Sep 30, 2022

What Makes Detention Illegal?

Guest post by Pallavi Mohan

What constitutes illegal detention?

Depriving an individual of their personal liberty without following the process of law amounts to illegal detention. This includes unlawful imprisonment, continuous restraint of a person at a place or restraining a person from reaching a place. It is a violation of Article 21 of the Constitution.

An arrest is also a form of detention. However, an arrest can only be made by following the procedure laid down under the Code of Criminal Procedure, 1978. Even with arrest, if the police do not follow the procedure laid down, it can become a case of illegal detention. For example – 

  1. The police can take a person into custody or detain them without arresting them, while investigating a crime.However, they have to produce the person before a magistrate within 24 hours of taking them in custody if they want to detain them for longer. 
  2. The magistrate can send a person produced before them or even a person arrested by warrant to police custody for 15 days. After 15 days, the police have to present the person before the magistrate again. 
  3. At this stage, the magistrate can send the detainee to further judicial custody for 60 to 90 days. After this period, the detainee has the right to be released, unless a charge sheet is filed.

In all the above cases, if the procedure is not followed, it becomes a case of illegal detention by the police.

What are some of the remedies in cases of illegal detention?

  • A Writ of Habeas Corpus

A person who has been illegally detained or anyone representing them can file a writ of habeas corpus in one of the High Courts or the Supreme Court. The Court then issues a notice to the official authority or private person who has illegally detained the person in question and directs them to produce the detainee. If the Court finds the detention to be illegal, then it can direct the immediate release of the detainee. To know more about constitutional remedies like the writ of habeas corpus, read our explainer.

  • A Complaint before the Human Rights Commission

The person detained or anyone else representing them can also lodge a complaint with the National Human Rights Commission (NHRC) in cases of illegal detention. The Commission has all the powers of a civil court for conducting an inquiry into the complaint. After the inquiry is complete, the Commission can recommend one of the following actions: 

  1. payment of compensation where a public servant or authority illegally detained the person;
  2. initiation of prosecution against the public servant or authority responsible for illegal detention; and/or
  3. approaching the Supreme Court or the High Courts for issuing the appropriate writ.

Human Rights Commissions of different States are vested with similar powers and where the NHRC deems fit, it canmay transfer a complaint before it to one of the State Commissions for the inquiry. 

  • A civil suit for recovery of damages

A person who has been illegally detained can, after release, also file a civil suit to recover damages for illegal detention against the detaining authority. The sum awarded in such a suit can vary based on the period of illegal detention and the actions of the detaining authority. 

What kind of compensation can courts award in such cases?

Recently, the Madras High Court awarded compensation in a case where 2 women were taken into preventive custody, by the order of a Magistrate, after being declared bootleggers. Even though the relevant authority later found that the cause for detaining the women was insufficient, the State Government did not pass the order revoking the detention for 4 months. The families of the women had to file a writ of habeas corpus in the Madras High Court. Only when the Court inquired into the delay was the revocation order passed and the women released. For their illegal detention of 128 days, the Madras High Court awarded Rs. 5 lakhs as compensation to be paid by the State Government. 


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