Bhim Singh v State of Jammu and Kashmir AIR 1985 SC 494

FACTS

Bhim Singh, a member of the Jammu and Kashmir legislative assembly, was suspended from the assembly on the first day of the budget session. He questioned the suspension in High Court of Jammu and Kashmir and obtained a stay order on the suspension. On the night of 9^th September, 1985, as he was proceeding from Jammu to Srinagar, he was arrested en route by the police and taken to an undisclosed location. On September 16, he was finally released on bail.

ISSUE

The main issue in this case was whether the arrest and detention of Bhim Singh was wrongful and violative of his legal and constitutional rights under 21 and 22(2)?

LAW

Ranbir Penal Code, section 153-A.-(1) Whoever—

• by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities; or
• commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or in likely to disturb the public tranquillity, shall be punished with imprisonment which shall not be less than four years but may extend to ten years and shall also be liable to fine.
• organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community.

Section 340 IPC, 1860

Wrongful Confinement- Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said to have committed the offence of wrongful confinement

PETITIONER’S ARGUMENTS

Bhim Singh asserted that he was kept in police custody from the 10^th to the 13^th of September and was only produced before a magistrate on 14^th September. The petitioner’s argue that the arrest and detention of Bhim Singh was wrongful as he had not been produced before a magistrate within 24 hours of his arrest, which is the standard procedure. Also, the affidavits submitted by the respondents show that they had initially approached an executive magistrate to obtain a remand order for two days and on its expiration, had again approached a sub-judge to obtain a remand for an additional day. However, nowhere in the affidavit is it mentioned that in either of the two instances, Bhim Singh was produced before a magistrate.

RESPONDENT’S ARGUMENTS

The respondents have argued that the arrest and detention of Bhim Singh was according to law and hence not wrongful. An FIR had been lodged in his name under section 153-A of the Ranbir Penal Code, that he had been giving hateful and inciteful speeches in a public gathering. He had been arrested in accordance with the FIR an had also been taken care of while in custody. They have maintained that he could not be produced before a magistrate before the 14^th of September owing to his bad health, and that a doctor had also duly checked up on him.

ANALYSIS

The court pointed out that the arrest of Bhim Singh and the subsequent procedures followed were marred with utmost irregularities and a casual sense of responsibility. The affidavits that had been submitted by the defendants made a well concerted effort to hide the fact that on both occasions when a remand had been sought by the authorities for the petitioner, he had not been produced before the magistrates, which was his right. Even the excuse that had been taken up by the defendants for their actions, that the petitioner was not well and so could not be produced before a magistrate is without any substance. Bhim Singh had categorically denied that he had ever been visited by a doctor and also, no medical certificate had been produced by the defendants to corroborate their stance.

In light of the gross irregularity with which this whole matter had been conducted and also, keeping in view the several discrepancies in the statements of the defendants about the events that transpired on the day of the arrest, the court was of the opinion that the police officers in this case had acted deliberately and with mala fide intention and that the magistrates had either colluded with them or had proceeded with a severe casual attitude towards the proceeding in the case.

The court observed that police officers are the custodians of law and order and hence, should have the highest respect for personal liberty of citizens. The custodians of law and order should not become the

predators of civil liberties. Their duty is to protect and not to abduct. Such a disregard for the procedure established by law, led to violating the fundamental rights of Bhim Singh with impunity.

It must not be forgotten that both our criminal and constitutional systems place liberty and rights of freedom on a pedestal. Our legal system is based on the principle of morality of law and protection of human rights. When someone is deprived of their liberty due to improper usage of legal procedures, the very basis of our legal system is shaken and so, such flouting of rules and excesses of executive powers cannot be upheld, for the credibility of the legal system.

Every person arrested has a right to be presented before a magistrate within 24 hours of arrest. Bhim Singh was kept in custody for around three days, without being produced before a magistrate,

thus making his confinement wrongful and illegal. The police officers in a high-handed and authoritarian manner played with the personal liberties of a citizen.

JUDGMENT

The court held that the manner in which the remand orders were obtained, without production of Bhim Singh before the magistrates, and at after- hours at their residence, indicates that conduct of police was surreptitious. They made deliberate attempts to keep him in custody for as long as possible. The sequence of events as narrated by the defendants, starting from the lodging of an FIR against him and the action taken by the police to arrest does not paint a coherent picture.

It was held that the actions of the police authorities had resulted in violation of the rights of the petitioner under articles 21 and 22(a) and held the detention to be illegal.

As the petitioner had already been released on bail, there was no need to order his release. But, it was further held that when someone is arrested or confined in a malicious manner, such an action is not washed away by the mere release of the arrested or confined person. The person should be adequately compensated for his loss. Accordingly, it was ordered that Bhim Singh be compensated for the loss and legal injury that he had suffered.