Above: Awami Action Committee chairman Mirwaiz Umar Farooq being taken into preventive custody for defying house arrest in Srinagar/Photo: UNI

The Delhi High Court has laid down comprehensive directions to prevent indiscriminate use of the powers of preventive arrest by special executive magistrates and the police

By Shivani Bhasin

The use of the law of preventive arrest and detention by those in power if used arbitrarily can become a source of injustice for people, especially the poor and the downtrodden. This has been reiterated multiple times by the judiciary and has also been made subject to controls and regulations.

In a judgment passed by a division bench of Delhi High Court, Justices S Muralidhar and Vinod Goel laid down comprehensive directions to put a bar on indiscriminate use of the powers of preventive arrest by special executive magistrates (SEMs) and the police given under Section 107 and 151 of the Criminal Procedure Code (CrPC). The Court took notice of the larger issue in a habeas corpus plea filed by advocate Aldanish Rein wherein one Narender was sent to judicial custody for two weeks by the SEM on account of unruly behaviour with a neighbour. The Court declared that the order was illegal and passed without due application of mind. It granted Narender compensation of Rs 25,000.

Section 107 sanctions the executive magistrate to order to show cause a person who is likely to commit breach of peace or disturb public tranquility in any way. The person will be asked why he should not be ordered to execute a bond with or without sureties for keeping peace for a period not exceeding one year. Section 151, on the other hand, gives the police the power to arrest a person without a warrant or an order from the magistrate. This is when they have knowledge of that person designing to commit a cognizable offence and there being sufficient cause to believe that the offence cannot be prevented.

The given provisions have an inquisitorial nature and are more like an inquiry than a trial which is to be carried out in a manner specified by the courts in various judgments. However, law enforcement agencies’ attempts to abide by the said laws are insignificant. This has been repeatedly seen in a large number of cases. The fact that 7,335 people were arrested in just a year from July 1, 2017, to June 13, 2018, under Sections 107 and 151 of the CrPC in Delhi shows indiscriminate exercise of power by the authorities. Many of those arrested were from economically weaker sections of society who are unable to provide the sureties required.

Therefore, in order to counter the misuse of powers granted under the said sections, the following guidelines were issued by the Court:

• An oversight mechanism consisting of retired district judges shall be set up by the lieutenant governor (L-G) for Delhi to review the exercise of powers by SEMs under Sections 107 and 151 of the CrPC. The L-G may even consider calling these public officials as SEMs as the appellate magistrate is likely to be mistaken for a judicial magistrate.
• The L-G will have to issue instructions to prison authorities for separate spaces in jails to avoid mixing of those who are on preventive arrest with those who have committed offences.
• The period of judicial custody under the said sections is limited to seven days, mandating weekly review by the SEMs for further detention.
• After directing the release of a person upon furnishing a personal bond and not insisting on surety if such a person is not in a position to furnish it, the SEM’s task will not end. He will keep the matter pending for follow-up on whether the person has actually been released on having furnished a personal bond and/or surety. If within two days of the order of release, the person has not come out of jail, the SEM should pass further orders to ensure release by either accepting a personal bond and/or surety of a lesser sum, if at all, that can be afforded by that person.
• The SEM has to mandatorily satisfy himself on the following grounds before passing any order under the said sections:
• The constitutional rights of the person arrested under Articles 20, 21 and 22 have to be explained by the SEMs in a language understood by the person.
• The SEM must ask the person arrested whether he has been informed, in the language understood by him, of the grounds of his arrest and record this in the order he is going to pass.
• The SEM will ask the person whether he wishes to engage a lawyer of his choice and also inform him that he can avail of the services of a remand advocate who will remain present when these proceedings are being conducted.
• The SEM will allow the remand advocate to interact with the person arrested outside the hearing of the police officers who have got the person arrested in order to enable him to obtain the necessary instructions.
• The SEM will ensure that the remand advocate is performing his functions as required under the Legal Services Authorities Act (LSAA) and that he is also a person aware of the constitutional rights of a person arrested and will act accordingly.
• The SEM will record in his proceedings that all of the above provisions have been effectively complied with.
• The Delhi State Legal Services Authority (DSLSA), in association with the Delhi Judicial Academy, is directed to conduct regular training workshops and sessions for the current SEMs to train and sensitise them on the constitutional requirements of their power.
• The principal secretary, home, will periodically pays surprise visits to the courts of the SEMs accompanied by the secretary, DSLSA.
• Persons should be released on personal bonds instead of sending them to judicial custody if the verification of the surety bonds is not complete by the concerned SHOs.
• An informative board should be placed outside the office of the SEM displaying the law of preventive arrest under the Constitution, CrPC and LSAA in English, Hindi and the language of the area. The name of the remand advocate, along with contact details, has to be mentioned on the board. Also, the amount to be filled in a bail bond is not to be given in cash to anyone. The fact that the SEM is not a judicial magistrate has to be stated.
• The superintendents of Tihar, Rohini and Mandoli jails will ensure that a prisoner received as a result of the judicial remand order of the SEM shall not be kept in the same place as undertrials and convicts and be provided easy access to the legal aid counsel.

The purpose of Sections 107 and 151 is to avert the commission of an undesirable offence and not to make it a tool of inequity and oppression against the marginalised. However, facts and figures point to the contrary. But, after the issue of these mandatory guidelines, less flouting and violations of rules are expected.