It is easy to give power, but it is difficult to give wisdom
(to exercise the power properly)
--- EDMUND BURK
YES, a very wise saying. Human beings are the rational beings. By virtue of their being human possess them with certain inalienable rights of immense significance often called as human or basic or inherent or natural rights. Name cannot change their significance, so to me, they are BIRTH RIGHTS. Rights being IMMUNITIES denote that there is a guarantee that certain things cannot or ought not to be done to a person against his will. To me, human rights should not be exercised in lieu of public liberty / prosperity. FAIR ENOUGH !!! Judicial powers must be exercised against the violators of law or the crime committers.
I can’t refrain myself to speak on Arrest. Arrest results in deprivation of the liberty of the person arrested. With the time immemorial economic offences are on rise. Central Excise Act empowers an officer not below the rank of Inspector of Central Excise with the prior approval of the Commissioner of Central Excise, to arrest any person who he has reason to believe to be liable to punishment. But officers in exercising their powers forget their humanity. Just to raise the department’s standard and to prove their pocket full of criminals, they illegally detain innocent people in their custody. Are they not individuals of Independent Democratic nation? Or is it an appropriate time to teach them the legal norms, the norms of PROFESSIONAL ETHICS? The question remains unanswered. The central excise officials detain people in their custody and the arrestees are forced to give wrong statements. They are treated inhumanly by the officials in the cells. I cannot stop myself to bring it to the knowledge of those officials, the evidentiary value of retracted and corroborated confessions under section 24 of the Indian evidence act. In Vinod Solanki vs. Union of India and another 2008 Indlaw SC 2011, Division Bench of Hon’ble Justice S.B. Sinha and Justice Cyriac Joseph spoke on the effect of retracted confession. It was held that if the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer.
The Code of Criminal Procedure, 1973 (“the Code”), which provides a mechanism for enforcement of Criminal Law, contains a number of safeguards in the case of ‘arrest’ of the individual. It is pertinent to observe that the Code provides for arrest only in certain situations and not as a general rule. Under the Code, arrest can be made for securing the attendance of the accused at the trial (Section 4(1), CrPC); or as preventive or precautionary measure so as to prevent the accused from committing the crime (Section 151 CrPC); or for obtaining correct name and address of a person (Section 42 CrPC) under certain circumstances (if a person, in the presence of a Police Officer, has committed or has been accused of committing a on cognizable offence; or for removing obstruction to the police when such a person obstructs a Police Officer in the execution of his duty (Section 41(1)(e) CrPC); or for retaking a person escaped from the custody. It is needless to say that if an arrest is made outside the situations mentioned in the Code, such an arrest would be illegal. Joginder Kumar vs. State of UP AIR 1994 SC 1349: 1994 CrLJ 1981 is a case showing the judicial dicta on the procedural safeguards in the case of arrest being held by Hon’ble Supreme Court of India by a three Judges Bench.
The Supreme Court has time and again voiced its concern regarding complaints of the violations of human rights during and after the arrest. “The law of arrest is one of balancing individual rights, liberties and privileges on one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and emphasis; of dividing which comes first – the criminal or society, the law violator or the law abider…….” (1994 CrLJ 1981 at pp. 1983 – 1984) Paras 8 and 9.
In D.K.Basu vs. State of West Bengal 1997 CrLJ 743 : AIR 1997 SC 610- is a landmark case in speaking about the preventive measures in the form of guidelines issued by the Supreme Court in all cases of arrest or detention till legal provisions are made. The guidelines proved to be a catalyst. The economic offences took place in the year 2008 – 2009 includes some of the major up fold of the civilized society. May it be Satyam Case which was handed over to CBI in February 17, 2009 , or case registered against Ramalinga Raju by the CBI on February 22, 2009. The Satyam fraud was the most highlighted example of the economic offence in the year of 2009 and the inquiries regarding the benami share transactions and other bank entries were surrounded the chairperson of Satyam, but was he the only culprit? Were the excise officials at par with the system? I just want to be a silent spectator, because I know what the reality is. In May 2009, a case was registered against a business man alleging the conspiracy of Rs 71000 crore for tax evasion. What was the result? O.k !! if I say my point of view, I might be biased by coating my view point against the Excise Department! But could a statement given by the Prime Minister on August 27, 2009 which says that “The High Level Corruption should be pursued aggressively” be denied? Viney Kannodia’s arrest highlighted by all the leading news papers of Delhi is another example of intricacies of the excise officials.
What more can I quote, The Central Bureau of Investigation has arrested a Superintendent of Central Excise posted at Sonepat (Haryana) on January 20, 2010 for demanding and accepting a bribe of Rs. 1.5 lakh from the complainant for closing an excise case pending against him. The complainant, a CEO and Executive Director of a firm dealing in fabrication work, was issued a show cause notice by the Supdt., Central Excise, Sonepat charging that the firm is a manufacturing unit. The Supdt. Central Excise, Sonepat demanded a bribe of Rs.7.5 lakhs for closing the case. The complainant did not want to pay the bribe, and lodged a complaint with CBI. A trap was laid and the Supdt., Central Excise, who called the complainant to his residence at Dayanand Block, Shakarpur, Delhi alongwith the bribe amount was caught red handed while demanding and accepting the bribe amount of Rs.1.5 lakhs. Isn’t a shame? The integrity of the most responsible organ of the State is at Stake. Just one question from my side to general public: - Are only human rights activists and human welfare organizations responsible for safeguarding the rights of a civilized society?
Ramakant Gaur
Advocate
Supreme Court of India
09810004702
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