Did police go Ultra Vires in Sharjeel Usmani’s arrest ?

Five men in plain clothes claiming to be from UP Police Crime Branch ‘arrested’ Aligarh Muslim University Ex Political science student Sharjeel Usmani from his hometown in Azamgarh, Uttar Pradesh on July 8. As alleged, Usmani was booked by Uttar Pradesh Police in connection with several cases including the violence that broke out during anti-CAA protests in Aligarh, last year. According to his family members, people claiming to be from UP Crime Branch, without a warrant or a memo, picked Usmani from outside his house in Azamgarh.

When many students are voicing unconditional solidarity with Sharjeel and claiming his arrest as arbitrary , it is essential to comprehend the critical legal principles involved in his arrest.

THE KEY LEGAL PROCEDURES INVOLVED IN HIS ARREST

1. WHEN POLICE IS ARRESTING WITHOUT WARRANT: Under Section 41 of CrPC, wide powers are conferred on Police to arrest, mainly in cognizable offences, without having to go to Magistrate for obtaining a warrant of arrest. There can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence or commits an offence(s), specified in Section 41. This case, “Attempt to Murder” Section 307 for which Sharjeel is booked, comes under cognizable offence which justifies Police’s action.

This doesn’t end here, Section 50(1) CrPC provides, “every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” But after the analysis of his father’s claim, it doesn’t seem justifiable. Apart from the provisions of CrPC, Article 22(1) of Constitution of India, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

2. INFRINGEMENT OF PRIVACY

Article 21 of the Indian Constitution provides few sparkles of hope to the lives of arrested, undertrials and convicts. As per Sharjeel’s Family, those five men also took away his laptop and diary, which is prima facie infringement of his Right to Privacy. The Police here appeared to go ultra vires since the treatment of convicts should be humane and as prescribed by the law.

Substantiating these claims with the landmark judgement viz. Maneka Gandhi v. Union of India {AIR 1978 SC 597}, the Supreme Court held that State through the Police as its supreme law enforcing agency, have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective have to conform to civilized standards. The procedure adopted by the State must, therefore, be- just, fair and reasonable.

Also, In Nilabati Behera v. State of Orissa and Ors.; (1993) 2 SCC 746, a three-Judge bench of Supreme Court held that it is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except by law while the citizen is in its custody, which was therefore, absent and was overshadowed by Police’s ultra vires actions.

Moreover, the precious right which is guaranteed by Article 21 of the Constitution of India, cannot be denied even to convicts under trials or other prisoners in custody, except according to the procedure established by the law.

After the legal analysis of Usmani’s arrest, it is imperative to consider the fact that there is a great responsibility on the Police to ensure that the citizen in its custody is not deprived of his right to life which extends to his privacy. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore, his interest in the limited liberty left to him is rather precious.

The fact that Usmani was arrested without a warrant or a memo is justifiable, but what isn’t is taking away his belongings. The arrest should be an arrest of a person and not of his fundamental rights because when the Police’s acts are not justified, it substantiates “witch-hunting”. Also, keeping in view the remarks of Usmani’s father who refused to acknowledge this as an arrest since those five men were not in uniform. They didn’t have any arrest warrant or memo either. According to him, this is not how legitimate arresting is done.