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Illegal custody for breach of peace

Shivendra Pratap Singh

Advocate

23/06/2021/ 8:19:14 PM

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Question: The Sub Divisional Magistrate (SDM) kept me in illegal custody for breach of peace. He has postponed the date of hearing for two weeks therefore, prevented me to furnish bond. There was a dispute with my neighbour. He has encroached my land. Due to it a dispute erupted between us. He has good contact in the police department hence, he called the police and sent me to jail under Section 107 crpc. Both police and SDM have connived to keep me in custody and carry on the construction work of my neighbour on my land. 

Question from: Uttar Pradesh

Section 107 of the code of criminal procedure empowers the Executive Magistrate to take bond from the person who is likely to commit breach of peace or public tranquility. This is a preventive measure and SDM must issue a show cause notice before taking bond for maintaining peace. If the person cannot furnish a bond then SDM can send him in judicial custody. Judicial custody in violation of section 107 renders the incarnation an illegal custody.  

Section 107 crpc: When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

Illegal custody u/s 107 crpc for breach of peace

When the SDM receives information about probable breach of peace he shall issue a show cause notice to the proposed offender. The proposed offender shall reply to the notice and deny the suspicion of breach of peace or public tranquility. If the SDM satisfies the reason set forth from the proposed offender he will not demand a bond. Otherwise he shal order to furnish a bond with or without surety for keeping peace.

It is thus evident that the issue of show cause notice is mandatory. If the executive magistrate has demanded bond without issuance of a show cause notice he violates the provision of section 107 crpc. Detention in violation of legal provision renders the custody illegal. You have a remedy to approach the High Court under Article 226 of the Constitution of India.

The SDM has cleverly sent you in custody for breach of peace. He has thereby violated the provisions of section 107. He did not give you an opportunity to furnish bond and adjourned the case for two weeks. Therefore, you have been prevented from furnishing a bond and set free from the incarnation. This act of SDM is a clear violation of personal liberty.

Article 21 of the constitution: Right to life and personal liberty

Article 21 of the constitution guarantees the protection of life or personal liberty of every person. Any breach of personal liberty by government instrumentality will not be tolerable. The High Court will direct the government to compensate you for violation of right to life and personal liberty [Kharak Singh vs State of U.P.

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21 constitution of India

Remedy against illegal detention

You should file a writ petition before the High Court under article 226 of the constitution of India. It is the responsibility of the government to protect the fundamental right of every person. Right to life is the most significant fundamental right. Keeping a person in illegal detention in violation of law is indeed a breach of right to personal liberty. 

The SDM has intentionally postponed the case and fixed a very long date to furnish a bond. Thereby, he forcefully kept you in custody for two weeks. The SDM has deliberately assailed your right. Therefore, you are entitled to claim compensation from the state government. 

Also read: What to do in undue harassment by neighbour?

The High Court will also direct the state government to initiate a departmental enquiry against the SDM. He has kept you in illegal custody in violation of the provision of section 107 crpc. Thus, departmental enquiry is imminent in the circumstances of your case.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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