A bill circulated on 19 March 2021 among members of the Bihar Assembly caused an outcry because of the draconian powers given to police authorities such as to allow a police person to arrest even on a presumption that a person can cause disruptions. The bill prohibited courts from taking cognizance of complaints made by persons for unlawful detention.
The aim of the legislation, ostensibly, was that Bihar was surrounded by Nepal and due to many incidents of Naxal activity, and to deal with powers that were hostile to internal security, the state required these powers.
The District Police have so far been allowed to detain anybody, but the proposed law will give members of the Special Armed Police authority to arrest anyone without warrants or information beforehand.
The new legislation allows the Special Armed Police to search any building without a warrant. It is possible, under the provisions of the new law, that a special armed police officer can arrest a suspected offender and use the powers thereunder for swift search, wherever he thinks a crime was committed or may be committed.
This will take away the courts' authority to consider allegations of citizens detained by the armed police. This new bill has changed the name of Bihar Military Police (BMP) with 21 battalions to Bihar Special Armed Police. The Special Armed Police can apprehend those attempting to incite people to rebel against the Government or engage in any agitation against the Government. Any person breaching the law shall be punishable with a minimum sentence of 7 years and a maximum of life imprisonment.
The official may arrest any person concerned or suspected of being involved in, or finding himself taking precautions to disguise his presence, in circumstances that give reason to believe that he is taking these precautions with a view to committing a cognizable crime relating to property belonging to, or in the premises of, a person concerned.
Anyone who commits or tries to commit a cognizable offence which implies or is likely to imply a risk to the lives of any person engaged in any work related to any particular place of business, shall be detained as well. If anyone is found to be infringing on a given establishment's premises, any Special Armed Police Officer may remove that person from such premises, without prejudice to any other proceedings against that person.
When a Special Armed Police Officer has reason to believe that an offence has been or is being committed, and that a search warrant cannot be obtained without giving the offender an opportunity to flee or conceal evidence of the offence, he may detain the offender and search his person and belongings immediately, as well as arrest any person whom he has reason to believe has committed an offence. To the extent possible, the rules of the Code of Criminal Procedure, 1973, relating to searches under that Code, shall apply to the search.
When the accused person is a Special Armed Police Officer, no Court shall take cognizance of any offence under this Act except on the basis of a written summary of the facts constituting the offence and the prior approval of an officer authorised by the Government in this regard.
This proposed legislation is totally unconstitutional as it is violative of Clause (1) of Article 22 of the Constitution, which is one of the fundamental rights enshrined in Part III, which declares that “no person who is arrested shall be detained in custody without having been informed, as soon as maybe, of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.”
It also violates the guidelines laid down by Apex Court for arrest in the case of D.K.Basu Vs State of West Bengal. The Bihar Government is trying to give more power to the police by giving them protection from Court hearing under this legislation. On the one hand, preamble of the Bill says that it will strengthen internal security and that such police forces are functioning in other States as well, but on the other hand, Section 15 of the Bill says even if a person is shot, an inquiry will be done not in the Court or by the Magistrate but by the police. This is a shocking usurping of powers from the judiciary and handing it over to the Police, which is under the Executive Branch. It barrels its way into new legal territory, and we await the inevitable challenge to the constitutional validity of this Act.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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