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INDIA: Police violations of arrest and detention procedures in West Bengal

February 8, 2005

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

8 February 2005
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UA-19-2005: INDIA: Police violations of arrest and detention procedures in West Bengal

INDIA: Illegal detention; Rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal, of the illegal detention of Mr. Ashok Gupta by the Serampore police, in Hooghly District, West Bengal, India.

Although the Serampore police had an arrest warrant for Mr. Gupta, based on a complaint of assault made by his ex-wife, the warrant was issued at a court outside the Serampore police's jurisdiction. In such cases, the law requires the arrested person to be produced before the warrant-issuing court within 24 hours. Mr. Gupta however, was illegally remanded by the Serampore magistrate until 11 January 2005.

Furthermore, Mr. Gupta's arrest had many irregularities and violated numerous guidelines regarding arrest procedures, including those relating to late night arrests, the producing of memos of arrest by the police and the presence of female officers when women are likely to be present at the place of arrest. All of this illustrates the flagrant violation of a person's fundamental rights by the police. Such violations occur due to police negligence; it is imperative for police officers to be fully aware of domestic laws and guidelines and to follow them.

We call for your urgent intervention into this matter. Please send a letter to the local authorities to take appropriate action against the concerned police officers and to strictly implement domestic laws and guidelines regarding arrests and detentions so that errant police officers can be held answerable to the justice system.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATON:

Name of the victim: Ashok Kr. Gupta, a businessman, residing in 583 Naya Basti, Simla Satgaha Road, Serampore Police Station, Hooghly District, West Bengal, India
Alleged perpetrators: Police officers attached to the Serampore Police Station
Date of incident: arrested at 1:45am on 15 December 2004 and illegally detained until 11 January 2005

Case details:

At around 1:45am on 15 December 2004, police officers from the Serampore Police Station arrested Ashok Gupta under an arrest warrant issued by the Aligarh Judge Junior Division in connection with a complaint of assault filed by his ex-wife at a court in Aligarh, where she lives (Case no.: 239/2004 under section 498A/506 of the Indian Penal Court at Aligarh Police Station).

Circumstances during and after Mr. Gupta's arrest clearly point to numerous irregularities practiced by police officers with impunity throughout India:

At the time of the arrest, the Serampore police forcefully entered Ashok Gupta's house by breaking down a brick wall and dragged him outside in front of his wife and children as if he was a notorious criminal (although he has no criminal record). Such action by the police is in violation of the guidelines set down by the Supreme Court on 'late-night arrests'. According to these guidelines, the police should only conduct arrests at night if absolutely necessary - in the case of detaining a "dangerous criminal or terrorist" for instance. The police also failed to provide a memo of arrest to Mr. Gupta's family. No female officer was present, although late-night arrest procedures require this presence when there is a chance women will be present at the place of arrest and the question of invasion of privacy arises. Late-night arrest procedures also include that the police officer carrying out the arrest not use undue force or intimidating tactics unless absolutely necessary. Further, late-night arrest procedures include that the police come equipped with a proper arrest warrant. Mr. Gupta's lawyer pointed out that as the warrant, on the basis of which Mr. Gupta was arrested, was issued by an Aligarh court, not by the local court, his arrest would have been legal only when the police produced him before the arrest-issuing court (Aligarh) within 24 hours. However, all of these regulations were violated in the case of Mr Gupta.

After the arrest, the police took Mr. Gupta to the Serampore Police Station and some 36 hours later, on December 16, produced him before an executive magistrate at Serampore (not before the arrest-issuing court, Aligarh). The executive magistrate did not inquire why Mr. Gupta was not produced within 24 hours from the time of arrest as stipulated by domestic law. In fact, Mr. Gupta's bail application was rejected and he was remanded to the Serampore Sub-jail, although the executive magistrate of Serampore has no jurisdiction to deal with non-bailable offences under the execution of a warrant of arrest outside the jurisdiction of the said court. This is also in violation of Section 81 of the Indian Penal Code which allows that only the Chief Judicial Magistrate or Sessions Judge has the authority to grant bail.

More seriously, after Mr. Gupta was remanded, the Serampore police did not produce him before the warrant-issuing Aligarh Court on December 27, which was the date on the arrest warrant for Mr. Gupta to be produced.

Finally, Mr. Gupta's wife, Mrs. Soni Gupta, filed a public interest litigation petition together with human rights group MASUM, in the Calcutta High Court regarding this matter on 6 January 2005. Based on this petition, on January 10 the Calcutta High Court instructed the Hooghly Superintendent of Police to clarify why the guidelines of the Supreme Court were not followed during the arrest, why the police had delayed producing Mr Gupta before a judicial magistrate unnecessarily, and to submit his report at the next court hearing on January 19.

In addition, the Calcutta High Court directed the concerned authority to produce Mr. Gupta before the Chief Judicial Magistrate, Hooghly, on January 11, when he was subsequently granted bail. The Court passed this order on the prima facie finding of illegal detention. As of yet, however, no disciplinary/legal action has yet been taken against the Serampore police officers responsible.  

Mr. Gupta's case illustrates the flagrant violation of a person's legal rights while being arrested - especially at night. Throughout India, the police quite often arrest a person although an arresting warrant is issued outside of their jurisdiction and very often the detainee unfairly languishes in police or judicial custody.  Moreover, many of them are illegally detained after being produced before the executive magistrates, who have no authority for bail.

In light of the above, the AHRC urges the local authorities to take appropriate action against the concerned police officers. We also urge the Government of India to strictly implement domestic laws and guidelines that lay down the procedure of arrests and detention, ensuring that errant police officers committing illegal arrests/detentions are held answerable to the justice system.

SUGGESTED ACTION:
Please send a letter to the Chief Minister of West Bengal requesting him to order an immediate and thorough investigation into this case so that disciplinary actions are taken against the alleged perpetrators.

Sample letter:

Dear Shri Buddhadeb Bhattacharjee,

Re: INDIA: Police violations of arrest and detention procedures in West Bengal

Name of the victim: Ashok Kr. Gupta, a businessman, residing in 583 Naya Basti, Simla Satgaha Road, Serampore Police Station, Hooghly District, West Bengal, India
Alleged perpetrators: Police officers attached to the Serampore Police Station
Date of incident: arrested at 1:45am on 15 December 2004 and illegally detailed until 11 January 2005

I am writing to express my concern regarding the illegal detention of Mr Ashok Gupta. He was arrested by the Serampore police at his house in Hooghly District, West Bengal, India at 1:45am on 15 December 2004, under an arrest warrant issued by the Aligarh court in connection with a complaint by his ex-wife.

However, Mr. Gupta's arrest had many irregularities and violated numerous guidelines regarding arrest procedures, including those relating to late night arrests, the producing of memos of arrest by the police and the presence of female officers when women are likely to be present at the place of arrest. All of this illustrates the flagrant violation of a person's fundamental rights by the police. Such violations occur due to police negligence; it is imperative for police officers to be fully aware of domestic laws and guidelines and to follow them.

Also, Mr. Gupta was illegally detained for about 36 hours at the Serampore Police Station even though the arrested person must be produced before a magistrate within 24 hours from the time of arrest by law. Further, after being produced before an executive magistrate at Serampore (not before the arrest-issuing court, Aligarh) on December 16, Mr. Gupta was remanded to the Serampore Sub-jail, although the executive magistrate has no jurisdiction to deal with non-bailable offences under the execution of a warrant of arrest outside the jurisdiction of the said court. This is also in violation of Section 81 of the Indian Penal Code which allows that only the Chief Judicial Magistrate or Sessions Judge has the authority to grant bail. Mr. Gupta was then illegally remanded by the Serampore magistrate until 11 January 2005, as the Serampore police did not produce him before the warrant-issuing Aligarh Court on December 27, which was the date on the arrest warrant for Mr. Gupta to be produced.

Mr. Gupta could be released on 11 January 2005 only after his wife filed the writ petition before Calcutta High Court on 6 January 2005. As of yet, however, no disciplinary/legal action has yet been taken against the Serampore police officers responsible.  

Mr. Gupta's case illustrates the flagrant violation of a person's legal rights while being arrested - especially at night. Under such circumstances, I urge you to inquire into this matter immediately and take appropriate action against the concerned police officers.  I also urge you to strictly implement domestic laws and guidelines regarding arrests and detentions so that errant police officers can be held answerable to the justice system.

Yours sincerely,


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SEND A LETTER TO:

1. Shri Buddhadeb Bhattacharjee
Chief Minister and Minister in Charge of Home (Police) Department
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Tel: +91 33 2214 5555 (O) / 2280 0631 (R)
Fax: +91 33 2214 5480
E-mail: cm@wb.gov.in

SEND COPIES TO:

1. Shri Justice A. S. Anand
Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: +91 11 23074448
E-mail: mailto:chairnhrc@nic.in

2. Justice Shyamal Kumar Sen
Chairperson
West Bengal Human Rights Commission
Bhabani Bhavan, Alipore
Calcutta-700027
INDIA
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633
Email: wbhrc@cal3.vsnl.net.in

3. Shri Shivraj Patil
Minister of Home Affairs
Griha Mantralaya Room No. 104
North Block, Central Secretariat
New Delhi 110001
INDIA
Tel: +91 11 23092011, 23092161
Fax: +91 11 2301 5750, 2309 3750, 2309 2763

4. Ms Manuela Carmema Castrillo
UN Working group on arbitrary detention
C/o OHCHR-UNOG,
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission
Document Type :
Urgent Appeal Case
Document ID :
UA-19-2005
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.