Illegal Detention: Attack on Constitutionalism

Written By: Adarsh Pharasi


“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope” (Jennison v. Baker) Undoubtedly, the stance of Hon’ble Supreme Court of Indian well affirms this duty and it has yet again came to the rescue of the citizen when Champion R. Sangma(petitioner) recently by the order on 21st March was ordered to be released from incarceration terming the detention by police as “illegal detention” on account of the fact that Court of Additional District Magistrate (Judicial), Resubelpara, North Garo Hills, Meghalaya without asserting any documents and facts but solely on the facts stated in the application made by the respondent that the petitioner has filed a bail application which should be rejected and the bail was rejected. But the facts stated in the application were fallacious as the bail was previously granted to the petitioner in January 2018. But, despite abiding by the order the petitioner was detained by the police in as the Hon’ble Supreme Court called it as “illegal detention.” But it is not the only case in the independent India where the rights of independent citizens are suppressed unscrupulously and without the “due process of law”. Government is the trustee of citizen bestowed with the protection of the rights of citizens on account of its welfare state functions. But, when the agent of government i.e. police illegally detain any person on the basis of suspicion, prevention or arrest on the basis of FIR but don’t follow the established rules to be followed in respect of the protection of rights of accused laid down in the constitution of India and Cr.P.C., 1973, the very purpose of the welfare function of the state is defeated.


Detention of a person in custody has following two types:

  1. Police custody- When a person is arrested by the police
  2. Judicial custody- When a person arrested is sent to prison after conviction or to detain him as an under-trial

It is a well established principle of “presumption of innocence till he has proven guilty” it requires a person arrested to be treated with humanity, dignity, and respect until his guilt is proven and to ensure this the accused has certain rights which also includes fundamental rights subject to “reasonable restriction” with the “due process of law”.

  • The right of the person detained starts from the time when an arrest is made as per Sec.46 of Cr.P.C. The Hon’ble court as laid down guidelines for arrest in K Basu v/s State of West Bengal[(1997) 1 SCC 416; AIR 1997 SC 610]. Indian Constitution bestows upon such person Art. 22 which requires that the ground of arrest shall be known to the accused and the accused shall be presented before the nearest magistrate within the period of twenty-four hours of the arrest which is also mentioned in Sec. 57 of the Cr.P.C., 1973. It is sometimes expedient that the extension of custody is required as 24hours are not enough to complete the investigation, such person is to be presented before a magistrate as per Sec. 161 of the code.
  • The arrested person has Right to remain silent under Art. 20(3) of the Indian Constitution which say that the person in custody shall not be compelled to give evidence against him. Sec. 49 of the code strengthens the provision requiring that the detainee shall not be subjected to physical inconvenience unless it is necessary to prevent escape.
  • A memo of arrest is required at the time of arrest which is attested by at least one witness and the person arrested.
  • 41D and Sec. 303 of the code gives the right to the arrested person in the course of custody to be granted access to the lawyer of his choice.
  • Detainee has the right to be medically examined when he is in custody under Sec. 54 of the code to prevent him from being tortured or physically harmed in “custodial violence”. Sec.54A requires that “it shall be the duty of a person having custody of an accused to take reasonable care of the health and safety of the accused.”


When an arrest is made without complying with the provisions of Code of Criminal Procedure, 1973 and the established guidelines set by Hon’ble Supreme Court pertaining to it with reference to the fundamental rights under the Indian Constitution, it is an illegal detention. When a person is illegally detained, various basic humane conditions of living contemplated in fundamental rights especially Art. 19, 20, 21 without “the process established by law”. In such a situation writ of Habeas Corpus is the golden weapon to claim back rights of an illegally detained person in Supreme Court and High Court under Art.32 and Art. 226 respectively. If the courts find material to the fact worth illegal detention, it grants a writ of Habeas Corpus to release the person illegally detained. The ‘locus standi’ to file writ petition is not restricted to the person illegally detained, another person having knowledge of the impugned action can approach the court for the release of the person so detained.

In Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260], the Hon’ble Supreme Court explained that apart from the criminal proceeding against the offending authority in charge on account of crimes committed in illegal detention, the civil action also lies in the grant of damage to the victim. In a well-known case Bhim Singh, Mla vs State Of J & K And Ors., AIR 1986 SC 494, the petitioner was illegally detained to abrogate him from attending meeting of legislative assembly of J&K, further,he was not produced before the magistrate within 24hours but deliberate extension of remand was sought which was granted. His wife filed writ petition and the Hon’ble Supreme Court grant writ of Habeas Corpus for the release of Bhim Singh and exemplary damage was also granted.


The crime of illegal detention is not only restricted to the physical detention of the victim but also due to such detention his status in the society derogates, the daily life of the victim is hindered to his and his family’s backdrop. Such detention also leads to various other crimes under custodial violence like fake encounters are termed as ‘state-sponsored terrorism’ by the Hon’ble Supreme Court in Om Prakash and Others v. the State of Jharkhand, (2012)12 SCC 72. In D.K. Basu v. the State of W.B., (1997) 1 SCC 416, the Hon’ble Supreme Court stated that “to check the abuse of police power, transparency of action and accountability perhaps are two possible safeguards which the Supreme Court must insist upon. Attention is also required to be paid to properly develop work culture, training, and orientation of the police force consistency with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable forms of interrogation. With a view to bringing in transparency, the presence of the counsel of the arrestee at some point in time during the interrogation may deter the police from using third-degree methods during interrogation.” Further, the arrested people are needed to be well known to their rights and procedure after the arrest, therefore programmes shall be conducted by the legal fraternity. The poor and illiterate people shall be provided legal aid. Despite the programmes on behalf of the government and pro bono cases undertaken by advocates, there is a large lack of legal aid to detainees as the population of India is large and on rising scale.

 Edited By: Rachit Mehrotra

One Comment

  1. Advocate Arun Kumar-Reply
    March 30, 2018 at 9:13 pm

    Very informative and relevant.

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