FIGHT 498A – Know Your Rights

Posted: July 3, 2013 in Uncategorized
Tags: , , , , , ,

Sourcing couple of things here that you should know if you are fighting the toughest and the most unexpected battle of your life – THE FALSE 498A

Most of us are hit by this draconian law out of blues as I believe in India, we haven’t yet realized that Marriage is more a LEGAL obligation than a social obligation. 

Young men and women get married without being sure of what’s in ‘it’ for them. Differences crop up, and the most common weapon used by girls to bury everything down under is 498A. 

The boy and his family, though knows things haven’t been smooth, least expect this reaction from someone who they thought had come as a family member. My experience after getting into nitty gritties of many cases is that the most painful aspect of this ridiculous law is ARREST. Usually not that of your own, but of your family members (Parent’s heart sulk more if their son or daughter is arrested). 

There is no denial of the fact that corruption is rampant in our country and our Police Force is a dedicated and most loyal practitioner of it. This adds to the fire of harassment a family goes through. 

No matter how influential your in-laws are OR the powers that Police enjoy, you as a CITIZEN of this country and a human being have certain rights, that no one can pounce upon. 

Here are few rights* that NATIONAL COMMISSION OF HUMAN RIGHTS define when it comes to ARRESTS. Please share it with all. Make sure that no innocent is arrested just because they did not know about their rights.

PRE-ARREST

  • The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. [Joginder Kumar’s case (1994) 4 SCC 260).
  • Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.
  • After Joginder Kumar’s pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justifiable one.
  • Arrest in cognizable cases may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.
(ii) The suspect is given to violent behavior and is likely to commit further offences.
(iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested.
(iv) The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3rd Report of National Police Commission]

  • Except in heinous offences, as mentioned above, an arrest must be avoided if
    a police officer issues notice to the person to attend the police station and not
    leave the station without permission. (see Joginder Kumar’s case (1994) SCC
    260).
  • The power to arrest must be avoided where the offences are bailable unless
    there is a strong apprehension of the suspect absconding .
  • Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel
    carrying out the arrest or interrogation should be recorded contemporaneously,
    in a register kept at the police station. ( No one can visit your home without proper tags and designation. The time of their visit has to be recorded in the register in the police station. So if you are being threatened or bullied by Police every other day, please make sure to submit a complaint to the NHRC)

 

ARREST

  • As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided.
  • The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost.
  • Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the person’s right to privacy. Searches of women should only be made by other women with strict regard to decency. (S.51(2) Cr.PC.)
  • The use of handcuffs or leg chains should be avoided and if at all, it should be 

resorted to strictly in accordance with the law repeatedly explained and 

mandated in judgement of the Supreme Court in Prem Shanker Shukla v. Delhi 

Adminstration [(1980) 3 SCC 526] and Citizen for Democracy v. State of Assam 

[(1995) 3 SCC 743].

  • As far as is practicable women police officers should be associated where the
    person or persons being arrested are women. The arrest of women between
    sunset and sunrise should be avoided.
  • Where children or juveniles are sought to be arrested, no force or beatings
    should be administered under any circumstances. Police Officers, may for this
    purpose, associate respectable citizens so that the children or juveniles are not
    terrorised and minimal coercion is used.
  • Where the arrest is without a warrant, the person arrested has to be immediately
    informed of the grounds of arrest in a language which he or she understands.
    Again, for this purpose, the police, if necessary may take the help of respectable
    citizens. These grounds must have already been recorded in writing in police
    records. The person arrested should be shown the written reasons as well and
    also given a copy on demand. (S.50(1) Cr.PC.)
  • The arrested person can, on a request made by him or her, demand that a friend,
    relative or other person known to him be informed of the fact of his arrest and
    the place of his detention. The police should record in a register the name of
    the person so informed. [Joginder Kumar’s case (supra)].
  • If a person is arrested for a bailable offence, the police officer should inform him
    of his entitlement to be released on bail so that he may arrange for sureties.
    (S.50(2) Cr.PC.)
  • Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [D.K. Basu’s case (1997) 1 SCC].
  • When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of this right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner. (S.53 Cr.PC.)
  •  Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police Control Room and District / State Headquarters. There must be a monitoring mechanism working round the clock.
  • As soon as the person is arrested, police officer effecting the arrest shall make a mention of the existence or non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.
  • If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.

POST ARREST

  • The person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss 56 and 57 Cr.PC).
  • The person arrested should be permitted to meet his lawyer at any time during
    the interrogation.
  • The interrogation should be conducted in a clearly identifiable place, which has
    been notified for this purpose by the Government. The place must be accessible
    and the relatives or friend of the person arrested must be informed of the place
    of interrogation taking place.
  • The methods of interrogation must be consistent with the recognized rights to
    life, dignity and liberty and right against torture and degrading treatment.

 

Knowing these rights would allow you to help yourself and your family during tough times. There have been few people who have initiated appropriate enquiries against corrupt police officials and have got them suspended. 

As I said this is the most unexpected battle of your life. If you don’t read the rules, you will be badly defeated. Stay calm. Play smart. But always be focused. 

Source : http://nhrc.nic.in/Documents/sec-3.pdf

Do read up on the Lie Detector Test details as well. An accused had the right to volunteer for this test. If you are sure she is lying and you are telling the truth, I think every 498A victim who has been falsely accused should ask police to get this test done. If she can’t be tested for false lies , at least you can be tested for honest truths. 

May power be with you!

 

Deepika Narayan Bhardwaj

http://www.martyrsofmarriage.com

 

*****These points have been copied from NHRC website and I do not hold any copyrights to this information

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s