Territory concerned. The Director, Health Services should prepare such a panel for all tehsils and districts as well.
• Copies of all the documents, including the memo of arrest, referred to above, should be sent to the concerned magistrate for his record.
• The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
• A police control room could be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest, and at the police control room it should be displayed on a conspicuous notice board.

Also Read: Governors vs CMs: Ugly Slugfest

Section 23 of the Police Act mentions in detail the duties of a police officer. It says:

• It is the duty of every police-officer to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority;
• To collect and communicate intelligence affecting the public peace;
• To prevent the commission of offences and public nuisances;
• To detect and bring offences to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists;
• It shall be lawful for every police officer, for any of the purposes mentioned in this Section, without a warrant to enter and inspect, any drinking shop, gaming house or other place of resort of loose and disorderly characters.

Section 29 of the Police Act deals with penalties for neglect of duty by a police officer. It says:

“Every police officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation of lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, ¹ [or who, being absent on leave shall fail, without reasonable cause, to report himself for duty on the expiration of such leave] or who shall engage without authority in any employment other than his police duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both.”  

It is pertinent to note that in February 2021, the apex court  while  dealing with appeals filed by two retired policemen from Odisha, who were convicted of torturing a man in custody, leading to his death, observed that beating a person in a police station causes a sense of fear in society, is a matter of great public concern and such brutality on the part of the police cannot be condoned. Further, use of force should be confined to situations which require self-defence involving grave and sudden provocations. If someone has broken the law, the law should be allowed to take its course, not public flogging. 

—By Shivam Sharma and India Legal Bureau