Prabir Purkayastha, founder of NewsClick, was released by Supreme Court because his arrest was termed illegal.
| Photo Credit: FILE PHOTO
A first-of-its-kind study on the functioning of magistrate courts in the Capital during the “first production” of an arrested person and subsequent remand proceedings has revealed that judges predominantly focus on procedural paperwork, often overlooking violations related to the arrest.
Article 22(2) states that every arrested person must be produced before a magistrate within 24 hours — this is called “first production”.
The “ethnographic” study by National Law University’s Project 39A is significant given that over 53.90 lakh people were arrested across India in 2022 alone, as per the National Crime Records Bureau.
Recently, the Supreme Court released NewsClick founder Prabir Purkayastha due to illegality committed at the time of his arrest and initial remand in police custody. In its May 15 order, the apex court noted that the arrest memo nowhere conveyed the grounds on which Mr. Purkayastha was arrested.
Arrest memo
According to the report, there is no standard format for an arrest memo across different States. Arrest memo is a document prepared by the police that at the time of arrest or immediately on bringing the arrested person back to the police station.
In Delhi courts, the arrest memo filed by police most commonly includes the date, time, and place of arrest as well as case-related information, including the First Information Report (FIR) number, police station details, and criminal provisions invoked.
The Project 39A report stated that there is no separate column for the age of the accused in the arrest memo, even though it is vital to verify that the arrested person is an adult when he or she is produced before the judge for the first time.
The report, co-authored by Jinee Lokaneeta and Zeba Sikora, observed that most magistrates are attentive to and relatively more engaged with ensuring procedural compliance during first production hearings than during subsequent remand hearings.
“A few magistrates would interact directly with the accused, but these exchanges were largely limited to procedural necessities, such as cross-checking the name of the accused and their father’s name, and whether a family member had been informed,” the report said.
“Follow-up questions to the accused were rare. In most first production cases, the accused did not have any legal representation, and nothing was done about this by the magistrate,” the report added.
It further stated that magistrates regularly witness the arrest memo being prepared in court and do not recognise the non-preparation of the arrest memo at the time of the arrest as a serious violation of the accused’s constitutional rights.
“While the magistrate’s unquestioning acceptance of this practice might be a reflection of how normalised it is, it also suggests that paperwork, such as the Arrest Memo, tends to be treated as merely a technical requirement, without much recognition of its value as a protection of personal liberty and safety for the accused,” the report said.
Illegal detention
The report said that illegal detention, a common violation of human rights, is among the most elusive and hardest to prove. “Documents are manipulated in a manner that legitimises the police’s version of events. Most often, the magistrate does not verify the contents of the Arrest Memo by questioning the accused directly,” it said.
“The perspective of the accused is rarely represented in the courtroom due to a number of factors, such as the lack of legal representation and fear of the police,” it added.
Custodial Violence
When magistrates in various district court complexes asked the accused about their injuries, the most common response was that it was the result of “public beating”, the report stated.
“Magistrates do inquire about the injuries in some instances, but once it is explained as a [result of] public beating or fight, they tend to move on. The question of how that is ascertained — whether it was the public or the police that beat them up — is not clear in the process,” Project 39A’s report also said.
Accused’s experience
The report stated that “the entire system is organised such that the onus is on the accused to themselves draw the magistrate’s attention to violations experienced in custody”.
It said the examination of the medico-legal report is not taken as an opportunity to probe the origin of injuries — by the police or the public — and to ensure the well-being of the accused.