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    HRLN has filed a Special Leave Petition on behalf of thousands of innocent People who suffers illegal incarceration

    Date : 16/05/2013

    Banglar Manabadhikar Suraksha Mancha (MASUM) vs The State of West Bengal & Ors.

    ( SLP (Crl.) No. _____ of 2013)

    The Petitioner had filed a Special Leave Petition against the impugned order of the High Court of Calcutta in Writ Petition No. 26112 of 2013 dated 30.08.2013.

    This petition has been filed in the public interest against the state of West Bengal for and on behalf of thousands of persons who suffer illegal incarceration for varying periods of time without ever being charged with any offence on account of the police and magistrate’s illegally detaining such persons only under the provisions of sections 107, 109 and 151 Cr.P.C. These persons were in jail for days and sometimes months and then released without any criminal proceedings instituted against them.

    Not only were these proceedings contrary to the abovementioned sections which speak only of execution of a bond and do not permit arrest solely on the basis of these sections of the Cr.P.C., additionally these arrests were contrary to the decision of the Supreme Court in Madhu Limaye Vs. Ved Murti (AIR 1971 SC 2481) where the Supreme Court held as under:

    “…we have seen the provisions of section 107. That section says that action is to be taken in the manner hereinafter provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public.”

    In the present petition, in addition to the prayers sought for in the Writ petition filed at the High Court of Calcutta, the petitioner has also sought for additional directions against the respondents. The directions are as under:

    Issue a Direction upon the Respondent (R-1), their men, agents and subordinates to immediately identify persons detained in the correctional homes of the State in connection with proceedings arising out of Section 107 and/or Section 109 Criminal Procedure Code, 1973 and forthwith release them and/or set them at liberty;

    Issue a Direction upon the Respondent (R-1), their men, agents and subordinates to ensure that no person is made to suffer imprisonment in connection with proceedings arising out of and/or invoking the provisions of Section 107 and/or Section 109 and/or Section 110 of the Criminal Procedure Code, 1973 in the absence of any further substantive charges against them, and thus to ensure that no person is denied of his right to liberty;

    For an order directing an enquiry by an independent person into the prevailing system of registered sureties in the state of West Bengal and thereafter to dismantle the system of registered sureties;

    For an order directing all the Criminal Courts in the state of West Bengal to ensure that the Court orders are written only by authorized Court staff/judicial officers and that in no circumstance should personnel be associated with the writing of court orders:

    Issue a direction directing the Sub-divisional Magistrates and/or the Executive Magistrates in the State of West Bengal to release persons upon furnishing personal bonds who are incapable to bring or produce sureties in proceedings arising out of Section 107 and/or Section 109 Criminal Procedure Code, 1973;
    Issue a Direction directing the Sub-divisional Magistrates and/or the Executive Magistrates in the State of West Bengal prohibiting them from passing directions requiring attendance of a person at the police station subsequent to his furnishing the requisite bond in proceedings arising out of Section 107 and/or Section 109 Criminal Procedure Code, 1973;
    Issue a Direction upon the Respondent (R-1), their men, agents and subordinates to suitably compensate persons detained in the correctional homes of the State in connection with proceedings arising out of Section 107 and/or Section 109 Criminal Procedure Code, 1973;
    Issue a Direction upon the Respondent (R-1), their men, agents and subordinates to ensure, by way of continuous monitoring and regular check in all the correctional homes that whenever a person is brought into any correctional home in the State, in connection with proceedings arising out of Section 107 and/or 109 of the Code of Criminal Procedure, is immediately referred to the concerned District Legal Services Authority and/or the Sub-divisional Legal Services Authority and/or any other voluntary and non-governmental legal aid authorities for their immediate release;
    Issue a Direction upon the Respondent (R-1) to ensure that persons detained by the police in connection with proceedings arising out of Section 107 and/or 109 of the Code of Criminal Procedure are immediately expressly informed about their right to legal aid and to forthwith notify the concerned District Legal Services Authority and/or the Sub-divisional Legal Services Authority for rendering free legal services;
    Issue a direction directing the Sub-divisional Magistrates and/or the Executive Magistrates in the State of West Bengal to expressly inform all persons, brought before the authority in connection with proceedings arising out of Section 107 and/or 109 and/or 110 of the Code of Criminal Procedure, about their right to legal aid and to consult and be defended by a legal practitioner and to forthwith notify the concerned District Legal Services Authority and/or the Sub-divisional Legal Services Authority for engaging a Lawyer;
    Issue a Direction upon the Respondent (R-1) to ensure that all the District Legal Services Authorities and the Sub-divisional Legal Services Authorities take immediate steps for engagement of a Lawyer whenever such request is made either by the concerned Executive Magistrates and/or by the Police to represent a person detained in proceedings arising out of Section 107 and/or 109 and/or 110 of the Code of Criminal Procedure;
    Issue a Direction upon the Respondent (R-1) to ensure that all persons arrested or detained in connection with proceedings arising out of Section 107 and/or 109 and/or 110 of the Code of Criminal Procedure are mandatorily produced before the concerned Executive Magistrate in person;
    Contact Person: Juno Rahman

    llitigation.delhi@hrln.org

    SLP-illlegal-incarceration-Petition
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