Preventive arrests: High court tells L-G to review powers of special magistrates
NEW DELHI : Raising concern over the number of preventive arrests by the city police, the Delhi High Court on Thursday directed lieutenant governor (L-G) Anil Baijal to set up a mechanism to review the powers of the Special Executive Magistrate (SEM) periodically and consider creating separate spaces within jail in cases of those arrested by such magistrates.
An SEM is a senior police officer, who has judicial powers and to send those arrested under CRPC 107/151 (preventive arrest) to judicial custody. The court also directed the state government’s home secretary to periodically visit the SEMS courts to ensure that magistrates do not misuse power.
The court recorded that 7,335 persons have been incarcerated by SEMS between July 1, 2017 and June 13, 2018. A bench of justices S Muralidhar and justice Vinod Goel noted that “there is a palpable bias in the exercise of these powers because a significant percentage of those so incarcerated belong to the minority community”.
The court’s directions to various authorities came while deciding a habeas corpus plea filed by an advocate Aldanish Rein who had sought directions to produce his client Narender.
Narender was “illegally arrested” and sent to jail by the SEM. Police said Narender was detained on July 6, 2018, for allegedly disrupting peace and creating public nuisance. According to the affidavit by the SEM, Narender was shouting in the court and also became more violent follow- ing which he was sent to jail.
On Thursday, the court said that period of judicial custody under those arrested by the SEMS will never exceed more than seven days. It also said that the task of the SEMS would not come to an end just upon the release of the person. “The SEM will keep the matter pending for follow-up on whether the person has actually been released on having furnishing a personal bond and /or surety. If within two days of the order of release, a person has actually not come out of the jail, the SEM should inquire into the situation and pass further orders to ensure the release of such persons,” the high court said.
The court said in cases dealt by the SEM, the accused persons should be explained his constitutional rights, grounds of arrest and whether he wishes to engage a lawyer to defend himself. The court directed the Delhi State Legal Services AuthorITY(DSLSA) to conduct a threeday workshop for at least 20 such magistrates in association with the Delhi Judicial Academy, and train them on the constitutional requirement of their role.