Legal Advice

Police has arrested my brother from village and kept him in illegal detention

Question: A special team of Delhi Police has apprehended my brother in our village in Bharatpur, Rajasthan. Subsequently, the police personnel took him with them to Delhi. I possess CCTV footage that substantiates my brother's arrest in his village. Despite my inquiries, I have received no information regarding his current whereabouts. I am concerned that my brother may face an encounter with the Delhi Police. Please provide assistance.

Advise

Based on the available information, it appears that your brother was arrested in Rajasthan. However, it is concerning that the special police team has not obtained transit remand and is detaining him. According to legal procedures, when an arrest is made, the arrested person must be presented before the court within twenty-four hours from the time of arrest.

The police have power under Section 48 crpc (Code of Criminal Procedure) to arrest a person beyond territorial jurisdiction of its police station. When a police officer arrests an individual outside their jurisdiction, it becomes mandatory for the police to obtain a transit remand. This involves presenting the accused before the Magistrate of the area where the arrest took place, ensuring legal authorization for the detainment.

Detaining a person for more than twenty-four hours constitutes a violation of the fundamental rights outlined in Article 22 of the Constitution of India, as well as the provisions of Section 167 of crpc. 

An arrested person possesses the fundamental right to be presented before a judicial magistrate promptly, and in all instances, within twenty-four hours from the time of arrest. 

The absence of transit remand itself indicates that the detainee has not been brought before the court, rendering such an arrest illegal. Article 22 of the Indian Constitution safeguards the rights of individuals who are arrested or detained. 

Every person who is arrested and detained in custody must be produced before the nearest magistrate within 24 hours of the arrest (excluding travel time). Detention beyond this period requires the authority of a magistrate. No person who is arrested shall be detained in custody without being informed of the grounds for such arrest. They also have the right to consult and be defended by a legal practitioner of their choice.

Article 22 Constitution of India

In the prevailing situation you should immediately file a “Habeas Corpus” writ petition (under Article 226) in the High Court of Rajasthan in whose territorial jurisdiction your brother is arrested. Also adduce CCTV footage to prove the place and time of arrest. The facts of your case clearly indicate that such an arrest is illegal. 

The Habeas Corpus writ is primarily a safeguard against arbitrary arrest and detention. It is a legal instrument that protects an individual’s right to personal liberty by ensuring that they are not unlawfully deprived of their freedom.

The purpose of the Habeas Corpus writ is to secure the immediate release of a person who is detained or imprisoned unlawfully. It is an extraordinary remedy that is invoked to bring the detainee before the court, along with evidence justifying the legality of the detention.

Hence, the High Court may order to release the detained person (your brother) immediately from the custody of Delhi Police. The High Court may also direct the government to compensate the detained person against illegal arrest.

Shivendra Pratap Singh

Advocate

High Court Lucknow