New Delhi: In a bid to curb the misuse of preventive detention powers under the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Code of Criminal Procedure (CrPC), the Allahabad High Court has held that detaining a person for more than 24 hours without any plausible reason will result in payment of compensation to such detainees by the state government.
Importantly, the amount will be deducted from the salaries of the magistrate or police officers if they are found to be responsible for illegally detaining people, a two-judge bench of Justices Siddharth and Vinai Kumar Dwivedi ruled Monday.
Preventive detention entails detaining individuals, without a trial or conviction by a court, based on suspicion that they may commit a future offence or pose a threat to state security or public order.
The Allahabad High Court was acting in the case of a differently abled lawyer who alleged that he was illegally detained by the police for breach of peace for three days in March this year despite furnishing a bond. The court directed the Uttar Pradesh government to pay him a sum of Rs 75,000 for the unauthorised detention.
The court noted that despite a 2021 policy of the UP government—essentially framed for guiding District Magistrates, Executive and Special Magistrates in cases of maintenance of public peace, tranquility and order—police officials and magistrates in UP were acting in a “highly irresponsible manner by sending persons brought before them, only to prevent breach of peace, to jail for days together”.
The amount of compensation for illegally detaining persons was fixed at Rs 25,000 per day in the year 2021 by the UP government as part of this policy, the court stated, adding that the compensation deserved to be increased by the state by framing a new policy in the aftermath of BNSS provisions coming into the picture.
The lawyer in the case hailed from Ghaziabad and was detained based on a complaint filed by his neighbour for allegedly installing a gate which obstructed passage, after which the authorities said he was liable under Sections 115(2) and 351 of the Bharatiya Nyaya Sanhita, which relate to voluntarily causing hurt and criminal intimidation.
Deciding the lawyer’s habeas corpus petition, the two-judge bench granted him compensation at the rate of Rs 25,000 payable for each day of illegal detention, and proceeded to deliver a slew of guidelines to be followed to curb the abuse of preventive detention powers by the police when arresting persons for breach of peace.
The court said that until a new policy is brought into force by the UP government, the “flagrant violation” of the right to liberty of the illegally detained and jailed persons mandated the need for guidelines.
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The guidelines
The court has directed that if someone is detained preventively under the BNSS or CrPC, they will be required to furnish personal bonds, which are essentially signature bonds which do not require depositing money, binding them to keep peace and maintain good behaviour. If the bond is executed by the person detained, they shall be set free.
Importantly, the court fixed the bond amount at a maximum of Rs 20,000, while adding that no surety will be required to be given. A surety refers to a personal guarantee given by a third-party that if the accused is absconding or violates the bond conditions, they will be personally financially liable.
“In case the amount of bond is increased, reasons for the same shall be given by the Magistrate in writing,” the court said.
If the accused refuses to execute the personal bond, the refusal must be recorded in writing and through the audio-visual medium before sending them to jail.
The court also said that if someone is detained for more than 24 hours, without proper reason, they will be paid Rs 25,000 for every day of illegal detention by the state government.
“The said amount shall be recovered by deduction from the salary of the concerned Magistrate and/or police officer, or both, as the case may be, if they are found responsible for the default, after conducting disciplinary proceedings against them and fixing their liability,” the court noted in its 30-page-order.
Finally, the court said that disciplinary proceedings for dereliction of duty will also be conducted against the magistrate and police officials responsible for the lapse.
Lawyers’ view
Speaking to ThePrint, advocate Soumya Dubey said the problem lies in how preventive detention powers have evolved over the years.
“For years, preventive detention under Sections 107, 116 and 151 of the CrPC, and now their equivalents under the BNSS, was being systematically misused,” she said, adding that the law was designed to prevent an anticipated breach of peace, and not to function as a substitute for criminal prosecution or a tool of punishment.
“The consistent practice was to impose high bond requirements, often Rs 50,000 with two sureties of equal amount, on ordinary citizens, many of whom had no means to arrange sureties at short notice,” she explained.
This leads to a contradiction where individuals brought before magistrates merely to execute bonds frequently remained in jail because they could not satisfy onerous conditions imposed for their release, Dubey added. “The law was being used to detain, not to prevent. That is a complete inversion of constitutional intent,” she said.
Advocate-on-Record Sriram Parakkat pointed to the routine use of preventive powers without proper justification, and said: “The facts are very similar to a case I appeared in before Justice Prateek Jalan where bail was obtained, yet the accused remained in jail for a total of 72 hours, simply because the prison authorities claimed the paperwork did not reach them in time.”
Such explanations often mask deeper problems within the system, Parakkat told ThePrint. “After bonds are given, people are still kept there. This is just a measure to curb that,” he said.
The distinction between personal bonds and surety bonds is central to understanding why delays occur, he added.
“A personal bond requires an individual to undertake responsibility for complying with the conditions imposed by the court. A surety bond, on the other hand, requires one or more individuals to guarantee compliance and potentially bear financial liability if the person fails to comply,” Parakkat explained, adding that the task of finding sureties can be difficult, particularly for poor or socially marginalised individuals.
“A lot of times authorities ask for local sureties,” he said, which contributes to inordinate delays. While he welcomed the HC’s guidelines, Parakkat cautioned that implementation would remain the real challenge.
Echoing a similar sentiment, Allahabad-based lawyer Pranjal Singh also said the order would go a long way in making sure that bond and surety amounts are reasonable and are not used to harass persons.
Terming the order as a “timely reminder that personal liberty cannot be compromised”, advocate Arpit Goel told ThePrint: “What is particularly concerning is that despite the detailed 2021 guidelines issued by the state government and repeated judicial precedents on proceedings under Sections 126 and 135 of the BNSS (which outline the legal framework for preventive action to maintain public peace), authorities continue to act mechanically. Once a personal bond is furnished, continued detention has no legal justification.”
Advocate Ayush Tanwar told ThePrint that the judgement, on close reading, has a technical catch.
“The Rs 20,000 cap and the blanket no-surety rule may contravene provisions of the BNSS itself. This is because the BNSS allows magistrates the discretion to fix bond amounts and decide on the sureties in light of the case’s circumstances.”
Another aspect which could pose a problem is the audio-visual recording of every refusal, Tanwar said, explaining that the task would require significant equipment, storage and training of policemen, among other things.
(Edited by Nida Fatima Siddiqui)