What is preventive detention?

Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.

A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

What is the difference between preventive detention and an arrest?

An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.

In case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law and order situation.

Some issues started arousing when certain incident took place where the accused was tortued and killed by third degree torture.

After the case D. K Basu V. State of West Bengal (1997) 1 Scc 416 supreme court stated certain guideline.

Some guideline prescribed by the Court:-

1) The arrested person has the right to meet his lawyer.

2) The accused has the right to medical examination for every 48hours.

3) The arresting person has to inform the relatives regarding his arrest.

4) The accused has to be produced before the magistrate within 24hours.

5) The arresting officer shall prepare the memo and has to be attested by atleast one witness.

6) An entry must be made regarding his arrest in the dairy.

7) The arresting officer shall have the clear identification of his name, designation.

8) The time, place, arrest, and the place of custody have to be notified to the interested person or to the friend or relative.

Article 32 guarantees protection and resort directly to Supreme Court against wrongful detention or arrest which is violative of fundamental rights.

Article 20 prevents a person for giving self-incriminatory statements, thus wiping out the possibility of custodial torture as any of such statement is not admissible.

Article 21 enshrines right to life & personal liberty. The expression “life or personal liberty” , & also guarantees right to protection against torture and assault.

Article 22 safeguards rights w.r.t. being informed of the grounds of arrest, get consultation of a legal practitioner, protection against preventive detention laws and surety of being produced before the nearest Magistrate within 24 hours of arrest of the person.

Other Statutes

S.330, 331 & 348 of the Indian Penal Code safeguards a person from extortion of confession by a police officer or such designated personnel who voluntarily either causes hurt, grievous hurt or wrongfully confines that person.

Credit: Sushmita Sarkar

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